Exhibit 3.01
RESTATED ARTICLES OF INCORPORATION
OF
NORTHERN STATES POWER COMPANY
(a Minnesota Corporation)
ARTICLE I. NAME AND ADDRESS
The name of this corporation shall be Northern States Power Company. At the time
of the adoption of these Articles, the address of the registered office of the
Corporation is 414 Nicollet Mall, Minneapolis, Minnesota 55401.
ARTICLE II. PURPOSE
The corporation is organized for general business purposes, including but not
limited to acquiring, maintaining and operating facilities by or through which
the corporation can provide communication, transportation, water, light, heat,
or power to the public and to acquire and hold rights and franchises for the
occupation and use of property for providing public utility services.
ARTICLE III. DURATION
The period of duration of this Corporation shall be perpetual.
ARTICLE IV. DIRECTORS
1. Names of Directors
The names and places of residence of directors of the Corporation at
the time of the adoption of these Restated Articles (this reference to
"these Restated Articles" refers to the Restated Articles filed on
June 23, 1980<F1>):
David A. Christensen, RR#3, Box 233, Sioux Falls, SD 57101
W. John Discoll, 357 Salem Church Road, St. Paul, MN 55118
N. Bud Grossman,3412 Oakridge Road, Apt. #210,Minnetonka, MN 55343
Dale L. Haakenstad, 1342 South Ninth, Fargo, ND 58102
Robert E. Haugan, 2 Shelby Place, St. Paul, MN 55116
Richard H. Magnuson, 2141 Doswell Avenue, St. Paul, MN 55108
Donald W. McCarthy, 2862 Gale Road, Wayzata, MN 55391
M.D. McVay, 2201 Isengard Road, Minnetonka, MN 55343
William G. Phillips, 2610 West Lafayette Road, Excelsior, MN 55331
G. M. Pieschel, Route 2, Box 78, Springfield, MN 56087
Margaret R. Preska, 10 Sumner Hills, Mankato, MN 56001
D. B. Reinhart, 2425 Main Street, LaCrosse, WI 54601
Dorothy J. Skwiera, 1260 West Larpenteur Avenue, Apt. #207,
St. Paul, MN 55113
<F1> A listing of directors as of the date these Restated
Articles of Incorporation are being filed is no longer required
by applicable law. The information in Article IV, Section 1 is
restated here as current law requires a complete restatement of
the articles of incorporation without amendment.
2. Board of Directors
The management of this Corporation shall be vested in a Board of
Directors composed of not less than three (3) and not more than
seventeen (17) members, who shall be elected by the stockholders
of the Corporation in the manner provided by the Bylaws. It
shall not be necessary that directors be stockholders in the
Corporation. The number of directors shall be fixed from time to
time by the Bylaws, and such number may be increased or decreased
within the above limits in such manner as may be provided by the
Bylaws. Vacancies in the Board caused by an increase in the
number of directors or by death, resignation, disqualification,
or other cause, may be filled by the remaining directors or by
the stockholders at an annual or special meeting, as may be
provided by the Bylaws.
ARTICLE V. DESCRIPTION OF CAPITAL STOCK
The total authorized number of shares that may be issued by the
Corporation and that
the Corporation will henceforth be authorized to have is three
hundred fifty-seven million (357,000,000) of the par value per
share hereinafter set forth.
A description of the classes of shares and a statement of the
number of shares in each class and the relative rights, voting
power, and preferences granted to and restrictions imposed upon
the shares of each class are as follows:
1. Authorized Number and Classes of Shares
Such shares shall be divided into two classes to be
designated, respectively, Preferred Stock and Common Stock.
The total authorized number of shares of Preferred Stock is
seven million (7,000,000) having a par value of one hundred
dollars ($100.00) per share, and the total authorized number
of shares of Common Stock is three hundred and fifty million
(350,000,000) having a par value of two dollars and fifty
cents ($2.50) per share.
2. Issuance and Terms of Preferred Stock
The Preferred Stock may be issued in series, each of which
series shall have such distinctive designation as may be
fixed by the Board of Directors prior to the issuance or
allotment of any share of such series, provided that such
designation shall in each case include the words "Preferred
Stock." The Board of Directors is hereby authorized, within
the limitations and restrictions hereinafter stated, to fix
from time to time, in respect of shares of Preferred Stock
at the time unallotted, the dividend rates and times of
payment, the redemption price, and liquidation price or
preference as to assets in voluntary liquidation of the
shares of any series of Preferred Stock (except the series
designated "Cumulative Preferred Stock, $3.60 Series," in
respect of which such provisions are hereinafter set forth)
and the number of shares constituting any series of
Preferred Stock.
3. Preferences of Preferred Stock
a. Dividends
The holders of shares of Preferred Stock, irrespective
of the series thereof, shall be entitled to receive in
preference to the Common Stock, when and as declared by
the Board of Directors of the Corporation, out of its
net earnings or surplus, cumulative dividends at such
rate as shall have been fixed for the series of which
such shares are a part, and no more, payable to
shareholders of record on such dates and for such
dividend periods as shall be fixed by the Board of
Directors of the Corporation. So long as dividends are
in default in whole or in part on a series of Preferred
Stock for any prior dividend period for such series of
Preferred Stock, any dividends on the Preferred Stock
shall be divided among the outstanding series of
Preferred Stock for which dividends are accumulated and
unpaid for any prior dividend period applicable thereto
in proportion to the aggregate amounts that then would
be distributable to the holders of Preferred Stock of
each such series if all dividends accumulated thereon
and unpaid for all prior dividend periods applicable
thereto were paid and declared thereon. Dividends on
each share of Preferred Stock shall begin to accrue on
the first day of the dividend period during which the
original issue of a certificate for such share shall
occur; provided, however, that, in the case of any
series of Preferred Stock created after May 6, 1970,
the Board of Directors, in its discretion, may fix the
date of original issue of the shares of such series as
the date from which dividends shall accrue.
b. Liquidation and Dissolution
In the event of any distribution of assets of the
Corporation other than by dividends from net earnings
or surplus, whether upon voluntary liquidation or
dissolution or upon involuntary liquidation or
dissolution of the Corporation, the holders of the
shares of Preferred Stock shall be entitled, in
preference to the Common Stock, to one hundred dollars
($100) per share in the case of involuntary liquidation
or dissolution and to such amount per share in the case
of voluntary liquidation or dissolution (which may
differ from that payable in involuntary liquidation or
dissolution) as shall have been fixed by the Board of
Directors for the shares of the series of which they
are a part, plus in each case an amount equal to all
dividends accumulated and unpaid thereon, and no more.
The consolidation or merger of this Corporation with or
into any other corporation or corporations shall not be
deemed to be a distribution of assets or liquidation or
dissolution of the Corporation within the meaning of
any provisions hereof.
If upon any such distribution of assets of the
Corporation the assets distributable among the holders
of the Preferred Stock of all series shall be
insufficient to pay in full the amounts to which the
holders of Preferred Stock of all series are entitled
under the foregoing provisions, the amount
distributable to the holders of all shares of Preferred
Stock of all series shall be apportioned among them
ratably in proportion to the amounts to which they are,
respectively, entitled in accordance with such
foregoing provisions.
c. Dividend Arrearages
Dividends may be paid upon the Common Stock only when
dividends have been paid, or declared and set apart for
payment in full, on the Preferred Stock of all series
from the date on which dividends thereon began to
accrue to the beginning of the current dividend
periods, but whenever all such dividends have been
paid, or declared and funds set apart for the payment
thereof in full, upon the Preferred Stock of all series
then dividends upon the Common Stock may be declared,
payable then or thereafter out of any net earnings or
surplus then remaining. The holders of Preferred Stock
shall not be entitled to receive any amounts upon any
distribution of the assets of the Corporation other
than by dividends from net earnings or surplus in
excess of the amount to which they are, respectively,
entitled in accordance with the foregoing provisions
hereof, but after the payment of such amounts in
accordance with the provisions hereinabove set forth,
the holders of Common Stock, subject to the rights of
holders of stock of any other class hereafter
authorized, shall receive all further amounts in
distribution of such assets of the Corporation.
4. Redemption of Preferred Stock
The Corporation, at its option, may at any time and from
time to time redeem the whole or any part of the Preferred
Stock of any series or all series, upon at least thirty
days' previous notice by mail or publication given to the
holders of record of the shares to be redeemed or upon such
other period and form of notice as shall be fixed by the
Board of Directors in the resolution establishing such
series, by paying for each share to be redeemed the
redemption price which shall have been fixed, as herein
provided, for the shares of the series of which it is a part
plus in each case an amount equal to the dividends upon such
shares so to be redeemed at the rate or rates fixed with
respect to such shares from the date or dates on which
dividends on such shares began to accrue to the date fixed
for the redemption thereof less the amount of dividends
theretofore paid thereon, such payment to be made only on
presentation and surrender for cancellation of the
certificate or certificates representing the share or shares
so called for redemption properly endorsed or assigned by
the owner of record thereof. If less than all the
outstanding shares of the Preferred Stock are to be
redeemed, the shares to be redeemed shall be determined by
the Board of Directors of the Corporation, either by lot, or
by redemption pro rata, as the Board of Directors see fit.
If the notice of redemption hereinabove provided for shall
have been given as hereinabove provided and if on or before
the redemption date specified in such notice funds necessary
for the redemption of the share or shares to be redeemed
shall have been set apart, as a trust fund, so as to be
available therefor, then notwithstanding that any
certificate for the shares of Preferred Stock so to be
redeemed shall not have been surrendered for cancellation,
the shares represented thereby from and after the date of
redemption so specified shall no longer be deemed
outstanding and the right to receive dividends thereon shall
cease to accrue and all rights of the holders of the shares
to be redeemed as shareholders of the Corporation, except
the right to receive the redemption price without interest
upon endorsement and surrender of the certificates for said
shares so redeemed, shall cease and terminate.
5. Voting Rights
a. Number of Votes
The holders of the Preferred Stock (other than
Preferred Stock of the series designated "Cumulative
Preferred Stock, $3.60 Series") shall be entitled to
one vote for each share thereof held by them, the
holders of Preferred Stock heretofore or hereafter
issued of the series designated "Cumulative Preferred
Stock, $3.60 Series" shall be entitled to three votes
for each share thereof held by them, and the holders of
the Common Stock shall be entitled to one vote for each
share thereof held by them; provided, however, that:
(i) If and when dividends payable on the
Preferred Stock of any series at the time
outstanding are in default in an amount equivalent
to the amount payable thereon during the
immediately preceding twelve month period, and
until such default shall have been remedied as
hereinafter provided, the preferred shareholders,
voting as a class and without regard to series,
shall be entitled to elect the smallest number of
directors necessary to constitute a majority of
the full Board of Directors, and the common
shareholders, voting separately as a class, shall
be entitled to elect the remaining directors of
the Corporation. Upon accrual of such special
right of the Preferred Stock, a meeting of the
preferred and the common shareholders for the
election of directors shall be held upon notice
promptly given as provided in the Bylaws for a
special meeting by the President or the Secretary
of the Corporation. If within fifteen days after
the accrual of such special right of the Preferred
Stock the President and the Secretary of the
Corporation shall fail to call such meeting, then
such meeting shall be held upon notice, as
provided in the Bylaws for a special meeting,
given by the holders of not less than 1,000 shares
of the Preferred Stock after filing with the
Corporation of notice of their intention to do so.
The terms of office of all persons who may be
directors of the Corporation at the time shall
terminate upon the election of a majority of the
Board of Directors by the preferred shareholders,
whether or not the common shareholders shall at
the time of such termination have elected the
remaining directors of the Corporation; thereafter
during the continuance of such special right of
the Preferred Stock to elect a majority of the
Board of Directors, the holders of such stock,
voting as a class, shall be entitled to elect a
majority of the Board of Directors and the holders
of the Common Stock, voting separately as a class,
shall be entitled to elect the remaining directors
of the corporation; and all directors so elected,
whether at such special meeting or any adjournment
thereof, or at any subsequent annual meeting for
the election of directors, held during the
continuance of such special right, shall hold
office until the next succeeding annual election
and until their respective successors, elected by
the preferred shareholders, voting as a class, and
the common shareholders, voting as a class, are
elected and qualified, unless their terms of
office shall be sooner terminated as hereinafter
provided. However, if and when all dividends then
in default on the Preferred Stock shall thereafter
be paid (and such dividends shall be declared and
paid out of any funds legally available therefor
as soon as reasonably practicable), the Preferred
Stock shall thereupon be divested of such special
right herein provided for to elect a majority of
the Board of Directors, but subject always to the
same provisions for the vesting of such special
right in such stock in the case of any similar
future default or defaults, and the election of
directors by the preferred and common
shareholders, voting without regard to class,
shall take place at the next succeeding annual
meeting for the election of directors, or at any
adjournment thereof. The terms of office of all
persons who may be directors of the Corporation at
the time of such divestment shall terminate upon
the election of the directors at such annual
meeting or adjournment thereof.
b. First Meeting for Election of Directors
At the first meeting for the election of directors
after any accrual of the special right of the preferred
shareholders to elect a majority of the Board of
Directors, as provided above, and at any subsequent
annual meeting for the election of directors held
during the continuance of such special right, the
presence in person or by proxy of the holders of record
of a majority of the outstanding shares of Preferred
Stock without regard to series, shall be necessary to
constitute a quorum for the election of the directors
whom the preferred shareholders are entitled to elect,
and the presence in person or by proxy of the holders
of record of a majority of the outstanding shares of
Common Stock shall be necessary to constitute a quorum
for the election of the directors whom the common
shareholders are entitled to elect. If at any such
meeting there shall not be such a quorum of the
preferred shareholders, the meeting shall be adjourned
from time to time without notice other than
announcement at the meeting until such quorum shall
have been obtained; provided that, if such quorum shall
not have been obtained within ninety (90) days from the
date of such meeting as originally called (or, in the
case of any annual meeting held during the continuance
of such special right, from the date fixed for such
annual meetings, the presence in person or by proxy of
the holders of record of one-third of the outstanding
shares of the Preferred Stock, without regard to
series, shall then be sufficient to constitute a quorum
for the election of the directors whom such
shareholders are then entitled to elect. The absence
of a quorum of the preferred shareholders as a class or
of the common shareholders as a class shall not, except
as hereinafter provided for, prevent or invalidate the
election by the other class of shareholders of the
directors whom they are entitled to elect, if the
necessary quorum of shareholders of such other class is
present in person or represented by proxy at any such
meeting or any adjournment thereof. However, at the
first meeting for the election of directors after any
accrual of the special right of the preferred
shareholders to elect a majority of the Board of
Directors, the absence of a quorum of the preferred
shareholders shall prevent the election of directors by
the common shareholders, until a quorum of the
preferred shareholders shall be obtained.
c. Cumulative Voting
The holders of shares of stock of any class entitled to
vote at a meeting for the election of directors shall
have the right to cumulate their votes at such election
in the manner provided by the Minnesota Business
Corporation Act.
6. Special Voting Rights of Preferred Stock
a. Act Requiring Majority Vote of Preferred Stock
So long as any of the Preferred Stock is outstanding,
the Corporation shall not, without the consent (given
in writing or by vote at a meeting duly called for the
purpose in accordance with the provisions of the
Bylaws) of the holders of a majority of the total
number of shares of such stock, without regard to
series, present or represented by proxy at such
meeting, at which meeting a quorum as hereinafter
provided shall be present or represented by proxy:
(i) Issue any unsecured notes, debentures, or
other securities representing unsecured
indebtedness, or assume any such unsecured
securities, for purposes other than the refunding
of outstanding unsecured securities theretofore
issued or assumed by the Corporation or the
redemption or other retirement of outstanding
shares of one or more series of the Preferred
Stock, if, immediately after such issue or
assumption, the total principal amount of all
unsecured notes, debentures, or other securities
representing unsecured indebtedness issued or
assumed by the Corporation and then outstanding
(including unsecured securities then to be issued
or assumed) would exceed twenty per cent (20%) of
the aggregate of (a) the total principal amount of
all bonds or other securities representing secured
indebtedness issued or assumed by the Corporation
and then to be outstanding, and (b) the capital
and surplus of the Corporation (including all
earned surplus, paid-in surplus, capital surplus,
or other surplus of the Corporation) as then to be
stated on the books of account of the Corporation;
or
(ii) merge or consolidate with or into any other
corporation or corporations, unless such merger or
consolidation, or the issuance of assumption of
all securities to be issued or assumed in
connection with any such merger or consolidation,
shall have been ordered, approved, or permitted by
the Securities and Exchange Commission under the
provisions of the Public Utility Holding Company
Act of 1935 or by any successor commission or
regulatory authority of the United States of
America having jurisdiction in the premises;
provided that the provisions of this clause (ii)
shall not apply to a purchase or other acquisition
by the Corporation of the franchises or other
assets of another corporation, or otherwise apply
in any matter which does not involve a merger or
consolidation.
b. Quorum of Preferred Stockholders
For the purpose of this Section 6, the presence in
person or by proxy of the holders of record of a
majority of the outstanding shares of Preferred Stock,
without regard to series, shall be necessary to
constitute a quorum; provided, that if such quorum
shall not have been obtained at such meeting or at any
adjournment thereof within thirty (30) days from the
date of such meeting as originally called, the presence
in person or by proxy of the holders of record of one-
third (1/3) of the outstanding shares of such stock,
without regard to series, shall then be sufficient to
constitute a quorum; and provided further that in the
absence of a quorum, such meeting or any adjournment
thereof may be adjourned from time to time by the
officer or officers of the Corporation who shall have
called the meeting (but at intervals of not less than
seven days unless all shareholders present or
represented by proxy shall agree to a shorter interval)
without notice other than announcement at the meeting
until a quorum as above provided shall be obtained.
c. Acts which Include Redemption of Preferred Stock
No vote or consent of the holders of any series of the
Preferred Stock shall be required, however, if, at or
prior to the issue of any such securities representing
unsecured indebtedness, or such consolidation, merger,
or sale, provision is made for the redemption or other
retirement of all shares of such series then
outstanding.
d. Additional to Other Voting Requirements
The provisions set forth in this Section 6 are in
addition to any other vote required by any provision of
the Articles of Incorporation of the Corporation, as
amended, or applicable statute, and shall be so
construed.
7. Increase in Amount of Preferred Stock
So long as any of the Preferred Stock is outstanding, the
Corporation shall not, without the consent (given by vote at
a meeting duly called for the purpose in accordance with the
provisions of the Bylaws) of the holders of a majority of
the total number of shares of such stock then outstanding,
without regard to class or series, present or represented by
proxy at such meeting, increase the total authorized amount
of Preferred Stock (other than as authorized by this Article
V) or authorize any other preferred stock ranking on a
parity with the Preferred Stock as to assets or dividends
(other than through the reclassification of then authorized
but unissued shares of Preferred Stock into shares of such
other preferred stock).
8. Issuance of Stock Preferred over Preferred Stock
So long as any of the Preferred Stock is outstanding, the
Corporation shall not, without the consent (given by vote at
a meeting duly called for the purpose in accordance with the
provisions of the Bylaws) of the holders of at least sixty-
six and two-thirds per cent (66 2/3%) of the total number of
shares of Preferred Stock, without regard to series, then
outstanding, present or represented by proxy at such
meeting, authorize any class of stock which shall be
preferred as to assets or dividends over the Preferred
Stock; or, without the consent of the holders of at least
sixty-six and two-thirds per cent (66 2/3%) of the total
number of shares of Preferred Stock then outstanding, given
as above provided in this Section 8, amend the Articles of
Incorporation to change the express terms and provisions of
the Preferred Stock in any manner substantially prejudicial
to the holders thereof.
9. Effecting and Validating Additional Stock or Securities
Convertible into Stock
So long as any shares of Preferred Stock are outstanding,
the consent of the holders of at least two-thirds (2/3) of
the Preferred Stock at the time outstanding, voting as a
class and without regard to series, given in person or by
proxy, either in writing or by vote at any meeting called
for the purpose, shall be necessary for effecting or
validating the issue of any additional shares of Preferred
Stock (other than and not exceeding 275,000 shares of the
Cumulative Preferred Stock, $3.60 Series), or any shares of
stock, or of any security convertible into stock, of any
class ranking on a parity with the Preferred Stock, unless
(i) the net income of the Corporation (determined as
hereinafter provided) for any twelve consecutive
calendar months within the fifteen calendar months
immediately preceding the month within which the
issuance of such additional shares is authorized by the
Board of Directors of the Corporation shall have been
in the aggregate not less than one and one half times
the sum of the interest requirements for one year on
all of the indebtedness of the Corporation to be
outstanding at the date of such proposed issue and the
full dividend requirements for one year on all shares
of Preferred Stock, and all other stock, if any,
ranking prior to or on a parity with the Preferred
Stock, to be outstanding at the date of such proposed
issue, including the shares then proposed to be issued
but excluding any such indebtedness and any such shares
proposed to be retired in connection with such proposed
issue. For purposes of calculating the dividend
requirements for one year applicable to any series of
Preferred Stock proposed to be issued which will have
dividends determined according to an adjustable,
floating or variable rate, the dividend rate used shall
be the higher of (A) the dividend rate applicable to
such series of Preferred Stock on the date of such
calculation, or (B) the average dividend rate payable
on all series of Preferred Stock outstanding during the
twelve month period immediately preceding the date of
such calculation. For purposes of calculating the
dividend or interest requirements for one year
applicable to any series of Preferred Stock or
indebtedness outstanding at the date of such proposed
issue and having dividends or interest determined
according to an adjustable, floating or variable rate,
the dividend or interest rate used shall be: (A) if
such series of Preferred Stock or indebtedness has been
outstanding for at least twelve months, the actual
amount of dividends or interest paid on account of such
series of Preferred Stock or indebtedness for the
twelve month period immediately preceding the date of
such calculation, or (B) if such series of Preferred
Stock or indebtedness has been outstanding for less
than twelve months, the higher of (1) the dividend or
interest rate applicable to such series of Preferred
Stock or indebtedness on the date of such calculation
or (2) the average dividend or interest rate payable on
all series of Preferred Stock or indebtedness
outstanding during the twelve month period immediately
preceding the date of such calculation. "Net income"
for any period for the purpose of this Section 9 shall
be computed by adding to the net income of the
Corporation for said period, determined in accordance
with generally accepted accounting practices, as
adjusted by action of the Board of Directors of the
Corporation as hereinafter provided, the amount
deducted for interest before arriving at such net
income (adjusted as above provided). In determining
such net income for any period, there shall be deducted
the provisions for depreciation and depletion as
recorded on such books or the minimum amount required
therefor under the provisions of any then existing
trust indenture or supplements thereto of the
Corporation, whichever is larger. In the determination
of such net income, the Board of Directors of the
Corporation may, in the exercise of due discretion,
make adjustments by way of increase or decrease in such
net income to give effect to changes therein resulting
from any acquisition of properties or to any
redemption, acquisition, purchase, sale, or exchange of
securities by the Corporation either prior to the
issuance of any shares of Preferred Stock, or stock, or
securities convertible into stock, ranking on a parity
therewith then to be issued or in connection therewith;
and
(ii) the aggregate of the capital of the Corporation
applicable to all stock of any class ranking junior to
the Preferred Stock, plus the surplus of the
Corporation, shall be not less than the aggregate
amount payable upon involuntary liquidation,
dissolution, or winding up of the affairs of the
Corporation to the holders of all shares of Preferred
Stock and of any shares of stock of any class ranking
on a parity therewith to be outstanding immediately
after such proposed issue, excluding from such
computation all indebtedness and stock to be retired
through such proposed issue. No portion of the surplus
of the Corporation utilized to satisfy the foregoing
requirements shall be available for dividends (other
than dividends payable in stock of any class ranking
junior to the Preferred Stock) or other distributions
upon or in respect of shares of stock of the
Corporation of any class ranking junior to the
Preferred Stock for the purchase of shares of such
junior stock until such number of additional shares of
Preferred Stock or of stock, or securities convertible
into stock, ranking on a parity with the Preferred
Stock are retired or until and to the extent that the
capital applicable to such junior stock shall have been
increased.
10. Dividends on Common Stock
So long as any shares of the Preferred Stock are
outstanding, the Corporation shall not pay any dividends on
its Common Stock (other than dividends payable in Common
Stock) or make any distribution on or purchase or otherwise
acquire for value any of its Common Stock (each such
payment, distribution, purchase and/or acquisition being
herein referred to as a "Common Stock dividend"), except to
the extent permitted by the following provisions of this
Section 10:
a. No Common Stock dividend shall be declared or paid
in an amount which, together with all other Common
Stock dividends declared in the year ending on (and
including) the date of the declaration of such Common
Stock dividend, would in the aggregate exceed fifty per
cent (50%) of the net income of the Corporation for the
period consisting of the twelve consecutive calendar
months ending on the last day of the second calendar
month next preceding the declaration of such Common
Stock dividend after deducting from such net income,
dividends accruing on any preferred stock of the
Corporation during such period, if at the end of such
period the ratio (herein referred to as the
"capitalization ratio") of the sum of (1) the capital
represented by the Common Stock (including premiums on
capital stock) and (2) the surplus accounts, of the
Corporation, to the sum of (1) the total capital and
(2) the surplus accounts, of the Corporation (after
adjustment of the surplus accounts to reflect payment
of such Common Stock dividend) would be less than
twenty per cent (20%).
b. If such capitalization ratio, determined as
aforesaid shall be twenty per- cent (20%) or more, but
less than twenty-five per cent (25%) no Common Stock
dividend shall be declared or paid in an amount which,
together with all other Common Stock dividends declared
in the year ending on (and including) the date of the
declaration of such Common Stock dividend, would in the
aggregate exceed seventy-five per cent (75%) of the net
income of the Corporation for the period consisting of
the twelve consecutive calendar months ending on the
last day of the second calendar month next preceding
the declaration of such Common Stock dividend after
deducting from such net income, dividends accruing on
any preferred stock of the Corporation during such
period; and
c. If such capitalization ratio, determined as
aforesaid, shall be in excess of twenty-five per cent
(25%), no Common Stock dividend shall be declared or
paid which would reduce such capitalization ratio to
less than twenty-five per cent (25%) except to the
extent permitted by the next preceding paragraphs (a)
and (b) hereof. For the purpose of this condition:
(i) The total capital of the Corporation shall be
deemed to consist of the aggregate of (1) the
principal amount of all outstanding indebtedness
of the Corporation maturing more than one year
after the date of issue thereof and (2) the par
value of or the stated capital applicable to all
outstanding capital stock (including premiums on
capital stock) of all classes of the Corporation.
All indebtedness and capital stock owned by the
Corporation shall be excluded in determining total
capital. Surplus accounts shall be deemed to
include all earned surplus, paid-in surplus,
capital surplus, or any other surplus of the
Corporation.
(ii) Such surplus accounts upon which
capitalization ratios are computed shall be
adjusted to eliminate (1) the amount, if any, by
which fifteen per cent (15%) of the gross
operating revenues of the Corporation (calculated
in the manner provided in the covenants relating
to payment of Common Stock dividends embodied in
the indentures and supplemental indentures
securing the mortgage bonds of the Corporation)
for the entire period from July 1, 1946, to the
end of the second calendar month immediately
preceding the date of the proposed payment of
Common Stock dividends exceeds the total amount
expended by the Corporation during such period for
maintenance and repairs and the total provision
made by the Corporation during such period for
depreciation, all as shown by the books of the
Corporation, and (2) any amounts on the books of
the Corporation known or estimated, if not known,
to represent the excess, if any, of recorded value
over original cost of used and useful utility
plant and other property, and any item set forth
on the asset side of the balance sheet of the
Corporation as a result of accounting convention,
such as unamortized debt discount and expense,
capital stock discount and expense, and the
excess, if any, of the aggregate amount payable on
involuntary dissolution, liquidation, or winding
up of the Corporation upon all outstanding shares
of preferred stock of all series over the
aggregate stated or par value of such shares,
unless any such amount or item, as the case may
be, is being amortized or is being provided for by
a reserve; and
(iii) In computing net income of the
Corporation applicable to the Common Stock of the
Corporation for any particular twelve (12) months'
period for the purpose of this condition,
operating expenses, among other things, shall
include the greater of (1) the provision for
depreciation for such period as recorded on the
books of the Corporation or (2) the amount by
which fifteen per cent (15%) of the gross
operating revenues of the Corporation for such
period (calculated in the manner provided in the
above mentioned covenants relating to payment of
Common Stock dividends) exceeds the total amount
expended by the Corporation during such periods
for maintenance and repairs as shown by the books
of the Corporation.
11. Acceptance of Shares
In consideration of the issue by the Corporation, and the
acceptance by the holders thereof, of shares of the capital
stock of the Corporation, each and every present and future
holder of shares of the Preferred Stock, the Common Stock
and of any stock hereafter authorized of the Corporation
shall be conclusively deemed, by acquiring or holding such
shares, to have expressly consented to all and singular the
terms and provisions of this Article V and to have agreed
that the voting rights of such holder and the restrictions
and qualifications thereof shall be as set forth in this
Article.
12. Outstanding Stock or Evidence of Indebtedness
No share of stock or evidence of indebtedness shall be
deemed to be "outstanding," as that term is used in this
Article V, if, prior to or concurrently with the event in
reference to which a determination as to the amount thereof
outstanding is to be made, the requisite funds for the
redemption thereof shall be deposited in trust for that
purpose and the requisite notice for the redemption thereof
shall be given or the depositary of such funds shall be
irrevocably authorized and directed to give or complete such
notice of redemption.
13. Rights of Unissued Stock or Other Securities
No holder of any stock of the Corporation shall be entitled,
as of right, to purchase or subscribe for any part of any
issued shares of stock of the Corporation or for any
additional shares of stock, of any class or series, which
may at any time be issued, whether now or hereafter
authorized, or for any rights, options, or warrants to
purchase or receive shares of stock or for any bonds,
certificates of indebtedness, debentures, or other
securities convertible into shares of stock, or any class or
series thereof; but any such unissued or additional shares,
rights, options, or warrants or convertible securities of
the Corporation may, from time to time, be issued and
disposed of by the Board of Directors to such persons,
firms, corporations or associations, and upon such terms, as
the Board of Directors may, in its discretion, determine,
without offering any part thereof to any shareholders of any
class or series then of record; and any shares, rights,
options or warrants or convertible securities which the
Board of Directors may at any time determine to offer to
shareholders for subscription may be offered to holders of
shares of any class or series at the time existing, to the
exclusion of holders of shares of any or all other classes
or series at the time existing, in each case as the Board of
Directors may, in its discretion, determine.
14. Series of Preferred Stock
a. Cumulative Preferred Stock, $3.60 Series
Anything herein to the contrary notwithstanding, there
shall be and is hereby created a series of preferred
stock which is hereby designated "Cumulative Preferred
Stock, $3.60 Series," dividends on which shares of
Cumulative Preferred Stock, $3.60 Series, shall be
payable, if declared, on the 15th days of January,
April, July, and October of each year; which dividends
shall be cumulative from the first day of the
respective quarter-yearly period in which the
respective shares of such series shall have been
originally issued, the term "quarter-yearly period" as
used herein referred to the period from July 1, 1946,
to and including September 30, 1946, and thereafter to
each quarter-yearly period of three (3) consecutive
months, beginning with October 1, 1946; the dividend
rate of which series is hereby fixed at Three Dollars
and Sixty Cents ($3.60) per share per annum; the
redemption price of the shares of which series is
hereby fixed at One Hundred and Five Dollars and
Seventy Five Cents ($105.75) per share in case of
redemption on or prior to September 30, 1951; One
Hundred and Four Dollars and Seventy Five Cents
($104.75) per share in case of redemption subsequent to
September 30, 1951, and on or prior to September 30,
1956; and One Hundred and Three Dollars and Seventy
Five Cents ($103.75) per share in case of redemption
subsequent to September 30, 1956, in each case plus the
amount payable thereon in accordance with the
provisions hereof equal to the cumulative dividends
accrued and unpaid thereon; the amount which the shares
of such series are entitled to receive in preference to
the Common Stock upon any distribution of assets other
than by dividends from net earnings or surplus upon
voluntary liquidation or dissolution of the Corporation
is hereby fixed at the then redemption price thereof,
plus the amount payable thereon in accordance with the
provisions hereof equal to the cumulative dividends
accrued and unpaid thereon; the amount which the shares
of such series are entitled to receive in preference to
the Common Stock upon any distribution of assets, other
than by dividends from net earnings or surplus, upon
any involuntary liquidation or dissolution of the
Corporation is hereby fixed at One Hundred Dollars
($100) per share, plus the amount payable thereon in
accordance with the provisions hereof equal to the
cumulative dividends accrued and unpaid thereon.
b. Cumulative Preferred Stock, $4.10 Series
(i) There be and there hereby is created from the
authorized and unallotted shares of Preferred
Stock of the Company, a new series of Preferred
Stock of the Company which is hereby designated
"Cumulative Preferred Stock, $4.10 Series," and
the number of shares constituting said new series
is hereby fixed at 175,000 shares.
(ii) The dividend rate of the shares of said new
series is hereby fixed at $4.10 per share per
annum; dividends on said shares shall be payable
on the 15th day of January, April, July and
October for the quarter-yearly period ending with
the last day of the preceding month, when and as
declared by the Board of Directors.
(iii) The redemption price of the shares of
said new series is hereby fixed at $105.50 per
share in case of redemption on or prior to
December 31, 1955; $104.50 per share in case of
redemption subsequent to December 31, 1955 and on
or prior to December 31, 1960; $103.50 per share
in case of redemption subsequent to December 31,
1960 and on or prior to December 31, 1965; and
$102.50 per share in case of redemption subsequent
to December 31, 1965; plus in each case an amount
equal to the dividends at the rate of $4.10 per
share per annum from the date dividends on the
shares to be redeemed began to accrue to the date
fixed for redemption thereof less the amount of
dividends theretofore paid thereon.
(iv) The amount which the shares of said new
series are entitled to receive in preference to
the Common Stock upon any distribution of assets,
other than by dividends from net earnings or
surplus, upon any involuntary liquidation or
dissolution of the corporation is hereby fixed at
$100 per share plus an amount equal to all
dividends accumulated and unpaid thereon and the
amount which the shares of said new series are
entitled to receive in preference to the Common
Stock upon any distribution of assets, other than
by dividends from net earnings or surplus, upon
voluntary liquidation or dissolution of the
corporation is hereby fixed as the then redemption
price, including an amount equal to all dividends
accumulated and unpaid thereon.
c. Cumulative Preferred Stock, $4.08 Series
(i) There be and there hereby is created from the
authorized and unallotted shares of Preferred
Stock of the Company, a new series of Preferred
Stock of the Company which is hereby designated
"Cumulative Preferred Stock, $4.08 Series," and
the number of shares constituting said new series
is hereby fixed at 150,000 shares.
(ii) The dividend rate of the shares of said new
series is hereby fixed at $4.08 per share per
annum; dividends on said shares shall be payable
on the 15th day of January, April, July and
October for the quarter-yearly period ending with
the last day of the preceding month, when and as
declared by the Board of Directors.
(iii) The redemption price of the shares of
said new series is hereby fixed at $105 per share
in case of redemption on or prior to December 31,
1959; $104 per share in case of redemption
subsequent to December 31, 1959 and on or prior to
December 31, 1964; $103 per share in case of
redemption subsequent to December 31, 1964 and on
or prior to December 31, 1969; and $102 per share
in case of redemption subsequent to December 31,
1969; plus in each case an amount equal to the
dividends at the rate of $4.08 per share per annum
from the date dividends on the shares to be
redeemed began to accrue to the date fixed for
redemption thereof less the amount of dividends
theretofore paid thereon.
(iv) The amount which the shares of said new
series are entitled to receive in preference to
the Common Stock upon any distribution of assets,
other than by dividends from net earnings or
surplus, upon voluntary liquidation or dissolution
of the corporation is hereby fixed as the then
redemption price, including an amount equal to all
dividends accumulated and unpaid thereon.
d. Cumulative Preferred Stock, $4.11 Series
(i) There be and there hereby is created from the
authorized and unallotted shares of Preferred
Stock of the Company, a new series of Preferred
Stock of the Company which is hereby designated
"Cumulative Preferred Stock, $4.11 Series," and
the number of shares constituting said new series
is hereby fixed at 200,000 shares.
(ii) The dividend rate of the shares of said new
series is hereby fixed at $4.11 per share per
annum; dividends on said shares shall be payable
on the 15th day of January, April, July and
October for the quarter-yearly period ending with
the last day of the preceding month, when and as
declared by the Board of Directors.
(iii) The redemption prices of the shares of
said new series are hereby fixed at $105.732 per
share in case of redemption on or prior to
December 31, 1959; $104.732 per share in case of
redemption subsequent to December 31, 1959 and on
or prior to December 31, 1964; and $103.732 per
share in case of redemption subsequent to December
31, 1964; plus in each case an amount equal to the
dividends at the rate of $4.11 per share per annum
from the date dividends on the shares to be
redeemed began to accrue to the date fixed for
redemption thereof less the amount of dividends
theretofore paid thereon.
(iv) The amount which the shares of said new
series are entitled to receive in preference to
the Common Stock upon any distribution of assets,
other than by dividends from net earnings or
surplus, upon voluntary liquidation or dissolution
of the corporation is hereby fixed as the then
redemption price, plus an amount equal to all
dividends accumulated and unpaid thereon.
e. Cumulative Preferred Stock, $4.16 Series
(i) There be and there hereby is created from the
authorized and unallotted shares of Preferred
Stock of the Company, a new series of Preferred
Stock of the Company which is hereby designated
"Cumulative Preferred Stock, $4.16 Series," and
the number of shares constituting said new series
is hereby fixed at 100,000 shares.
(ii) The dividend rate of the shares of said new
series is hereby fixed at $4.16 per share per
annum; dividends on said shares shall be payable
on the 15th day of January, April, July and
October for the quarter-yearly period ending with
the last day of the preceding month, when and as
declared by the Board of Directors.
(iii) The redemption prices of the shares of
said new series are hereby fixed at $106.25 per
share in case of redemption on or prior to
December 31, 1961; $105.75 per share in case of
redemption subsequent to December 31, 1961 and on
or prior to December 31, 1966; $104.75 per share
in case of redemption subsequent to December 31,
1966 and on or prior to December 31, 1971; and
$103.75 per share in case of redemption subsequent
to December 31, 1971; plus in each case an amount
equal to the dividends at the rate of $4.16 per
share per annum from the date dividends on the
shares to be redeemed began to accrue to the date
fixed for redemption thereof, less the amount of
dividends theretofore paid thereon.
(iv) The amount which the shares of said new
series are entitled to receive in preference to
the Common Stock upon any distribution of assets,
other than by dividends from net earnings or
surplus, upon voluntary liquidation or dissolution
of the corporation is hereby fixed as the then
redemption price, plus an amount equal to all
dividends accumulated and unpaid thereon.
f. Cumulative Preferred Stock, $4.56 Series
(i) There be and there hereby is created from the
authorized and unallotted shares of Preferred
Stock of the Company, a new series of Preferred
Stock of the Company which is hereby designated
"Cumulative Preferred Stock, $4.56 Series," and
the number of shares constituting said new series
is hereby fixed at 150,000 shares.
(ii) The dividend rate of the shares of said new
series is hereby fixed at $4.56 per share per
annum; dividends on said shares shall be payable
on the 15th day of January, April, July and
October for the quarter-yearly period ending with
the last day of the preceding month, when and as
declared by the Board of Directors.
(iii) The redemption prices of the shares of
said new series are hereby fixed at $105.89 per
share in case of redemption on or prior to
December 31, 1969; $104.75 per share in case of
redemption subsequent to December 31, 1969 and on
or prior to December 31, 1974; $103.64 per share
in case of redemption subsequent to December 31,
1974 and on or prior to December 31, 1979; and
$102.47 per share in case of redemption subsequent
to December 31, 1979; plus in each case an amount
equal to the dividends at the rate of $4.56 per
share per annum from the date dividends on the
shares to be redeemed began to accrue to the date
fixed for redemption thereof, less the amount of
dividends theretofore paid thereon.
(iv) The amount which the shares of said new
series are entitled to receive in preference to
the Common Stock upon any distribution of assets,
other than by dividends from net earnings or
surplus, upon voluntary liquidation or dissolution
of the corporation is hereby fixed as the then
redemption price, including an amount equal to all
dividends accumulated and unpaid thereon.
g. Cumulative Preferred Stock, $6.80 Series
(i) There be and there hereby is created from the
authorized and unallotted shares of Preferred
Stock of the Company, a new series of Preferred
Stock of the Company which is hereby designated
"Cumulative Preferred Stock, $6.80 Series," and
the number of shares constituting said new series
is hereby fixed at 200,000 shares.
(ii) The dividend rate of the shares of said new
series is hereby fixed at $6.80 per share per
annum; dividends on said shares shall be payable
on the 15th day of January, April, July and
October for the quarter-yearly period ending with
the last day of the preceding month, when and as
declared by the Board of Directors.
(iii) The redemption prices of the shares of
said new series are hereby fixed at $108.29 per
share in case of redemption on or prior to
December 31, 1973; $106.59 per share in case of
redemption subsequent to December 31, 1973 and on
or prior to December 31, 1978; $104.89 per share
in case of redemption subsequent to December 31,
1978 and on or prior to December 31, 1983; and the
$103.19 per share in case of redemption subsequent
to December 31, 1983; plus in each case an amount
equal to the dividends at the rate of $6.80 per
share per annum from the date dividends on the
shares to be redeemed begin to accrue to the date
fixed for redemption thereof, less the amount of
dividends theretofore paid thereon; provided,
however, that the shares of said new series shall
not be redeemable prior to May 1, 1973 from the
proceeds of any refunding of shares of said new
series through the incurring of debt, or through
the issuance of preferred stock ranking equally
with or prior to the shares of said new series as
to dividends or on liquidation, if such debt has
an effective interest cost or such preferred stock
has an effective dividend cost to the Company of
less than the effective dividend cost to the
Company of the said new series.
(iv) The amount which the shares of said new
series are entitled to receive in preference to
the Common Stock upon any distribution of assets,
other than by dividends from net earnings or
surplus, upon voluntary liquidation or dissolution
of the corporation is hereby fixed as the then
redemption price, plus an amount equal to all
dividends accumulated and unpaid thereon.
h. Cumulative Preferred Stock, $7.00 Series
(i) There be and there hereby is created from the
authorized and unallotted shares of Preferred
Stock of the Company, a new series of Preferred
Stock of the Company which is hereby designated
"Cumulative Preferred Stock, $7.00 Series," and
the number of shares constituting said new series
is hereby fixed at 200,000 shares.
(ii) The dividend rate of the shares of said new
series is hereby fixed at $7.00 per share per
annum; dividends on said shares shall be payable
on the 15th day of January, April, July and
October for the quarter-yearly period ending with
the last day of the preceding month, when and as
declared by the Board of Directors.
(iii) The redemption prices of the shares of
said new series are hereby fixed at $108.45 per
share in case of redemption on or prior to
December 31, 1974; $106.70 per share in case of
redemption subsequent to December 31, 1974 and on
or prior to December 31, 1979; $104.95 per share
in case of redemption subsequent to December 31,
1979 and on or prior to December 31, 1984; and
$103.20 per share in case of redemption subsequent
to December 31, 1984; plus in each case an amount
equal to the dividends at the rate of $7.00 per
share per annum from the date dividends on the
shares to be redeemed begin to accrue to the date
fixed for redemption thereof, less the amount of
dividends theretofore paid thereon; provided,
however, that the shares of said new series shall
not be redeemed prior to January 1, 1974 from the
proceeds of any refunding of shares of said new
series through the incurring of debt, or through
the issuance of preferred stock ranking equally
with or prior to the shares of said new series as
to dividends or on liquidation, if such debt has
an effective interest cost or such preferred stock
has an effective dividend cost to the Company of
less than the effective dividend cost to the
Company of the said new series.
(iv) The amount which the shares of said new
series are entitled to receive in preference to
the Common Stock upon any distribution of assets,
other than by dividends from net earnings or
surplus, upon voluntary liquidation or dissolution
of the corporation is hereby fixed as the then
redemption price, plus an amount equal to all
dividends accumulated and unpaid thereon.
i. Cumulative Preferred Stock, $8.80 Series
(i) There be and there hereby is created from the
authorized and unallotted shares of Preferred
Stock of the Company, a new series of Preferred
Stock of the Company which is hereby designated
"Cumulative Preferred Stock, $8.80 Series," and
the number of shares constituting said new series
is hereby fixed at 250,000 shares.
(ii) The dividend rate of the shares of said new
series is hereby fixed at $8.80 per share per
annum; dividends on said shares, when and as
declared by the Board of Directors, shall be
payable on the 15th day of January, April, July
and October for the quarter-yearly period ending
with the last day of the preceding month; except
that the dividend period for the first such
dividend shall begin with the date of original
issue.
(iii) The redemption prices of the shares of
said new series are hereby fixed at $109.95 per
share in case of redemption on or prior to
December 31, 1975; $107.75 per share in case of
redemption subsequent to December 31, 1975 and on
or prior to December 31, 1980; $105.55 per share
in case of redemption subsequent to December 31,
1980 and on or prior to December 31, 1985; and
$103.35 per share in case of redemption subsequent
to December 31, 1985; plus in each case an amount
equal to the dividends at the rate of $8.80 per
share per annum from the date dividends on the
shares to be redeemed begin to accrue to the date
fixed for redemption thereof, less the amount of
dividends theretofore paid thereon; provided,
however, that the shares of said new series shall
not be redeemable prior to September 1, 1975 from
the proceeds of any refunding of shares of said
new series through the incurring of debt, or
through the issuance of preferred stock ranking
equally with or prior to the shares of said new
series as to dividends or on liquidation, if such
debt has an effective interest cost or such
preferred stock has an effective dividend cost to
the Company of less than the effective dividend
cost to the Company of the said new series.
(iv) The amount which the shares of said new
series are entitled to receive in preference to
the Common Stock upon any distribution of assets,
other than by dividends from net earnings or
surplus, upon voluntary liquidation or dissolution
of the corporation is hereby fixed as the then
redemption price, plus an amount equal to all
dividends accumulated and unpaid thereon.
j. Cumulative Preferred Stock, $7.84 Series
(i) There be and there hereby is created from the
authorized and unallotted shares of Preferred
Stock of the Company, a new series of Preferred
Stock of the Company which is hereby designated
"Cumulative Preferred Stock, $7.84 Series," and
the number of shares constituting said new series
is hereby fixed at 350,000 shares.
(ii) The dividend rate of the shares of said new
series is hereby fixed at $7.84 per share per
annum; dividends on said shares, when and as
declared by the Board of Directors, shall be
payable on the 15th day of January, April, July
and October for the quarter-yearly period ending
with the last day of the preceding month; except
that the dividend period for the first such
dividend shall begin with the date of original
issue.
(iii) The redemption prices of the shares of
said new series are hereby fixed at $109.00 per
share in case of redemption on or prior to
December 31, 1976; $107.04 per share in case of
redemption subsequent to December 31, 1976, and on
or prior to December 31, 1981; $105.08 per share
in case of redemption subsequent to December 31,
1981, and on or prior to December 31, 1986; and
$103.12 per share in case of redemption subsequent
to December 31, 1986; plus in each case an amount
equal to the dividends at the rate of $7.84 per
share per annum from the date dividends on the
shares to be redeemed begin to accrue to the date
fixed for redemption thereof, less the amount of
dividends theretofore paid thereon; provided,
however, that the shares of said new series shall
not be redeemable prior to October 1, 1976, from
the proceeds of any refunding of shares of said
new series through the incurring of debt, or
through the issuance of preferred stock ranking
equally with or prior to the shares of said new
series as to dividends or on liquidation, if such
debt has an effective interest cost or such
preferred stock has an effective dividend cost to
the Company of less than the effective dividend
cost to the Company of the said new series.
(iv) The amount which the shares of said new
series are entitled to receive in preference to
the Common Stock upon any distribution of assets,
other than by dividends from net earnings or
surplus, upon voluntary liquidation or dissolution
of the corporation is hereby fixed as the then
redemption price, plus an amount equal to all
dividends accumulated and unpaid thereon.
k. Cumulative Preferred Stock, $10.36 Series
(i) There be and there hereby is created from the
authorized and unallotted shares of Preferred
Stock of the Company, a new series of Preferred
Stock of the Company which is hereby designated
"Cumulative Preferred Stock, $10.36 Series," and
the number of shares constituting said new series
is hereby fixed at 250,000 shares.
(ii) The dividend rate of the shares of said new
series is hereby fixed at $10.36 per share per
annum; dividends on said shares, when and as
declared by the Board of Directors, shall be
payable on the 15th day of January, April, July
and October for the quarter-yearly period ending
with the last day of the preceding month; except
that the dividend period for the first such
dividend shall begin with the date of original
issue.
(iii) The redemption prices of the shares of
said new series are hereby fixed at $115.00 per
share in case of redemption on or prior to June
30, 1984; $105.00 per share in case of redemption
subsequent to June 30, 1984, and on or prior to
June 30, 1989; and $102.50 per share in case of
redemption subsequent to June 30, 1989; plus in
each case an amount equal to the dividends at the
rate of $10.36 per share per annum from the date
dividends on the shares to be redeemed begin to
accrue to the date fixed for redemption thereof,
less the amount of dividends theretofore paid
thereon; provided, however, that the shares of
said new series shall not be redeemable prior to
July 1, 1979, from the proceeds of any refunding
of shares of said new series through the incurring
of debt, or through the issuance of preferred
stock ranking equally with or prior to the shares
of said new series as to dividends or on
liquidation, if such debt has an effective
interest cost or such preferred stock has an
effective dividend cost to the Company of less
than the effective dividend cost to the Company of
the said new series. The shares of said new
series will also be redeemable at any time on and
after July 1, 1979, for the sinking fund at the
sinking fund redemption price, which shall be
$101.10 per share plus accrued and unpaid
dividends.
(iv) Subject to the prohibitions and limitations
contained in its Articles of Incorporation, as
amended, and in Orders of the Securities and
Exchange Commission in Files No. 70-3221 and 70-
3279, the Company shall apply as and for a sinking
fund for said new series on July 1 in each year
commencing July 1, 1979, a minimum of 12,500
shares of said new series, and may so apply on
each of said July 1 dates up to a maximum of an
additional 12,500 shares of said new series. The
shares to be applied annually in satisfaction of
the sinking fund may be acquired either by
redemption at the sinking fund redemption price in
accordance with the provisions of Article V of the
Articles of Incorporation and of this resolution,
or by purchase from time to time in such manner as
the Board of Directors may determine. If the
Company shall be prevented by the restrictions
referred to above or for any other reason from
redeeming the number of shares of said new series,
which in the absence of such restrictions it would
be required to apply for the sinking fund on any
such July 1, the deficit shall be made good on the
first succeeding July 1 on which the Company shall
not be prevented by such restrictions from
redeeming the number of shares of said new series,
which in the absence of such restrictions it would
be required to apply for the sinking fund on any
such July 1, the deficit shall be made good on the
first succeeding July 1 on which the Company shall
not be prevented by such restrictions from
redeeming shares of said new series. Shares
applied to the sinking fund on any applicable July
1 date shall be deemed to be not outstanding on
such date. Shares of said new series acquired by
redemption must be applied in satisfaction of the
current sinking fund payments; but shares of said
new series purchased by the Company may be applied
in satisfaction of any sinking fund payment.
Shares applied in satisfaction of the sinking fund
shall become authorized but unissued shares of
Preferred Stock of the Company but may not be
reissued as shares of said new series, and the
Company shall forthwith take all necessary action
to effectuate the foregoing.
(v) The amount which the shares of said new
series are entitled to receive in preference to
the Common Stock upon any distribution of assets,
other than by dividends from net earnings or
surplus, upon voluntary liquidation or dissolution
of the corporation is hereby fixed as the then
redemption price, including an amount equal to all
dividends accumulated and unpaid thereon.
ARTICLE VI. LIMITATION OF DIRECTOR LIABILITY
A director of the Corporation shall not be personally liable to
the Corporation or its shareholders for monetary damages for
breach of fiduciary duty as a director, except to the extent
provided by applicable law for (i) liability based on a breach of
the duty of loyalty to the Corporation or the shareholders; (ii)
liability for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law; (iii)
liability based on the payment of an improper dividend or an
improper repurchase of the Corporation's stock under Section 559
of the Minnesota Business Corporation Act (Minnesota Statues,
Chap. 302A) or for liability arising under Section 80A.23 of
Minnesota Statutes for the unlawful sale of securities; (iv)
liability for any transaction from which the director derived an
improper personal benefit; or (v) liability for any act or
omission occurring prior to the date this Article VI becomes
effective. If the Minnesota Business Corporation Act is further
amended to authorize the further elimination or limitation of the
liability of directors, then the liability of a director of the
Corporation in addition to the limitation on personal liability
provided herein, shall be limited to the fullest extent permitted
by any amendment to the Minnesota Business Corporation Act. Any
repeal or modification of this Article by the shareholders of the
Corporation shall not adversely affect any limitation on the
personal liability of a director of the Corporation existing at
the time of such repeal or modification.
VII. AMENDMENT OF BYLAWS
Authority to make and alter the Bylaws of the Corporation is
hereby vested in the Board of Directors of the Corporation,
subject to the power of the stockholders to change or repeal such
Bylaws; provided, however, the Board of Directors shall not make
or alter any bylaw fixing their number, qualifications,
classifications, or term of office.