18
W6-NY960570.340
PG ENERGY INC.
RESTATED ARTICLES OF INCORPORATION
First: The name of the corporation is:
PG Energy Inc.
Second: The location and post office address of the
corporation's registered office in this Commonwealth is:
Wilkes-Barre Center
39 Public Square
Wilkes-Barre, Pennsylvania 18711
Third: The purposes of the corporation, which has
accepted the Pennsylvania Business Corporation Law, are as
follows:
(a) To divert, develop, transport, impound, pump,
distribute, and furnish water to or for the public;
(b) To produce, generate, manufacture, transmit,
transport, store, distribute, or furnish natural or
artificial gas to the public;
(c) To furnish service subject to the
jurisdiction of the Pennsylvania Public Utility Commission;
(d) To manufacture, process, own, use, and deal
in personal property of every class and description;
(e) To acquire, own, use, and dispose of real
property of every nature whatsoever;
(f) To engage in and to do any lawful act
concerning any and all lawful business for which
corporations may be incorporated under the provisions of the
Business Corporation Law.
Fourth: The term for which the corporation is to
exist is perpetual.
Fifth: The aggregate number of shares which the
corporation shall have authority to issue is (1) 10,000,000
shares of Common Stock without nominal or par value, with a
stated value of $10.00 per share and (2) 997,500 shares of
Preferred Stock with a par value of $100.00 per share.
Sixth: The designations, rights, privileges,
limitations, preferences, and voting powers, or prohibitions,
restrictions, or modifications of the voting and other rights and
powers, and the terms as to redemption of the Preferred Stock and
the Common Stock, shall be in accordance with the following
sections:
1. Subject to the restrictions and/or limitations
hereinafter set forth, the number of shares of Preferred Stock
which may be issued shall be such number thereof as shall from
time to time be authorized in the manner provided by law and
consented to, approved and adopted by a majority in interest of
the stockholders of the Company having voting powers, or such
other proportion in interest of such stockholders as may be
required by law.
2. The shares of the Preferred Stock shall be issued
from time to time in series, each of such series to be
distinctively designated.
3. The initial series of Preferred Stock shall
consist of 100,00 shares and shall be designated as 4.10%
Cumulative Preferred Stock. The Board of Directors is hereby
specifically authorized, in respect of said initial series of
Preferred Stock, to fix and determine
(a) the annual dividend rate (within such limits
as shall be permitted by law);
(b) the redemption price or prices, if any;
(c) the amount or amounts per share payable to
the holders thereof upon any voluntary or involuntary
dissolution, liquidation or winding up of the Company, which
may be different for voluntary and involuntary dissolution,
liquidation or winding up and which shall include an amount
equal to the accrued dividends on such shares to the date
fixed for the payment of said amount.
The second series of Preferred Stock shall consist of
40,000 shares and shall be designated as the 1966 Cumulative
Preferred Stock. The Board of Directors is hereby specifically
authorized, in respect of said 1966 Cumulative Preferred Stock,
to fix and determine
(a) the annual dividend rate (within such limits
as shall be permitted by law);
(b) the redemption price or prices, if any;
(c) the amount or amounts per share payable to
the holders thereof upon any voluntary or involuntary
dissolution, liquidation or winding up of the Company, which
may be different for voluntary or involuntary dissolution,
liquidation or winding up and which shall include an amount
equal to the accrued dividends on such shares to the date
fixed for the payment of said amount.
Subject to the provisions of section 6 hereof, holders of the
1966 Cumulative Preferred Stock shall have a non-cumulative right
(commencing at such time and exercisable for such period and in
such manner as the Board of Directors may determine) each year to
tender to the Company and to require it to purchase, to the
extent the Company shall have available funds which it may
legally use for the purpose, at a per share price not exceeding
$100, up to (a) that number of shares of the 1966 Cumulative
Preferred Stock which can be acquired for an aggregate purchase
price of $80,000, less (b) the number of such shares which the
Company may already have purchased during the year at a per share
price of not more than $100.
The third series of Preferred Stock shall consist of
250,000 shares and shall be designated as 9% Cumulative Preferred
Stock. The Board of Directors is hereby specifically authorized
in respect of said 9% Cumulative Preferred Stock to fix and
determine
(a) the annual dividend rate (within such limits
as shall be permitted by law);
(b) the redemption price or prices, if any;
(c) the amount or amounts per share payable to
the holders thereof upon any voluntary or involuntary
dissolution, liquidation or winding up and which shall
include an amount equal to the accrued dividends on such
shares to the date fixed for the payment of said amount.
As to the balance of the authorized Preferred Stock,
consisting of 607,500 shares, the Board of Directors is hereby
specifically authorized
(a) Subject to the provisions of section 11
hereof, to create and issue from time to time one or more
additional series of the Preferred Stock consisting of such
number or numbers of shares as it shall determine;
(b) To distinctively designate each additional
series so as to distinguish the shares thereof from the
shares of all other series and classes;
(c) To fix and determine, subject to those
provisions hereinafter stated which are applicable to all
Preferred Stock, the designations, rights and privileges of
such additional series, including, without limitation,
(1) the rate of dividend (within such limits
as shall be permitted by law);
(2) the price at and the terms and
conditions on which shares may be redeemed;
(3) the amounts payable upon shares in the
event of voluntary or involuntary dissolution,
liquidation or winding up of the Company, which
may be different for voluntary or involuntary
dissolution, liquidation or winding up and which
may include an amount equal to the accrued
dividends on such shares to the date fixed for the
payment of said amount;
(4) to the extent permitted by law, a
Sinking Fund or Purchase Fund for the redemption
or purchase of shares; and
(5) the terms and conditions on which shares
may be converted in the event shares of any series
are issued with the privilege of conversion.
4. Subject to the provisions of section 11 hereof one
or more additional series of Preferred Stock may be created and
issued from time to time, when so determined and authorized by
the Board of Directors and consented to, approved and adopted by
a majority in interest of the stockholders having voting power,
or such other proportion in interest of such stockholders as may
be required by law. The Preferred Stock of any such additional
series, subject to the provisions hereinafter stated as
applicable to all Preferred Stock, shall have such designations,
rights, privileges, limitations, preferences and voting powers,
or prohibitions, restrictions, or qualifications of the voting
and other rights and powers and shall be subject to redemption
and shall be convertible into any other class of series of stock,
common or preferred, and shall consist of such number of shares
or of such number of shares not less than and not greater than
numbers to be stated therefor, as may, in respect of any such
series, be authorized by the Board of Directors of this Company
and consented to, approved and adopted by a majority in interest
of its stockholders having voting power, or such other proportion
in interest as may be provided by law. All series of Preferred
Stock shall be of equal rank, and all shares of Preferred Stock
of any series shall be identical in all respects.
5. The holders of the Preferred Stock are entitled to
receive, in respect of each share held, cash dividends at the
annual rate specified in the designation thereof, payable quarter-
yearly on March 15, June 15, September 15 and December 15 in each
year, when and as declared by the Board of Directors, out of
funds legally available for the payment of dividends. Such
dividends shall be cumulative from the first day of the dividend
period in which such stock shall have been originally issued, and
shall be paid, or declared and set apart for payment, before any
dividends shall be declared or paid on or set apart for the
Common Stock, so that if, for any past dividend period or the
current dividend period, dividends on the Preferred Stock shall
not have been paid, or declared and set apart for payment, the
deficiency shall be fully paid or declared and funds set apart
for the payment thereof before any dividends shall be declared or
paid on or set apart for the Common Stock. Accruals of dividends
shall not bear interest. The holders of the Preferred Stock
shall not be entitled to receive any dividends thereon other than
dividends at the annual rate specified in the designation of such
shares. When full cumulative dividends upon the Preferred Stock
then outstanding for all past dividend periods and for the
current dividend period shall have been paid or declared and set
apart for payment, the Board of Directors may declare dividends
on the Common Stock of the Company.
6. The Company, on the sole authority of its Board of
Directors, shall have the right at any time or from time to time
to redeem and retire all or any part of any series of Preferred
Stock which has been made redeemable, at the redemption price
determined for such series, upon not less than thirty (30) days'
previous notice mailed to the holders of record thereof upon the
date of mailing or on such date within ten (10) days prior
thereto as the Board of Directors may fix for the purpose, (and
by such publication, if any, made in such manner and at such time
or times, as the Board of Directors may prescribe). In case of
the redemption of a part only of any series of Preferred Stock,
the shares thereof so to be redeemed shall be selected by lot, in
such manner as the Board of Directors shall determine, by a bank
or trust company selected for that purpose by the Board of
Directors. At any time after notice of redemption has been
mailed to the holders of stock to be redeemed, the Company may
deposit in trust, for the account of the holders of the shares to
be redeemed, funds necessary for such redemption with a bank or
trust company in good standing, organized under the laws of the
United Stated of America or of the State of New York, doing
business in the Borough of Manhattan the City of New York, or
organized under the laws of the Commonwealth of Pennsylvania,
having capital, surplus and undivided profits aggregating at
least $5,000,000 and designated in such notice of redemption, and
upon such deposit, or if no such deposit is made, upon the date
fixed for redemption (unless the Company defaults in making
payment of the redemption price), such holders shall cease to be
stockholders with respect to said shares, and from and after the
making of such deposit, or, if no such deposit is made, from and
after the date fixed for redemption (the Company not having
defaulted in making payment of the redemption price) said shares
shall not be deemed to be outstanding and such holders shall have
no interest in or claim against the Company with respect to the
said shares, but shall be entitled only to receive said
redemption price on the date fixed for redemption, without
interest. Any interest accrued on any funds so deposited shall
belong to the Company. Any moneys so deposited and remaining
unclaimed at the end of six (6) years from the date fixed for
redemption shall, if thereafter requested by resolution of the
Board of Directors, be repaid to the Company, and in the event of
such repayment, such holders of the shares so to be redeemed as
shall not have made claim to such moneys prior to such repayment,
shall be deemed to be unsecured creditors of the Company for an
amount equivalent to the sum deposited as aforesaid for the
redemption of such shares and so repaid to the Company but shall
not be entitled to interest upon said amount. If at any time the
Company has failed to pay dividends in full on any outstanding
shares of Preferred Stock, thereafter and until dividends in full
on all shares of outstanding Preferred Stock have been paid, or
declared and set apart for payment, for all past dividend periods
but without interest on accumulated dividends, and for the
current quarter-yearly dividend period, the Company may not
redeem any Preferred Stock unless all outstanding shares of
Preferred Stock are redeemed and may not purchase or otherwise
acquire for value any shares of Preferred Stock except in
accordance with an offer (which may vary with respect to shares
of different series) made to all holders of shares of Preferred
Stock. Except as above set forth, nothing contained in these
Articles limits any legal right of the Company to purchase any
shares of the Preferred Stock.
7. Upon any dissolution, liquidation or winding up of
the Company, whether voluntary or involuntary, the holders of the
Preferred Stock of each and every series then outstanding shall
be entitled to receive out of the net assets of the Company, the
amounts per share fixed for the shares of the respective series
and payable upon such dissolution, liquidation or winding up,
plus an amount equal to the accrued dividends on such shares,
before any distribution of the assets of the Company shall be
made to the holders of the Common Stock.
8. If the assets distributable on such dissolution,
liquidation or winding up shall be insufficient to permit the
payment to the holders of Preferred Stock of the full amounts to
which they are entitled as aforesaid, then said assets shall be
distributed ratably among the holders of the respective series of
Preferred Stock in proportion to the sums which would be payable
on such dissolution, liquidation or winding up is all sums
payable were discharged in full in preference and priority over
the shares of the Common Stock.
9. The sale, lease, conveyance, exchange or transfer
of all or substantially all of the property and/or franchises of
the Company, or the merger or consolidation of the Company into
or with any other corporation, are not to be deemed a
dissolution, liquidation or winding up as such terms are used in
this and the two preceding paragraphs.
10. No holder of the Preferred Stock shall be entitled
to vote for the election of directors or in respect of any
matter, except as otherwise provided in the following paragraphs
of this section and in sections 11 and 12 hereof, or as may be
required by law. In such excepted cases, each record holder of
the Preferred Stock shall have one vote for each share of
Preferred Stock held by him.
(a) If and when dividends payable on the
Preferred Stock shall be in default in an amount equivalent
to four full quarter-yearly dividends on all shares of the
Preferred Stock then outstanding and until all dividends
then in default on the Preferred Stock shall have been paid,
the record holders of the shares of the Preferred Stock,
voting separately as one class, shall be entitled, at each
meeting of the shareholders at which directors are elected,
to elect the smallest number of directors necessary to
constitute a majority of the full Board of Directors, and
the record holders of the shares of the Common Stock, voting
separately as a class, shall be entitled at any such meeting
to elect the remaining directors of the Company. The term
of office of each director of the Company shall terminate
upon the election of his successor. At each election of
directors by a class vote pursuant to the provisions of this
paragraph, the class first electing the directors which it
is entitled to elect shall name the directors who are to be
succeeded by the directors then elected by such class,
whereupon the term of office of the directors so named shall
terminate. The term of office of the directors not so named
shall terminate upon the election by the other class of the
directors which it is entitled to elect.
(b) If and when all dividends then in default on
the Preferred Stock then outstanding shall be paid (and such
dividends shall be paid, or declared and set apart for
payment, out of funds legally available therefor, as soon as
reasonably practicable), the holders of the shares of the
Preferred Stock shall thereupon be divested of the special
right with respect to the election of directors provided in
the preceding paragraph (a), and the voting power of holders
of shares of the Preferred Stock and the Common Stock shall
revert to the status existing before the occurrence of such
default, but always subject to the same provisions for
vesting such special right in the Preferred Stock in case of
further like default or defaults in dividends thereon.
Dividends shall be deemed to have been paid, as that term is
used in this paragraph (b), whenever such dividends shall
have been declared and paid, or declared and set aside for
payment.
(c) In case of any vacancy in the Board of
Directors occurring among the directors elected by the
holders of the shares of the Preferred Stock, as a class,
pursuant to the preceding paragraph (a), the remaining
directors elected by the holders of the Preferred Stock, by
affirmative vote of a majority thereof, or the remaining
director so elected if there be but one, may elect a
successor to hold office for the unexpired term of the
director whose place shall be vacant. In case of a vacancy
in the Board of Directors occurring among the directors
elected by the holders of the shares of the Common Stock as
a class, the remaining director elected by the holders of
the Common Stock, by affirmative vote of a majority thereof,
or the remaining director so elected if there be but one,
may elect a successor to hold office for the unexpired term
of the director whose place shall be vacant. In all other
cases, any vacancy occurring among the directors shall be
filled by the vote of a majority of the remaining directors.
(d) Whenever the holders of the shares of the
Preferred Stock, as a class, become entitled to elect
directors of the Company pursuant to the preceding
provisions, or whenever the holders of the shares of the
Common Stock, as a class, become entitled to elect directors
of the Company pursuant to such provisions, a special
meeting of the holders of the shares of the Preferred Stock
or of the holders of the shares of the Common Stock, as the
case may be, for the election of such directors, shall be
held at any time thereafter upon call by the holders of not
less than 1,000 shares of the Preferred Stock or of the
Common Stock, as the case may be, or upon call by the
Secretary of the Company at the request in writing of
holders of not less than 1,000 shares of the Preferred Stock
or the Common Stock, as the case may be, addressed to him at
the principal office of the Company. If no such special
meeting be called or be requested to be called, the election
of the directors to be elected by the holders of the shares
of the Preferred Stock, voting as a class, and of those to
be elected by the holders of the shares of the Common Stock,
voting as a class, shall take place at the annual meeting of
the stockholders of the Company next succeeding the accrual
of such special voting right. At all meetings of
stockholders at which director are elected during such times
as the holders of shares of the Preferred Stock shall have
the special right, voting separately as one class, to elect
directors, the presence in person or by proxy of the holders
of a majority of the outstanding shares of the Common Stock
shall be required to constitute a quorum of such class for
the election of directors, and the presence in person or by
proxy of the holders of a majority of the outstanding shares
of all series of the Preferred Stock shall be required to
constitute a quorum of such class for the election of
directors, provided, however, that the absence of a quorum
of the holders of stock of either such class shall not
prevent the election at any such meeting or adjournment
thereof of directors by the other such class if the
necessary quorum of the holders of stock of such class is
present in person or by proxy at such meeting, and provided
further that in the absence of a quorum of the holders of
stock of either such class, a majority of those holders of
the stock of such class who are present in person or by
proxy shall have power to adjourn the election of the
directors to be elected by such class from time to time
without notice other than announcement at the meeting until
the requitable amount of holders of such class shall be
present in person or by proxy.
(e) Every record holder of outstanding shares of
the Common Stock shall, at all meetings of stockholders of
the Company, have one vote for each share of the Common
Stock held by him, except as otherwise provided in the
preceding paragraphs of section 10 hereof or as may be
provided by law.
(f) In all elections for directors each
stockholder may cast the whole number of his votes for one
candidate or distribute them upon two or more candidates, as
he may prefer.
11. So long as any shares of the Preferred Stock of
any series are outstanding, the Company shall not, without the
affirmative vote or written consent of the record holders of at
least two-thirds of the outstanding shares of Preferred Stock of
all series, voting separately as one class:
(a) Create or authorize any stock ranking prior
in any respect to the Preferred Stock or any security
convertible into shares of such stock, or issue any such
stock or convertible security; or
(b) Change the terms and provisions of the
Preferred Stock so as to affect adversely the rights,
preferences or privileges of the holders thereof; provided,
however, that if any such change will affect adversely the
rights, preferences or privileges of the holders of one or
more, but less than all, of the series of Preferred Stock at
the time outstanding, the vote or consent only of the record
holders of at least two-thirds of the total number of shares
of each series so adversely affected shall be required; or
(c) Issue any shares of the Preferred Stock or
shares of any stock ranking on a parity in any respect with
the Preferred Stock, or any securities convertible into
shares of such stock other than in exchange for, or for the
purpose of effecting the redemption or other retirement of,
not less than an equal number of shares of the Preferred
Stock, or shares of any stock ranking on any such parity, at
the time outstanding, unless
(1) The gross income (determined in
accordance with accepted accounting principles) of
the Company available for the payment of interest
charges shall, for a period of twelve consecutive
calendar months within the fifteen calendar months
next preceding the issue of such shares, have been
at least one and one-half times the sum of
(i) the interest for one year, adjusted by
provision for amortization of debt discount and
expense, or of premium, as the case may be, on all
funded indebtedness, and on all notes payable of
the Company maturing more than twelve months after
the date of issue of such shares, which shall be
outstanding at the date of the issue of such
shares, and (ii) an amount equal to be the
dividend requirement for one year on all shares of
the Preferred Stock of all series and on all other
shares of stock, if any, ranking in any respect
prior to or on a parity with the Preferred Stock,
which shall be outstanding after the issue of the
shares or convertible securities proposed to be
issued; and
(2) The capital represented by the Common
Stock and any other class of stock ranking junior
to the Preferred Stock to be outstanding
immediately after such issue, plus the surplus
accounts of the Company, shall be not less than
the aggregate amount payable on the involuntary
dissolution, liquidation or winding up of the
Company, in respect of all shares of the Preferred
Stock and all shares of stock, if any, ranking in
any respect prior thereto or on a parity
therewith, which shall be outstanding after the
issue of the shares or convertible securities
proposed to be issued, and provided that no
portion of the surplus of the Company utilized to
satisfy the foregoing requirements shall be
available for dividends on the Common Stock.
In case, within or after the period for which the calculation of
such gross income is made pursuant to the preceding clause (1),
the Company shall have acquired, or will acquire concurrently
with the issue of the shares or convertible securities proposed
to be issued, all or substantially all of the properties of
another corporation or any properties, the earnings of which
during such period are separately ascertainable, then, in
computing such gross income for such period, there shall be
included, to the extent that the same may not have been otherwise
included, the earnings or losses of such other corporation or of
such properties for the whole of such period, and there shall be
excluded the earnings or losses of any properties (except
securities of the Company ) given by the Company in payment or
part payment therefor. If, during the period for which any
calculation of gross income is made pursuant to the preceding
clause (1) or at the time of any calculation pursuant to the
preceding clause (2), the Company has any subsidiary or
subsidiaries whose accounts, in the ordinary practice of the
Company, are consolidated with the Company's accounts, the gross
income, interest charges, indebtedness and surplus accounts for
the purposes of this paragraph (c) shall be the consolidated
gross income, interest charges, indebtedness and surplus accounts
of the Company and such subsidiary or subsidiaries, and the
acquisition and/or disposition of any properties by each such
subsidiary within or after the period for which the calculation
of gross income is made shall be taken into account the same as
in the case of the Company; or
(d) Pay any dividends on its Common Stock (other
than dividends payable in Common Stock) or make any
distribution on, or purchase, or otherwise acquire for value
any of its Common Stock (each and all of these actions being
hereinafter embraced in the term "payment of common stock
dividends"), except as follows:
(i) If and so long as the ratio of the
Common Stock equity to the total capital of the
Company at the end of the second calendar month
immediately preceding the date of the proposed
payment of a Common Stock dividend, adjusted to
reflect the proposed payment (which ratio is
hereinafter referred to as "capitalization ratio")
is 25% or more, then no restriction is imposed in
this paragraph (d).
(ii) If and so long as the capitalization
ratio is less than 25% but not less than 20%, then
the payment of Common Stock dividends, including
the proposed payment, during the twelve months
ending with and including the date of the proposed
payment, shall not exceed 75% of the net income of
the Company available for dividends on its Common
Stock during the twelve calendar months ending
with and including the second calendar month
immediately preceding the date of the proposed
payment.
(iii) If and so long as the
capitalization ratio is less than 20%, then the
payment of Common Stock dividends, including the
proposed payment, during the twelve months' period
ending with and including the date of the proposed
payment, shall not exceed 50% of the net income of
the Company available for dividends on its Common
Stock during the twelve calendar months, ending
with and including the second calendar month
immediately preceding the date of the proposed
payment.
For the purpose of this paragraph (d):
"Common Stock equity" shall consist of the sum of
(1) the capital represented by the issued and
outstanding shares of Common Stock (including
premiums on Common Stock) and (2) the surplus
accounts of the Company, less any excess of the
aggregate amount payable on the involuntary
dissolution, liquidation, or winding up of the
Company, in respect of all its outstanding shares
of preferred stock over the aggregate par value of
such preferred stock. "Total capital of the
Company" shall consist of the sum of (1) the
principal amount of all outstanding indebtedness
of the Company maturing one year or more after the
date of the issue thereof, exclusive of all such
indebtedness owned by the Company, and (2) the par
or stated value of all outstanding capital stock
(including premiums on capital stock) of all
classes of the Company, exclusive of all such
stock owned by the Company, and (3) the surplus
accounts of the Company. "Net income of the
Company available for dividends on its Common
Stock" shall be determined in accordance with
accepted accounting practice, provided that there
shall be included in operating expenses an amount
for maintenance and repairs to, and as provision
for reserves for renewals and replacements,
retirements or depreciation of the Company's
properties equivalent to the Standard of
Expenditure as set forth in 4.10 of the Mortgage
and Deed of Trust dated as of March 15, 1946 of
the Company to Guaranty Trust Company of New York,
Trustee.
or
(e) Make any payment or distribution out of
capital or capital surplus (other than dividends payable in
stock junior to the Preferred Stock) to any holder of any
stock ranking junior to the Preferred Stock.
No vote or consent of the holders of the Preferred Stock shall be
required in respect of any transaction enumerated in the
preceding paragraphs (a), (b), (c), (d) and (e) if at or prior to
the time when such transaction is to take effect provision is
made for the redemption or other retirement of all shares of the
Preferred Stock at the time outstanding, the consent of which
would otherwise be required. There shall be excluded from the
calculations made pursuant to clauses (1) and (2) of the
preceding paragraph (c) interest charges on all indebtedness and
dividends and liquidation preferences on all stock which are to
be retired in connection with the issue of the shares or
convertible securities proposed to be issued.
12. So long as any shares of Preferred Stock of any
series are outstanding , the Company shall not, without the
affirmative vote or written consent of the record holders of a
majority of the outstanding shares of Preferred Stock of all
series, voting separately as one class:
(a) Issue or assume any unsecured note, debenture
or other security evidencing unsecured indebtedness for
borrowed money which by its terms matures on demand or
within one year from the date of the issue thereof, for any
purpose other than the refunding of an equal or lesser
principal amount of secured or unsecured indebtedness
theretofore issued or assumed by the Company and then
outstanding, or the retiring, by redemption or otherwise, of
an equal or lesser amount of shares of the Preferred Stock
or shares of any stock ranking prior thereto or on a parity
therewith, if immediately after such issue or assumption,
the principal amount of all such unsecured notes, debentures
or other securities evidencing unsecured indebtedness for
borrowed money issued or assumed by the Company and then
outstanding and maturing on demand or within one year from
the date of issue thereof would exceed $12,000,000, or
(b) Issue or assume any secured debt, provided,
however, that this restriction shall not prevent, or require
any such vote or written consent of the holders of Preferred
Stock for,
(i) the issuance of bonds of any series
under the Indenture of Mortgage and Deed of Trust,
dated as of March 15, 1946, from the Company to
Guaranty Trust Company of New York, Trustee, or
any indenture, supplemental thereto, or the
issuance of bonds under any other mortgage
providing for the refunding of bonds issued under
said Indenture dated as of March 15, 1946, or
(ii) the giving of purchase money mortgages
or other purchase money liens or purchase money
obligations in respect of property which may be
acquired after March 15, 1946 by the Company or
any subsidiary (including any mortgage given or
lien created on such property to provide any part
of the purchase price of such property) or the
assumption of indebtedness secured by mortgages or
other liens then existing on such after-acquired
property, or the extension, renewal or refunding
of any funded debt given, created, issued or
assumed as permitted under the provisions of this
subdivision (ii); or
(iii) issue or assumption of secured debt
which if unsecured would be permitted under the
preceding paragraph (a); or
(c) Merge or consolidate with any other
corporation or corporations, or sell all or substantially
all of the assets of the Company, provided that the
provisions of this paragraph (c) shall not apply to a merger
or consolidation with any subsidiary of the Company which is
wholly-owned (except for directors' qualifying shares), or a
purchase or other acquisition by the Company of the
franchises (including franchises and rights granted by
corporate charter) or assets of another corporation, or
otherwise apply to any transaction which does not involve a
merger or consolidation; or
(d) Permit any subsidiary to merge or consolidate
with or into any other corporation or corporations, except
(i) with one or more wholly-owned subsidiaries of the
Company or (ii) with the Company; or
(e) Itself, or permit any subsidiary to, sell,
transfer or dispose of any stock whatsoever issued by any
subsidiary, except to the Company and/or one or more of its
wholly-owned subsidiaries and except such number of shares
as may be necessary to qualify persons to act as directors
of any such subsidiary, unless prior thereto or at the same
time all stock and all other securities and obligations of
such subsidiary owned directly or indirectly by the Company
and its subsidiaries are sole, transferred or disposed of;
or
(f) Permit any subsidiary to issue (except to the
Company and/or one of its wholly-owned subsidiaries) any
shares of stock ranking prior to the stock owned directly or
indirectly by the Company or any stock or obligations
convertible into or evidencing the right to purchase shares
of such prior stock, or to issue shares of stock of any
other class unless effective provisions shall be made that
such additional stock (or such part thereof as shall be
proportionate to the part of the entire stock of such class
owned by the Company, directly or indirectly, immediately
prior to the issue of such stock) shall forthwith upon the
issuance thereof be acquired by the Company and/or one of
its wholly-owned subsidiaries.
No vote or consent of the holders of the Preferred Stock shall be
required in respect of any transaction enumerated in the
preceding paragraphs (a) to (f) both inclusive, if at or prior to
the time when such transaction is to take effect provision is
made for the redemption or other retirement of all shares of the
Preferred Stock then outstanding, the consent of which would
otherwise be required.
13. As used herein the term "subsidiary" or
"subsidiaries" shall be deemed to mean and include any
corporation substantially all of whose properties are located
within the limits of the State of Pennsylvania, not less than a
majority of the voting stock of which (not including stock having
voting power only upon the happening of an event of default) is
at any time owned directly or indirectly by the Company.
14. No provision set forth herein is intended or shall
be construed to relieve the Company from compliance with any
applicable constitutional or statutory provisions requiring the
vote or written consent of a greater number of the outstanding
shares of the Preferred Stock.
15. No holder of shares of Preferred Stock, of any
series, has any preemptive, conversion or other subscription
rights, and no holder of the Common Stock has any preemptive or
other subscription rights.
16. The Company reserves the right to increase or
decrease its authorized capital stock, or any class or series
thereof, or to reclassify the same, and to amend, alter, change
or repeal any provision contained in these Articles, or in any
amendment thereto, in the manner now or hereafter prescribed by
law, but subject to such conditions and limitations as are above
prescribed and all rights conferred upon stockholders in these
Articles, or in any amendment thereto, are granted subject to
this reservation.
17. The Company may from time to time issue and
dispose of its shares of Common Stock without nominal or par
value, for such consideration payable in money, property or
otherwise, and upon such terms and in such manner, or as
dividends payable therein, as may be fixed or determined from
time to time by the Board of Directors, and authority is hereby
granted to the Board of Directors so to fix and determine such
consideration, terms and manner.
On May 1, 1946, at a special meeting held after due
notice thereof, the Board of Directors of the Company duly
adopted resolutions fixing the annual dividend rate, the
redemption price or prices, and the amounts per share payable
upon voluntary or involuntary dissolution, liquidation or winding
up of the Company for the 4.10% Cumulative Preferred Stock as
follows:
"RESOLVED, that pursuant to authorization by the
stockholders of the Company, the annual dividend rate for the
4.10% Cumulative Preferred Stock of the Company, the redemption
price thereof, and the amounts per share payable to the holders
thereof upon any voluntary or involuntary dissolution,
liquidation or winding up of the Company, are as follows:
(1) The annual dividend rate shall be 4.10%.
(2) The redemption prices shall be $107.50
per share, if redeemed on or prior to January 1,
1951, and $105.50 per share if redeemed after
January 1, 1951, together in each case with an
amount equal to the accrued dividends on said
shares to the date fixed for redemption.
(3) The amount per share payable in the
event of voluntary dissolution, liquidation or
winding up, in case such event shall occur on or
prior to January 1, 1951, shall be $107.50 per
share, and no more, and in case such event shall
occur after January 1, 1951, shall be $105.50 per
share, and no more; and the amount per share
payable in the event of involuntary dissolution,
liquidation or winding up shall be $100, and no
more, together in each case with an amount equal
to the accrued dividends on said shares to the
date fixed for the payment of said amount."
On June 1, 1966, at a special meeting held after due
notice thereof, the Board of Directors of the Company duly
adopted resolutions fixing the annual dividend rate, the
redemption price or prices, the amounts per share payable upon
voluntary or involuntary dissolution, liquidation or winding up
of the Company and the time, period and manner of the exercise of
the annual non-cumulative tender right for the 1966 Cumulative
Preferred Stock of the Company as follows:
"RESOLVED, that the annual dividend rate for the
1966 Cumulative Preferred Stock of the Company, the
redemption price or prices thereof, and the amount or
amounts per share payable to holders thereof upon any
voluntary or involuntary dissolution, liquidation or
winding up of the Company, are hereby fixed and
determined as follows:
(1) The annual dividend rate shall be 5.75%.
(2) The redemption price shall be $107.00
per share if redeemed on or prior to June 30,
1971, $105.75 per share if redeemed after June 30,
1971, but on or before June 30, 1976, and $102.00
per share if redeemed after June 30, 1976,
together in each case with an amount equal to the
accrued dividends on said shares to the date fixed
for redemption.
(3) The amount per share payable in the
event of voluntary dissolution, liquidation or
winding up of the Company, in case such event
shall occur on or prior to June 30, 1971 shall be
$107.00 per share, and no more, and in case such
event shall occur after June 30, 1971, but on or
before June 30, 1976, shall be $105.75 per share,
and no more, and in case such event shall occur
after June 30, 1976, shall be $102.00 per share,
and no more, and the amount per share payable in
the event of involuntary dissolution, liquidation
or winding up of the Company shall be $100.00, and
no more, together in each case with an amount
equal to the accrued dividends on such shares to
the date fixed for the payment of said amount.
FURTHER RESOLVED, that, as provided in Section 3
of the Preferred Stock provisions of the Company's
charter, the holders of the 1966 Cumulative Preferred
Stock shall be entitled to an annual non-cumulative
tender right, the time, period and manner of exercise
of which shall be as follows:
(1) On May 1, 1967 and each May 1 thereafter
so long as any shares of the 1966 Cumulative
Preferred Stock shall be outstanding, the Company
will notify in writing each registered owner of
shares of the 1966 Cumulative Preferred Stock that
tenders of shares of the 1966 Cumulative Preferred
Stock may be made to the Company during the next
succeeding May 11 through May 31 (the "tender
period") pursuant to the provisions of paragraphs
(2) through (7) below. Such notice also shall
state (a) the total number of shares of the 1966
Cumulative Preferred Stock outstanding on such May
1 and the (b) the aggregate number of shares of
the 1966 Cumulative Preferred Stock which the
Company has purchased (other than pursuant to the
aforesaid tender right) during the 12 month period
immediately preceding such May 1 at a per share
price not exceeding $100 plus accrued dividends.
(2) From and after May 11, 1967 each
registered owner of the 1966 Cumulative Preferred
Stock shall have a non-cumulative right each year
to tender to the Company during the tender period
and offer to sell to the Company on the next
succeeding June 15, at a per share price not
exceeding $100, shares of the 1966 Cumulative
Preferred Stock.
(3) To the extent it shall have available
funds which it may legally use for the purpose and
subject to the provisions of Section 6 of the
Preferred Stock provisions of its charter, the
Company shall on June 15, 1967 and each June 15
thereafter, purchase from each registered owner of
the 1966 Cumulative Preferred stock shares of such
stock which such Preferred Stockholder has
properly tendered and offered for sale to the
Company during the immediately preceding tender
period in accordance with the preceding paragraph
(2), at the per share price specified in the
tender, provided, however, that in no event shall
the Company be required on any June 15 to purchase
from all tendering Preferred Stockholders a number
of shares of the 1966 Cumulative Preferred Stock
greater than the difference between (a) the whole
number of shares of the 1966 Cumulative Preferred
Stock which can be purchased by it on such June 15
for an aggregate purchase price of $50,000, less
(b) the number of shares of the 1966 Cumulative
Preferred Stock described in the Company's notice
pursuant to paragraph (1) above as having been
purchased by the Company during the preceding year
(such difference hereinafter being referred to as
"the maximum number of shares subject to the
tender right"). In the event more than the
maximum number of shares subject to the tender
right are tendered and offered for sale to the
Company during any tender period:
(a) the Company shall first purchase
from each tendering Preferred Stockholder the
lesser of (i) that whole number of shares of
the 1966 Cumulative Preferred Stock which
bears the same proportion to the maximum
number of shares subject to the tender right
as the total number of shares of the 1966
Cumulative Preferred Stock registered in the
name of that Preferred stockholder on the
preceding May 1 bears by the total number of
shares of the 1966 Cumulative Preferred Stock
outstanding on such May 1 or (ii) the number
of shares of the 1966 Cumulative Preferred
Stock which such Preferred Stockholder has
tendered and offered for sale during the
preceding tender period;
(b) If any of the maximum number of
shares subject to the tender right remain
unpurchased after the purchases described in
preceding subparagraph (a), the Company shall
then purchase from each tendering Preferred
Stockholder whose total number of shares
tendered during the preceding tender period
has not already been purchased pursuant to
subparagraph (a) above, the lesser of
(i) that whole number of shares of the 1966
Cumulative Preferred Stock which bears the
same proportion to the balance of the maximum
number of shares subject to the tender right
remaining unpurchased as the total number of
shares of the 1966 Cumulative Preferred Stock
registered in the name of that tendering
Preferred Stockholder on the preceding May 1
bears to the total number of shares of the
1966 Cumulative Preferred Stock registered on
such May 1 in the names of all tendering
Preferred Stockholders whose total number of
shares tendered during the preceding tender
period has not already been purchased
pursuant to subparagraph (a) above, or
(ii) the number of shares of the 1966
Cumulative Preferred Stock which such
tendering Preferred Stockholder has tendered
and offered for sale during the preceding
tender period and which remain unpurchased;
and
(c) if any of the maximum number of
shares subject to the tender right remain
unpurchased after the purchases described in
preceding subparagraphs (a) and (b), the
Company shall until the entire maximum number
shares subject to the tender right has been
purchased, purchase from each tendering
Preferred Stockholder whose total number of
shares tendered during the preceding tender
period has not already been purchased, shares
of the 1966 Cumulative Preferred Stock
tendered during the preceding tender period
on the basis described in subparagraph (b)
above.
(4) Any purchase by the Company of shares
of the 1966 Cumulative Preferred Stock made
pursuant to the provisions of the tender right as
described above shall be effected as of the close
of business on June 15 and the Preferred
Stockholder which is the registered owner of the
shares of the 1966 Cumulative Preferred Stock then
purchased shall be entitled to receive the
dividend payable on such date with respect to such
shares.
(5) The obligation of the Company to
purchase shares of the 1966 Cumulative Preferred
Stock tendered to it, although annual in nature,
is non-cumulative and to the extent on any June 15
the Company is not required to purchase the
maximum number of shares subject to the tender
right, its obligation to purchase shares of the
1966 Cumulative Preferred Stock on any succeeding
June 15 shall in no way be increased or otherwise
affected.
(6) All tenders of shares of the 1966
Cumulative Preferred Stock to the Company for
purchase by it shall be on such form as the
Company shall prescribe and shall furnish to
registered owners of the 1966 Cumulative Preferred
Stock, which form will provide, among other
things, that the tender and offer to sell
evidenced by the form shall be irrevocable until
the Preferred Stockholder is notified by the
Company that it has or has not accepted the
tender) and shall be accompanied by a certificate
or certificates evidencing the shares of the 1966
Cumulative Preferred Stock tendered for sale with
accompanying stock powers executed in blank by an
authorized signer, signatures appropriately
guaranteed, and, where appropriate, by evidence of
authorization of the sale of such shares.
(7) On or before June 20, 1967, and each
June 20 thereafter, the Company shall mail to each
holder of the 1966 Cumulative Preferred Stock
which tendered shares of such stock for sale to
the Company during the preceding tender period
(a) its check for an amount equal to the purchase
price of any shares of the 1966 Cumulative
Preferred Stock purchased by it in accordance with
the foregoing terms and conditions from such
Preferred Stockholder on the preceding June 15
less the amount of any sales or other transfer
taxes payable with respect to such purchase, and
(b) a certificate evidencing any shares of the
1966 Cumulative Preferred Stock tendered by such
Preferred Stockholder for sale during the
preceding tender period, but not purchased by the
Company, together with a notice that the tender of
such shares has not been accepted by the Company."
On August 10, 1992 at a special meeting held after due
notice thereof, the Pricing Committee of the Board of Directors
of the Company duly adopted resolutions fixing the annual
dividend rate, the redemption price or prices, the amounts per
share payable upon voluntary or involuntary dissolution, a
liquidation or winding up of the Company for the 9% Cumulative
Preferred Stock as follows:
"RESOLVED, that the terms and provisions of the
9% Cumulative Preferred Stock shall be as follows:
(1) Holders of the outstanding shares of 9%
Cumulative Preferred Stock shall be entitled to
receive an annual cash dividend of 9% of the par
value per share -- i.e., $9.00 per share per
annum.
(2) Upon any liquidation, dissolution or
winding up of the Company, the holders of the
outstanding shares of 9% Cumulative Preferred
Stock shall be entitled to receive out of the net
assets of the Company $100.00 per share of 9%
Cumulative Preferred Stock, plus accrued and
unpaid dividends to the date of such liquidation,
dissolution or winding up.
(3) (a) The 9% Cumulative Preferred Stock
will not be entitled to the benefit of any
sinking fund or any other mandatory
redemption provision.
(b) The 9% Cumulative Preferred Stock
may not be redeemed at the option of the
Company prior to September 15, 1997.
Thereafter, the Company, at its option, may
redeem all or any part of the 9% Cumulative
Preferred Stock at any time or from time to
time upon not less than 30 days' notice at
$100.00 per share plus accrued dividends to
the date of redemption, plus, in the case of
redemptions occurring from September 15,
1997, to September 14, 1998, a premium of
$8.00 per share, or in the case of
redemptions occurring from September 15, 1998
to September 14, 1999, a premium of $4.00 per
share.
(4) The provisions of the 9% Cumulative
Preferred Stock may be amended only with the
approval by the vote or written consent or written
waiver of the holders of all of the then
outstanding shares of the 9% Cumulative Preferred
Stock."
Seventh: The Board of Directors, by a majority vote of
its members, shall have the power to make, alter, amend and
repeal the by-laws of the corporation not inconsistent with its
Articles or with law, subject always to the power of the
shareholders to change such action.