Exhibit 3-A
RESTATED
ARTICLES OF INCORPORATION
OF
OTTER TAIL POWER COMPANY
(restated as of October 17, 1988)
ARTICLE I.
The name of the corporation shall be Otter Tail Power Company.
ARTICLE II.
The purposes of the corporation shall be as follows:
(a) To generate, produce, buy or in any manner acquire, and to sell,
dispose of, and distribute electricity for light, heat and power and other
purposes, and to carry on the business of furnishing, supplying,
manufacturing, and selling light, heat, power, gas, water, and steam, and any
and all business incidental thereto; and to build, construct, develop,
improve, buy, acquire by condemnation or otherwise, hold, own, lease, maintain
and operate plants, facilities, systems, and works for the manufacture,
generation, production, accumulation, transmission, and distribution of
electricity, gas, water, and steam, and to exercise rights of condemnation and
eminent domain in connection with the doing of any of its purposes as herein
set forth so far as may be permissible by law.
(b) To produce, mine, buy, sell, store, market, deal in, and prospect
for, coal, oil and minerals of all kinds and the products and by-products
thereof.
(c) To manufacture, buy, sell, trade, and deal in goods, wares,
merchandise, property, and commodities of any and every class and description.
(d) To purchase, acquire, and lease, and to sell, lease, and dispose of
water, water rights, and power privileges for power, light, heat, mining,
milling, irrigation, agricultural, domestic or any other use or purpose.
(e) To acquire, hold, mortgage, pledge, or dispose of the shares, bonds,
securities, and other evidences of indebtedness of any domestic or foreign
corporation.
(f) To endorse or guarantee the promissory notes, checks, drafts,
evidences of indebtedness or obligations of whatsoever nature of any
corporation, domestic or foreign, of which the corporation shall own or
control, directly or indirectly a majority of the stock then entitled to elect
directors, or a majority thereof.
(g) To do or perform any and all lawful business necessary, essential or
expedient to the proper conduct of any of the purposes aforesaid.
ARTICLE III.
The period of duration of the corporation shall be perpetual.
ARTICLE IV.
The location and post-office address of the registered office of the
corporation in Minnesota is 215 Cascade Street South, Fergus Falls, Minnesota
56537.
ARTICLE V.
The total authorized number of shares of the corporation is 17,500,000,
divided into three classes; namely, 1,500,000 Cumulative Preferred Shares
without par value (the "Cumulative Preferred Shares"); 1,000,000 Cumulative
Preference Shares without par value (the "Cumulative Preference Shares"); and
15,000,000 Common Shares of the par value of $5 per share (the "Common
Shares"). No fractional shares of any class or series shall be issued by the
corporation.
ARTICLE VI.
The designations, relative rights, voting power, preferences and
restrictions of the Cumulative Preferred Shares, the Cumulative Preference
Shares and the Common Shares, respectively, shall be as set forth in
Division I through Division VI, inclusive, of this Article VI.
The term "subordinate shares," when hereinafter in this Article VI used
with reference to shares junior to the Cumulative Preferred Shares, means the
Cumulative Preference Shares, the Common Shares and shares of any other class,
which may hereafter be authorized, ranking junior to the Cumulative Preferred
Shares with respect to the payment of dividends or the distribution of assets;
and when hereinafter used with reference to shares junior to the Cumulative
Preference Shares, means the Common Shares and shares of any other class,
which may hereafter be authorized, ranking junior to the Cumulative Preference
Shares with respect to the payment of dividends or the distribution of assets.
DIVISION I
Provisions Relating to Cumulative Preferred Shares
A. Issue in Series. The Cumulative Preferred Shares may be issued from
time to time in one or more series, each of which series shall have such
designation and such relative rights, voting power, preferences and
restrictions as are hereinafter provided and, to the extent hereinafter
permitted, as are determined and stated by the Board of Directors in the
resolution or resolutions authorizing the creation of shares of such series.
All Cumulative Preferred Shares shall be of equal rank and shall be
identical, except in respect of their relative voting power (determined as
hereinafter provided in Division IV) and the particulars that may be
determined by the Board of Directors as hereinafter provided; and each share
of each series shall be identical in all respects with the other shares of
such series, except as to the dates from which dividends thereon shall be
cumulative. Cumulative Preferred Shares shall be issued only as fully paid
and nonassessable shares.
Subject to the provisions of the last paragraph of this Subdivision A,
authority is hereby expressly granted to the Board of Directors to authorize
the issuance of Cumulative Preferred Shares in one or more series, and to
determine and state, by the resolution or resolutions authorizing the creation
of each series: (i) the designation of the series and the number of shares
which shall constitute such series, which number may be altered from time to
time by like action of the Board of Directors in respect of shares then
unallotted; (ii) the annual rate of dividends payable on shares of such
series; (iii) the price or prices per share at which the shares of such series
shall be redeemable; (iv) the amount payable on shares of such series in the
event of any dissolution, liquidation or winding up of the affairs of the
corporation, which amount may differ in the case of a voluntary or involuntary
dissolution, liquidation or winding up of such affairs; (v) the conversion
rights, if any, with respect to the conversion of shares of such series into
Common Shares of the corporation; and (vi) the sinking or purchase fund
provisions, if any, for the mandatory redemption or purchase of shares of such
series.
In the case of each series of Cumulative Preferred Shares created after
April 1, 1977, the amount (in addition to accrued and unpaid dividends, if
any) which the holders of shares of such series shall be entitled to receive
in the event of any dissolution, liquidation or winding up of the affairs of
the corporation which shall be involuntary shall be equal to the gross
consideration received by the corporation upon the issuance thereof (without
regard to any premium received or any underwriting discount or commission,
private placement fee or other expense incurred by the corporation in
connection with the issuance thereof).
B. Dividends. Before any dividends on any subordinate shares shall be
paid or declared and set apart for payment, the holders of the Cumulative
Preferred Shares of each series shall be entitled to receive, when and as
declared by the Board of Directors, out of any funds legally available for
such purpose, cash dividends at the annual rate for such series theretofore
fixed by the Board of Directors as hereinbefore provided, and no more, payable
quarterly on such dates as may be fixed in the resolution or resolutions
adopted by the Board of Directors authorizing the creation of such series.
Such dividends shall be paid to shareholders of record on the respective
dates, not exceeding twenty (20) days prior to such payment dates, fixed by
the Board of Directors for such purpose. Such dividends shall be cumulative,
in the case of shares of each particular series:
(1) if issued prior to the record date for the first dividend on
shares of such series, then from and including the date fixed for such
purpose by the Board of Directors in the resolution or resolutions
creating such series;
(2) if issued during the period commencing immediately after the
record date for a dividend on shares of such series and terminating at
the close of the payment date for such dividend, then from and including
such last mentioned dividend payment date;
(3) otherwise from and including the quarterly dividend payment
date next preceding the date of issue of such shares.
No dividend shall be paid, or declared and set apart for payment, upon
any Cumulative Preferred Shares of any series for any quarterly dividend
period unless at the same time a like proportionate dividend for the same or
comparable quarterly period, ratable in proportion to the respective annual
dividend rates fixed therefor, shall be paid, or declared and set apart for
payment, upon all Cumulative Preferred Shares of all series then issued and
outstanding.
In no event shall any dividend be paid or declared, nor shall any
distribution be made, on any subordinate shares, nor shall any subordinate
shares be purchased, redeemed or otherwise acquired by the corporation for
value, nor shall any moneys be paid to or set aside or made available for a
purchase fund or sinking fund for the purchase or redemption of any
subordinate shares, unless (i) all dividends on the Cumulative Preferred
Shares of all series for all past quarterly dividend periods and for the then
current quarterly dividend period shall have been paid or declared and a sum
sufficient for the payment thereof set apart for payment; and (ii) the
corporation shall not be in default or deficient under any requirement of a
sinking or purchase fund established with respect to outstanding Cumulative
Preferred Shares of any series for any period then elapsed.
Subject to the provisions of this Article VI, and not otherwise,
dividends may be declared by the Board of Directors and paid from time to
time, out of any funds legally available therefor, upon the then outstanding
subordinate shares, and the holders of the Cumulative Preferred Shares shall
not be entitled to participate in any such dividends.
C. Redemption of Cumulative Preferred Shares. Subject to the
limitations stated in Subdivision D of this Division I, the Cumulative
Preferred Shares of any or all series may be redeemed, as a whole at any time
or in part from time to time, at the option of the corporation by resolution
of the Board of Directors, at the applicable redemption price for the shares
of such series as determined by the Board of Directors in the resolution or
resolutions authorizing the creation of such series, together with an amount
(hereinafter referred to as "accrued dividends to the redemption date") in the
case of each share, computed at the annual dividend rate for the series of
which the particular share is a part, from and including the date on which
dividends on such shares become cumulative to and including the date of
redemption, less the aggregate amount of all dividends which have theretofore
been paid thereon or which have been declared thereon and for which moneys for
payment have been set apart and remain available for payment. To the extent
that Cumulative Preferred Shares of any series are redeemed through the
operation of a sinking or purchase fund provided for in the resolution or
resolutions of the Board of Directors creating such series, such shares shall
be redeemed by resolution of the Board of Directors at the time and at the
applicable redemption price specified for redemption of shares of such series
pursuant to such sinking or purchase fund by the resolution or resolutions
creating such series. If less than all the outstanding Cumulative Preferred
Shares of any series are to be redeemed, the shares to be redeemed shall be
determined by lot in such manner as the Board of Directors may prescribe.
Notice of every redemption of Cumulative Preferred Shares shall be
mailed, addressed to the holders of record of the shares to be redeemed at
their respective addresses as they shall appear on the stock books of the
corporation, not less than thirty (30) days and not more than sixty (60) days
prior to the date fixed for redemption.
If notice of redemption shall have been duly given as aforesaid, and if,
on or before the redemption date specified in the notice, all funds necessary
for the redemption shall have been deposited in trust with a bank or trust
company in good standing and doing business at any place within the United
States, having capital, surplus and undivided profits aggregating at least
$1,000,000 and designated in the notice of redemption, for the pro rata
benefit of the holders of the shares so called for redemption, so as to be and
continue to be available therefor, then from and after the date of such
deposit, notwithstanding that any certificate for Cumulative Preferred Shares
so called for redemption shall not have been surrendered for cancellation, the
shares represented thereby shall no longer be deemed outstanding, the
dividends thereon shall cease to accumulate from and after the date fixed for
redemption, and all rights with respect to the Cumulative Preferred Shares so
called for redemption shall forthwith on the date of such deposit cease and
terminate, except only the right of the holders thereof to receive the
redemption price of the shares so redeemed, including accrued dividends to the
redemption date, but without interest. Any funds deposited by the corporation
pursuant to this paragraph and unclaimed at the end of six (6) years after the
date fixed for redemption shall be repaid to the corporation upon its request
expressed in a resolution of its Board of Directors, after which repayment the
holders of the shares so called for redemption shall look only to the
corporation for the payment thereof.
All Cumulative Preferred Shares converted, redeemed or purchased
voluntarily or pursuant to any sinking fund or purchase fund for the mandatory
redemption or purchase of shares shall be retired and cancelled and shall have
the status of authorized but unissued Cumulative Preferred Shares of the
corporation and may be reissued in the same manner as authorized but unissued
Cumulative Preferred Shares undesignated as to series.
D. Limitations on Purchase and Redemption of Cumulative Preferred
Shares. No Cumulative Preferred Shares of any series shall be purchased,
redeemed or otherwise acquired by the corporation for value, nor shall any
moneys be paid to or set aside or made available for a purchase fund or
sinking fund for the purchase or redemption of Cumulative Preferred Shares of
any series, unless all dividends on the Cumulative Preferred Shares of all
series for all past quarterly dividend periods and for the current quarterly
period shall have been paid or declared and a sum sufficient for the payment
thereof set apart for payment, except in the event all of the Cumulative
Preferred Shares shall be called for redemption.
E. Liquidation Preferences. In the event of any dissolution,
liquidation or winding up of the affairs of the corporation, before any
distribution or payment shall be made to the holders of any subordinate
shares, the holders of the shares of each series of Cumulative Preferred
Shares shall be entitled to be paid in full the respective amounts fixed by
the Board of Directors in the resolution or resolutions authorizing the issue
of such series, together with a sum, in the case of each share, computed at
the annual dividend rate for the series of which the particular share is a
part, from the date on which dividends on such shares became cumulative to and
including the date fixed for such distribution or payment, less the aggregate
amount of all dividends which have theretofore been paid thereon or which have
been declared thereon and for which moneys have been set apart and remain
available for payment. If such distribution or payment shall have been made
to the holders of the Cumulative Preferred Shares, or moneys made available
for such payment in full, the remaining assets and funds of the corporation
shall be distributed among the holders of the classes of subordinate shares,
according to their respective rights and preferences and in each case
according to their respective shares. If the assets available are not
sufficient to pay in full the amounts so payable to the holders of all
outstanding Cumulative Preferred Shares, the holders of all series of such
shares shall share ratably in any distribution of assets in proportion to the
full amounts to which they would otherwise be respectively entitled. The
consolidation or merger of the corporation into or with any other corporation
or corporations pursuant to the statutes of the State of Minnesota providing
for consolidation or merger shall not be deemed a liquidation, dissolution or
winding up of the affairs of the corporation within the meaning of any of the
provisions of this Subdivision E.
F. Voting and Restrictions on Certain Corporate Action. The holders of
the Cumulative Preferred Shares shall not be entitled to vote at any meetings
of the shareholders of the corporation, except as required by law or as
hereinafter otherwise provided in this Subdivision F and in Division IV:
(1) So long as any Cumulative Preferred Shares of any series are
outstanding, the corporation shall not without the consent (given by vote
at a special meeting of shareholders called for the purpose) of the
holders of at least two-thirds (2/3) of the aggregate voting power
(determined as hereinafter provided in Division IV) vested in the
Cumulative Preferred Shares of all series then outstanding:
(a) Create, authorize or issue any shares of any class ranking
prior to, or any securities of any kind or class convertible into
shares of any class ranking prior to, the Cumulative Preferred
Shares as to dividends or assets; or
(b) Amend the Articles of Incorporation so as to affect
adversely any of the preferences or other rights of the holders of
the Cumulative Preferred Shares, provided, however, that if any such
amendment would affect adversely the holders of one or more, but not
all, of the series of Cumulative Preferred Shares at the time
outstanding, consent only of the holders of at least two-thirds
(2/3) of the aggregate voting power (determined as hereinafter
provided in Division IV) vested in the shares of each series so
adversely affected shall be required.
(2) So long as any Cumulative Preferred Shares of any series are
outstanding, the corporation shall not without the consent (given by vote
at a special meeting of shareholders called for the purpose) of the
holders (i) of at least a majority of the aggregate voting power
(determined as hereinafter provided in Division IV) vested in the
Cumulative Preferred Shares of all series then outstanding, or (ii) in
case of the negative vote at such meeting of the holders of more than
one-fourth (1/4) of the aggregate voting power (determined as hereinafter
provided in Division IV) vested in the Cumulative Preferred Shares of all
series then outstanding, of at least two-thirds (2/3) of aggregate voting
power (determined as hereinafter provided in Division IV) vested in the
Cumulative Preferred Shares of all series then outstanding:
(a) Increase the authorized number of Cumulative Preferred
Shares, or create, authorize or issue any shares of any class
ranking on a parity with the Cumulative Preferred Shares as to
dividends or assets, or any securities of any kind or class
convertible into Cumulative Preferred Shares or shares of any class
on a parity with the Cumulative Preferred Shares; or
(b) Issue any Cumulative Preferred Shares of any series if as
a result thereof more than 60,000 Cumulative Preferred Shares of all
series will then be outstanding, unless:
(i) The corporation's "Adjusted Income Available for
Interest," as hereinafter defined, shall be at least equal to
one-and-one-half (1-1/2) times the corporation's "Adjusted
Interest and Preferred Charges," as hereinafter defined; and
(ii) The corporation's "Adjusted Income Available for
Preferred Dividends," as hereinafter defined, shall be at least
equal to two-and-one-half (2-1/2) times the corporation's
"Adjusted Preferred Charges," as hereinafter defined; and
(iii) The corporation's "Common Share Equity," as
hereinafter defined, shall equal at least one-fourth (1/4) of
the corporation's "Total Capitalization," as hereinafter
defined; or
(c) Declare, pay or set apart for payment any dividend on any
subordinate shares, or purchase, redeem or otherwise acquire for
value any subordinate shares, or pay or set aside or make available
any moneys for a purchase fund or sinking fund for the purchase or
redemption of any such subordinate shares, unless after giving
effect to the payment of such dividend or such purchase, redemption
or other acquisition of such payment or setting aside of moneys in a
purchase fund or sinking fund,
(i) The "Common Share Equity," as hereinafter defined,
shall equal at least one-fourth (1/4) of the "Total
Capitalization," as hereinafter defined; and
(ii) The earned surplus of the corporation shall be not
less than $831,398.
(d) Consolidate or merge into or with any other corporation or
corporations pursuant to the statutes of the State of Minnesota
providing for consolidation or merger, unless, immediately after
such consolidation or merger shall become effective:
(i) The Cumulative Preferred Shares of the corporation
outstanding immediately prior to such consolidation or merger
shall remain outstanding or be constituted as shares of the
corporation resulting from such consolidation or merger in the
same number and with the same relative rights, voting power,
preferences and restrictions as theretofore, the authorized
number thereof shall not be increased, there shall be no shares
of the resulting corporation outstanding or authorized ranking
prior to or on a parity with the Cumulative Preferred Shares,
except shares of the corporation outstanding or authorized
immediately prior to such consolidation or merger, and the
indebtedness for borrowed money of the resulting corporation
immediately after such consolidation or merger shall be no
greater than the indebtedness for borrowed money of the
corporation immediately preceding such consolidation or merger;
or
(ii) (aa) The "Adjusted Income Available for Interest,"
as hereinafter defined, of the resulting corporation shall be
at least equal to one-and-one-half (1-1/2) times its "Adjusted
Interest and Preferred Charges," as hereinafter defined; and
(bb) The "Adjusted Income Available for Preferred
Dividends," as hereinafter defined, of the resulting
corporation shall be at least equal to two-and-one-half (2-1/2)
times its "Adjusted Preferred Charges," as hereinafter defined;
and
(cc) The "Common Share Equity," as hereinafter
defined, of the resulting corporation shall equal at least
one-fourth (1/4) of its "Total Capitalization," as hereinafter
defined.
(e) Sell, lease or exchange all or substantially all of its
property and assets, unless, after the completion of such
transaction, the fair value of the assets of the corporation shall
at least equal the preference on voluntary liquidation of all
Cumulative Preferred Shares of all series then outstanding and of
all shares then outstanding of a class on parity with the Cumulative
Preferred Shares, after first deducting an amount equal to all then
existing indebtedness of the corporation and an amount equal to the
preference on voluntary liquidation of all shares ranking prior to
the Cumulative Preferred Shares.
(3) For the purposes of the foregoing provisions of this
Subdivision F:
(a) The term "Adjusted Income Available for Interest" shall
mean the gross income of the corporation for a period of twelve (12)
consecutive calendar months selected by the corporation out of the
fifteen (15) calendar months immediately preceding the proposed
issuance of additional Cumulative Preferred Shares, or the proposed
consolidation or merger, determined in accordance with such system
of accounts as may be prescribed by governmental authorities having
jurisdiction in the premises or, in the absence thereof, in
accordance with generally accepted accounting practice, available
for the payment of interest, but after deduction of taxes of all
kinds (including taxes based on income) including for a like period
such gross income (similarly computed and with similar deductions
and eliminating any duplication of income) of any property which was
or will have been an operating unit or a part of an operating unit
preceding its acquisition by the corporation and which has been
acquired within the past twelve (12) months immediately preceding or
is to be acquired by the corporation substantially contemporaneously
with the proposed issuance of additional Cumulative Preferred
Shares, or the proposed consolidation or merger.
(b) The term "Adjusted Interest and Preferred Charges" is
hereby defined as the sum of (i) the interest charges for one year
upon all interest bearing indebtedness of the corporation
outstanding at the time of issuance of such Cumulative Preferred
Shares or of the proposed consolidation or merger, including that,
if any, proposed to be issued or assumed substantially
contemporaneously, or to which property theretofore acquired or to
be acquired substantially contemporaneously is or will be subject
(adjusted for all amortization of debt discount and expense, or of
premium on debt, as the case may be), and (ii) the dividend
requirements for one year on all outstanding Cumulative Preferred
Shares, and on all other shares of a class ranking prior to or on a
parity with the Cumulative Preferred Shares as to dividends or
assets, outstanding at the time of issuance of such additional
Cumulative Preferred Shares, or of such consolidation or merger,
including all such shares proposed to be issued, or all such shares
of the resulting corporation, as the case may be.
(c) The term "Adjusted Income Available for Preferred
Dividends" is hereby defined as the "Adjusted Income Available for
Interest" for the aforesaid twelve (12) months' period, less the
interest charges for one year and the dividend requirements for one
year on any shares ranking prior to the Cumulative Preferred Shares,
included in determining the "Adjusted Interest and Preferred
Charges."
(d) The term "Adjusted Preferred Charges" is hereby defined as
the "Adjusted Interest and Preferred Charges" for one year
determined at the time of issuance of such Cumulative Preferred
Shares or of the proposed consolidation or merger, less the interest
charges for one year and the dividend requirements for one year on
any shares ranking prior to the Cumulative Preferred Shares,
included in determining the "Adjusted Interest and Preferred
Charges."
(e) The term "Common Share Equity" is hereby defined as the
sum of (i) the stated capital of the corporation applicable to its
Common Shares and to all other subordinate shares (including shares,
if any, proposed to be issued substantially contemporaneously or any
additional such shares of the resulting corporation, as the case may
be), (ii) capital surplus to the extent of premium on Common Shares
and on all other subordinate shares (including premium, if any, on
shares proposed to be issued substantially contemporaneously or any
additional such shares of the resulting corporation, as the case may
be), (iii) contributions in aid of construction, and (iv) earned
surplus, all determined in accordance with such system of accounts
as may be prescribed by governmental authorities having jurisdiction
in the premises or, in the absence thereof, in accordance with
generally accepted accounting practice.
(f) The term "Total Capitalization" is hereby defined as the
sum of (i) the Common Share Equity, (ii) the involuntary liquidation
preference of all Cumulative Preferred Shares and all other shares
prior to or on a parity with the Cumulative Preferred Shares to be
outstanding after the proposed event, and (iii) the principal amount
of all interest bearing debt (including debt to which property
theretofore acquired or to be acquired substantially
contemporaneously is or will be subject) to be outstanding after the
proposed event, excluding, however, all indebtedness maturing by its
terms within one year from the time of creation thereof unless the
corporation, without the consent of the lender, has the right to
extend the maturity of such indebtedness for a period or periods
which, with the original period of such indebtedness, aggregates one
year or more.
DIVISION II
Provisions Relating to Cumulative Preference Shares
A. Issue in Series. The Cumulative Preference Shares may be issued
from time to time in one or more series, each of which series shall have such
designation and such relative rights, voting power, preferences and
restrictions as are hereinafter provided and, to the extent hereinafter
permitted, as are determined and stated by the Board of Directors in the
resolution or resolutions authorizing the creation of shares of such series.
All Cumulative Preference Shares shall be of equal rank and shall be
identical, except in respect of their relative voting power (determined as
hereinafter provided in Division IV) and the particulars that may be
determined by the Board of Directors as hereinafter provided; and each share
of each series shall be identical in all respects with the other shares of
such series, except as to the dates from which dividends thereon shall be
cumulative. Cumulative Preference Shares shall be issued only as fully paid
and nonassessable shares.
Subject to the provisions of the last paragraph of this Subdivision A,
authority is hereby expressly granted to the Board of Directors to authorize
the issuance of Cumulative Preference Shares in one or more series, and to
determine and state, by the resolution or resolutions authorizing the creation
of each series: (i) the designation of the series and the number of shares
which shall constitute such series, which number may be altered from time to
time by like action of the Board of Directors in respect of shares then
unallotted; (ii) the annual rate of dividends payable on shares of such
series; (iii) the price or prices per share at which the shares of such series
shall be redeemable; (iv) the amount payable on shares of such series in the
event of any dissolution, liquidation or winding up of the affairs of the
corporation, which amount may differ in the case of a voluntary or involuntary
dissolution, liquidation or winding up of such affairs, provided that the
amount in the case of an involuntary dissolution, liquidation or winding up of
such affairs shall be determined as provided in the following paragraph;
(v) the conversion rights, if any, with respect to the conversion of shares of
such series into Common Shares of the corporation; and (vi) the sinking or
purchase fund provisions, if any, for the mandatory redemption or purchase of
shares of such series.
The amount (in addition to accrued and unpaid dividends, if any) which
the holders of Cumulative Preference Shares of each series shall be entitled
to receive in the event of any dissolution, liquidation or winding up of the
affairs of the corporation which shall be involuntary shall be equal to the
gross consideration received by the corporation upon the issuance thereof
(without regard to any premium received or any underwriting discount or
commission, private placement fee or other expense incurred by the corporation
in connection with the issuance thereof).
B. Dividends. Subject to the preferential rights of the holders of
Cumulative Preferred Shares with respect to payment of dividends as set forth
in Subdivision B of Division I, the holders of the Cumulative Preference
Shares of each series shall be entitled to receive, when and as declared by
the Board of Directors, out of any funds legally available for such purpose,
cash dividends at the annual rate for such series theretofore fixed by the
Board of Directors as hereinbefore provided, and no more, payable quarterly on
such dates as may be fixed in the resolution or resolutions adopted by the
Board of Directors authorizing the creation of such series. Such dividends
shall be paid to shareholders of record on the respective dates, not exceeding
twenty (20) days prior to such payment dates, fixed by the Board of Directors
for such purpose. Such dividends shall be cumulative from and including the
date or dates fixed for such purpose by the Board of Directors in the
resolution or resolutions authorizing the creation of such series.
No dividend shall be paid, or declared and set apart for payment, upon
any Cumulative Preference Shares of any series for any quarterly dividend
period unless at the same time a like proportionate dividend for the same or
comparable quarterly period, ratable in proportion to the respective annual
dividend rates fixed therefor, shall be paid, or declared and set apart for
payment, upon all Cumulative Preference Shares of all series then issued and
outstanding.
In no event shall any dividend be paid or declared, nor shall any
distribution be made, on any subordinate shares, other than a dividend or
distribution payable solely in subordinate shares, nor shall any subordinate
shares be purchased, redeemed or otherwise acquired by the corporation for
value, nor shall any moneys be paid to or set aside or made available for a
purchase fund or sinking fund for the purchase or redemption of any
subordinate shares, unless (i) all dividends on the Cumulative Preference
Shares of all series for all past quarterly dividend periods and for the then
current quarterly dividend period shall have been paid or declared and a sum
sufficient for the payment thereof set apart for payment; and (ii) the
corporation shall not be in default or deficient under any requirement of a
sinking or purchase fund established with respect to outstanding Cumulative
Preference Shares of any series for any period then elapsed.
Subject to the provisions of this Article VI, and not otherwise,
dividends may be declared by the Board of Directors and paid from time to
time, out of any funds legally available therefor, upon the then outstanding
subordinate shares, and the holders of the Cumulative Preference Shares shall
not be entitled to participate in any such dividends.
C. Redemption of Cumulative Preference Shares. Subject to the
limitations stated in Subdivision B of Division I and in Subdivision D of this
Division II, the Cumulative Preference Shares of any or all series may be
redeemed, as a whole at any time or in part from time to time, at the option
of the corporation by resolution of the Board of Directors, at the applicable
redemption price for the shares of such series as determined by the Board of
Directors in the resolution or resolutions authorizing the creation of such
series, together with an amount (hereinafter referred to as "accrued dividends
to the redemption date") in the case of each share, computed at the annual
dividend rate for the series of which the particular share is a part, from and
including the date on which dividends on such share became cumulative to and
including the date of redemption, less the aggregate amount of all dividends
which have theretofore been paid thereon or which have been declared thereon
and for which moneys for payment have been set apart and remain available for
payment. Each such redemption shall be effected upon the same notice as
provided in Subdivision C of Division I in respect of the redemption of
Cumulative Preferred Shares, and all other provisions of said Subdivision C
with respect to the method and effect of redemption of Cumulative Preferred
Shares shall be applicable to the redemption of Cumulative Preference Shares
in the same manner and with the same force and effect as though such
provisions were set forth in full in this Subdivision C.
All Cumulative Preference Shares converted, redeemed or purchased
voluntarily or pursuant to any sinking fund or purchase fund for the mandatory
redemption or purchase of shares shall be retired and cancelled and shall have
the status of authorized but unissued Cumulative Preference Shares of the
corporation and may be reissued in the same manner as authorized but unissued
Cumulative Preference Shares undesignated as to series.
D. Limitation on Purchase and Redemption of Cumulative Preference
Shares. No Cumulative Preference Shares of any series shall be purchased,
redeemed or otherwise acquired by the corporation for value, nor shall any
moneys be paid to or set aside or made available for a purchase fund or
sinking fund for the purchase or redemption of Cumulative Preference Shares of
any series, unless all dividends on the Cumulative Preference Shares of all
series for all past quarterly dividend periods and for the current quarterly
period shall have been paid or declared and a sum sufficient for the payment
thereof set apart for payment, except in event all of the Cumulative
Preference Shares shall be called for redemption.
E. Liquidation Preferences. In the event of any dissolution,
liquidation or winding up of the affairs of the corporation, before any
distribution or payment shall be made to the holders of any class of
subordinate shares, the holders of the shares of each series of Cumulative
Preference Shares shall be entitled to be paid in full the respective amounts
fixed by the Board of Directors in the resolution or resolutions authorizing
the creation of such series together with an amount, in the case of each
share, computed at the annual dividend rate for the series of which the
particular share is a part, from and including the date on which dividends on
such share became cumulative to and including the date fixed for such payment,
less the aggregate amount of all dividends which have theretofore been paid
thereon or which have been declared thereon and for which moneys have been set
apart and remain available for payment; provided, however, that no such
payment to the holders of Cumulative Preference Shares shall be made until
payment in full shall have been made to the holders of Cumulative Preferred
Shares, or moneys made available for such payment in full, in accordance with
the provisions of Subdivision E of Division I. If such payment shall have
been made to the holders of the Cumulative Preference Shares, or moneys made
available for such payment in full, the remaining assets and funds of the
corporation shall be distributed among the holders of the classes of
subordinate shares according to their respective rights and preferences and in
each case according to their respective shares. If the assets available are
not sufficient to pay in full the amounts so payable to the holders of all
outstanding Cumulative Preference Shares, the holders of all series of such
shares shall share ratably in any distribution of assets in proportion to the
full amounts to which they would otherwise be respectively entitled. The
consolidation or merger of the corporation into or with any other corporation
or corporations pursuant to the statutes of the State of Minnesota providing
for consolidation or merger shall not be deemed a liquidation, dissolution or
winding up of the affairs of the corporation within the meaning of any of the
provisions of this Subdivision E.
F. Voting and Restrictions on Certain Corporate Action. The holders of
the Cumulative Preference Shares shall not be entitled to vote at any meetings
of the shareholders of the corporation, except as required by law or as
hereinafter otherwise provided in this Subdivision F and in Division IV:
(1) So long as any Cumulative Preference Shares of any series are
outstanding, the corporation shall not, without the consent (given by
vote at a special meeting of shareholders called for the purpose) of the
holders of at least two-thirds (2/3) of the aggregate voting power
(determined as hereinafter provided in Division IV) vested in the
Cumulative Preference Shares of all series then outstanding:
(a) Create or authorize any shares of any class (other than
the Cumulative Preferred Shares, whether now or hereafter
authorized) ranking prior to the Cumulative Preference Shares as to
dividends or assets; or
(b) Amend the Articles of Incorporation so as to affect
adversely any of the preferences or other rights of the holders of
the Cumulative Preference Shares, provided, however, that if any
such amendment would affect adversely the holders of one or more,
but not all, of the series of Cumulative Preference Shares at the
time outstanding, consent only of the holders of at least two-thirds
(2/3) of the aggregate voting power (determined as hereinafter
provided in Division IV) vested in the shares of each series so
adversely affected shall be required.
(2) So long as any Cumulative Preference Shares of any series are
outstanding, the corporation shall not, without the consent (given by
vote at a special meeting of shareholders called for the purpose) of the
holders (i) of at least a majority of the aggregate voting power
(determined as hereinafter provided in Division IV) vested in the
Cumulative Preference Shares of all series then outstanding, or (ii) in
case of the negative vote at such meeting of the holders of more than
one-fourth (1/4) of the aggregate voting power (determined as hereinafter
provided in Division IV) vested in the Cumulative Preference Shares of
all series then outstanding, of at least two-thirds (2/3) of the
aggregate voting power (determined as hereinafter provided in Division
IV) vested in the Cumulative Preference Shares of all series then
outstanding:
(a) Increase the authorized number of Cumulative Preference
Shares, or create or authorize any shares of any class ranking on a
parity with the Cumulative Preference Shares as to dividends or
assets; or
(b) Consolidate or merge into or with any other corporation or
corporations pursuant to the statutes of the State of Minnesota
providing for consolidation or merger unless, immediately after such
consolidation or merger shall become effective, the Cumulative
Preference Shares of the corporation outstanding immediately prior
to such consolidation or merger shall remain outstanding or be
constituted as shares of the corporation resulting from such
consolidation or merger in the same number and with the same
relative rights, voting power, preferences and restrictions as
theretofore, the authorized number thereof shall not be increased,
and there shall be no shares of the resulting corporation
outstanding or authorized ranking prior to or on a parity with the
Cumulative Preference Shares, except shares of the corporation
outstanding or authorized immediately prior to such consolidation or
merger; or
(c) Sell, lease or exchange all or substantially all of its
property and assets, unless, after the completion of such
transaction, the fair value of the assets of the corporation shall
at least equal the preference on voluntary liquidation of all
Cumulative Preference Shares of all series then outstanding and of
all shares then outstanding of a class on a parity with the
Cumulative Preference Shares, after first deducting an amount equal
to all then existing indebtedness of the corporation and an amount
equal to the preference on voluntary liquidation of all shares
ranking prior to the Cumulative Preference Shares.
DIVISION III
Provisions Relating to Common Shares
A. Dividends. Subject to the preferential rights of the holders of the
Cumulative Preferred Shares and the Cumulative Preference Shares with respect
to the payment of dividends, as set forth in Subdivision B of Division I and
Subdivision B of Division II, respectively, holders of the Common Shares shall
be entitled to receive dividends, out of any funds legally available therefor,
when and as declared by the Board of Directors.
B. Liquidation Preferences. In the event of any dissolution,
liquidation or winding-up of the affairs of the corporation, whether voluntary
or involuntary, holders of the Common Shares shall be entitled to receive
ratably, in accordance with the numbers of shares held by them respectively,
the assets of the corporation available for payment to shareholders remaining
after payment in full shall have been made to holders of the Cumulative
Preferred Shares and the Cumulative Preference Shares in accordance with the
provisions of Subdivision E of Division I and Subdivision E of Division II,
respectively.
DIVISION IV
Voting Rights and Other Provisions
Relating to Cumulative Preferred Shares,
Cumulative Preference Shares and Common Shares
A. Voting Rights of Common Shares. Except as otherwise expressly set
forth in this Article VI and as provided by law, the holders of Common Shares
shall have the sole voting rights of shareholders of the corporation and shall
be entitled to one vote for each share held, and the holders of a majority of
the Common Shares outstanding shall have power to authorize the sale, lease,
exchange or other disposal of all, or substantially all, of the property and
assets of the corporation, including its good will, to adopt or reject an
agreement of consolidation or merger and to amend the Articles of
Incorporation.
B. Voting Rights of Cumulative Preferred Shares.
(1) After an amount equivalent to four (4) full quarterly dividend
installments on the Cumulative Preferred Shares of any series outstanding
shall be in default, the holders of Cumulative Preferred Shares of all
series at the time outstanding, voting separately as a class, shall, at
any annual meeting of the shareholders or any special meeting of the
shareholders called as herein provided occurring during such period,
elect three members of the Board of Directors, and the holders of the
Common Shares, voting separately as a class, shall, subject to any rights
of the holders of Cumulative Preference Shares to elect directors as
provided in Subdivision C of this Division IV, elect the remaining
directors of the corporation.
(2) After an amount equivalent to twelve (12) full quarterly
dividend installments on the Cumulative Preferred Shares of any series
outstanding shall be in default, the holders of Cumulative Preferred
Shares of all series at the time outstanding, voting separately as a
class, shall at any annual meeting of the shareholders or any special
meeting of the shareholders called as herein provided occurring during
such period, elect the smallest number of directors necessary to
constitute a majority of the full Board of Directors, and the holders of
the Common Shares, voting separately as a class, shall, subject to any
rights of the holders of Cumulative Preference Shares to elect directors
as provided in Subdivision C of this Division IV, elect the remaining
directors of the corporation.
(3) At any annual meeting or special meeting of the shareholders
for the election of directors occurring after all dividends then in
default on the Cumulative Preferred Shares then outstanding shall be paid
(and such dividends shall be declared and paid out of any funds legally
available therefor as soon as reasonably practical), the Cumulative
Preferred Shares shall thereupon be divested of any special rights with
respect to the election of directors provided in paragraphs (1) and (2)
of this Subdivision B, but always subject to the same provisions for the
vesting of such voting power in the holders of the Cumulative Preferred
Shares in the case of a future like default or defaults in dividends
thereon.
(4) Voting power vested in the holders of the Cumulative Preferred
Shares as provided in paragraphs (1) and (2) of this Subdivision B may be
exercised at any annual meeting of shareholders or at a special meeting
of shareholders held for such purpose, which special meeting of
shareholders shall be called by the proper officers of the corporation at
any time when such voting power shall be so vested, within twenty (20)
days after written request therefor signed by the holders of not less
than five percent (5%) of the aggregate voting power (determined as
hereinafter provided in Subdivision D of this Division IV) vested in the
Cumulative Preferred Shares of all series then outstanding, the date of
such special meeting to be not more than forty (40) days from the date of
giving of notice thereof.
(5) Notice of any annual or special meeting of shareholders for the
election of directors held when voting powers as aforesaid shall be
vested in the holders of Cumulative Preferred Shares shall be given to
all holders of Cumulative Preferred Shares not less than fifteen (15)
days prior to said meeting, and such notice shall describe with
particularity the voting rights of the holders of each series of
Cumulative Preferred Shares.
(6) At any such annual or special meeting the presence in person or
by proxy of the holders of a majority of the aggregate voting power
(determined as hereinafter provided in Subdivision D of this Division IV)
vested in the Cumulative Preferred Shares of all series then outstanding
shall be required to constitute a quorum of the holders of the Cumulative
Preferred Shares for the election by them of the directors whom they are
entitled to elect; provided, however, that the holders of a majority of
the aggregate voting power (determined as hereinafter provided in
Subdivision D of this Division IV) vested in the Cumulative Preferred
Shares who are present in person or by proxy shall have power to adjourn
such meeting for the election of directors by the holders of the
Cumulative Preferred Shares from time to time, without notice other than
announcement at the meeting.
C. Voting Rights of Cumulative Preference Shares.
(1) After an amount equivalent to four (4) full quarterly dividend
installments on the Cumulative Preference Shares of any series
outstanding shall be in default, the holders of Cumulative Preference
Shares of all series at the time outstanding, voting separately as a
class, shall, at any annual meeting of the shareholders or any special
meeting of the shareholders called as herein provided occurring during
such period, elect two members of the Board of Directors, and the holders
of the Common Shares, voting separately as a class, shall, subject to any
rights of the holders of Cumulative Preferred Shares to elect directors
as provided in Subdivision B of this Division IV, elect the remaining
directors of the corporation.
(2) At any annual meeting or special meeting of the shareholders
for the election of directors occurring after all dividends then in
default on the Cumulative Preference Shares then outstanding shall be
paid (and such dividends shall be declared and paid out of any funds
legally available therefor as soon as reasonably practical), the
Cumulative Preference Shares shall thereupon be divested of any special
rights with respect to the election of directors provided for in
paragraph (1) of this Subdivision C, but always subject to the same
provisions for the vesting of such voting power in the holders of the
Cumulative Preference Shares in the case of a future like default or
defaults in dividends thereon.
(3) All provisions of paragraphs (4), (5) and (6) of Subdivision B
of this Division IV with respect to the method of exercising the special
voting rights of the holders of Cumulative Preferred Shares shall be
applicable to the special voting rights of the holders of Cumulative
Preference Shares in the same manner and with the same force and effect
as though such provisions were set forth in full in this Subdivision C.
D. Number of Votes Applicable to Each Cumulative Preferred Share and to
Each Cumulative Preference Share. For the purpose of each vote or consent
under the Articles of Incorporation or pursuant to applicable law, the number
of votes to which each Cumulative Preferred Share and each Cumulative
Preference Share shall be entitled shall be determined as follows:
(a) In voting by holders of Cumulative Preferred Shares, separately
as a class, or by series, each Cumulative Preferred Share entitled to
receive the smallest fixed amount (in addition to accrued and unpaid
dividends, if any) in the event of any dissolution, liquidation or
winding up of the affairs of the corporation which shall be involuntary
shall have one vote, and each Cumulative Preferred Share entitled to
receive a greater fixed amount (in addition to accrued and unpaid
dividends, if any) in any such event shall have the number of votes which
is in the same proportion as such greater amount shall be to such
smallest amount;
(b) In voting by holders of Cumulative Preference Shares,
separately as a class, or by series, each Cumulative Preference Share
entitled to receive the smallest fixed amount (in addition to accrued and
unpaid dividends, if any) in the event of any dissolution, liquidation or
winding up of the affairs of the corporation which shall be involuntary
shall have one vote, and each Cumulative Preference Share entitled to
receive a greater fixed amount (in addition to accrued and unpaid
dividends, if any) in any such event shall have the number of votes which
is in the same proportion as such greater amount shall be to such
smallest amount; and
(c) In voting by holders of Cumulative Preferred Shares and/or
Cumulative Preference Shares and/or holders of Common Shares, together as
a single class, each Common Share shall have one vote, each Cumulative
Preferred Share and each Cumulative Preference Share entitled to receive
$100 (in addition to accrued and unpaid dividends, if any) in the event
of any dissolution, liquidation or winding up of the affairs of the
corporation which shall be involuntary shall have one vote and each
Cumulative Preferred Share and each Cumulative Preference Share entitled
to receive a different fixed amount (in addition to accrued and unpaid
dividends, if any) in such event shall be entitled to such greater or
lesser number of votes which is in the same proportion as such different
amount shall be to $100.
E. Number and Term of Directors and Manner of Election.
(1) Except at such times as the holders of Cumulative Preferred
Shares and/or Cumulative Preference Shares shall have voting rights for
the election of directors, (a) the Board of Directors shall consist of
such number of persons, not less than seven (7) nor more than nine (9),
as may be determined by the shareholders from time to time at annual
meetings thereof (subject to the authority of the Board of Directors to
increase or decrease the number of directors as permitted by law), (b)
the term of office of each director other than directors elected to fill
vacancies shall be for the period ending at the third annual meeting
following his election and until his successor is elected and qualified,
(c) vacancies in the Board of Directors occurring by reason of death,
resignation, removal or disqualification shall be filled for the
unexpired term of the director with respect to whom the vacancy occurred
by a majority of the remaining directors of the Board of Directors,
although less than a quorum, and (d) vacancies in the Board of Directors
occurring by reason of newly created directorships resulting from an
increase in the authorized number of directors by action of the Board of
Directors as permitted by these Articles of Incorporation and the Bylaws
of the corporation shall be filled by a majority vote of the directors
serving at the time of such increase, each director so elected to a newly
created directorship to serve for the appropriate term so as to maintain,
as near as may be, an equal division between the classes of directors.
Notwithstanding any other provisions of these Articles of Incorporation
or the Bylaws of the corporation or the fact that a lesser percentage may
be specified by law, these Articles of Incorporation or the Bylaws of the
corporation, the affirmative vote of the holders of at least 75% of the
voting power of the then outstanding Common Shares shall be required to
amend, alter, adopt any provision inconsistent with or repeal this
paragraph (1) of Subdivision E of this Division IV unless the Board of
Directors, if all such directors are Continuing Directors, as defined in
this Article VI, shall unanimously recommend such amendment, alteration,
adoption or repeal.
(2) If at any time the holders of Cumulative Preferred Shares
and/or Cumulative Preference Shares of the corporation shall, under the
provisions of paragraph (1) of Subdivision B of this Division IV or of
paragraph (1) of Subdivision C of this Division IV, become entitled to
elect any directors, then the terms of all incumbent directors shall
expire at the time of the first annual meeting thereafter at which such
holders of Cumulative Preferred Shares and/or Cumulative Preference
Shares are so entitled to elect directors. If at any time the holders of
Cumulative Preferred Shares of the corporation shall, under the
provisions of paragraph (2) of Subdivision B of this Division IV, become
entitled to elect a majority of the Board of Directors, the terms of all
incumbent directors shall expire whenever such majority has been duly
elected and qualified. During any period during which the holders of
Cumulative Preferred Shares and/or Cumulative Preference Shares of the
corporation shall have voting rights with respect to directors under the
provisions of this Division IV, the Board of Directors shall consist of
eleven (11) persons and the entire number of persons composing such Board
shall be elected at each annual or special meeting of shareholders for
the election of directors and shall serve until the next such annual or
special meeting or until their successors have been elected and
qualified, provided, however, that whenever the holders of Cumulative
Preferred Shares and/or Cumulative Preference Shares acquire voting
rights under paragraph (1) of Subdivision B of this Division IV or under
paragraph (1) of Subdivision C of this Division IV, and exercise such
rights at a special meeting called therefor, the terms of office of
directors theretofore elected by the holders of Common Shares will not
expire until the next annual meeting. If a vacancy or vacancies in the
Board of Directors shall exist with respect to a director or directors
who shall have been elected by the holders of either Cumulative Preferred
Shares or Cumulative Preference Shares, the remaining directors elected
by the holders of Cumulative Preferred Shares or Cumulative Preference
Shares, as the case may be, by affirmative vote of a majority thereof, or
the remaining director so elected if there be but one, may elect a
successor or successors to hold office for the unexpired term of the
director or directors whose place or places shall be vacant. Likewise,
if a vacancy or vacancies shall exist with respect to a director or
directors who shall have been elected by the holders of Common Shares,
the remaining directors elected by the holders of Common Shares, by
affirmative vote of a majority thereof, or the remaining director so
elected if there be but one, may elect a successor or successors to hold
office for the unexpired term of the director or directors whose place or
places shall be vacant.
(3) Whenever the Cumulative Preferred Shares shall be divested of
voting powers with respect to the election of directors as provided in
paragraph (3) of Subdivision B of this Division IV, the terms of all
incumbent directors, other than directors elected by the holders of
Cumulative Preference Shares pursuant to Subdivision C of this
Division IV, shall expire upon the election of their successors by the
holders of the Common Shares at the next annual or special meeting of
shareholders for the election of directors. A special meeting shall be
called for such purpose within twenty (20) days after the written request
therefor signed by the holders of not less than five percent (5%) of the
Common Shares outstanding, the date of such special meeting to be not
more than forty (40) days from the date of giving of notice thereof.
Upon the election and qualification of directors by the holders of Common
Shares as aforesaid the provisions of paragraph (1) of Subdivision E of
this Division IV shall again control, unless at that time the holders of
Cumulative Preference Shares have voting rights for the election of
directors.
(4) Whenever the Cumulative Preference Shares shall be divested of
voting powers with respect to the election of directors as provided in
paragraph (2) of Subdivision C of this Division IV, the terms of all
incumbent directors, other than directors elected by the holders of
Cumulative Preferred Shares pursuant to Subdivision B of this
Division IV, shall expire on the election of their successors by the
holders of the Common Shares at the next annual or special meeting of
shareholders for the election of directors. A special meeting shall be
called for such purpose within twenty (20) days after the written request
therefor signed by the holders of not less than five percent (5%) of the
Common Shares outstanding, the date of such special meeting to be not
more than forty (40) days from the date of giving of notice thereof.
Upon the election and qualification of directors by the holders of Common
Shares as aforesaid, the provisions of paragraph (1) of Subdivision E of
this Division IV shall again control, unless at that time the holders of
Cumulative Preferred Shares have voting rights for the election of
directors.
F. Cumulative Voting. The holders of Common Shares of the corporation
shall have no right to cumulate votes in the election of directors. If notice
in writing is given by any holder of Cumulative Preferred Shares or Cumulative
Preference Shares to any officer of the corporation before a meeting for the
election of directors at which such shareholder is entitled to vote, or to the
presiding officer at such meeting at any time before the election of directors
takes place, that he intends to cumulate his votes in such election, each
holder of shares of the class with respect to which such notice has been given
shall have the right to multiply the number of votes to which he may be
entitled by the number of directors to be elected by the holders of shares of
such class, and he may cast all such votes for one candidate or distribute
them among any two or more candidates. In such case, it shall be the duty of
the presiding officer, before the election of directors at the meeting, to
announce that all shareholders of the class with respect to which such notice
has been given shall cumulate their votes.
G. Preemptive Rights. No holder of shares of the corporation of any
class or of any security or obligation convertible into, or of any warrant,
option or right to purchase, subscribe for or otherwise acquire, shares of any
class of the corporation, whether now or hereafter authorized, shall, as such
holder, have any preemptive or preferential right whatsoever to purchase,
subscribe for or otherwise acquire shares of any class of the corporation or
of any security or obligation convertible into, or of any warrant, option or
right to purchase, subscribe for or otherwise acquire, shares of any class of
the corporation, whether now or hereafter authorized, other than such rights
of subscription, if any, as the Board of Directors may from time to time
determine.
DIVISION V
Voting Rights of Common Shares
Relating To Certain Business Combinations
A. In addition to any other affirmative vote required by law or these
Articles of Incorporation, and except as otherwise expressly provided in
Subdivision B of this Division V,
1. any merger or consolidation of the corporation or any
Subsidiary (as hereinafter defined) with (a) an Interested Shareholder
(as hereinafter defined) or (b) any other corporation (whether or not
itself an Interested Shareholder) which is, or after such merger or
consolidation would be, an Affiliate or Associate (as such terms are
hereinafter defined) of an Interested Shareholder, or
2. any sale, lease, exchange, mortgage, pledge, grant of a
security interest, transfer or other disposition (in one transaction or a
series of transactions), other than in the ordinary course of business,
to or with (a) an Interested Shareholder or (b) any other person (whether
or not itself an Interested Shareholder) which is, or after such sale,
lease, exchange, mortgage, pledge, grant of a security interest, transfer
or other disposition would be, an Affiliate or Associate of an Interested
Shareholder, directly or indirectly, of all or any Substantial Part (as
hereinafter defined) of the assets of the corporation (including, without
limitation, any voting securities of a Subsidiary) or any Subsidiary, or
both, or
3. the issuance or transfer by the corporation or any Subsidiary
(in one transaction or a series of transactions) of any securities
(except pursuant to stock dividends, stock splits or similar transactions
which would not have the effect of increasing the proportionate voting
power of an Interested Shareholder) of the corporation or any Subsidiary,
or both, to (a) an Interested Shareholder or (b) any other person
(whether or not itself an Interested Shareholder) which is, or after such
issuance or transfer would be, an Affiliate or Associate of an Interested
Shareholder, or
4. the adoption of any plan or proposal for the liquidation or
dissolution of the corporation proposed by or on behalf of an Interested
Shareholder or any Affiliate or Associate of an Interested Shareholder,
or
5. any reclassification of securities (including any reverse stock
split), or recapitalization of the corporation, or any merger or
consolidation of the corporation with any of its Subsidiaries or any
other transaction (whether or not with or into or otherwise involving an
Interested Shareholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class
of equity or convertible securities of the corporation or any subsidiary
directly or indirectly beneficially owned by (a) an Interested
Shareholder or (b) any other person (whether or not itself an Interested
Shareholder) which is, or after such reclassification, recapitalization,
merger or consolidation or other transaction would be, an Affiliate or
Associate of an Interested Shareholder,
shall not be consummated unless such consummation shall have been approved by
the affirmative vote of the holders of at least 75% of the voting power of the
then outstanding Common Shares. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law, in these Articles of Incorporation or in
any agreement with any national securities exchange or otherwise.
B. The provisions of Subdivision A of this Division V shall not be
applicable to any particular Business Combination (as hereinafter defined) and
such Business Combination shall require only such affirmative vote as is
required by law and any other provision of these Articles of Incorporation, if
the Business Combination shall have been approved by a majority of the
Continuing Directors (as hereinafter defined) or all of the following
conditions shall have been met:
1. The transaction constituting the Business Combination shall
provide for a consideration to be received by all holders of Common
Shares in exchange for all their Common Shares, and the aggregate amount
of the cash and the Fair Market Value as of the date of the consummation
of the Business Combination of consideration other than cash to be
received per share by holders of Common Shares in such Business
Combination shall be at least equal to the higher of the following:
(a) (if applicable) the highest per-share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees)
paid in order to acquire any Common Shares beneficially owned by an
Interested Shareholder (i) within the two-year period immediately
prior to the Announcement Date (as hereinafter defined), (ii) within
the two-year period immediately prior to the Determination Date (as
hereinafter defined) or (iii) in the transaction in which it became
an Interested Shareholder, whichever is highest; or
(b) the Fair Market Value per Common Share on the Announcement
Date or on the Determination Date, whichever is higher.
2. The consideration to be received by holders of Common Shares
shall be in cash or in the same form as was previously paid in order to
acquire the Common Shares that are beneficially owned by an Interested
Shareholder and, if an Interested Shareholder beneficially owns Common
Shares that were acquired with varying forms of consideration, the form
of consideration for such Common Shares shall be either cash or the form
used to acquire the largest number beneficially owned by it. The price
determined in accordance with paragraph 1 of this Subdivision B shall be
subject to appropriate adjustment in the event of any recapitalization,
stock dividend, stock split, combination of shares or similar event.
3. After such Interested Shareholder has become an Interested
Shareholder and prior to the consummation of such Business Combination:
(a) except as approved by a majority of the Continuing
Directors, there shall have been no failure to declare and pay at
the regular date therefor the full amount of any dividends (whether
or not cumulative) payable on any outstanding Cumulative Preferred
Shares or Cumulative Preference Shares;
(b) there shall have been (i) no reduction in the annual rate
of dividends paid on the Common Shares (except as necessary to
reflect any subdivision of the Common Shares) other than as approved
by a majority of the Continuing Directors and (ii) an increase in
such annual rate of dividends as necessary to prevent any such
reduction in the event of any reclassification (including any
reverse stock split), recapitalization, reorganization or any
similar transaction which has the effect of reducing the number of
outstanding Common Shares, unless the failure so to increase such
annual rate is approved by a majority of the Continuing Directors;
and
(c) such Interested Shareholder shall not have become the
beneficial owner of any additional Common Shares except as part of
the transaction in which it became an Interested Shareholder.
4. After such Interested Shareholder has become an Interested
Shareholder, such Interested Shareholder shall not have received the
benefit, directly or indirectly (except proportionately as a
shareholder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages provided
by the corporation, whether in anticipation of or in connection with such
Business Combination or otherwise; and
5. A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations thereunder
(or any subsequent provisions replacing such Act, rules or regulations)
shall be mailed to the shareholders of the corporation, no later than the
earlier of (a) 30 days prior to any vote on the proposed Business
Combination or (b) if no vote on such Business Combination is required,
60 days prior to the consummation of such Business Combination (whether
or not such proxy or information statement is required to be mailed
pursuant to such Act or subsequent provisions). Such proxy statement
shall contain at the front thereof, in a prominent place, any
recommendations as to the advisability (or inadvisability) of the
Business Combination which the Continuing Directors, or any of them, may
have furnished in writing and, if deemed advisable by a majority of the
Continuing Directors, an opinion of a reputable investment banking firm
as to the fairness (or lack of fairness) of the terms of such Business
Combination, from the point of view of the holders of the Common Shares
other than an Interested Shareholder (such investment banking firm to be
selected by a majority of the Continuing Directors, to be furnished with
all information it reasonably requests and to be paid a reasonable fee
for its services upon receipt by the corporation of such opinion).
C. For the purposes of this Division V:
1. "Business Combination" shall mean any transaction that is
referred to in any one or more of paragraphs 1 through 5 of Subdivision A
of this Division V.
2. "Person" shall mean any individual, firm, trust, partnership,
association, corporation or other entity.
3. "Interested Shareholder" shall mean any person (other than the
corporation or any Subsidiary) who or which:
(a) is the beneficial owner, directly or indirectly, of more
than 10% of the voting power of the then outstanding Common Shares;
or
(b) is an Affiliate of the corporation and at any time within
the two-year period immediately prior to the date in question was
the beneficial owner, directly or indirectly, of more than 10% of
the voting power of the then outstanding Common Shares; or
(c) is an assignee of or has otherwise succeeded to the
beneficial ownership of any Common Shares which were, at any time
within the two-year period immediately prior to the date in
question, beneficially owned by an Interested Shareholder, unless
such assignment or succession shall have occurred pursuant to a
Public Transaction (as hereinafter defined) or any series of
transactions involving a Public Transaction.
For the purpose of determining whether a person is an Interested
Shareholder, the number of Common Shares deemed to be outstanding shall
include shares deemed owned through application of paragraph 5 below, but
shall not include any other Common Shares that may be issuable pursuant
to any agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
4. "Public Transaction" shall mean any (a) purchase of shares
offered pursuant to an effective registration statement under the
Securities Act of 1933 or (b) open-market purchase of shares on a
national securities exchange or in the over-the-counter market if, in
either such case, the price and other terms of sale are not negotiated by
the purchaser and the seller of the beneficial interest in the shares.
5. A person shall be a "beneficial owner" of any Common Shares:
(a) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(b) which such person or any of its Affiliates or Associates
has (i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise or (ii) the right to vote or to direct the voting thereof
pursuant to any agreement, arrangement or understanding; or
(c) which is beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any Common
Shares.
6. "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as in effect on January 1,
1986.
7. "Subsidiary" shall mean any corporation of which a majority of
any class of equity security (as defined in Rule 3all-1 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in
effect on January 1, 1986) is owned, directly or indirectly, by the
corporation; provided, however, that, for purposes of the definition of
Interested Shareholder set forth in paragraph 3, the term "Subsidiary"
shall mean only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the corporation.
8. "Continuing Director" shall mean any member of the Board of
Directors of the corporation who (1) is not an Affiliate or Associate of,
and not a nominee of, an Interested Shareholder having any interest,
direct or indirect, in the proposed Business Combination and (2) was a
member of the Board of Directors prior to the time that such Interested
Shareholder became an Interested Shareholder, and any successor of a
Continuing Director who is not an Affiliate or Associate of, and not a
nominee of, such Interested Shareholder and is recommended to succeed a
Continuing Director by a majority of Continuing Directors then on the
Board of Directors.
9. "Announcement Date" shall mean the date of the first public
announcement of the proposed Business Combination.
10. "Determination Date" shall mean the date on which an Interested
Shareholder became an Interested Shareholder.
11. "Fair Market Value" shall mean: (a) in the case of stock, the
highest closing sale price during the 30-day period immediately preceding
the date in question of a share of such stock on the Composite Tape for
New York Stock Exchange-Listed Stocks, or, if such stock is not quoted on
the Composite Tape, on the New York Stock Exchange, or, if such stock is
not listed on such Exchange, on the principal United States securities
exchange registered under the Securities Exchange Act of 1934 on which
such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation or last reported sale price,
whichever is applicable, with respect to a share of such stock during the
30-day period preceding the date in question on the National Association
of Securities Dealers, Inc. Automated Quotations System or any system
then in use, or if no such quotations are available, the fair market
value on the date in question of a share of such stock as determined by a
majority of the Continuing Directors in good faith; and (b) in the case
of property other than cash or stock, the fair market value of such
property on the date in question as determined by a majority of the
Continuing Directors in good faith.
12. "Substantial Part" shall mean more than 30% of the fair market
value of the total assets of the corporation as of the end of its most
recent fiscal year ending prior to the time the determination is being
made.
D. A majority of the Continuing Directors shall have the power and duty
to determine for the purposes of this Division V, on the basis of information
known to them after reasonable inquiry, all facts necessary to determine
compliance with this Division V, including, without limitation, (1) whether a
person is an Interested Shareholder, (2) the number of Common Shares
beneficially owned by any person, (3) whether a person is an Affiliate or
Associate of another, (4) whether the assets which are the subject of any
Business Combination constitute a Substantial Part of the assets of the
corporation or the Subsidiary, or both, (5) whether the requirements of
Subdivision B of this Division V have been met, and (6) such other matters
with respect to which a determination is required under this Division V. The
good faith determination of a majority of the Continuing Directors on such
matters shall be conclusive and binding for all purposes of this Division V.
E. Nothing contained in this Division V shall be construed to relieve
an Interested Shareholder from any fiduciary obligation imposed by law.
F. Notwithstanding any other provisions of these Articles of
Incorporation or the Bylaws of the corporation or the fact that a lesser
percentage may be specified by law, these Articles of Incorporation or the
Bylaws of the corporation, the affirmative vote of the holders of at least 75%
of the voting power of the then outstanding Common Shares, shall be required
to amend, alter, adopt any provision inconsistent with or repeal this
Division V unless the Board of Directors, if all such directors are Continuing
Directors, shall unanimously recommend such amendment, alteration, adoption or
repeal.
DIVISION VI
Provisions Relating to Purchases
Of Common Shares Of The Corporation
A. Except as otherwise expressly provided in this Division VI, the
corporation may not purchase any Common Shares at a per-share price in excess
of the Fair Market Price (as hereinafter defined) as of the time of such
purchase from a person known by the corporation to be a Substantial
Shareholder (as hereinafter defined), unless such purchase has been approved
by the affirmative vote of the holders of at least two-thirds (2/3) of the
Common Shares voted thereon held by Disinterested Shareholders (as hereinafter
defined). Such affirmative vote shall be required notwithstanding the fact
that no vote may be required or that a lesser percentage may be specified by
law, in these Articles of Incorporation or in any agreement with any national
securities exchange or otherwise.
B. The provisions of this Division VI shall not apply to (1) any
purchase pursuant to an offer to purchase which is made on the same terms and
conditions to the holders of all of the outstanding Common Shares or (2) any
open market purchase that constitutes a Public Transaction (as hereinafter
defined).
C. For the purposes of this Division VI:
1. The terms "Continuing Director," "Person," "Public
Transaction," "Affiliate" and "Associate" shall have the meanings given
to them in Division V of this Article VI.
2. "Substantial Shareholder" shall mean any person (other than any
employee benefit plan or trust of the corporation or any similar entity)
who or which:
(a) is the beneficial owner of more than 10% of the voting
power of the then outstanding Common Shares, the acquisition of any
shares of which has occurred within the two-year period immediately
prior to the date on which the corporation purchases any such
shares; or
(b) is an assignee of or has otherwise succeeded to the
beneficial ownership of any Common Shares beneficially owned by a
Substantial Shareholder, unless such assignment or succession shall
have occurred pursuant to a Public Transaction or any series of
transactions involving a Public Transaction and, with respect to all
Common Shares owned by such person, such person has been the
beneficial owner of any such shares for a period of less than two
years (including, for these purposes, the holding period of the
Substantial Shareholder from whom such person acquired shares).
For the purposes of determining whether a person is a Substantial
Shareholder, the number of Common Shares deemed to be outstanding shall
include shares deemed owned through application of paragraph 5 below, but
shall not include any other Common Shares which may be issuable pursuant
to any agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
3. "Disinterested Shareholders" shall mean those holders of Common
Shares who are not Substantial Shareholders.
4. "Fair Market Price" shall mean the highest closing sale price
on the Composite Tape for New York Stock Exchange-Listed Stocks during
the 30-day period immediately preceding the date in question of a Common
Share or, if such Common Shares are not quoted on the Composite Tape, on
the New York Stock Exchange or, if such Common Shares are not listed on
such Exchange, on the principal United States securities exchange
registered under the Securities Exchange Act of 1934 on which such Common
Shares are listed, or, if such Common Shares are not listed on any such
exchange, the highest closing bid quotation with respect to a Common
Share during the 30-day period preceding the date in question on the
National Association of Securities Dealers, Inc. Automated Quotations
System or any system then in use, or, if no such quotations are
available, the fair market value on the date in question of a Common
Share, as determined by a majority of the Board of Directors in good
faith.
5. A person shall be a "beneficial owner" of any Common Shares:
(a) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(b) which such person or any of its Affiliates or Associates
has (i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise or (ii) the right to vote or to direct the voting thereof
pursuant to any agreement, arrangement or understanding; or
(c) which is beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates or
Associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any Common
Shares.
D. A majority of the Board of Directors shall have the power and duty
to determine for the purposes of this Division VI, on the basis of information
known to them after reasonable inquiry, all facts necessary to determine
compliance with this Division VI, including without limitation, (1) whether a
person is a Substantial Shareholder, (2) the number of Common Shares
beneficially owned by any person, (3) whether a person is an Affiliate or
Associate of another, (4) whether a price is in excess of the Fair Market
Price, (5) whether a purchase constitutes a Public Transaction, and (6) such
other matters with respect to which a determination is required under this
Division VI. The good faith determination of a majority of the Board of
Directors on such matters shall be conclusive and binding for all purposes of
this Division VI.
E. Nothing contained in this Division VI shall be construed to relieve
a Substantial Shareholder from any fiduciary obligation imposed by law.
F. Notwithstanding any other provisions of these Articles of
Incorporation or the Bylaws of the corporation or the fact that a lesser
percentage may be specified by law, these Articles of Incorporation or the
Bylaws of the corporation, the affirmative vote of the holders of at least 75%
of voting power of the then outstanding Common Shares shall be required to
amend, alter, adopt any provision inconsistent with or repeal this Division VI
unless the Board of Directors, if all such directors are Continuing Directors,
shall unanimously recommend such amendment, alteration, adoption or repeal.
ARTICLE VII.
The Board of Directors of the corporation shall have authority to accept
or reject subscriptions for shares.
ARTICLE VIII.
Except as herein otherwise limited or qualified, the corporation reserves
the right to amend, alter, change or repeal any of the terms or provisions of
these Articles of Incorporation, all in the manner now or hereafter prescribed
by the laws of the State of Minnesota, and all rights conferred herein upon
officers, directors and shareholders of the corporation are granted subject to
this reservation.
ARTICLE IX.
The Board of Directors shall have the power, to the extent permitted by
law, to adopt, amend or repeal the Bylaws of the corporation, subject to the
power of the shareholders to adopt, amend or repeal such Bylaws. Bylaws
fixing the number of directors or their classifications, qualifications, or
terms of office, or prescribing procedures for removing such directors may be
adopted, amended or repealed only by (i) the Board of Directors, to the extent
permitted by law, or (ii) the affirmative vote of the holders of 75% of the
outstanding Common Shares of the corporation or such lesser percentage of the
outstanding Common Shares as may from time to time be provided in such Bylaws.
Notwithstanding any other provisions of these Articles of Incorporation
or the Bylaws of the corporation or the fact that a lesser percentage may be
specified by law, these Articles of Incorporation or the Bylaws of the
corporation, the affirmative vote of the holders of at least 75% of the voting
power of the then outstanding Common Shares shall be required to amend, alter,
adopt any provision inconsistent with, or repeal this Article IX unless the
Board of Directors, if all such directors are Continuing Directors, as defined
in Article VI of the Articles of Incorporation, shall unanimously recommend
such amendment, alteration, adoption or repeal.
ARTICLE X.
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 for liability (i) for any breach of the director's
duty of loyalty to the corporation or its shareholders; (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) under Sections 302A.559 or 80A.23 of the
Minnesota Statutes; (iv) for any transaction from which the director derived
an improper personal benefit; or (v) for any act or omission occurring prior
to the date when this Article X became effective.
Any repeal or modification of the foregoing provisions of this Article X
shall not adversely affect any right or protection of a director of the
corporation existing at the time of such repeal or modification.
-*-
RESOLUTIONS OF BOARD OF DIRECTORS
ESTABLISHING SERIES OF
CUMULATIVE PREFERRED SHARES
$3.60 Cumulative Preferred Shares
The Board of Directors of the corporation adopted the following
resolution on August 12, 1946, which was filed with the Secretary of State of
Minnesota on August 13, 1946:
Resolution
Pursuant to authority conferred on the Board of Directors of Otter Tail
Power Company, a Minnesota corporation, by Article VI of the Articles of
Incorporation, as amended, BE IT RESOLVED that an initial series of Cumulative
Preferred Shares be and it hereby is created as follows:
A. The designation of such series shall be "$3.60 Cumulative Preferred
Shares," and the number of shares of such series shall be sixty thousand
(60,000);
B. The rate of dividends payable on the $3.60 Cumulative Preferred
Shares shall be Three & 60/100 Dollars -- ($3.60) per annum, payable quarterly
on the first days of March, June, September and December in each year and such
dividends shall be cumulative and accrue in the case of shares issued prior to
the record date for the first dividend thereon from and including September 1,
1946;
C. The $3.60 Cumulative Preferred Shares shall be redeemable at One
Hundred Two & 25/100 dollars -- ($102.25) per share, together, as provided in
said Articles of Incorporation, with accrued dividends to the redemption date;
D. The amount payable on $3.60 Cumulative Preferred Shares, in the
event of any dissolution, liquidation or winding up of the affairs of the
corporation which shall be voluntary, shall be the sum of One Hundred Two &
25/100 Dollars ($102.25) per share, and the amount payable on $3.60 Cumulative
Preferred Shares, in the event of any dissolution, liquidation or winding up
of the affairs of the corporation which shall be involuntary, shall be One
Hundred Dollars ($100) per share, together in either event, as provided in
said Articles of Incorporation, with a sum, in the case of each share,
computed at the annual dividend rate for the $3.60 Cumulative Preferred
Shares, from the date on which dividends on such share become cumulative to
and including the date fixed for such distribution or payment, less the
aggregate amount of all dividends which have theretofore been paid thereon or
which have been declared thereon and for which moneys for payment have been
set apart and remain available for payment.
$4.40 Cumulative Preferred Shares
The Board of Directors of the corporation adopted the following
resolution on March 6, 1950, which was filed with the Secretary of State of
Minnesota on March 8, 1950:
Resolution
Pursuant to authority conferred on the Board of Directors of Otter Tail
Power Company, a Minnesota corporation, by Article VI of its Articles of
Incorporation, as amended, BE IT RESOLVED that a second series of Cumulative
Preferred Shares be and it hereby is created as follows:
A. The designation of such series shall be "$4.40 Cumulative Preferred
Shares," and the number of shares of such series shall be twenty-five thousand
(25,000);
B. The rate of dividends payable on the $4.40 Cumulative Preferred
Shares shall be $4.40 per share per annum, payable quarterly on the first days
of March, June, September and December of each year and such dividends shall
be cumulative and accrue in the case of shares issued prior to the record date
for the first dividend thereon from and including March 15, 1950;
C. The $4.40 Cumulative Preferred Shares shall be redeemable at $104
per share if redeemed on or before March 15, 1955; at $103 if redeemed
thereafter and on or before March 15, 1960; and at $102 per share if redeemed
thereafter, together, as provided in said Articles of Incorporation, in each
instance with accrued dividends to the redemption date;
D. The amount payable on $4.40 Cumulative Preferred Shares in the event
of any dissolution, liquidation or winding up of the affairs of the
corporation which shall be voluntary, shall be the price at which said shares
are at the time redeemable, and the amount payable on $4.40 Cumulative
Preferred Shares in the event of any dissolution, liquidation or winding up of
the affairs of the Company which shall be involuntary, shall be One Hundred
Dollars ($100.00) per share together in either event as provided in said
Articles of Incorporation, with a sum, in the case of each share, computed at
the annual dividend rate for the $4.40 Cumulative Preferred Shares from the
date on which dividends on such share become cumulative to and including the
date fixed for such distribution or payment, less the aggregate amount of all
dividends which have heretofore been paid thereon or which have been declared
thereon and for which moneys for payment have been set apart and remain
available for payment.
$4.65 Cumulative Preferred Shares
The Board of Directors of the corporation adopted the following
resolution on March 24, 1964, which was filed with the Secretary of State of
Minnesota on March 25, 1964:
Resolution
Pursuant to authority conferred on the Board of Directors of Otter Tail
Power Company, a Minnesota corporation, by Article VI of its Articles of
Incorporation, as amended, BE IT RESOLVED that a third series of Cumulative
Preferred Shares be, and it hereby is, created as follows:
A. The designation of such series shall be "$4.65 Cumulative Preferred
Shares," and the number of shares of such series shall be thirty thousand
(30,000);
B. The rate of dividends payable on the $4.65 Cumulative Preferred
Shares shall be $4.65 per share per annum, payable quarterly on the first days
of March, June, September and December of each year, and such dividends shall
be cumulative and accrue in the case of shares issued prior to the record date
for the first dividend thereon from and including the date of issuance
thereof;
C. The $4.65 Cumulative Preferred Shares shall be redeemable at $107.50
per share if redeemed on or before April 1, 1969; at $106.00 per share if
redeemed thereafter and on or before April 1, 1974; at $104.50 per share if
redeemed thereafter and on or before April 1, 1979; at $103.00 per share if
redeemed thereafter and on or before April 1, 1984; and at $101.50 per share
if redeemed thereafter together, as provided in said Articles of
Incorporation, in each instance, with accrued dividends to the redemption
date; and
D. The amount payable on $4.65 Cumulative Preferred Shares in the event
of any dissolution, liquidation or winding up of the affairs of the
corporation which shall be voluntary shall be the price at which said shares
are at the time redeemable, and the amount payable on $4.65 Cumulative
Preferred Shares in the event of any dissolution, liquidation or winding up of
the affairs of the Company which shall be involuntary shall be One Hundred
Dollars ($100.00) per share together in either event as provided in said
Articles of Incorporation, with a sum, in the case of each share, computed at
the annual dividend rate for the $4.65 Cumulative Preferred Shares from the
date on which dividends on such share become cumulative to and including the
date fixed for such distribution or payment, less the aggregate amount of all
dividends which have heretofore been paid thereon or which have been declared
thereon and for which moneys for payment have been set apart and remain
available for payment.
$9.50 Cumulative Preferred Shares
The Board of Directors of the corporation adopted the following
resolution on August 9, 1971, which was filed with the Secretary of State of
Minnesota on August 20, 1971:
Resolution
Pursuant to authority conferred on the Board of Directors of Otter Tail
Power Company, a Minnesota corporation, by Article VI of its Articles of
Incorporation, as amended, BE IT RESOLVED that a fourth series of Cumulative
Preferred Shares be, and it hereby is, created as follows:
A. The designation of such series shall be "$9.50 Cumulative Preferred
Shares," and the number of shares of such series shall be forty thousand
(40,000);
B. The rate of dividends payable on the $9.50 Cumulative Preferred
Shares shall be $9.50 per share per annum, payable quarterly on the first days
of March, June, September and December of each year, commencing December 1,
1971, and such dividends shall be cumulative and accrue in the case of shares
issued prior to the record date for the first dividend thereon from and
including the date of issuance thereof;
C. The $9.50 Cumulative Preferred Shares shall be redeemable at $109.50
per share if redeemed before September 1, 1979 and, if redeemed thereafter, at
a redemption price which shall decrease by $0.50 on September 1, 1979 and on
each succeeding September 1 to and including September 1, 1997, on and after
which date the redemption price shall be $100.00 per share, together, as
provided in said Articles of Incorporation, in each instance, with accrued
dividends to the redemption date; provided, however, that the $9.50 Cumulative
Preferred Shares shall not be redeemable, in whole or in part, prior to
September 1, 1978 as a part of or in contemplation of any refunding operation
including the application, directly or indirectly, of money borrowed or the
proceeds of preferred stock sold at an interest or dividend cost to the
corporation (calculated in accordance with generally accepted financial
practice) of less than 9 1/2% per annum; and
D. The amount payable on the $9.50 Cumulative Preferred Shares in the
event of any dissolution, liquidation or winding up of the affairs of the
corporation which shall be voluntary shall be the price at which said shares
are at the time redeemable, and the amount payable on the $9.50 Cumulative
Preferred Shares in the event of any dissolution, liquidation or winding up of
the affairs of the corporation which shall be involuntary shall be One Hundred
dollars ($100.00) per share, together, as provided in said Articles of
Incorporation, in either event, with a sum, in the case of each share,
computed at the annual dividend rate for the $9.50 Cumulative Preferred Shares
from the date on which dividends on such share became cumulative to and
including the date fixed for such distribution or payment, less the aggregate
amount of all dividends which shall have theretofore been paid thereon or
which shall have been declared thereon and for which moneys for payment shall
have been set apart and remain available for payment.
$11.50 Cumulative Preferred Shares
The Board of Directors of the corporation adopted the following
resolution on July 28, 1975, which was filed with the Secretary of State of
Minnesota on July 28, 1975:
Resolution
BE IT FURTHER RESOLVED That, pursuant to authority conferred on the Board
of Directors of Otter Tail Power Company, a Minnesota corporation, by Article
VI of its Articles of Incorporation, as amended, a fifth series of Cumulative
Preferred Shares be, and it hereby is, created as follows:
A. The designation of such series shall be "$11.50 Cumulative Preferred
Shares," and the number of shares of such series shall be one hundred thousand
(100,000).
B. The rate of dividends payable on the $11.50 Cumulative Preferred
Shares shall be $11.50 per share per annum, payable quarterly on the first day
of March, June, September and December of each year, commencing September 1,
1975, and such dividends shall be cumulative and accrue in the case of shares
issued prior to the record date for the first dividend thereon from and
including the date of issuance thereof.
C. The $11.50 Cumulative Preferred Shares shall be redeemable
(otherwise than with respect to any redemption effected through or by the
sinking funds hereafter described in subdivision E below) at $111.50 per share
if redeemed before June 1, 1976, and at the following redemption prices per
share if redeemed thereafter:
If redeemed during the twelve months' period beginning
Redemption Redemption
June 1 Price June 1 Price
1976 $110.86 1985 $105.11
1977 $110.22 1986 $104.48
1978 $109.58 1987 $103.83
1979 $108.94 1988 $103.19
1980 $108.31 1989 $102.56
1981 $107.77 1990 $101.92
1982 $107.03 1991 $101.28
1983 $106.39 1992 $100.64
1984 $105.75 1993 $100.00
together, as provided in said Articles of Incorporation, in each instance,
with accrued dividends to the redemption date; provided, however, that, except
for redemptions effected through or by the sinking funds described in
subdivision E below, the $11.50 Cumulative Preferred Shares shall not be
redeemable, in whole or in part, prior to July 15, 1985, as a part of or in
contemplation of any refunding operation including the application, directly
or indirectly, of (i) the proceeds from the sale of common shares of the
Company, or (ii) money borrowed or the proceeds of preferred or preference
shares of the Company sold at an interest or dividend cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than 11.5% per annum.
D. The amount payable on the $11.50 Cumulative Preferred Shares in the
event of any dissolution, liquidation or winding up of the affairs of the
Company which shall be voluntary shall be the price at which said shares are
at the time redeemable (as set forth in subdivision C above), and the amount
payable on the $11.50 Cumulative Preferred Shares in the event of any
dissolution, liquidation or winding up of the affairs of the Company which
shall be involuntary shall be One Hundred Dollars ($100.00) per share,
together, as provided in said Articles of Incorporation, in either event, with
a sum, in the case of each share, computed at the annual dividend rate for the
$11.50 Cumulative Preferred Shares from the date on which dividends on such
share became cumulative to and including the date fixed for such distribution
or payment, less the aggregate amount of all dividends which shall have
theretofore been paid thereon or which shall have been declared thereon and
for which moneys for payment shall have been set apart and remain available
for payment.
E. So long as any of the $11.50 Cumulative Preferred Shares remain
outstanding, after all dividends on all Cumulative Preferred Shares of all
series for all past quarterly dividend periods and for the current quarterly
period shall have been paid or declared and a sum sufficient for the payment
thereof set apart for payment, the Company shall, as and for a mandatory
sinking fund for the benefit of the $11.50 Cumulative Preferred Shares,
redeem, in the manner and upon the notice and with the effect provided in
Section C of Article VI of said Articles of Incorporation, on June 1, 1979,
and on each succeeding June 1 to and including June 1, 1993 (each such June 1
being hereinafter called a "sinking fund redemption date"), 6.50% of the
maximum number of $11.50 Cumulative Preferred Shares which shall theretofore
have been issued, and on June 1, 1994, the balance of the $11.50 Cumulative
Preferred Shares then outstanding (such required redemptions being hereinafter
called the "mandatory sinking fund requirement"). The price at which the
$11.50 Cumulative Preferred Shares shall be redeemed in satisfaction of the
mandatory sinking fund requirement shall be $100.00 per share, together, as
provided in said Articles of Incorporation, in each instance, with accrued
dividends to the redemption date. The mandatory sinking fund requirement for
the $11.50 Cumulative Preferred Shares shall be cumulative so that if, in any
year, the Company shall not satisfy in full the sinking fund requirement for
such year, the amount of the deficiency shall be added to the mandatory
sinking fund requirement for succeeding years until the deficiency shall have
been fully satisfied.
In addition to the mandatory sinking fund requirement of the immediately
preceding paragraph, the Company may, at its option, redeem, in the manner and
upon the notice and with the effect provided in Section C of Article VI of
said Articles of Incorporation, on any sinking fund redemption date $11.50
Cumulative Preferred Shares not in excess of 6.50% of the maximum number of
$11.50 Cumulative Preferred Shares which shall theretofore have been issued at
the mandatory sinking fund redemption price hereinbefore specified in this
subdivision E. The privilege of so redeeming $11.50 Cumulative Preferred
Shares shall not be cumulative and shall not relieve the Company to any extent
from its obligation to redeem shares pursuant to the mandatory sinking fund
requirement.
$8.30 Cumulative Preferred Shares
The Board of Directors of the corporation adopted the following
resolution on March 30, 1977, which was filed with the Secretary of State of
Minnesota on March 30, 1977:
Resolution
BE IT FURTHER RESOLVED That, pursuant to authority conferred on the Board
of Directors of Otter Tail Power Company, a Minnesota corporation, by
Article VI of its Articles of Incorporation, as amended, a sixth series of
Cumulative Preferred Shares be, and it hereby is, created as follows:
A. The designation of such series shall be "$8.30 Cumulative Preferred
Shares," and the number of shares of such series shall be forty-five thousand
(45,000).
B. The rate of dividends payable on the $8.30 Cumulative Preferred
Shares shall be $8.30 per share per annum, payable quarterly on the first day
of March, June, September and December of each year, commencing June 1, 1977,
and such dividends shall be cumulative and accrue in the case of shares issued
prior to the record date for the first dividend thereon from and including the
date of issuance thereof.
C. The $8.30 Cumulative Preferred Shares shall be redeemable (otherwise
than with respect to any redemption effected through or by the sinking funds
hereafter described in subdivision E below) at $108.30 per share if redeemed
before March 1, 1978, and at the following redemption prices per share if
redeemed thereafter:
If redeemed during the twelve months' period beginning
Redemption Redemption
March 1 Price March 1 Price
1978 $107.95 1990 $103.80
1979 $107.61 1991 $103.46
1980 $107.26 1992 $103.11
1981 $106.92 1993 $102.77
1982 $106.57 1994 $102.42
1983 $106.23 1995 $102.08
1984 $105.88 1996 $101.73
1985 $105.53 1997 $101.38
1986 $105.19 1998 $101.04
1987 $104.84 1999 $100.69
1988 $104.50 2000 $100.35
1989 $104.15 2001 $100.00
together, as provided in said Articles of Incorporation, in each instance,
with accrued dividends to the redemption date; provided, however, that, except
for redemptions effected through or by the sinking funds described in
subdivision E below, the $8.30 Cumulative Preferred Shares shall not be
redeemable, in whole or in part, prior to March 1, 1987 as a part of, or in
contemplation of, any refunding operation including the application, directly
or indirectly, of the proceeds of (i) indebtedness for money borrowed by the
Company or any affiliate if such indebtedness (a) has an effective interest
cost (computed in accordance with generally accepted financial practice) of
less than 8.30% per annum or (b) has a Weighted Average Life to Maturity, at
the time of such redemption, of less than the remaining Weighted Average Life
to Maturity of the $8.30 Cumulative Preferred Shares or (ii) the issue or sale
of preferred or preference shares of the Company or any affiliate if such
shares have an effective dividend rate (based on the proceeds to the Company
or such affiliate from such issue or sale net of any discount or commission to
underwriters) of less than 8.30% per annum. The term "Weighted Average Life
to Maturity" shall mean, at any date, the number of years obtained by dividing
the then Remaining Dollar-years of such indebtedness or the $8.30 Cumulative
Preferred Shares by the then outstanding principal amount of such indebtedness
or by the product of $100.00 times the number of $8.30 Cumulative Preferred
Shares which are then outstanding, as the case may be; and for the purpose of
this definition, the term "Remaining Dollar-years" of any indebtedness or the
$8.30 Cumulative Preferred Shares shall mean, at any date, the total of the
products obtained by multiplying (i) the amount of each then remaining
installment, mandatory sinking fund, serial maturity or other required
payment, including payment at final maturity, in respect thereof by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the date on which such payment is required to be made.
D. The amount payable on the $8.30 Cumulative Preferred Shares in the
event of any dissolution, liquidation or winding up of the affairs of the
Company which shall be voluntary shall be the price at which said shares are
at the time redeemable (as set forth in subdivision C above), and the amount
payable on the $8.30 Cumulative Preferred Shares in the event of any
dissolution, liquidation or winding up of the affairs of the Company which
shall be involuntary shall be $100.00 per share, together, as provided in said
Articles of Incorporation, in either event, with a sum, in the case of each
share, computed at the annual dividend rate for the $8.30 Cumulative Preferred
Shares from the date on which dividends on such share became cumulative to and
including the date fixed for such distribution or payment, less the aggregate
amount of all dividends which shall have theretofore been paid thereon or
which shall have been declared thereon and for which moneys for payment shall
have been set apart and remain available for payment.
E. So long as any of the $8.30 Cumulative Preferred Shares remain
outstanding, after all dividends on all Cumulative Preferred Shares of all
series for all past quarterly dividend periods and for the current quarterly
dividend period shall have been paid or declared and a sum sufficient for the
payment thereof set apart for payment, the Company shall, as and for a
mandatory sinking fund for the benefit of the $8.30 Cumulative Preferred
Shares, redeem, in the manner and upon the notice and with the effect provided
in Section C of Article VI of said Articles of Incorporation, (i) on March 1,
1983, and on each succeeding March 1 to and including March 1, 1997, 4% of the
maximum number of $8.30 Cumulative Preferred Shares which shall theretofore
have been issued, (ii) on March 1, 1998, and on each succeeding March 1 to and
including March 1, 2001, 8% of the maximum number of $8.30 Cumulative
Preferred Shares which shall theretofore have been issued (each March 1
referred to in clause (i) or (ii) above of this sentence being hereinafter
called a "sinking fund redemption date") and (iii) on March 1, 2002, the
balance of the $8.30 Cumulative Preferred Shares then outstanding (such
required redemptions being hereinafter called the "mandatory sinking fund
requirement"). The price at which the $8.30 Cumulative Preferred Shares shall
be redeemed in satisfaction of the mandatory sinking fund requirement shall be
$100.00 per share, together, as provided in said Articles of Incorporation, in
each instance, with accrued dividends to the redemption date. The mandatory
sinking fund requirement for the $8.30 Cumulative Preferred Shares shall be
cumulative so that if, in any year, the Company shall not satisfy in full the
mandatory sinking fund requirement for such year, the amount of the deficiency
shall be added to the mandatory sinking fund requirement for succeeding years
until the deficiency shall have been fully satisfied.
In addition to the mandatory sinking fund requirement, the Company may,
at its option, redeem, in the manner and upon the notice and with the effect
provided in Section C of Article VI of said Articles of Incorporation, on any
sinking fund redemption date $8.30 Cumulative Preferred Shares in an amount
not to exceed the number of $8.30 Cumulative Preferred Shares which shall be
redeemed on such sinking fund redemption date through the mandatory sinking
fund requirement at the mandatory sinking fund redemption price hereinbefore
specified in this subdivision E. The privilege of so redeeming $8.30
Cumulative Preferred Shares shall not be cumulative and shall not relieve the
Company to any extent from its obligation to redeem shares pursuant to the
mandatory sinking fund requirement.
$8.375 Cumulative Preferred Shares
The Board of directors of the corporation adopted the following
resolution on March 6, 1978, which was filed with the Secretary of State of
Minnesota on March 21, 1978:
Resolution
BE IT FURTHER RESOLVED That, pursuant to authority conferred on the Board
of Directors of Otter Tail Power Company, a Minnesota corporation, by
Article VI of its Articles of Incorporation, as amended, a seventh series of
Cumulative Preferred Shares be, and it hereby is, created as follows:
A. The designation of such series shall be "$8.375 Cumulative Preferred
Shares," and the number of shares of such series shall be one hundred Thousand
(100,000).
B. The rate of dividends payable on the $8.375 Cumulative Preferred
Shares shall be $8.375 per share per annum, payable quarterly on the first day
of March, June, September and December of each year, commencing June 1, 1978.
Such dividends shall be cumulative and accrue in the case of each share from
and including the date of original issuance thereof; and the amount of the
dividend for any period of less than a full quarter shall be computed on the
basis of a 360-day year of twelve 30-day months.
C. The $8.375 Cumulative Preferred Shares shall be redeemable
(otherwise than with respect to any redemption effected through or by the
sinking funds hereafter described in subdivision E below) at $108.375 per
share if redeemed on or before June 1, 1979, and at the following redemption
prices per share if redeemed thereafter:
If redeemed during the twelve months' period ending
Redemption Redemption
June 1 Price June 1 Price
1980 $108.026 1992 $103.839
1981 $107.677 1993 $103.490
1982 $107.329 1994 $103.141
1983 $106.979 1995 $102.792
1984 $106.630 1996 $102.443
1985 $106.281 1997 $102.094
1986 $105.932 1998 $101.745
1987 $105.583 1999 $101.396
1988 $105.234 2000 $101.047
1989 $104.886 2001 $100.698
1990 $104.537 2002 $100.349
1991 $104.188 2003 $100.000
together, as provided in said Articles of Incorporation, in each instance,
with accrued dividends to the redemption date; provided, however, that, except
for redemptions effected through or by the sinking funds described in
subdivision E below, the $8.375 Cumulative Preferred Shares shall not be
redeemable, in whole or in part, prior to June 1, 1988 as a part of, or in
contemplation of, any refunding operation including the application, directly
or indirectly, of the proceeds of (i) indebtedness for money borrowed by the
Company or any affiliate if such indebtedness (a) has an effective interest
cost (computed in accordance with generally accepted financial practice) of
less than 8.375% per annum or (b) has a Weighted Average Life to Maturity, at
the time of such redemption, of less than the remaining Weighted Average Life
to Maturity of the $8.375 Cumulative Preferred Shares or (ii) the issue or
sale of shares of the Company ranking prior to or on a parity with the $8.375
Cumulative Preferred Shares as to dividends or on liquidation if such shares
have an effective dividend rate (based on the proceeds to the Company from
such issue or sale net of any discount or commission to underwriters) of less
than 8.375% per annum. The term "Weighted Average Life to Maturity" shall
mean, at any date, the number of years obtained by dividing the then Remaining
Dollar-years of such indebtedness or the $8.375 Cumulative Preferred Shares by
the then outstanding principal amount of such indebtedness or by the product
of $100.00 times the number of $8.375 Cumulative Preferred Shares which are
then outstanding, as the case may be; and for the purpose of this definition,
the term "Remaining Dollar-years" of any indebtedness or the $8.375 Cumulative
Preferred Shares shall mean, at any date, the total of the products obtained
by multiplying (i) the amount of each then remaining installment, mandatory
sinking fund, serial maturity or other required payment, including payment at
final maturity, in respect thereof by (ii) the number of years (calculated to
the nearest one-twelfth) which will elapse between such date and the date on
which such payment is required to be made.
D. The amount payable on the $8.375 Cumulative Preferred Shares in the
event of any dissolution, liquidation or winding up of the affairs of the
Company which shall be voluntary shall be the price at which said shares are
at the time redeemable (as set forth in subdivision C above), and the amount
payable on the $8.375 Cumulative Preferred Shares in the event of any
dissolution, liquidation or winding up of the affairs of the Company which
shall be involuntary shall be $100.00 per share, together, as provided in said
Articles of Incorporation, in either event, with a sum, in the case of each
share, computed at the annual dividend rate for the $8.375 Cumulative
Preferred Shares from the date on which dividends on such share became
cumulative to and including the date fixed for such distribution or payment,
less the aggregate amount of all dividends which shall have theretofore been
paid thereon or which shall have been declared thereon and for which moneys
for payment shall have been set apart and remain available for payment.
E. So long as any of the $8.375 Cumulative Preferred Shares remain
outstanding, after all dividends on all Cumulative Preferred Shares of all
series for all past quarterly dividend periods and for the current quarterly
dividend period shall have been paid or declared and a sum sufficient for the
payment thereof set apart for payment, the Company shall, as and for a
mandatory sinking fund for the benefit of the $8.375 Cumulative Preferred
Shares, redeem, in the manner and upon the notice and with the effect provided
in Section C of Article VI of said Articles of Incorporation (i) on June 1,
1984, and on each succeeding June 1 to and including June 1, 1993, 2% of the
maximum number of $8.375 Cumulative Preferred Shares which shall theretofore
have been issued, (ii) on June 1, 1994, and on each succeeding June 1 to and
including June 1, 2002, 6.67% of the maximum number of $8.375 Cumulative
Preferred Shares which shall theretofore have been issued (each June 1
referred to in clause (i) or (ii) above of this sentence being hereinafter
called a "sinking fund redemption date") and (iii) on June 1, 2003, the
balance of the $8.375 Cumulative Preferred Shares then outstanding (such
required redemptions being hereinafter called the "mandatory sinking fund
requirement"). The price at which the $8.375 Cumulative Preferred Shares
shall be redeemed in satisfaction of the mandatory sinking fund requirement
shall be $100.00 per share, together, as provided in said Articles of
Incorporation, in each instance, with accrued dividends to the redemption
date. The mandatory sinking fund requirement for the $8.375 Cumulative
Preferred Shares shall be cumulative so that if, in any year, the Company
shall not satisfy in full the mandatory sinking fund requirement for such
year, the amount of the deficiency shall be added to the mandatory sinking
fund requirement for succeeding years until the deficiency shall have been
fully satisfied.
In addition to the mandatory sinking fund requirement, the Company may,
at its option, redeem, in the manner and upon the notice and with the effect
provided in Section C of Article VI of said Articles of Incorporation, on any
sinking fund redemption date $8.375 Cumulative Preferred Shares in an amount
not to exceed the number of $8.375 Cumulative Preferred Shares which shall be
redeemed on such sinking fund redemption date through the mandatory sinking
fund requirement at the mandatory sinking fund redemption price hereinbefore
specified in this subdivision E. The privilege of so redeeming $8.375
Cumulative Preferred Shares shall not be cumulative and shall not relieve the
Company to any extent from its obligation to redeem shares pursuant to the
mandatory sinking fund requirement.
$8.90 Cumulative Preferred Shares
The Board of directors of the corporation adopted the following
resolution on July 23, 1979, which was filed with the Secretary of State of
Minnesota on July 26, 1979:
Resolution
BE IT FURTHER RESOLVED That, pursuant to authority conferred on the Board
of Directors of Otter Tail Power Company, a Minnesota corporation, by
Subdivision A of Division I of Article VI of its Articles of Incorporation, as
amended, an eighth series of Cumulative Preferred Shares be, and it hereby is,
created as follows:
A. The designation of such series shall be "$8.90 Cumulative Preferred
Shares," and the number of shares of such series shall be seventy thousand
(70,000).
B. The rate of dividends payable on the $8.90 Cumulative Preferred
Shares shall be $8.90 per share per annum, payable quarterly on the first day
of March, June, September and December of each year, commencing September 1,
1979. Such dividends shall be cumulative and accrue in the case of each share
from and including the date of original issuance thereof; and the amount of
the dividend for any period of less than a full quarter shall be computed on
the basis of a 360-day year of twelve 30-day months.
C. The $8.90 Cumulative Preferred Shares shall be redeemable (otherwise
than with respect to any redemption effected through or by the sinking funds
hereafter described in subdivision E below) at $108.90 per share if redeemed
on or before September 1, 1980, and at the following redemption prices per
share if redeemed thereafter:
If redeemed during the twelve months' period ending
Redemption Redemption
September 1 Price September 1 Price
1981 $108.529 1993 $104.079
1982 $108.158 1994 $103.708
1983 $107.788 1995 $103.338
1984 $107.417 1996 $102.967
1985 $107.046 1997 $102.596
1986 $106.675 1998 $102.225
1987 $106.304 1999 $101.854
1988 $105.933 2000 $101.483
1989 $105.563 2001 $101.113
1990 $105.192 2002 $100.742
1991 $104.821 2003 $100.371
1992 $104.450 2004 $100.000
together, as provided in Subdivision C of said Division I, in each instance,
with accrued dividends to the redemption date; provided, however, that, except
for redemptions effected through or by the sinking funds described in
subdivision E below, the $8.90 Cumulative Preferred Shares shall not be
redeemable, in whole or in part, prior to September 1, 1989 as a part of, or
in contemplation of, any refunding operation including the application,
directly or indirectly, of the proceeds of (i) indebtedness for money borrowed
by the Company or any affiliate if such indebtedness (a) has an effective
interest cost (computed in accordance with generally accepted financial
practice) of less than 8.90% per annum or (b) has a Weighted Average Life to
Maturity, at the time of such redemption, of less than the remaining Weighted
Average Life to Maturity of the $8.90 Cumulative Preferred Shares or (ii) the
issue or sale of shares of the Company ranking prior to the Common Shares of
the Company as to dividends or on liquidation if such shares have an effective
dividend rate (based on the proceeds to the Company from such issue or sale
net of any discount or commission to underwriters) of less than 8.90% per
annum. The term "Weighted Average Life to Maturity" shall mean, at any date,
the number of years obtained by dividing the then Remaining Dollar-years of
such indebtedness or the $8.90 Cumulative Preferred Shares by the then
outstanding principal amount of such indebtedness or by the product of $100.00
times the number of $8.90 Cumulative Preferred Shares which are then
outstanding, as the case may be; and for the purpose of this definition, the
term "Remaining Dollar-years" of any indebtedness or the $8.90 Cumulative
Preferred Shares shall mean, at any date, the total of the products obtained
by multiplying (i) the amount of each then remaining installment, mandatory
sinking fund, serial maturity or other required payment, including payment at
final maturity, in respect thereof by (ii) the number of years (calculated to
the nearest one-twelfth) which will elapse between such date and the date on
which such payment is required to be made.
D. The amount payable on the $8.90 Cumulative Preferred Shares in the
event of any dissolution, liquidation or winding up of the affairs of the
Company which shall be voluntary shall be the price at which said shares are
at the time redeemable (as set forth in subdivision C above), and the amount
payable on the $8.90 Cumulative Preferred Shares in the event of any
dissolution, liquidation or winding up of the affairs of the Company which
shall be involuntary shall be $100.00 per share, together, as provided in
Subdivision E of said Division I, in either event, with a sum, in the case of
each share, computed at the annual dividend rate for the $8.90 Cumulative
Preferred Shares from the date on which dividends on such share became
cumulative to and including the date fixed for such distribution or payment,
less the aggregate amount of all dividends which shall have theretofore been
paid thereon or which shall have been declared thereon and for which moneys
for payment shall have been set apart and remain available for payment.
E. So long as any of the $8.90 Cumulative Preferred Shares remain
outstanding, after all dividends on all Cumulative Preferred Shares of all
series for all past quarterly dividend periods and for the current quarterly
dividend period shall have been paid or declared and a sum sufficient for the
payment thereof set apart for payment, the Company shall, as and for a
mandatory sinking fund for the benefit of the $8.90 Cumulative Preferred
Shares, redeem, in the manner and upon the notice and with the effect provided
in Subdivision C of said Division I, (i) on September 1, 1985, and on each
succeeding September 1 to and including September 1, 1994, 2 1/2% of the
maximum number of $8.90 Cumulative Preferred Shares which shall theretofore
have been issued, (ii) on September 1, 1995, and on each succeeding
September 1 to and including September 1, 2003, 7.5% of the maximum number of
$8.90 Cumulative Preferred Shares which shall theretofore have been issued
(each September 1 referred to in clause (i) or (ii) above of this sentence
being hereinafter called a "sinking fund redemption date") and (iii) on
September 1, 2004, the balance of the $8.90 Cumulative Preferred Shares then
outstanding (such required redemptions being hereinafter called the "mandatory
sinking fund requirement"). The price at which the $8.90 Cumulative Preferred
Shares shall be redeemed in satisfaction of the mandatory sinking fund
requirement shall be $100.00 per share, together, as provided in Subdivision C
of said Division I, in each instance, with accrued dividends to the redemption
date. The mandatory sinking fund requirement for the $8.90 Cumulative
Preferred Shares shall be cumulative so that if, in any year, the Company
shall not satisfy in full the mandatory sinking fund requirement for such
year, the amount of the deficiency shall be added to the mandatory sinking
fund requirement for succeeding years until the deficiency shall have been
fully satisfied.
In addition to the mandatory sinking fund requirement, the Company may,
at its option, redeem, in the manner and upon the notice and with the effect
provided in Subdivision C of said Division I, on any sinking fund redemption
date $8.90 Cumulative Preferred Shares in an amount not to exceed the number
of $8.90 Cumulative Preferred Shares which shall be redeemed on such sinking
fund redemption date through the mandatory sinking fund requirement at the
mandatory sinking fund redemption price hereinbefore specified in this
subdivision E; provided that not more than 30% of the maximum number of $8.90
Cumulative Preferred Shares which shall theretofore have been issued may be so
redeemed. The privilege of so redeeming $8.90 Cumulative Preferred Shares
shall not be cumulative and shall not relieve the Company to any extent from
its obligation to redeem shares pursuant to the mandatory sinking fund
requirement.
$11.50 Cumulative Preferred Shares (Series A)
The Board of Directors of the corporation adopted the following
resolution on June 18, 1980, which was filed with the Secretary of State of
Minnesota on June 20, 1980:
Resolution
BE IT FURTHER RESOLVED That, pursuant to authority conferred on the Board
of Directors of Otter Tail Power Company, a Minnesota corporation, by
Subdivision A of Division I of Article VI of its Articles of Incorporation, as
amended, a ninth series of Cumulative Preferred Shares be, and it hereby is,
created as follows:
A. The designation of such series shall be "$11.50 Cumulative Preferred
Shares (Series A)," and the number of shares of such series shall be eighty
thousand (80,000).
B. The rate of dividends payable on the $11.50 Cumulative Preferred
Shares (Series A) shall be $11.50 per share per annum, payable quarterly on
the first day of March, June, September and December of each year, commencing
September 1, 1980. Such dividends shall be cumulative and accrue in the case
of each share from and including the date of original issuance thereof; and
the amount of the dividend for any period of less than a full quarter shall be
computed on the basis of a 360-day year of twelve 30-day months.
C. The $11.50 Cumulative Preferred Shares (Series A) shall be
redeemable (otherwise than with respect to any redemption effected through or
by the sinking funds hereafter described in subdivision E below) at $111.50
per share if redeemed on or before June 1, 1981, and at the following
redemption prices per share if redeemed thereafter:
If redeemed during the twelve months' period ending
Redemption Redemption
June 1 Price June 1 Price
1982 $111.02 1994 $105.27
1983 $110.54 1995 $104.79
1984 $110.06 1996 $104.31
1985 $109.58 1997 $103.83
1986 $109.10 1998 $103.35
1987 $108.63 1999 $102.88
1988 $108.15 2000 $102.40
1989 $107.67 2001 $101.92
1990 $107.19 2002 $101.44
1991 $106.71 2003 $100.96
1992 $106.23 2004 $100.48
1993 $105.75 2005 $100.00
together, as provided in Subdivision C of said Division I, in each instance,
with accrued dividends to the redemption date; provided, however, that, except
for redemptions effected through or by the sinking funds described in
subdivision E below, the $11.50 Cumulative Preferred Shares (Series A) shall
not be redeemable, in whole or in part, prior to June 1, 1990 as a part of, or
in contemplation of, any refunding operation including the application,
directly or indirectly, of the proceeds of (i) indebtedness for money borrowed
by the Company or any affiliate if such indebtedness (a) has an effective
interest cost (computed in accordance with generally accepted financial
practice) of less than 11.50% per annum or (b) has a Weighted Average Life to
Maturity, at the time of such redemption, of less than the remaining Weighted
Average Life to Maturity of the $11.50 Cumulative Preferred Shares (Series A)
or (ii) the issue or sale of shares of the Company ranking prior to the Common
Shares of the Company as to dividends or on liquidation if such shares have an
effective dividend rate (based on the proceeds to the Company from such issue
or sale net of any discount or commission to underwriters) of less than
$11.50% per annum. The term "Weighted Average Life to Maturity" shall mean,
at any date, the number of years obtained by dividing the then Remaining
Dollar-years of such indebtedness or the $11.50 Cumulative Preferred Shares
(Series A) by the then outstanding principal amount of such indebtedness or by
the product of $100.00 times the number of $11.50 Cumulative Preferred Shares
(Series A) which are then outstanding, as the case may be; and for the purpose
of this definition, the term "Remaining Dollar-years" of any indebtedness or
the $11.50 Cumulative Preferred Shares (Series A) shall mean, at any date, the
total of the products obtained by multiplying (i) the amount of each then
remaining installment, mandatory sinking fund, serial maturity or other
required payment, including payment at final maturity, in respect thereof by
(ii) the number of years (calculated to the nearest one-twelfth) which will
elapse between such date and the date on which such payment is required to be
made.
D. The amount payable on the $11.50 Cumulative Preferred Shares
(Series A) in the event of any dissolution, liquidation or winding up of the
affairs of the Company which shall be voluntary shall be the price at which
said shares are at the time redeemable (as set forth in subdivision C above),
and the amount payable on the $11.50 Cumulative Preferred Shares (Series A) in
the event of any dissolution, liquidation or winding up of the affairs of the
Company which shall be involuntary shall be $100.00 per share, together, as
provided in Subdivision E of said Division I, in either event, with a sum, in
the case of each share, computed at the annual dividend rate for the $11.50
Cumulative Preferred Shares (Series A) from the date on which dividends on
such share became cumulative to and including the date fixed for such
distribution or payment, less the aggregate amount of all dividends which
shall have theretofore been paid thereon or which shall have been declared
thereon and for which moneys for payment shall have been set apart and remain
available for payment.
E. So long as any of the $11.50 Cumulative Preferred Shares (Series A)
remain outstanding, after all dividends on all Cumulative Preferred Shares of
all series for all past quarterly dividend periods and for the current
quarterly dividend period shall have been paid or declared and a sum
sufficient for the payment therof set apart for payment, the Company shall, as
and for a mandatory sinking fund for the benefit of the $11.50 Cumulative
Preferred Shares (Series A), redeem, in the manner and upon the notice and
with the effect provided in Subdivision C of said Division I, (i) on June 1,
1986, and on each succeeding June 1 to and including June 1, 2004 (each such
June 1 being hereinafter called a "sinking fund redemption date"), 5% of the
maximum number of $11.50 Cumulative Preferred Shares (Series A) which shall
theretofore have been issued and (ii) on June 1, 2005, the balance of the
$11.50 Cumulative Preferred Shares (Series A) then outstanding (such required
redemptions being hereinafter called the "mandatory sinking fund
requirement"). The price at which the $11.50 Cumulative Preferred Shares
(Series A) shall be redeemed in satisfaction of the mandatory sinking fund
requirement shall be $100.00 per share, together, as provided in Subdivision C
of said Division I, in each instance, with accrued dividends to the redemption
date. The mandatory sinking fund requirement for the $11.50 Cumulative
Preferred Shares (Series A) shall be cumulative so that if, in any year, the
Company shall not satisfy in full the mandatory sinking fund requirement for
such year, the amount of the deficiency shall be added to the mandatory
sinking fund requirement for succeeding years until the deficiency shall have
been fully satisfied.
In addition to the mandatory sinking fund requirement, the Company may,
at its option, redeem, in the manner and upon the notice and with the effect
provided in Subdivision C of said Division I, on any sinking fund redemption
date $11.50 Cumulative Preferred Shares (Series A) in an amount not to exceed
the number of $11.50 Cumulative Preferred Shares (Series A) which shall be
redeemed on such sinking fund redemption date through the mandatory sinking
fund requirement at the mandatory sinking fund redemption price hereinbefore
specified in this subdivision E; provided that not more than 25% of the
maximum number of $11.50 Cumulative Preferred Shares (Series A) which shall
theretofore have been issued may be so redeemed. The privilege of so
redeeming $11.50 Cumulative Preferred Shares (Series A) shall not be
cumulative and shall not relieve the Company to any extent from its obligation
to redeem shares pursuant to the mandatory sinking fund requirement.
CERTIFICATE
The undersigned, D. R. EMMEN and JAY D. MYSTER, do hereby certify that we
are duly elected, qualified and acting as the Senior Vice President, Finance
and Treasurer and the Vice President, Governmental and Legal and Secretary,
respectively, of Otter Tail Power Company, a Minnesota corporation (the
"Company"), and that the following is a true and correct copy of a resolution
duly adopted at a meeting of the Board of Directors of the Company duly called
and held on April 13, 1992, at which a quorum was present and acted
throughout:
BE IT RESOLVED That, pursuant to authority conferred on the Board of
Directors of Otter Tail Power Company, a Minnesota corporation, by
Subdivision A of Division I of Article VI of its Articles of Incorporation, as
amended, a tenth series of Cumulative Preferred Shares be, and it hereby is,
created as follows:
A. The designation of such series shall be "$9.00 Exchangeable
Cumulative Preferred Shares," and the number of shares of such series shall be
fifty-three thousand three hundred eleven (53,311).
B. The rate of dividends payable on the $9.00 Exchangeable Cumulative
Preferred Shares shall be $9.00 per share per annum, payable quarterly on the
first day of March, June, September and December of each year, commencing on
the first day of the first such month following the date of original issuance
of the $9.00 Exchangeable Cumulative Preferred Shares. Such dividends shall
be cumulative and accrue in the case of each share from and including the date
of original issuance thereof; and the amount of the dividend for any period of
less than a full quarter shall be computed on the basis of a 360-day year of
twelve 30-day months.
C. The $9.00 Exchangeable Cumulative Preferred Shares shall be
redeemable at any time on or after the seventh anniversary of the date of
original issuance thereof at $100.00 per share together, as provided in
Subdivision C of said Division I, in each instance, with accrued dividends to
the redemption date; provided, however, that the holder of any $9.00
Exchangeable Cumulative Preferred Shares to be redeemed pursuant to this
Section C shall have the right, at such holder's option, to exchange any or
all of the $9.00 Exchangeable Cumulative Preferred Shares held by such holder
and so to be redeemed into Common Shares (as defined below) pursuant to, and
subject to and upon compliance with, the provisions of Section E hereof.
D. The amount payable on the $9.00 Exchangeable Cumulative Preferred
Shares in the event of any dissolution, liquidation or winding up of the
affairs of the Company, whether voluntary or involuntary, shall be $100.00 per
share, together, as provided in Subdivision E of said Division I, with a sum,
in the case of each share, computed at the annual dividend rate for the $9.00
Exchangeable Cumulative Preferred Shares from the date on which dividends on
such share became cumulative to and including the date fixed for such
distribution or payment, less the aggregate amount of all dividends which
shall have theretofore been paid thereon or which shall have been declared
thereon and for which moneys for payment shall have been set apart and remain
available for payment.
E. (1) Subject to and upon compliance with the provisions of this
Section E, each holder of $9.00 Exchangeable Cumulative Preferred Shares shall
have the right, at each such holder's option, at any time on or after the
seventh anniversary of the date of original issuance thereof, to exchange any
or all of the $9.00 Exchangeable Cumulative Preferred Shares held by each such
holder into either (a) cash in the amount of $100.00 per each $9.00
Exchangeable Cumulative Preferred Share so exchanged, together, in each
instance, with accrued dividends to the Exchange Date (as defined below), or
(b) the number of fully paid and nonassessable Common Shares obtained by
dividing (i) the sum of (A) the $100.00 liquidation value of a $9.00
Exchangeable Cumulative Preferred Share and (B) any accrued dividends to the
Exchange Date with respect to the $9.00 Exchangeable Cumulative Preferred
Share to be exchanged, by (ii) the Fair Market Value (as defined below) of a
Common Share, and multiplying such resulting number by the number of $9.00
Exchangeable Cumulative Preferred Shares to be so exchanged (rounding such
product, for the purpose of determining the amount of any cash payments
provided for under subsection (3) of this Section E, to the nearest 1/100
Common Share, with 1/200 of a Common Share being rounded upward), and in the
case of either clause (a) or (b), by surrender of such $9.00 Exchangeable
Cumulative Preferred Shares to be so exchanged, such surrender to be made in
the manner provided in subsection (2) of this Section E.
For purposes of this Section E, the term "Common Shares" shall mean the
Common Shares of the Company as the same exists at the date of original issue
of the $9.00 Exchangeable Cumulative Preferred Shares or as such shares may be
constituted from time to time thereafter.
For purposes of this Section E, the term "Exchange Date" shall mean (x),
if the $9.00 Exchangeable Cumulative Preferred Shares are being exchanged for
cash, the date which is 10 calendar days after the date such shares have been
duly surrendered to the Registrar or (y), if the $9.00 Exchangeable Cumulative
Preferred Shares are being exchanged for Common Shares, the date which is 60
Trading Days (as defined below) after the date such shares have been duly
surrendered to the Registrar, or, in the case of either clause (x) or (y), if
such day is not a business day, the next succeeding business day.
For purposes of this Section E, the term "Fair Market Value" with respect
to the Common Shares shall mean the average of the reported last sale prices
for the 60 consecutive Trading Days immediately preceding the relevant
Exchange Date. The reported last sale price for each Trading Day shall be the
reported last sale price, regular way, or, in case no sale takes place on such
day, the average of the reported closing bid and asked prices, regular way, in
either case as reported on the New York Stock Exchange Composite Tape or, if
the Common Shares are not listed or admitted to trading on the New York Stock
Exchange, in the principal national securities exchange on which the Common
Shares are listed or admitted to trading or, if not listed or admitted to
trading on any national securities exchange, on the National Market System of
the National Association of Securities Dealers, Inc. Automated Quotations
System ("NASDAQ") or, if the Common Shares are not quoted on such National
Market System, the average of the closing bid and asked prices on such day in
the over-the-counter market as reported by NASDAQ or, if bid and asked prices
for Common Shares on each such day shall not have been reported through
NASDAQ, the average of the bid and asked prices for such day as furnished by
any New York Stock Exchange member firm regularly making a market in the
Common Shares selected for such purpose by the Company and if no such
quotations are available, the fair market value of the Common Shares as
determined by a New York Stock Exchange member firm regularly making a market
in the Common Shares selected for such purpose by the Company.
For purposes of this Section E, the term "Trading Day" means (x), if the
Common Shares are listed or admitted for trading on the New York Stock
Exchange or another national securities exchange, a day on which the New York
Stock Exchange or such other national securities exchange is open for business
or (y), if the Common Shares are quoted on the National Market System of
NASDAQ, a day on which trades may be made on such National Market System or
(z), otherwise, any day other than a Saturday or Sunday or a day on which
banking institutions in the State of New York are authorized or obligated by
law or executive order to close.
(2) In order to validly exercise the exchange privilege pursuant to this
Section E, the holder of each $9.00 Exchangeable Cumulative Preferred Share to
be exchanged shall surrender the certificate representing such share at the
office of the Registrar for the $9.00 Exchangeable Cumulative Preferred Shares
in Fergus Falls, Minnesota, appointed for such purpose by the Company (which
may be the Company), with the Notice of Election to Exchange on the back of
such certificate completed and signed. Unless the shares issuable on exchange
are to be issued in the same name as the name in which the share to be
exchanged is registered, each share surrendered for exchange shall be
accompanied by instruments of transfer, in form satisfactory to the Registrar,
duly executed by the holder or the holder's duly authorized attorney, and by
an amount sufficient to pay any transfer or similar tax. If the $9.00
Exchangeable Cumulative Preferred Shares have been called for redemption and
are being surrendered for exchange pursuant to the proviso contained in
Section C hereof, then the certificate representing such shares must be duly
surrendered, as aforesaid, to the Registrar on or before the twentieth day
following the date of the notice of redemption relating to such shares in
order for the exchange privilege to be validly exercised, and any such shares
with respect to which the exchange privilege is not validly exercised shall be
redeemed on the redemption date.
On or before the Exchange Date, the Company shall deliver at the office
of the Registrar, for the account of each holder of $9.00 Exchangeable
Cumulative Preferred Shares surrendered for exchange on such Exchange Date,
(i) if such $9.00 Exchangeable Cumulative Preferred Shares are being exchanged
for cash, funds in the amount provided in clause (a) of subsection (1) of this
Section E, or (ii) if such $9.00 Exchangeable Cumulative Preferred Shares are
being exchanged for Common Shares, a certificate or certificates for the
number of full Common Shares issuable upon the exchange of such shares in
accordance with the provisions of clause (b) of subsection (1) of this
Section E, and funds for the settlement of any fractional interest in respect
of a Common Share arising upon such exchange as provided in subsection (3) of
this Section E. At the option of the Company, the Common Shares so delivered
may be newly issued shares, treasury shares or shares reacquired by or on
behalf of the Company, including shares purchased in the open market at any
time in the sole discretion of the Company.
Each holder of $9.00 Exchangeable Cumulative Preferred Shares
acknowledges by acceptance thereof that (i) the Common Shares deliverable upon
any exchange of $9.00 Exchangeable Cumulative Preferred Shares will not be
registered under the Securities Act of 1933, as amended, or any applicable
state securities laws and that any such Common Shares may not be resold except
pursuant to an exemption from such Act and all such applicable laws or
pursuant to registrations thereunder; (ii) such Common Shares may not be sold,
transferred or otherwise disposed of in any manner without first obtaining (a)
an opinion of counsel reasonably acceptable to the Company, both as to opinion
and as to counsel, that such proposed sale, transfer or other disposition can
lawfully be made without registration pursuant to the Securities Act of 1933,
as then amended, and applicable state securities laws, or (b) such
registrations (it being expressly understood that the Company shall not have
any obligation to register such securities for such purpose); (iii)
certificates representing such Common Shares may bear a legend stating that
such Common Shares have not been registered under the Securities Act of 1933,
as amended, and applicable state securities laws and referring to the
foregoing restrictions on transferability of such Common Shares; and (iv) the
Company may place stop transfer orders or notations on the Company's stock
record referring to such restrictions on transferability.
All Common Shares delivered upon exchange of the $9.00 Exchangeable
Cumulative Preferred Shares pursuant to this Section E will, upon delivery, be
duly and validly issued and fully paid and nonassessable, free of all liens
and charges and not subject to any preemptive rights.
Each exchange of $9.00 Exchangeable Cumulative Preferred Shares pursuant
to this Section E shall be deemed to have been effected immediately prior to
the close of business on the Exchange Date. Until such time on the Exchange
Date, any $9.00 Exchangeable Cumulative Preferred Shares which have been
surrendered for exchange with respect to such Exchange Date shall be treated
as outstanding and the person or persons in whose name or names a certificate
for any such shares is registered (or any prior holder who was the holder of
record of such shares on the relevant record date) shall remain the holder of
record for the purpose of voting such shares and receiving any dividends paid
with respect to such shares prior to such time on the Exchange Date,
notwithstanding that such shares might have been redeemed on a date prior to
the Exchange Date but for the exercise of the right to exchange such shares
pursuant to the proviso contained in Section C hereof. At such time on such
Exchange Date, the person or persons in whose name or names any certificate or
certificates for Common Shares shall be deliverable upon such exchange shall
be deemed to have become the holder or holders of record of the Common Shares
represented thereby unless the stock transfer books of the Company are closed
on such date, in which event such person or persons shall be deemed to have
become such holder or holders of record at the close of business on the next
succeeding day on which such stock transfer books are open.
(3) In connection with the exchange of any $9.00 Exchangeable Cumulative
Preferred Shares for Common Shares pursuant to this Section E, no fractional
Common Share or scrip representing fractions of a Common Share shall be
issued. Instead of any fractional interest in a Common Share which would
otherwise be deliverable upon the exchange of $9.00 Exchangeable Cumulative
Preferred Shares, the Company shall pay to the holder of such $9.00
Exchangeable Cumulative Preferred Shares an amount in cash (computed to the
nearest cent, with one-half cent being rounded upward) equal to the Fair
Market Value of a Common Share multiplied by the fraction of a Common Share
represented by such fractional interest.
(4) The number of $9.00 Exchangeable Cumulative Preferred Shares which
may be exchanged pursuant to this Section E in any twelve-month period shall
be limited to a total of 10,662 $9.00 Exchangeable Cumulative Preferred
Shares, and the Company shall have no obligation to exchange any shares
surrendered in excess of that amount; provided, however, that $9.00
Exchangeable Cumulative Preferred Shares called for redemption and surrendered
for exchange pursuant to the proviso contained in Section C hereof shall not
be subject to the limitation set forth in this subsection (4) and shall not be
counted for purposes of determining the limitation set forth in this
subsection (4) as it applies to shares otherwise surrendered for exchange.
(5) On any Exchange Date, the Company shall have no obligation to
exchange for Common Shares, whether pursuant to the proviso contained in
Section C hereof or otherwise, $9.00 Exchangeable Cumulative Preferred Shares
held by any holder unless either (i) the total number of $9.00 Exchangeable
Cumulative Preferred Shares surrendered for exchange by such holder with
respect to such Exchange Date equals or exceeds 500 or (ii) the total number
of $9.00 Exchangeable Cumulative Preferred Shares surrendered for exchange by
all holders of $9.00 Exchangeable Cumulative Preferred Shares with respect to
such Exchange Date equals or exceeds 500.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as the
Senior Vice President, Finance and Treasurer and the Vice President,
Governmental and Legal and Secretary, respectively, of Otter Tail Power
Company and have affixed the seal of Otter Tail Power Company this 10th day of
August, 1992.
D. R. Emmen
D. R. Emmen
Senior Vice President, Finance and
Treasurer
Jay D. Myster
Jay D. Myster
Vice President, Governmental and
Legal and Secretary
[CORPORATE SEAL]
STATE OF MINNESOTA )
) SS
COUNTY OF OTTER TAIL )
ON this 10th day of August, 1992 before me a Notary Public and for said
County and State, personally appeared D. R. EMMEN and JAY D. MYSTER, to me
personally known to be the Senior Vice President, Finance and Treasurer and
the Vice President, Governmental and Legal and Secretary, respectively, of
Otter Tail Power Company, who, being by me duly sworn, did say that they are,
respectively, the Senior Vice President, Finance and Treasurer and the Vice
President, Governmental and Legal and Secretary of said corporation, and that
the seal affixed to the within certificate is the corporate seal of said
corporation, and that said certificate was signed and sealed in behalf of said
corporation by authority of its Board of Directors, and said D. R. EMMEN and
JAY D. MYSTER acknowledged said certificate to be the free act and deed of
said corporation.
Raymond J. Holmgren
[NOTARIAL SEAL]
CERTIFICATE
The undersigned, D. R. EMMEN and JAY D. MYSTER, do hereby certify that we
are duly elected, qualified and acting as the Senior Vice President, Finance
and Treasurer and the Vice President, Governmental and Legal and Secretary,
respectively, of Otter Tail Power Company, a Minnesota corporation (the
"Company"), and that the following is a true and correct copy of a resolution
duly adopted by a Written Action of the Pricing Committee of the Board of
Directors of the Company, dated September 29, 1992, executed by all the
members of said Pricing Committee, duly established by the Board of Directors
of the Company at a meeting thereof duly called and held on February 3, 1992,
at which a quorum was present and acted throughout, to act for the Board of
Directors with respect to the matters set forth in said Written Action:
RESOLUTION
BE IT RESOLVED That, pursuant to authority conferred on the Board of
Directors of Otter Tail Power Company, a Minnesota corporation, by
Subdivision A of Division I of Article VI of its Articles of Incorporation, as
amended, an eleventh series of Cumulative Preferred Shares be, and it hereby
is, created as follows:
A. The designation of such series shall be "$6.35 Cumulative Preferred
Shares," and the number of shares of such series shall be one hundred eighty
thousand (180,000).
B. The rate of dividends payable on the $6.35 Cumulative Preferred
Shares shall be $6.35 per share per annum, payable quarterly on the first day
of March, June, September and December of each year, commencing December 1,
1992. Such dividends shall be cumulative and accrue in the case of each share
from and including the date of original issuance thereof; and the amount of
the dividend for any period of less than a full quarter shall be computed on
the basis of a 360-day year of twelve 30-day months.
C. The $6.35 Cumulative Preferred Shares shall be redeemable (otherwise
than with respect to any redemption effected through or by the sinking fund
hereafter described in subdivision E below), at the option of the Company, in
whole or in part, at $103.175 per share if redeemed before December 1, 1998,
and at the following redemption prices per share if redeemed thereafter:
If redeemed during the twelve months' period beginning:
Redemption
December 1 Price
1998 . . . . . . . . . . . . . . . . . $102.540
1999 . . . . . . . . . . . . . . . . . $101.905
2000 . . . . . . . . . . . . . . . . . $101.270
2001 . . . . . . . . . . . . . . . . . $100.635
2002 and thereafter . . . . . . . . . $100.000
together, as provided in Subdivision C of said Division I, in each instance,
with accrued dividends to the redemption date; provided, however, that the
$6.35 Cumulative Preferred Shares shall not be redeemable, in whole or in
part, prior to December 1, 1997.
D. The amount payable on the $6.35 Cumulative Preferred Shares in the
event of any dissolution, liquidation or winding up of the affairs of the
Company which shall be voluntary shall be $106.350 per share prior to
December 1, 1993, and will decrease by $0.635 per share on December 1, 1993
and on each December 1 thereafter to $100.00 per share on December 1, 2002,
and the amount payable on the $6.35 Cumulative Preferred Shares in the event
of any dissolution, liquidation or winding up of the affairs of the Company
which shall be involuntary shall be $100.00 per share, together, as provided
in Subdivision E of said Division I, in either event, with a sum, in the case
of each share, computed at the annual dividend rate for the $6.35 Cumulative
Preferred Shares from the date on which dividends on such share became
cumulative to and including the date fixed for such distribution or payment,
less the aggregate amount of all dividends which shall have theretofore been
paid thereon or which shall have been declared thereon and for which moneys
for payment shall have been set apart and remain available for payment.
E. So long as any of the $6.35 Cumulative Preferred Shares remain
outstanding, after all dividends on all Cumulative Preferred Shares of all
series for all past quarterly dividend periods and for the current quarterly
dividend period shall have been paid or declared and a sum sufficient for the
payment thereof set apart for payment, the Company shall, as and for a
mandatory sinking fund for the benefit of the $6.35 Cumulative Preferred
Shares, redeem, in the manner and upon the notice and with the effect provided
in Subdivision C of said Division I, (i) on December 1, 2002, and on each
succeeding December 1 to and including December 1, 2006, 5% of the maximum
number of $6.35 Cumulative Preferred Shares which shall theretofore have been
issued and (ii) on December 1, 2007, the balance of the $6.35 Cumulative
Preferred Shares then outstanding (such required redemptions being hereinafter
called the "mandatory sinking fund requirement"). The price at which the
$6.35 Cumulative Preferred Shares shall be redeemed in satisfaction of the
mandatory sinking fund requirement shall be $100.00 per share, together, as
provided in Subdivision C of said Division I, in each instance, with accrued
dividends to the redemption date. The mandatory sinking fund requirement for
the $6.35 Cumulative Preferred Shares shall be cumulative so that if, in any
year, the Company shall not satisfy in full the mandatory sinking fund
requirement for such year, the amount of the deficiency shall be added to the
mandatory sinking fund requirement for succeeding years until the deficiency
shall have been fully satisfied.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as the
Senior Vice President, Finance and Treasurer and the Vice President,
Governmental and Legal and Secretary, respectively, of Otter Tail Power
Company and have affixed the seal of Otter Tail Power Company this 1st day of
October, 1992.
D. R. Emmen
D. R. Emmen
Senior Vice president, Finance
and Treasurer
Jay D. Myster
Vice President, Governmental
and Legal and Secretary
[CORPORATE SEAL]
STATE OF MINNESOTA )
)SS
COUNTY OF OTTER TAIL )
On this 1st day of October, 1992, before me a Notary Public within and
for said County and State, personally appeared D. R. EMMEN and JAY D. MYSTER,
to me personally known to be the Senior Vice President, Finance and Treasurer
and the Vice President, Governmental and Legal and Secretary, respectively, of
Otter Tail Power Company, who, being by me duly sworn, did say that they are,
respectively, the Senior Vice President, Finance and Treasurer and the Vice
President, Governmental and Legal and Secretary of said corporation, and that
the seal affixed to the within certificate is the corporate seal of said
corporation, and that said certificate was signed and sealed in behalf of said
corporation by authority of its Board of Directors, and said D. R. EMMEN and
JAY D. MYSTER acknowledged said certificate to be the free act and deed of
said corporation.
Larry W. Marquard
[NOTARIAL SEAL]
CERTIFICATE
The undersigned, D. R. EMMEN and JAY D. MYSTER, do hereby certify that we
are duly elected, qualified and acting as the Senior Vice President, Finance
and Treasurer and the Vice President, Governmental and Legal and Secretary,
respectively, of Otter Tail Power Company, a Minnesota corporation (the
"Company"), and that the following is a true and correct copy of a resolution
duly adopted by a Written Action of the Pricing Committee of the Board of
Directors of the Company, dated October 11, 1993, executed by all the members
of said Pricing Committee, duly established by the Board of Directors of the
Company at a meeting thereof duly called and held on February 3, 1992, at
which a quorum was present and acted throughout, to act for the Board of
Directors with respect to the matters set forth in said Written Action:
RESOLUTION
BE IT RESOLVED That, pursuant to authority conferred on the Board of
Directors of Otter Tail Power Company, a Minnesota corporation, by
Subdivision A of Division I of Article VI of its Articles of Incorporation, as
amended, a twelfth series of Cumulative Preferred Shares be, and it hereby is,
created as follows:
A. The designation of such series shall be "$6.75 Cumulative Preferred
Shares," and the number of shares of such series shall be forty thousand
(40,000).
B. The rate of dividends payable on the $6.75 Cumulative Preferred
Shares shall be $6.75 per share per annum, payable quarterly on the first day
of March, June, September and December of each year, commencing December 1,
1993. Such dividends shall be cumulative and accrue in the case of each share
from and including the date of original issuance thereof; and the amount of
the dividend for any period of less than a full quarter shall be computed on
the basis of a 360-day year of twelve 30-day months.
C. The $6.75 Cumulative Preferred Shares shall be redeemable at the
option of the Company, in whole or in part, at $103.375 per share if redeemed
before December 1, 2004, and at the following redemption prices per share if
redeemed thereafter:
If redeemed during the twelve months' period beginning:
Redemption
December 1 Price
2004 . . . . . . . . . . . . . . . . . $103.0375
2005 . . . . . . . . . . . . . . . . . $102.7000
2006 . . . . . . . . . . . . . . . . . $102.3625
2007 . . . . . . . . . . . . . . . . . $102.0250
2008 . . . . . . . . . . . . . . . . . $101.6875
2009 . . . . . . . . . . . . . . . . . $101.3500
2010 . . . . . . . . . . . . . . . . . $101.0125
2011 . . . . . . . . . . . . . . . . . $100.6750
2012 . . . . . . . . . . . . . . . . . $100.3375
2013 and thereafter . . . . . . . . . $100.0000
together, as provided in Subdivision C of said Division I, in each instance,
with accrued dividends to the redemption date; provided, however, that the
$6.75 Cumulative Preferred Shares shall not be redeemable, in whole or in
part, prior to December 1, 2003.
D. The amount payable on the $6.75 Cumulative Preferred Shares in the
event of any dissolution, liquidation or winding up of the affairs of the
Company which shall be voluntary shall be $106.75 per share prior to
December 1, 1994, and will decrease by $0.3375 per share on December 1, 1994
and on each December 1 thereafter to $100.00 per share on December 1, 2013,
and the amount payable on the $6.75 Cumulative Preferred Shares in the event
of any dissolution, liquidation or winding up of the affairs of the Company
which shall be involuntary shall be $100.00 per share, together, as provided
in Subdivision E of said Division I, in either event, with a sum, in the case
of each share, computed at the annual dividend rate for the $6.75 Cumulative
Preferred Shares from the date on which dividends on such share became
cumulative to and including the date fixed for such distribution or payment,
less the aggregate amount of all dividends which shall have theretofore been
paid thereon or which shall have been declared thereon and for which moneys
for payment shall have been set apart and remain available for payment.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands as the
Senior Vice President, Finance and Treasurer and the Vice President,
Governmental and Legal and Secretary, respectively, of Otter Tail Power
Company and have affixed the seal of Otter Tail Power Company this 11th day of
October, 1993.
D. R. Emmen
D. R. Emmen
Senior Vice President, Finance
and Treasurer
Jay D. Myster
Jay D. Myster
Vice President, Governmental
and Legal and Secretary
[CORPORATE SEAL]
STATE OF MINNESOTA )
)SS
COUNTY OF OTTER TAIL )
On this 11th day of October, 1993, before me a Notary Public within and
for said County and State, personally appeared D. R. EMMEN and JAY D. MYSTER,
to me personally known to be the Senior Vice President, Finance and Treasurer
and the Vice President, Governmental and Legal and Secretary, respectively, of
Otter Tail Power company, who, being by me duly sworn, did say that they are,
respectively, the Senior Vice President, Finance and Treasurer and the Vice
President, Governmental and Legal and Secretary of said corporation, and that
the seal affixed to the within certificate is the corporate seal of said
corporation, and that said certificate was signed and sealed in behalf of said
corporation by authority of its Board of Directors, and said D. R. EMMEN and
JAY D. MYSTER acknowledged said certificate to be the free act and deed of
said corporation.
Larry W. Marquard
[NOTARIAL SEAL]