Exhibit 3(c)
MICHIGAN DEPARTMENT OF COMMERCE - CORPORATION AND SECURITIES BUREAU
Date Received (FOR BUREAU USE ONLY)
Name
Mr. Thomas A. McNish, Vice President and Secretary
Consumers Energy Company
Address
212 West Michigan Avenue
City State Zip EFFECTIVE DATE:
Jackson MI 49201
DOCUMENT WILL BE RETURNED TO NAME AND ADDRESS INDICATED ABOVE
CERTIFICATE OF AMENDMENT TO THE ARTICLES OF INCORPORATION
For use by Domestic Corporations
(Please read information and instructions on last page)
Pursuant to the provisions of Act 284, Public Acts of 1972 (profit
corporations), or Act 162, Public Acts of 1982 (nonprofit corporations),
the undersigned corporation executes the following Certificate:
1. The present name of the corporation is: Consumers Power Company
2. The identification number assigned by the Bureau is: 021-395
3. The location of its registered office is:
212 West Michigan Avenue Jackson MICHIGAN 49201
(Street Address) (City) (ZIP Code)
4. Article I of the Articles of Incorporation is hereby amended to read
as follows:
The name of the corporation is Consumers Energy Company.
5. COMPLETE SECTION (a) IF THE AMENDMENT WAS ADOPTED BY THE UNANIMOUS
CONSENT OF THE INCORPORATOR(S) BEFORE THE FIRST MEETING OF THE BOARD
OF DIRECTORS OR TRUSTEES; OTHERWISE, COMPLETE SECTION (b). DO NOT
COMPLETE BOTH.
a. * The foregoing amendment to the Articles of Incorporation were
duly adopted on the * day of * * , 19* , in
accordance with the provisions of the Act by the unanimous
consent of the incorporator(s) before the first meeting of the
Board of Directors or Trustees.
Signed this * day of * , 19 *
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(Signature) (Signature)
* *
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(Type or Print Name) (Type or Print Name)
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(Signature) (Signature)
* *
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(Type or Print Name) (Type or Print Name)
b. X The foregoing amendment to the Articles of Incorporation was
duly adopted on 10th day of March, 1997. The amendment: (check
one of the following)
X was duly adopted in accordance with Section 611(2) of the
Act by the vote of the shareholders if a profit
corporation, or by the vote of the shareholders or members
if a nonprofit corporation, or by the vote of the directors
if a nonprofit corporation organized on a non-stock
directorship basis. The necessary votes were cast in favor
of the amendment.
* was duly adopted by the written consent of all the
directors pursuant to Section 525 of the Act and the
corporation is a nonprofit corporation organized on a non-
stock directorship basis.
* was duly adopted by the written consent of the shareholders
or members having not less than the minimum number of votes
required by statute in accordance with Section 407(1) and
(2) of the Act if a nonprofit corporation, and Section
407(1) of the Act if a profit corporation. Written notice
to shareholders who have not consented in writing has been
given. (Note: Written consent by less than all of the
shareholders or members is permitted only if such provision
appears in the Articles of Incorporation.)
* was duly adopted by the written consent of all the
shareholders or members entitled to vote in accordance with
Section 407(3) of the Act if a non-profit corporation, and
Section 407(2) of the Act if a profit corporation.
Signed this 10th day of March, 1997
By: /s/ Thomas A. McNish
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(Signature)
Thomas A. McNish, Vice President and Secretary
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(Type or Print Name and Title)
Name of Person or Organization Preparer's Name and Business
Remitting Fees: Telephone Number:
Consumers Power Company Joyce H. Norkey
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* (517) 788-1031
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INFORMATION AND INSTRUCTIONS
1. The amendment cannot be filed until this form, or a comparable
document, is submitted.
2. Submit one original copy of this document. Upon filing, the document
will be added to the records of the Corporation and Securities
Bureau. The original copy will be returned to the address appearing
in the box on front as evidence of filing.
Since this document will be maintained on optical disk media, it is
important that the filing be legible. Documents with poor black and
white contrast, or otherwise illegible, will be rejected.
3. This document is to be used pursuant to the provisions of section 631
of the Act for the purpose of amending the articles of incorporation
of a domestic profit or nonprofit corporation. Do not use this form
for restated articles.
4. Item 2 - Enter the identification number previously assigned by the
Bureau. If this number is unknown, leave it blank.
5. Item 4 - The article(s) being amended must be set forth in its
entirety. However, if the article(s) being amended is divided into
separately identifiable sections, only the sections being amended
need be included.
6. This document is effective on the date endorsed "filed" by the
Bureau. A later effective date, no more than 90 days after the date
of delivery, may be stated as an additional article.
7. Amendments adopted before the first meeting of the board of directors
must be adopted by all incorporators with Item 5(a) being completed
and signed in ink by at least a majority of the incorporators of
profit corporations and by all incorporators of nonprofit
corporations. One signature is not sufficient if Article V of the
Articles of Incorporation names more than one incorporator. Item
5(b) must be completed for amendments adopted after the first meeting
of the board of directors and must be signed in ink by the president,
vice-president, chairperson or vice-chairperson of the corporation.
8. FEES: Make remittance payable to the State of Michigan. Include
corporation name and identification number on check or money order.
NON-REFUNDABLE FEE ...................................... $10.00
TOTAL MINIMUM FEE ....................................... $10.00
ADDITIONAL FEES DUE FOR INCREASED AUTHORIZED SHARES OF PROFIT
CORPORATIONS ARE:
each additional 20,000 authorized shares or portion
thereof .................................... $30.00
maximum fee for first 10,000,000 authorized
shares ..................................... $5,000.00
each additional 20,000 authorized shares or
portion thereof in excess of 10,000,000
shares ..................................... $30.00
maximum fee per filing for authorized shares
in excess of 10,000,000 shares ............. $200,000.00
9. Mail form and fee to: The office is located at:
Michigan Department of Commerce 6546 Mercantile Way
Corporation and Securities Bureau Lansing, MI 48910
Corporation Division
P.O. Box 30054 Telephone: (517) 334-6302
Lansing, Michigan 48909-7554
4
STATE OF MICHIGAN
MICHIGAN DEPARTMENT OF COMMERCE
CORPORATION DIVISION
LANSING, MICHIGAN
RESTATED ARTICLES OF INCORPORATION
(Profit Corporation)
021-395
These Restated Articles of Incorporation are executed pursuant
to the provisions of Sections 641 through 651, Act 284, Public Acts of
1972, as amended, (the "Act"). These Restated Articles of Incorporation
were duly adopted on March 25, 1994 by the Board of Directors of Consumers
Power Company, without a vote of the shareholders, in accordance with
provisions of Section 642 of the Act. These Restated Articles of
Incorporation only restate and integrate and do not further amend the
provisions of the Articles of Incorporation as heretofore amended and
there is no material discrepancy between those provisions and the
provisions of these Restated Articles.
The present name of the corporation is Consumers Power Company.
The former name of the corporation was Consumers Power Company of
Michigan.
Consumers Power Company is the successor to a corporation of the
same name which was organized in Maine in 1910 and did business in
Michigan from 1915 to 1968.
The date of filing the original Articles of Incorporation in
Michigan was January 22, 1968.
RESTATED ARTICLES OF INCORPORATION
The following restated Articles of Incorporation supersede the
original Articles as amended and shall be the Articles of Incorporation of
the corporation.
ARTICLE I
The name of the corporation is CONSUMERS POWER COMPANY
(hereinafter called the "Company").
ARTICLE II
The purposes for which the Company is formed are as follows:
(a) To generate, manufacture, produce, gather, purchase, store,
transmit, distribute, transform, use, sell and supply electric energy or
gas, either artificial or natural, or both electric energy and gas, to the
public generally, and to public utilities, natural gas companies and to
any and all other entities (whether governmental, public or private); and
generally to carry on the electric business or the gas business, or both
businesses, as a public utility.
(b) To generate, manufacture, produce, purchase, transmit,
distribute, transform, use, sell and supply hot water, steam, heat, power
and energy, or any or all thereof, to the public generally, and to any and
all other entities (whether governmental, public or private); and
generally to carry on any or all of such businesses as a public utility.
(c) To acquire by lease, purchase, grant, donation, devise,
bequest or otherwise, all such lands, easements, royalties, leaseholds,
flowage rights, water power and other property, real, personal or mixed,
tangible or intangible, and any interest therein, wherever the same may be
located and whether within or without the State of Michigan, as may be
necessary, incidental or appropriate to the carrying out of any of its
purposes, and to hold, convey, mortgage or lease, with or without any of
its franchises, corporate or otherwise, any of the foregoing.
(d) To dam any stream or streams, lake or other body of water,
and excavate, construct, maintain, repair and improve any existing stream,
lake, reservoir, body of water, or canal, or which it may excavate and
construct, with water power appurtenant thereto; to flood, flow and
submerge land and property by any means whatsoever, including but not
limited to, the construction of the necessary dams or other facilities in
any canal, or in creeks, streams, reservoirs, lakes or other bodies of
water or watercourses, natural or artificial; to excavate, construct,
improve, maintain, repair, remove and replace reservoirs, dams, dikes and
other facilities; and to condemn all lands, easements, rights of way,
waterpowers, flowage rights, gas royalties, natural gas leaseholds,
royalty interests, and other property, and any and all interests therein,
to the extent authorized, and subject to the limitations imposed by the
laws of the State of Michigan or of any other State applicable thereto.
(e) To explore for, mine, produce, gather, purchase, store,
transmit, distribute, refine, sell and supply natural gas, oil and other
hydrocarbons.
(f) To sell appliances and carry on an appliance business.
(g) To carry on any and all other businesses and perform any
and all other acts incident to or appropriate in connection with any of
the foregoing.
(h) To guarantee, subscribe for, purchase, invest in, own, hold
or otherwise acquire, sell, assign, transfer, mortgage, pledge or
otherwise dispose of, the shares of the capital stock of, or any bonds,
securities or evidences of indebtedness created by, or any other evidences
of interest in, any other corporation or corporations or other entity of
the District of Columbia or of the State of Michigan or any other State,
country, nation or government so far as permitted by the laws applicable
thereto, and while the owner thereof to exercise all the rights, powers
and privileges of ownership, including the right to vote thereon or with
respect thereto and to receive all dividends or payments thereon, so far
as permitted by the laws applicable thereto; to lend money to or aid in
any lawful manner whatsoever any corporation or other entity now existing
or hereafter formed whose shares of capital stock, bonds, securities or
evidences of indebtedness, or other evidences of interest therein, are
held or are in any manner guaranteed by the Company; and to do any and all
lawful acts and things to protect, preserve, improve or enhance the value
of any such shares of capital stock, bonds, securities, evidences of
indebtedness or other interests.
(i) To acquire, purchase, hold, sell and transfer shares of its
own capital stock, bonds and other evidences of indebtedness to the extent
and in the manner authorized by, and subject to any requirements of, the
laws applicable thereto.
(j) To borrow money and issue, sell or pledge bonds, promissory
notes, bills of exchange, debentures and other obligations and evidences
of indebtedness, whether secured by mortgage, pledge or otherwise, or
unsecured.
(k) To make contributions of money, property, services or
otherwise for public welfare, including, among other things, charitable,
scientific, educational and religious purposes.
(l) To conduct its business in the State of Michigan, other
States, the District of Columbia, the territories and colonies of the
United States and in foreign countries and the territories and colonies
thereof and to have one or more offices within or without the State of
Michigan.
(m) To have and to exercise all such powers as may be conferred
by the laws of the State of Michigan applicable to the Company or to
corporations engaged in the State of Michigan in any business which may be
carried on by the Company.
The foregoing clauses shall be construed both as purposes and
powers, but no recitation, expression or declaration of specific or
special purposes or powers hereinabove enumerated shall be deemed to be
exclusive, it being hereby expressly declared that all purposes and powers
not inconsistent therewith or with the laws of the State of Michigan
applicable to the Company are hereby included, and the Company shall
possess all such incidental and other powers as are reasonably necessary,
appropriate or convenient to the accomplishment of any of the foregoing
purposes or powers, either alone or in association with other
corporations, associations, firms, individuals or entities (whether
governmental, public or private), to the same extent and as fully as
individuals might or could do, as principals, agents, contractors or
otherwise.
ARTICLE III
The street and mailing address of the registered office is 212
West Michigan Avenue, Jackson, Michigan 49201.
The name of the resident agent at the registered office is T. A.
McNish.
ARTICLE IV
The total number of shares of all classes of stock which the
Company shall have authority to issue is 188,500,000: 23,500,000 shares
of preferred stock, 7,500,000 of which are of the par value of $100 per
share and are of a class designated Preferred Stock, and 16,000,000 shares
of which are of no par value and are of a class designated Class A
Preferred Stock; 40,000,000 shares are of the par value of $1 per share
and are of a class designated Preference Stock; and 125,000,000 shares are
of the par value of $10 per share and are of a class designated Common
Stock.
ARTICLE V
A director shall not be personally liable to the Company or its
shareholders for monetary damages for breach of duty as a director except
(i) for a breach of the director's duty of loyalty to the Company or its
shareholders, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) for a
violation of Section 551(1) of the Michigan Business Corporation Act, and
(iv) any transaction from which the director derived an improper personal
benefit. No amendment to or repeal of this Article V, and no modification
to its provisions by law, shall apply to, or have any effect upon, the
liability or alleged liability of any director of the Company for or with
respect to any acts or omissions of such director occurring prior to such
amendment, repeal or modification.
ARTICLE VI
Each director and each officer of the Company shall be
indemnified by the Company to the fullest extent permitted by law against
expenses (including attorneys' fees), judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by him or her
in connection with the defense of any proceeding in which he or she was or
is a party or is threatened to be made a party by reason of being or
having been a director or an officer of the Company. Such right of
indemnification is not exclusive of any other rights to which such
director or officer may be entitled under any now or hereafter existing
statute, any other provision of these Articles, bylaw, agreement, vote of
shareholders or otherwise. If the Business Corporation Act of the State
of Michigan is amended after approval by the shareholders of this Article
VI to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Company shall be eliminated or limited to the fullest extent permitted by
the Business Corporation Act of the State of Michigan, as so amended. Any
repeal or modification of this Article VI by the shareholders of the
Company shall not adversely affect any right or protection of a director
of the Company existing at the time of such repeal or modification.
ARTICLE VII
The statement of the designations and the voting and other
powers, preferences and rights, and the qualifications, limitations or
restrictions thereof, of the Common Stock, of the Preference Stock, of the
Preferred Stock and of the Class A Preferred Stock is as follows:
PREFERRED STOCK
Preferred Stock Issuable in Series
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The shares of Preferred Stock may be divided into and issued in
series. Each such series shall be so designated as to distinguish the
shares thereof from the shares of all other series and classes, and all
shares of the Preferred Stock shall be identical, except as to the
following relative rights and preferences, as to which there may be
variations between different series:
(a) The rate of dividend;
(b) The price at which shares may be redeemed, such price to be
not less than $100 or more than $115 per share, plus
accrued dividends to the date of redemption;
(c) The amount payable upon shares in event of involuntary
liquidation, which amount shall not be less than $100 per
share or more than $115 per share, plus accrued dividends;
(d) The amount payable upon shares in event of voluntary
liquidation, which amount shall not be less than $100 per
share or more than $115 per share, plus accrued dividends;
(e) The terms and conditions, if any, on which shares shall be
by their terms convertible into or exchangeable for shares
of any other class of stock of the Company over which the
Preferred Stock has preference as to payment of dividends
and as to assets;
(f) Subject to the rights and preferences of shares of
Preferred Stock set forth under the heading "General
Provisions", the terms and conditions of a sinking or
purchase fund, if any, for the redemption or purchase of
such shares.
No change shall be made in any of the rights and preferences of
any series of Preferred Stock at the time outstanding in those respects in
which the shares thereof vary from the shares of other series of Preferred
Stock at the time outstanding without the affirmative vote in favor
thereof of the holders of at least 66-2/3% of the shares of such series of
Preferred Stock at the time outstanding, in addition to such other vote,
if any, as may be required for such change under the applicable provisions
of these Articles or of the Michigan General Corporation Act.
Series Established By Articles
------------------------------
There are hereby established six series of Preferred Stock
designated, respectively, as $4.50 Preferred Stock, $4.16 Preferred Stock,
$7.45 Preferred Stock, $7.72 Preferred Stock, $7.76 Preferred Stock and
$7.68 Preferred Stock.
$4.50 Preferred Stock
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The rights and preferences of the shares of $4.50 Preferred
Stock in those respects in which the shares thereof may vary from the
shares of other series are as follows:
(a) The rate of dividend is $4.50 per annum;
(b) The price at which shares may be redeemed is $110 per
share, plus accrued dividends to the date of redemption;
(c) The amount payable in event of involuntary liquidation is
$100 per share, plus accrued dividends;
(d) The amount payable in event of voluntary liquidation is
$105 per share, plus accrued dividends;
(e) Shares are not, by their terms, convertible or
exchangeable;
(f) Shares are not, by their terms, entitled to the benefit of
any sinking or purchase fund.
$4.16 Preferred Stock
---------------------
The rights and preferences of the shares of $4.16 Preferred
Stock in those respects in which the shares thereof may vary from the
shares of other series are as follows:
(a) The rate of dividend is $4.16 per annum;
(b) The price at which shares may be redeemed is $103.25 per
share, plus accrued dividends to the date of redemption;
(c) The amount payable in event of involuntary liquidation is
$100 per share, plus accrued dividends;
(d) The amount payable in event of voluntary liquidation is
$101 per share, plus accrued dividends;
(e) Shares are not, by their terms, convertible or
exchangeable;
(f) Shares are not, by their terms, entitled to the benefit of
any sinking or purchase fund.
$7.45 Preferred Stock
---------------------
The rights and preferences of the shares of $7.45 Preferred
Stock in those respects in which the shares thereof may vary from the
shares of other series are as follows:
(a) The rate of dividend is $7.45 per annum;
(b) The price at which shares may be redeemed is $108 per share
if redeemed prior to April 1, 1978; $106 per share if
redeemed thereafter and prior to April 1, 1981; $103 per
share if redeemed thereafter and prior to April 1, 1986;
and at $101 per share thereafter, plus, in each case,
accrued dividends to the date of redemption; provided,
however, that prior to April 1, 1978 none of the shares may
be redeemed if such redemption is a part of or in
anticipation of any refunding operation involving the
application, directly or indirectly, of borrowed funds or
the proceeds of an issue of any stock ranking prior to or
on a parity with the $7.45 Preferred Stock if such borrowed
funds have an interest rate or cost to the Company
(computed in accordance with generally accepted financial
practice), or such stock has a dividend rate or cost to the
Company (so computed), less than $7.45 per annum;
(c) The amount payable in event of involuntary liquidation is
$100 per share, plus accrued dividends;
(d) The amount payable in event of voluntary liquidation is
$100 per share, plus accrued dividends;
(e) Shares are not, by their terms, convertible or
exchangeable;
(f) Shares are not, by their terms, entitled to the benefit of
any sinking or purchase fund.
$7.72 Preferred Stock
---------------------
The rights and preferences of the shares of $7.72 Preferred
Stock in those respects in which the shares thereof may vary from the
shares of other series are as follows:
(a) The rate of dividend is $7.72 per annum;
(b) The price at which shares may be redeemed is $108 per share
if redeemed prior to July 1, 1977; $106 per share if
redeemed thereafter and prior to July 1, 1982; $103 per
share if redeemed thereafter and prior to July 1, 1987; and
at $101 per share thereafter, plus, in each case, accrued
dividends to the date of redemption; provided, however,
that prior to July 1, 1977 none of the shares may be
redeemed if such redemption is a part of or in anticipation
of any refunding operation involving the application,
directly or indirectly, of borrowed funds or the proceeds
of an issue of any stock ranking prior to or on a parity
with the $7.72 Preferred Stock if such borrowed funds have
an interest rate or cost to the Company (computed in
accordance with generally accepted financial practice), or
such stock has a dividend rate or cost to the Company (so
computed), less than 7.72% per annum;
(c) The amount payable in event of involuntary liquidation is
$100 per share, plus accrued dividends;
(d) The amount payable in event of voluntary liquidation is
$100 per share, plus accrued dividends;
(e) Shares are not, by their terms, convertible or
exchangeable;
(f) Shares are not, by their terms, entitled to the benefit of
any sinking or purchase fund.
$7.76 Preferred Stock
---------------------
The rights and preferences of the shares of $7.76 Preferred
Stock in those respects in which the shares thereof may vary from the
shares of other series are as follows:
(a) The rate of dividend is $7.76 per annum;
(b) The price at which shares may be redeemed is $109.19 per
share if redeemed prior to June 1, 1978; $107.25 per share
if redeemed thereafter and prior to June 1, 1983; $105.31
per share if redeemed thereafter and prior to June 1, 1988;
and at $102.21 per share thereafter, plus, in each case,
accrued dividends to the date of redemption; provided,
however, that prior to June 1, 1978 none of the shares may
be redeemed if such redemption is for the purpose or in
anticipation of refunding such share through the use,
directly or indirectly, of funds borrowed by the Company,
or through the use, directly or indirectly, of funds
derived through the issuance by the Company of stock
ranking prior to or on a parity with the $7.76 Preferred
Stock as to dividends or assets, if such borrowed funds
have an effective interest cost to the Company (computed in
accordance with generally accepted financial practice) or
such stock has an effective dividend cost to the Company
(so computed) of less than 7.7439% per annum;
(c) The amount payable in event of involuntary liquidation is
$100 per share, plus accrued dividends;
(d) The amount payable in the event of voluntary liquidation is
$101.43 per share, plus accrued dividends;
(e) Shares are not, by their terms, convertible or
exchangeable;
(f) Shares are not, by their terms, entitled to the benefit of
any sinking or purchase fund.
$7.68 Preferred Stock
---------------------
The rights and preferences of the shares of $7.68 Preferred
Stock in those respects in which the shares thereof may vary from the
shares of other series are as follows:
(a) The rate of dividend is $7.68 per annum;
(b) The price at which shares may be redeemed is $108 per share
if redeemed prior to November 1, 1978; $106 per share if
redeemed thereafter and prior to November 1, 1983; $103 per
share if redeemed thereafter and prior to November 1, 1988;
and at $101 per share thereafter, plus, in each case,
accrued dividends to the date of redemption; provided,
however, that prior to November 1, 1978 none of the shares
may be redeemed if such redemption is for the purpose or in
anticipation of refunding such share through the use,
directly or indirectly, of funds borrowed by the Company,
or through the use, directly or indirectly, of funds
derived through the issuance by the Company of stock
ranking prior to or on a parity with the $7.68 Preferred
Stock as to dividends or assets, if such borrowed funds
have an effective interest cost to the Company (computed in
accordance with generally accepted financial practice) or
such stock has an effective dividend cost to the Company
(so computed), of less than 7.68% per annum;
(c) The amount payable in event of involuntary liquidation is
$100 per share, plus accrued dividends;
(d) The amount payable in event of voluntary liquidation is
$100 per share, plus accrued dividends;
(e) Shares are not, by their terms, convertible or
exchangeable;
(f) Shares are not, by their terms, entitled to the benefit of
any sinking or purchase fund.
Authority of Board of Directors as to Other Series
--------------------------------------------------
To the extent that series of Preferred Stock have not been
established and variations in the relative rights and preferences as
between series have not been fixed and determined as hereinbefore set
forth in these Articles, authority is vested in the Board of Directors of
the Company to divide the shares of Preferred Stock into and to establish
series of Preferred Stock, to fix and determine within the limitations
hereinabove set forth in these Articles the relative rights and
preferences of the shares of any series so established, to issue and sell
any and all of the authorized and unissued shares of Preferred Stock as
shares of any series thereof established by these Articles or by action of
the Board of Directors pursuant hereto, and to create a sinking or
purchase fund for the redemption or purchase of shares of any series
without the necessity of providing a sinking or purchase fund for any
other series, and in the event that the Company shall acquire, by purchase
or redemption or otherwise, any issued shares of its Preferred Stock of
any series, the Board of Directors may resell or convert and sell or
otherwise dispose of, in their discretion, any shares so acquired as
shares of the same series or of any other duly created series of Preferred
Stock.
CLASS A PREFERRED STOCK
Class A Preferred Stock Issuable in Series
------------------------------------------
The shares of Class A Preferred Stock may be divided into and
issued in series. Each such series shall be so designated as to
distinguish the shares thereof from the shares of all other series and
classes, and all shares of the Class A Preferred Stock shall be identical,
except as to the following relative rights and preferences, as to which
there may be variations between different series:
(a) The rate of dividend;
(b) The price at which shares may be redeemed;
(c) The amount payable upon shares in event of involuntary
liquidation;
(d) The amount payable upon shares in event of voluntary
liquidation;
(e) The voting rights of the holders of such series, if any;
provided that such holders of all series shall have the
voting rights hereinafter specified in these Articles;
(f) The terms and conditions, if any, on which shares shall be
by their terms convertible into or exchangeable for any
other securities; and
(g) The terms and conditions of a sinking or purchase fund, if
any, for the redemption or purchase of such shares.
No change shall be made in any of the rights and preferences of
any series of Class A Preferred Stock at the time outstanding in those
respects in which the shares thereof vary from the shares of other series
of Class A Preferred Stock at the time outstanding without the affirmative
vote in favor thereof of the holders of at least 66-2/3% of the shares of
such series of Class A Preferred Stock at the time outstanding, in
addition to such other vote, if any, as may be required for such change
under the applicable provisions of these Articles or of the Michigan
Business Corporation Act.
Series Established by Articles
------------------------------
There is hereby established one series of Class A Preferred
Stock designated $2.08 Class A Preferred Stock, Cumulative, without par
value.
$2.08 Class A Preferred Stock
-----------------------------
The rights and preferences of $2.08 Class A Preferred Stock in
those respects in which the shares thereof may vary from the shares of
other series are as follows:
(a) The rate of dividend is $2.08 per annum;
(b) The shares of this series will not be redeemable prior to
April 1, 1999. On or after April 1, 1999, all or any of
the shares of the $2.08 Class A Preferred Stock will be
redeemable at the option of the Company, in the manner
provided in the Articles of the Company, upon not less than
30 nor more than 60 days' notice, at a redemption price
equal to $25 per share, plus an amount equivalent to
accrued dividends;
(c) The amount payable in event of involuntary liquidation is
$25 per share, plus accrued dividends;
(d) The amount payable in event of voluntary liquidation is $25
per share, plus accrued dividends;
(e) The holders of shares of this series shall not be entitled
to any voting rights, except for those voting rights
provided to such holders of all series of Class A Preferred
Stock as specified in the Articles or as provided by
applicable law;
(f) Shares are not, by their terms, convertible or
exchangeable;
(g) The holders of shares of this series shall not be entitled
to the benefit of a sinking or purchase fund.
Authority of Board of Directors As to Other Series
--------------------------------------------------
To the extent that series of Class A Preferred Stock have not
been established and variations in the relative rights and preferences as
between series have not been fixed and determined as hereinbefore set
forth in these Articles, authority is vested in the Board of Directors of
the Company to divide the shares of Class A Preferred Stock into and to
establish series of Class A Preferred Stock, to fix and determine the
relative rights and preferences of the shares of any series so
established, to issue and sell any and all of the authorized and unissued
shares of Class A Preferred Stock as shares of any series thereof
established by these Articles or by action of the Board of Directors
pursuant hereto, and to create a sinking or purchase fund for the
redemption or purchase of shares of any series without the necessity of
providing a sinking or purchase fund for any other series, and in the
event that the Company shall acquire, by purchase or redemption or
otherwise, any issued shares of its Class A Preferred Stock of any series,
the Board of Directors may resell or convert and sell or otherwise dispose
of, in their discretion, any shares so acquired as shares of the same
series or of any other duly created series of Class A Preferred Stock.
PREFERRED STOCK AND CLASS A PREFERRED STOCK
-------------------------------------------
General Provisions
------------------
In these General Provisions, the Company's Preferred Stock, par
value $100 per share, is referred to as the "Preferred Stock"; the
Company's Class A Preferred Stock is referred to as the "Class A Preferred
Stock"; and the Preferred Stock and Class A Preferred Stock are together
referred to as the "Company Preferred Stock".
(A) The holders of the Company Preferred Stock of each series
shall be entitled to receive dividends, payable when and as declared by
the Board of Directors, at such rates as shall be determined for the
respective series thereof from the first day of the current dividend
period within which such stock shall have been originally issued except
that, as to any share of Company Preferred Stock originally issued
subsequent to December 31, 1972, from the date upon which such share shall
have been originally issued, before any dividends shall be declared or
paid upon or set apart for the Common Stock or any other stock of the
Company not having preference over the Company Preferred Stock as to
payment of dividends. Such dividends shall be cumulative so that if for
any dividend period or periods dividends shall not have been paid or
declared and set apart for payment upon all outstanding Company Preferred
Stock at the rates determined for the respective series, the deficiency
shall be fully paid, or declared and set apart for payment, before any
dividends shall be declared or paid upon the Common Stock or any other
stock of the Company not having preference over the Company Preferred
Stock as to payment of dividends. Dividends shall not be declared and set
apart for payment, or paid, on the Company Preferred Stock of any one
series, for any dividend period, unless dividends have been or are
contemporaneously declared and set apart for payment or paid on all series
of the Company Preferred Stock for all dividend periods terminating on the
same or an earlier date. As to all series of the Company Preferred Stock,
the term "dividend period" shall mean any of the four calendar quarters in
each year commencing, respectively, the first day of January, April, July
and October and the first days of each such calendar quarter shall be the
dividend payment dates for the regular quarterly dividends payable for the
preceding dividend period on such series.
(B) When full cumulative dividends as aforesaid upon all series
of the Company Preferred Stock then outstanding for all past dividend
periods and for the current dividend periods shall have been paid or
declared and set apart for payment, the Board of Directors may declare
dividends on the Common Stock or any other stock over which the Company
Preferred Stock has a preference as to payment of dividends, and no
holders of any series of the Company Preferred Stock as such shall be
entitled to share therein; provided, however, that no dividends (other
than dividends paid in or presently thereafter repaid to the Company for
or as a capital contribution with respect to stock over which the Company
Preferred Stock has preference as to payment of dividends and as to
assets) shall be paid or any other distribution of assets made, by
purchase of shares or otherwise, on Common Stock or on any other stock
over which the Company Preferred Stock has preference as to payment of
dividends or as to assets except out of earned surplus of the Company
available for distribution to stock over which the Company Preferred Stock
has preference as to payment of dividends and as to assets, or if, at the
time of declaration thereof or the making of such distribution there shall
not remain to the credit of earned surplus account (after deducting
therefrom the amount of such dividends and distribution), an amount at
least equal to (i) $7.50 per share on all then outstanding shares of the
Preferred Stock, (ii) in respect to the Class A Preferred Stock 7.5% of
the aggregate amount established by the Board of Directors to be payable
on the shares of each series thereof in the event of involuntary
liquidation of the Company, and (iii) $7.50 per share on all then
outstanding shares of all other stock over which the Company Preferred
Stock does not have preference as to the payment of dividends and as to
assets.
So long as any shares of the Company Preferred Stock are
outstanding, the payment of dividends on the Common Stock (other than
dividends payable in Common Stock) and the making of any distribution of
assets to holders of Common Stock by purchase of shares or otherwise (each
of such actions being herein embraced within the term "payment of Common
Stock dividends") shall be subject to the following limitations (except as
such payments may be approved or permitted by subsequent order of the
Securities and Exchange Commission or any successor thereto or any other
Federal governmental agency having the same or similar jurisdiction, or,
in the event that the Company ceases to be subject to the jurisdiction of
said Commission or of any successor thereto or of any such other Federal
governmental agency, except as such payments may be permitted in
accordance with a waiver of such limitations which shall have been
approved by the affirmative vote in favor thereof of the holders of at
least 66-2/3% of the shares of Preferred Stock and Class A Preferred Stock
(voting as separate classes) at the time outstanding):
(a) If and so long as the ratio of the aggregate of the par
value of, or stated capital represented by, the outstanding
shares of Common Stock (including premiums on the Common
Stock but excluding premiums on the Company Preferred
Stock) and of the surplus of the Company to the total
capitalization and surplus of the Company at the end of a
period of twelve consecutive calendar months within the
fourteen calendar months immediately preceding the calendar
month in which the proposed payment of Common Stock
dividends is to be made (which period is hereinafter
referred to as the "base period"), adjusted to reflect the
proposed payment of Common Stock dividends (which ratio is
hereinafter referred to as the "capitalization ratio"), is
less than 20%, the payment of Common Stock dividends,
including the proposed payment, during the twelve calendar
months period ending with and including the calendar month
in which the proposed payment is to be made shall not
exceed 50% of the net income of the Company available for
the payment of dividends on the Common Stock during the
base period;
(b) If and so long as the capitalization ratio is 20% or more
but less than 25%, the payment of Common Stock dividends,
including the proposed payment, during the twelve calendar
months period ending with and including the calendar month
in which the proposed payment is to be made shall not
exceed 75% of the net income of the Company available for
the payment of dividends on the Common Stock during the
base period;
(c) Except to the extent permitted under paragraphs (a) and (b)
above, the Company shall not make any payment of Common
Stock dividends which would reduce the capitalization ratio
to less than 25%.
For the purpose of the foregoing provisions, the following terms
shall have the following meanings:
(1) The term "net income of the Company available for the
payment of dividends on the Common Stock" shall mean for
any base period the balance remaining after deducting from
the total gross revenues of the Company from all sources
during such period the following:
(a) All operating expenses and taxes, including charges to
income for general taxes and for federal and state
taxes measured by income, for retirement or
depreciation reserve and for amortization or other
disposition of amounts, if any, classified as amounts
in excess of original cost of utility plant; (b) the
amount, if any, by which the aggregate of the charges
to income during the period in question for repairs,
maintenance and provision for depreciation is less
than the maintenance and replacement requirement
embodied in the Indenture, or any indenture
supplemental thereto, succeeding the same or in
substitution therefor; (c) all interest charges and
other income deductions, including charges to income
for amortization of debt discount, premium and expense
and of the Company Preferred Stock premium and
expense; and (d) all dividends applicable to the
period in question on stock having preference over the
Common Stock as to the payment of dividends.
(2) The term "total capitalization" shall mean the aggregate of
the principal amount of all outstanding indebtedness of the
Company maturing more than twelve months after the date of
determination of total capitalization, plus the par value
of, or stated capital represented by, the outstanding
shares of all classes of stock of the Company, including
any premiums on capital stock.
(3) The term "surplus" shall include capital surplus, earned
surplus and any other surplus of the Company, adjusted to
eliminate any amounts which may then be classified by the
Company on its books as amounts in excess of the original
cost of utility plant and which are not provided for by
reserve and any items set forth on the asset side of the
balance sheet of the Company as a result of accounting
convention, such as unamortized debt discount and expense
and the Company Preferred Stock expense, unless any such
amount or item, as the case may be, is being amortized or
is being provided for by reserve.
(C) Upon any dissolution, liquidation or winding up of the
Company, whether voluntary or involuntary, the holders of the
Company Preferred Stock of each series, without any preference
of the shares of any series of the Company Preferred Stock over
the shares of any other series of the Company Preferred Stock,
shall be entitled to receive out of the assets of the Company,
whether capital, surplus or other, before any distribution of
the assets to be distributed shall be made to the holders of
Common Stock or of any other stock not having preference as to
assets over the Company Preferred Stock, the amount determined
to be payable on the shares of such series in the event of
voluntary or involuntary liquidation, as the case may be. In
case the assets shall not be sufficient to pay in full the
amounts determined to be payable on all the shares of the
Company Preferred Stock in the event of voluntary or involuntary
liquidation, as the case may be, then the assets available for
such payment shall be distributed to the extent available as
follows: first, to the payment, pro rata, of $100 per share on
each share of Preferred Stock outstanding irrespective of series
and the amount established by the Board of Directors to be
payable on each outstanding share of each series of Class A
Preferred Stock in the event of involuntary liquidation; second,
to the payment of the accrued dividends on such shares, such
payment to be made pro rata in accordance with the amount of
accrued dividends on each such share; and, third, to the payment
of any amounts in excess of $100 per share of the Preferred
Stock outstanding and the difference between the amount
established by the Board of Directors to be payable on the
outstanding shares of each series of Class A Preferred Stock in
the event of voluntary liquidation and the amount similarly
determined to be payable on such shares in the event of
involuntary liquidation, plus accrued dividends which shall have
been determined to be payable on the shares of any series in the
event of voluntary or involuntary liquidation, as the case may
be, such payment also to be made pro rata in accordance with the
amounts, if any, so payable on each such share. After payment
to the holders of the Company Preferred Stock of the full
preferential amounts hereinbefore provided for, the holders of
the Company Preferred Stock as such shall have no right or claim
to any of the remaining assets of the Company, either upon any
distribution of such assets or upon dissolution, liquidation or
winding up, and the remaining assets to be distributed, if any,
upon a distribution of such assets or upon dissolution,
liquidation or winding up, may be distributed among the holders
of the Common Stock or of any other stock over which the Company
Preferred Stock has preference as to assets. Without limiting
the right of the Company to distribute its assets or to
dissolve, liquidate or wind up in connection with any sale,
merger, or consolidation, the sale of all the property of the
Company to, or the merger or consolidation of the Company into
or with any other corporation shall not be deemed to be a
distribution of assets or a dissolution, liquidation or winding
up for the purposes of this paragraph.
(D) At the option of the Board of Directors of the Company, the
Company may redeem any series of the Company Preferred Stock determined to
be redeemable, or any part of any series, at any time at the redemption
price determined for such series; provided, however, that not less than
thirty nor more than sixty days previous to the date fixed for redemption
a notice of the time and place thereof shall be given to the holders of
record of the Company Preferred Stock so to be redeemed, by mail or
publication, in such manner as may be prescribed by the By-laws of the
Company or by resolution of the Board of Directors; and, provided,
further, that in every case of redemption of less than all of the
outstanding shares of any one series of the Company Preferred Stock, the
shares of such series to be redeemed shall be chosen by lot in such manner
as may be prescribed by resolution of the Board of Directors. At any time
after notice of redemption has been given in the manner prescribed by the
By-laws of the Company or by resolution of the Board of Directors to the
holders of stock so to be redeemed, the Company may deposit, or may cause
its nominee to deposit, the aggregate redemption price with some bank or
trust company named in such notice, payable on the date fixed for
redemption as aforesaid and in the amounts aforesaid to the respective
orders of the holders of the shares so to be redeemed, on endorsement to
the Company or its nominee, or otherwise, as may be required, and upon
surrender of the certificates for such shares. Upon the deposit of said
money as aforesaid, or, if no such deposit is made, upon said redemption
date (unless the Company defaults in making payment of the redemption
price as set forth in such notice), such holders shall cease to be
shareholders with respect to said shares, and from and after the making of
said deposit, or, if no such deposit is made, after the redemption date
(the Company not having defaulted in making payment of the redemption
price as set forth in such notice), the said holders shall have no
interest in or claim against the Company, or its nominee, with respect to
said shares, but shall be entitled only to receive said moneys on the date
fixed for redemption as aforesaid from said bank or trust company, or if
no such deposit is made, from the Company, without interest thereon, upon
endorsement, if required, and surrender of the certificates as aforesaid.
If such deposit shall be made by a nominee of the Company as
aforesaid, such nominee shall upon such deposit become the owner of the
shares with respect to which such deposit was made and certificates of
stock may be issued to such nominee in evidence of such ownership.
In case the holder of any such Company Preferred Stock shall
not, within six years after said deposit, claim the amount deposited as
above stated for the redemption thereof, the Depositary shall upon demand
pay over to the Company such amounts so deposited and the Depositary shall
thereupon be relieved from all responsibility to the holder thereof.
Nothing herein contained shall limit any legal right of the
Company to purchase any shares of the Company Preferred Stock.
(E) So long as any shares of the Preferred Stock are
outstanding, the Company shall not, without the affirmative vote in favor
thereof of the holders of at least 66-2/3% of the shares of the Preferred
Stock (voting together as a single class) at the time outstanding, adopt
an amendment to these Articles if such amendment would either (i)
authorize or create any class of stock preferred as to dividends or assets
over the Preferred Stock or (ii) change any of the rights and preferences
of the then outstanding Preferred Stock; provided, however, that nothing
in this paragraph contained shall authorize the adoption of any amendment
of these Articles by the vote of the holders of a less number of shares of
the Preferred Stock, or of any other class of stock, or of all classes of
stock, than is required for such amendment by the laws of the State of
Michigan at the time applicable thereto.
(F) So long as any shares of Class A Preferred Stock are
outstanding, the Company shall not, without the affirmative vote in favor
thereof of the holders of at least 66-2/3% of the shares of Class A
Preferred Stock at the time outstanding (voting together as a single
class) adopt an amendment to these Articles if such amendment would either
(i) authorize or create any class of stock preferred as to dividends or
assets over the Class A Preferred Stock or (ii) change any of the rights
and preferences of the then outstanding Class A Preferred Stock; provided,
however, that nothing in this paragraph contained shall authorize the
adoption of any amendment of these Articles by the vote of the holders of
a lesser number of shares of Class A Preferred Stock, or of any other
class of stock, or of all classes of stock, than is required for such
amendment by the laws of the State of Michigan at the time applicable
thereto.
(G) So long as any shares of the Company Preferred Stock are
outstanding, the Company shall not, without the affirmative vote in favor
thereof of the holders of at least 66-2/3% of the shares of the Preferred
Stock and Class A Preferred Stock (voting as separate classes) at the time
outstanding,
(a) issue, sell or otherwise dispose of any shares of the
Company Preferred Stock or issue, sell or otherwise dispose of
any stock over which the Company Preferred Stock does not have
preference as to the payment of dividends and as to assets,
unless, in any such case, (i) the net income of the Company
available for the payment of dividends for a period of twelve
consecutive calendar months within the fifteen calendar months
immediately preceding the issuance, sale or disposition of such
stock (including, in any case in which such stock is to be
issued, sold or otherwise disposed of in connection with the
acquisition of new property, the net income of the property to
be so acquired, computed on the same basis as the net income of
the Company available for the payment of dividends) is at least
equal to two times the annual dividend requirements on all
outstanding shares of the Company Preferred Stock and of all
stock over which the Company Preferred Stock does not have
preference as to the payment of dividends and as to assets,
including the shares proposed to be issued, and (ii) the gross
income of the Company available for the payment of interest for
a period of twelve consecutive calendar months within the
fifteen calendar months immediately preceding the issuance, sale
or disposition of such stock (including, in any case in which
such stock is to be issued, sold or otherwise disposed of in
connection with the acquisition of new property, the gross
income of the property to be so acquired, computed on the same
basis as the gross income of the Company available for the
payment of interest) is at least equal to one and one-half times
the aggregate of the annual interest requirements (adjusted by
provision for amortization of debt discount and expense or of
premium on debt, as the case may be) on all outstanding
indebtedness of the Company and the annual dividend requirements
(adjusted by provision for amortization of the Company Preferred
Stock premium and expense) on all outstanding shares of the
Company Preferred Stock and of all stock over which the Company
Preferred Stock does not have preference as to the payment of
dividends and as to assets, including the shares proposed to be
issued; or
(b) issue, sell or otherwise dispose of any shares of the
Company Preferred Stock or issue, sell or otherwise dispose of
any stock over which the Company Preferred Stock does not have
preference as to the payment of dividends and as to assets,
unless, in any such case, the aggregate of the par value of, or
stated capital represented by, the outstanding shares of Common
Stock and of the surplus of the Company (paid-in, earned and
other, if any) shall be not less than the aggregate amount
payable in the event of involuntary liquidation upon all
outstanding shares of the Company Preferred Stock and of all
stock over which the Company Preferred Stock does not have
preference as to the payment of dividends and as to assets,
including the shares proposed to be issued, provided that no
portion of the surplus of the Company utilized to satisfy the
foregoing requirement shall be available for dividends or other
distributions of assets, by purchase of shares or otherwise, on
Common Stock or on any other stock over which the Company
Preferred Stock has preference as to the payment of dividends
and as to assets until shares of the Company Preferred Stock or
of stock over which the Company Preferred Stock does not have
preference as to the payment of dividends and as to assets are
retired and then only to the extent of the amount payable in the
event of involuntary liquidation upon such shares or until and
then only to the extent that the par value of, or stated capital
represented by, the outstanding shares of Common Stock shall
have been increased.
For the purpose of the foregoing provisions, the following terms
shall have the following meanings:
(1) The term "net income of the Company available for the
payment of dividends" shall mean the balance remaining
after deducting from the total gross revenues of the
Company from all sources the following: (a) all operating
expenses and taxes, including charges to income for general
taxes and for federal and state taxes measured by income,
for retirement or depreciation reserve and for amortization
or other disposition of amounts, if any, classified as
amounts in excess of original cost of utility plant,
(b) the amount, if any, by which the aggregate of the
charges to income during the period in question for
repairs, maintenance and provision for depreciation is less
than the maintenance and replacement requirement embodied
in the Indenture, or any indenture supplemental thereto,
succeeding the same or in substitution therefor, and (c)
all interest charges and other income deductions, including
charges to income for the amortization of debt discount,
premium and expense and of the Company Preferred Stock
premium and expense.
(2) The term "gross income of the Company available for the
payment of interest" shall mean the balance remaining after
deducting from the total gross revenues of the Company from
all sources the following: (a) all operating expenses and
taxes, including charges to income for general taxes and
for federal and state taxes measured by income, for
retirement or depreciation reserve and for amortization or
other disposition of amounts, if any, classified as amounts
in excess of original cost of utility plant and (b) the
amount, if any, by which the aggregate of the charges to
income during the period in question for repairs,
maintenance and provision for depreciation is less than the
maintenance and replacement requirement embodied in the
Indenture, or any indenture supplemental thereto,
succeeding the same or in substitution therefor.
(3) The term "accrued dividends" shall be deemed to mean in
respect of any share of any series of the Company Preferred
Stock as of any given date, the amount, if any, by which
the product of the rate of dividend per annum, determined
upon the shares of such series, multiplied by the number of
years and any fractional part of a year which shall have
elapsed from the date after which dividends on such stock
became cumulative to such given date, exceeds the total
dividends actually paid on such stock and the dividends
declared and set apart for payment. Accumulations of
dividends shall not bear interest.
The term "outstanding", whenever used herein with respect to
shares of the Company Preferred Stock or of any other class of stock which
are by their terms redeemable, or with respect to bonds or other evidences
of indebtedness shall not include any such shares or bonds or evidences of
indebtedness which have been called for redemption in accordance with the
provisions applicable thereto, of which call for redemption notice shall
have been given, as required by such provisions and for the redemption of
which a sum of money sufficient to pay the amount payable on such
redemption shall have been deposited with a bank or trust company,
irrevocably in trust for such purpose, or any bonds or other evidences of
indebtedness for the payment of which at maturity provision has been made
in a similar manner.
The term "capital represented by" whenever used herein with
respect to shares of stock of the Company shall mean at any time the
amount paid in on or contributed, transferred or otherwise then held and
recorded or accounted for, as permitted by the provisions of law
applicable thereto, as capital with respect to said shares.
COMMON STOCK
------------
Each share of Common Stock of the Company shall be equal to
every other share of said stock in every respect. The entire
consideration received for shares of Common Stock shall be capital.
VOTING POWERS GENERALLY
-----------------------
At all meetings of the shareholders of the Company, the holders
of the Preferred Stock and the holders of Common Stock shall be entitled
on all questions to one vote for each share of stock held by them
respectively, regardless of class.
Whenever and as often as four quarterly dividends payable on the
Company Preferred Stock of any series shall be in default, in whole or in
part, the holders of the Company Preferred Stock of all series shall have
the exclusive right, voting separately and as a single class, to vote for
and to elect the smallest number of directors which shall constitute a
majority of the then authorized number of directors of the Company, and,
in all matters other than the election of directors, each holder of one or
more shares of the Company Preferred Stock shall be entitled to one vote
for each such share of stock held. In the event of defaults entitling the
holders of Company Preferred Stock to elect a majority of the directors as
aforesaid, the holders of the Common Stock shall, subject to the prior
rights of the holders of the Preference Stock, have the exclusive right,
voting separately and as a class, to vote for and to elect the greatest
number of directors which shall constitute a minority of the then
authorized number of directors of the Company, and, in all matters other
than the election of directors, each holder of Common Stock shall be
entitled to one vote for each such share of stock held. The right of the
holders of the Company Preferred Stock to elect a majority of the
directors, however, shall cease when all defaults in the payment of
dividends on their stock shall have been cured, and such dividends shall
be declared and paid out of any funds legally available therefor as soon
as, in the judgment of the Board of Directors, is reasonably practicable.
The terms of office of all persons who may be directors of the Company at
the time when the right to elect a majority of the directors shall accrue
to the holders of the Company Preferred Stock, as herein provided, shall
terminate upon the election of their successors at a meeting of the
shareholders of the Company then entitled to vote. Such election shall be
held at the next annual meeting of shareholders or may be held at a
special meeting of shareholders, which shall be held upon notice as
provided in the By-laws of the Company for a special meeting of the
shareholders, at the request in writing of the holders of not less than
1,000 shares of the then outstanding Company Preferred Stock entitled to
vote addressed to the Secretary of the Company at its principal business
office. Any vacancy in the Board of Directors occurring during any period
that the Company Preferred Stock shall have elected representatives on the
Board shall be filled by a majority vote of the remaining directors (or
the one director) representing the class of stock theretofore represented
by the director causing the vacancy. Upon the termination of such
exclusive right of the holders of the Company Preferred Stock to elect a
majority of the directors of the Company, the terms of office of all the
directors of the Company shall terminate upon the election of their
successors at a meeting of the shareholders of the Company then entitled
to vote. Such election shall be held at the next annual meeting of
shareholders or may be held at a special meeting of shareholders, which
shall be held upon notice as provided in the By-laws of the Company for a
special meeting of the shareholders, at the request in writing of the
holders of not less than 1,000 shares of the then outstanding Common Stock
addressed to the Secretary of the Company at its principal business
office.
At all meetings of the shareholders held for the purpose of
electing directors during such times as the holders of the Company
Preferred Stock shall have the exclusive right to elect a majority of the
directors of the Company, the presence in person or by proxy of the
holders of a majority of the outstanding shares of 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 the Company 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 class shall not prevent the election at any such
meeting, or adjournment thereof, of directors by the other 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 class, a majority of
those holders of such stock who are present in person or by proxy shall
have the power to adjourn the election of those directors to be elected by
that class from time to time without notice, other than announcement at
the meeting, until the requisite amount of holders of stock of such class
shall be present in person or by proxy.
At all elections of directors, shareholders will be entitled to
as many votes as shall equal the number of their shares of stock
multiplied by the number of directors to be elected for whom such
shareholders may vote, and they may cast all of such votes for a single
director or may distribute them among the number to be voted for, or any
two or more of them, as they may see fit.
For the purposes of the foregoing provisions, the Company
Preferred Stock of all series shall be deemed to be a single class.
PRE-EMPTIVE RIGHTS
------------------
The holders of shares of Preferred Stock, Class A Preferred
Stock, or of Common Stock shall have no pre-emptive rights to subscribe
for or purchase any additional issues of shares of the capital stock of
the Company of any class now or hereafter authorized or any bonds,
debentures, or other obligations or rights or options convertible into or
exchangeable for or entitling the holder or owner to subscribe for or
purchase any shares of capital stock, or any rights to exchange shares
issued for shares to be issued.
PREFERENCE STOCK
Preference Stock Issuable in Series
-----------------------------------
The shares of Preference Stock may be divided into and issued in
series. Each such series shall be so designated as to distinguish the
shares thereof from the shares of all other series and classes, and all
shares of the Preference Stock shall be identical, except as to the
following relative rights and preferences, as to which there may be
variations between different series:
(a) The rate of dividend;
(b) The price at which shares may be redeemed;
(c) The amount payable upon shares in event of involuntary
liquidation;
(d) The amount payable upon shares in event of voluntary
liquidation;
(e) The terms and conditions, if any, on which shares shall be
by their terms convertible into or exchangeable for shares
of any other class of stock of the Company;
(f) The terms and conditions of a sinking or purchase fund, if
any, for the redemption or purchase of such shares.
No change shall be made in any of the rights and preferences of
any series of Preference Stock at the time outstanding in those respects
in which the shares thereof vary from the shares of other series of
Preference Stock at the time outstanding without the affirmative vote in
favor thereof of the holders of at least 66-2/3% of the shares of such
series of Preference Stock at the time outstanding, in addition to such
other vote, if any, as may be required for such change under the
applicable provisions of these Articles or of the laws of the State of
Michigan at the time applicable thereto.
PREFERENCE STOCK
----------------
Authority of Board of Directors as to Other Series
--------------------------------------------------
To the extent that series of Preference Stock have not been
established and variations in the relative rights and preferences as
between series have not been fixed and determined in these Articles,
authority is vested in the Board of Directors of the Company to divide the
shares of Preference Stock into and to establish series of Preference
Stock, to fix and determine the relative rights and preferences of the
shares of any series so established, to issue and sell any and all of the
authorized and unissued shares of Preference Stock as shares of any series
thereof established by action of the Board of Directors pursuant hereto,
and to create a sinking or purchase fund for the redemption or purchase of
shares of any series without the necessity of providing a sinking or
purchase fund for any other series.
PREFERENCE STOCK
----------------
General Provisions
------------------
The following provisions shall apply to all shares of the
Preference Stock irrespective of series:
(A) The shares of Preference Stock shall be subordinate to
the Preferred Stock but in preference to the Common Stock as to
the payment of dividends. The holders of the Preference Stock
of each series shall be entitled to receive dividends, payable
when and as declared by the Board of Directors, at such rates as
shall be determined for the respective series, from the date
upon which such share shall have been originally issued, before
any dividends shall be declared or paid upon or set apart for
the Common Stock or any other stock of the Company not having
preference over the Preference Stock as to payment of dividends.
Such dividends shall be cumulative so that if for any dividend
period or periods dividends shall not have been paid or declared
and set apart for payment upon all outstanding Preference Stock
at the rates determined for the respective series, the
deficiency shall be fully paid, or declared and set apart for
payment, before any dividends shall be declared or paid upon the
Common Stock or any other stock of the Company not having
preference over the Preference Stock as to payment of dividends.
Dividends shall not be declared and set apart for payment, or
paid, on the Preference Stock of any one series, for any
dividend period, unless dividends have been or are
contemporaneously declared and set apart for payment or paid on
the Preference Stock of all series for all dividend periods
terminating on the same or an earlier date. As to all series of
Preference Stock, the term "dividend period" shall mean any of
the four calendar quarters in each year commencing,
respectively, the first day of January, April, July and October
and the first days of each such calendar quarter shall be the
dividend payment dates for the regular quarterly dividends
payable for the preceding dividend period of such series.
(B) When full cumulative dividends as aforesaid upon the
Preference Stock of all series then outstanding for all past
dividend periods and for the current dividend periods shall have
been paid or declared and set apart for payment, the Board of
Directors may declare dividends on the Common Stock or any other
stock over which the Preference Stock has a preference as to
payment of dividends, and no holders of any series of the
Preference Stock as such shall be entitled to share therein.
(C) The shares of Preference Stock shall be subordinate to
the Preferred Stock but in preference to the Common Stock upon
any dissolution, liquidation or winding up of the Company,
whether voluntary or involuntary. Upon any such dissolution,
liquidation or winding up of the Company, whether voluntary or
involuntary, the holders of Preference Stock of each series,
without any preference of the shares of any series of Preference
Stock over the shares of any other series of Preference Stock,
shall be entitled to receive out of the assets of the Company,
whether capital, surplus or other, before any distribution of
the assets to be distributed shall be made to the holders of
Common Stock or of any other stock not having preference as to
assets over the Preference Stock, the amount determined to be
payable on the shares of such series in the event of voluntary
or involuntary liquidation, as the case may be. In case the
assets shall not be sufficient to pay in full the amounts
determined to be payable on all the shares of Preference Stock
in the event of voluntary or involuntary liquidation, as the
case may be, then the assets available for such payment shall be
distributed ratably among the holders of the Preference Stock of
all series in accordance with the amounts determined to be
payable on the shares of each series, in the event of voluntary
or involuntary liquidation, as the case may be, in proportion to
the full preferential amounts to which they are respectively
entitled. After payment to the holders of the Preference Stock
of the full preferential amounts hereinbefore provided for, the
holders of the Preference Stock as such shall have no right or
claim to any of the remaining assets of the Company, either upon
any distribution of such assets or upon dissolution, liquidation
or winding up, and the remaining assets to be distributed, if
any, upon a distribution of such assets or upon dissolution,
liquidation or winding up, may be distributed among the holders
of the Common Stock or of any other stock over which the
Preference Stock has preference as to assets. Without limiting
the right of the Company to distribute its assets or to
dissolve, liquidate or wind up in connection with any sale,
merger, or consolidation, the sale of all the property of the
Company to, or the merger or consolidation of the Company into
or with any other corporation shall not be deemed to be a
distribution of assets or a dissolution, liquidation or winding
up for the purposes of this paragraph.
(D) At the option of the Board of Directors of the
Company, the Company may redeem any series of Preference Stock
determined to be redeemable, or any part of any series, at any
time at the redemption price determined for such series;
provided, however, that not less than thirty nor more than sixty
days previous to the date fixed for redemption a notice of the
time and place thereof shall be given to the holders of record
of the Preference Stock so to be redeemed, by mail or
publication, in such manner as may be prescribed by the By-laws
of the Company or by resolution of the Board of Directors; and,
provided, further, that in every case of redemption of less than
all of the outstanding shares of any one series of Preference
Stock, the shares of such series to be redeemed shall be chosen
by lot in such manner as may be prescribed by resolution of the
Board of Directors. At any time after notice of redemption has
been given in the manner prescribed by the By-laws of the
Company or by resolution of the Board of Directors to the
holders of stock so to be redeemed, the Company may deposit, or
may cause its nominee to deposit, the aggregate redemption price
with some bank or trust Company named in such notice, payable on
the date fixed for redemption as aforesaid and in the amounts
aforesaid to the respective orders of the holders of the shares
so to be redeemed, on endorsement to the Company or its nominee,
or otherwise, as may be required, and upon surrender of the
certificates for such shares. Upon the deposit of said money as
aforesaid, or, if no such deposit is made, upon said redemption
date (unless the Company defaults in making payment of the
redemption price as set forth in such notice), such holders
shall cease to be shareholders with respect to said shares and
from and after the making of said deposit, or, if no such
deposit is made, after the redemption date (the Company not
having defaulted in making payment of the redemption price as
set forth in such notice), the said holders shall have no
interest in or claim against the Company, or its nominee, with
respect to said shares, but shall be entitled only to receive
said moneys on the date fixed for redemption as aforesaid from
said bank or trust Company, or if no such deposit is made, from
the Company, without interest thereon, upon endorsement, if
required, and surrender of the certificates as aforesaid.
If such deposit shall be made by a nominee of the Company
as aforesaid, such nominee shall upon such deposit become the
owner of the shares with respect to which such deposit was made
and certificates of stock may be issued to such nominee in
evidence of such ownership.
In case the holder of any such Preference Stock shall not,
within six years after said deposit, claim the amount deposited
as above stated for the redemption thereof, the Depositary shall
upon demand pay over to the Company such amounts so deposited
and the Depositary shall thereupon be relieved from all
responsibility to the holder thereof.
Nothing herein contained shall limit any legal right of the
Company to purchase any shares of the Preference Stock.
(E-1) So long as any shares of the Preference Stock are
outstanding, the Company shall not, without the affirmative vote
in favor thereof of the holders of at least 66-2/3% of the
shares of Preference Stock at the time outstanding, adopt an
amendment to these Articles if such amendment would either (i)
authorize or create, or increase the authorized amount of, any
class of stock, other than shares of the Preferred Stock
(whether now or hereafter authorized), which is entitled to
dividends or assets in priority to the Preference Stock or (ii)
change any of the rights and preferences of the then outstanding
Preference Stock.
(E-2) So long as any shares of the Preference Stock are
outstanding, the Company shall not, without the affirmative vote
in favor thereof of the holders of at least a majority of the
shares of Preference Stock at the time outstanding, adopt an
amendment to these Articles if such amendment would either (i)
increase the authorized amount of Preference Stock or (ii)
authorize or create, or increase the authorized amount of, any
class of stock, which is entitled to dividends or assets on a
parity with the Preference Stock, provided; however, that
nothing in this paragraph or in paragraph E-1 above contained
shall authorize the adoption of any amendment of these Articles
by the vote of the holders of a less number of shares of
Preference Stock, or of any other class of stock, or of all
classes of stock, than is required for such amendment by the
laws of the State of Michigan at the time applicable thereto.
PREFERENCE STOCK
----------------
Voting Powers
-------------
The holders of Preference Stock shall not have any right to vote
for the election of directors or for any other purpose, except as
otherwise provided by law, as set forth in the two immediately preceding
paragraphs and as set forth below. Whenever and as often as six quarterly
dividends payable on the Preference Stock of any series shall be in
default, in whole or in part, the holders of the Preference Stock of all
series shall have the exclusive right, voting separately and as a single
class, to vote for and to elect two directors, subject to the prior rights
of the holders of the Preferred Stock. In the event of defaults entitling
the Preference Stock to elect two directors as aforesaid, the holders of
the Common Stock shall have the exclusive right, voting separately and as
a class, to elect the remaining number of directors of the Company,
subject to the prior rights of the holders of the Preferred Stock. The
right of the holders of the Preference Stock to elect two directors,
however, shall cease when all defaults in the payment of dividends on
their stock shall have been cured, and such dividends shall be declared
and paid out of any funds legally available therefor as soon as, in the
judgment of the Board of Directors, is reasonably practicable. The terms
of office of all persons who may be directors of the Company at the time
when the right to elect two directors shall accrue to the holders of the
Preference Stock, as herein provided, shall terminate upon the election of
their successors at a meeting of the shareholders of the Company then
entitled to vote. Such election shall be held at the next annual meeting
of shareholders or may be held at a special meeting of shareholders, which
shall be held upon notice as provided in the By-laws of the Company for a
special meeting of the shareholders, at the request in writing of the
holders of not less than 1,000 shares of the then outstanding Preference
Stock addressed to the Secretary of the Company at its principal business
office. Any vacancy in the Board of Directors occurring during any period
when the Preference Stock shall have elected representatives on the Board
shall be filled by a majority vote of the remaining directors (or the one
director) representing the class of stock theretofore represented by the
director causing the vacancy. In the event of simultaneous vacancies
among directors elected by the holders of the Preference Stock, an
election, pursuant to the provisions of this paragraph, will be held.
Upon the termination of such exclusive right of the holders of the
Preference Stock to elect two directors of the Company, the terms of
office of all the directors of the Company shall terminate upon the
election of their successors at a meeting of the shareholders of the
Company then entitled to vote. Such election shall be held at the next
annual meeting of shareholders or may be held at a special meeting of
shareholders, which shall be held upon notice as provided in the By-laws
of the Company for a special meeting of the shareholders at the request in
writing of the holders of not less than 1,000 shares of the then
outstanding Common Stock addressed to the Secretary of the Company at its
principal business office.
At all meetings of the shareholders held for the purpose of
electing directors during such times as the holders of the Preference
Stock shall have the exclusive right to elect two of the directors of the
Company, the presence in person or by proxy of the holders of a majority
of the outstanding shares of 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 Preference Stock of all series 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 class shall not
prevent the election at any such meeting, or adjournment thereof, of
directors by the other 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 class, a majority of those holders of such stock who are
present in person or by proxy shall have the power to adjourn the election
of those directors to be elected by that class from time to time without
notice, other than announcement at the meeting, until the requisite amount
of holders of stock of such class shall be present in person or by proxy.
At all elections of directors, each shareholder will be entitled
to as many votes as shall equal the number of his shares of stock
multiplied by the number of directors to be elected for whom such
shareholder may vote, and he may cast all of such votes for a single
director or may distribute them between the two directors to be voted for,
as he may see fit.
For the purposes of the foregoing provisions, the Preference
Stock of all series shall be deemed to be a single class.
PREFERENCE STOCK
----------------
Pre-emptive Rights
------------------
The holders of shares of Preference Stock shall have no pre-
emptive rights to subscribe for or purchase any additional issues of
shares of the capital stock of the Company of any class now or hereafter
authorized or any bonds, debentures or other obligations or rights or
options convertible into or exchangeable for or entitling the holder or
owner to subscribe for or purchase any shares of capital stock, or any
rights to exchange shares issued for shares to be issued.
ARTICLE VIII
Each director shall be a shareholder of the Company and any
Director ceasing to be a shareholder shall thereupon immediately cease to
be a Director.
Signed on March 25, 1994
CONSUMERS POWER COMPANY
(SEAL)
By /s/Michael G. Morris
---------------------------------------
Michael G. Morris
President and Chief Executive Officer
STATE OF MICHIGAN)
) SS.
COUNTY OF JACKSON)
On this 25th day of March 1994 before me appeared Michael G. Morris, to me
personally known, who, being by me duly sworn, did say that he is
President and Chief Executive Officer of Consumers Power Company, who
executed the foregoing instrument, and that the seal affixed to said
instrument is the corporate seal of said corporation, and that said
instrument was signed and sealed in behalf of said corporation by
authority of its Board of Directors, and said officer acknowledged said
instrument to be the free act and deed of said corporation.
/s/Margaret Hillman
-----------------------------
Margaret Hillman
(SEAL) Notary Public for Jackson
County, State of Michigan.
My commission expires
August 21, 1995.