Exhibit 3.(i).3
MICHIGAN DEPARTMENT OF CONSUMER AND INDUSTRY SERVICES
CORPORATION, SECURITIES AND LAND DEVELOPMENT BUREAU
Date Received
APR 21 1997
FILED
APR 24 1997
Administrator
MI DEPT. OF CONSUMER & INDUSTRY SERVICES
CORPORATION, SECURITIES & LAND DEVELOPMENT BUREAU
EFFECTIVE DATE:
Name
Sherry L. Abbott
Address
405 Water Street
City State Zip Code
Port Huron MI 48060
Document will be returned to the name and address you enter above
CERTIFICATE OF AMENDMENT TO THE ARTICLES OF INCORPORATION
For use by Domestic Profit and Nonprofit Corporations
(Please read information and instructions on the 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:
Southeastern Michigan Gas Enterprises, Inc.
2. The identification number assigned by the Bureau
is: 065-723
3. The location of the registered office is:
405 Water Street Port Huron, Michigan 48060
(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 SEMCO Energy, Inc.
5. Article III of the Articles of Incorporation is hereby
amended to read as shown on Attachment 1 hereto.
6. Article VI of the Articles of Incorporation is hereby
amended to read as shown on Attachment 2 hereto.
5. (For amendments adopted by unanimous consent of
incorporators before the first meeting of the board of
directors or trustees.)
The foregoing amendment to the Articles of Incorporation was
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____
_________________________ ______________________________
(Signature) (Signature
_________________________ ______________________________
(Type or Print Name) (Type or Print Name)
_________________________ ______________________________
(Signature) (Signature
_________________________ ______________________________
(Type or Print Name) (Type or Print Name)
6. (For profit corporations, and for nonprofit corporations
whose articles state the corporation is organized on a stock
or on a membership basis.)
The foregoing amendment to the Articles of Incorporation was
duly adopted on the 15th day of April, 1997 by the
shareholders if a profit corporation, or by the shareholders
or members if a nonprofit corporation (check one of the
following)
[X] at a meeting. The necessary votes were cast in favor
of the amendment.
[ ] by 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, or
Section 407(1) of the Act if a profit corporation.
Written notice to shareholders or members 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.)
[ ] by written consent of all the shareholders or members
entitled to vote in accordance with section 407(3) of
the Act if a nonprofit corporation, or Section 407(2)
of the Act if a profit corporation.
Signed this 16th day of April, 1997
By Carl W. Porter
(Signature of President, Vice-President,
Chairperson or Vice-Chairperson)
Carl W. Porter Senior Vice President
(Type or Print Name) (Type or Print Title)
7. (For a nonprofit corporation whose articles state the
corporation is organized on a directorship basis.)
The foregoing amendment to the Articles of Incorporation was
duly adopted on the _____ day of ____________, 19____ by the
directors of a nonprofit corporation whose articles of
incorporation state it is organized on a directorship basis
(check one of the following)
[ ] at a meeting. The necessary votes were cast in favor
of the amendment.
[ ] by written consent of all directors pursuant to Section
525 of the Act.
Signed this _____ day of ___________, 19____
By________________________________________________
(Signature of President, Vice-President,
Chairperson or Vice-Chairperson)
__________________________________________________
(Type of Print Name) (Type or Print Title)
ATTACHMENT 1
TO
CERTIFICATE OF AMENDMENT TO ARTICLES OF INCORPORATION
OF
SOUTHEASTERN MICHIGAN GAS ENTERPRISES, INC.
(hereafter SEMCO Energy, Inc.)
ARTICLE III.
SECTION 1.
The total authorized capital stock is $23,500,000 consisting
of
(a) 500,000 shares Cumulative Preferred Stock of the par
value of $1 per share, issuable in series as
hereinafter provided, designated "Cumulative Preferred
Stock, $1 Par Value",
(b) 3,000,000 shares of Preference Stock designated
"Preference Stock, $1 Par Value", and
(c) 20,000,000 shares of stock of the par value of $1 per
share, designated "Common Stock, $1 Par Value."
SECTION 2.
The following is a description of each class of shares of
the Corporation, with the voting powers, preferences and rights
and qualifications, limitations or restrictions thereof.
DIVISION A. Cumulative Preferred Stock, $1 Par Value
(1) Issuable in Series: The Cumulative Preferred Stock may
be divided into and issued in series. Each series shall be so
designated as to distinguish the shares thereof from the shares
of all other series and classes of shares. All shares of the
Cumulative Preferred Stock shall be identical except as to the
following relative rights and preferences as to which there may
be variations between the series:
(a) The rate of dividends and the extent of further
participation in dividend distribution, if any;
(b) The price at and the terms and conditions on which the
shares are redeemable;
(c) The amount payable upon shares in event of voluntary or
involuntary liquidation;
(d) Sinking fund provisions for the redemption or purchase
of shares;
(e) The terms and conditions on which shares are
convertible.
The Board of Directors is hereby expressly vested with
authority and shall have authority by resolution or resolutions
from time to time adopted to divide the shares of the Cumulative
Preferred Stock into series and, within the limitations set
forth in the laws of the State of Michigan and in these
articles, fix and determine the relative rights and preferences
of the shares of any series so established.
(2) Dividends: The holders of Cumulative Preferred Stock
shall be entitled to receive out of the surplus of the
Corporation, if, when and as declared by the Board of Directors
in its discretion, preferential dividends at the rate fixed for
each series payable quarterly on the 15th day of February, May,
August and November in each year (the periods between such
dates, commencing on such dates, are hereby designated as
"dividend periods") before any dividends shall be declared or
paid upon or set apart for, or other distribution shall be
ordered or made in respect of, the Common Stock or Preference
Stock. Such dividends on the Cumulative Preferred Stock, shall
commence to accrue and be cumulative from the first day of the
quarterly dividend period in which such Cumulative Preferred
Stock are issued or at such other date in said quarterly
dividend period as shall be fixed in the resolution of the Board
of Directors establishing any series. No dividends shall be
declared on the shares of Cumulative Preferred Stock of any
series for any quarterly dividend period unless for the same
quarterly dividend period there shall likewise be declared upon
all shares of Cumulative Preferred Stock of all other series at
the time outstanding like dividends in proportion to the annual
dividend rates fixed for such series, respectively, to the
extent that such shares are entitled to receive dividends for
such quarterly dividend period. If full cumulative dividends on
the outstanding Cumulative Preferred Stock at the rate aforesaid
for all past dividend periods to the end of the then current
dividend period shall not have been paid or declared and a sum
sufficient for the payment thereof set apart, the amount of the
deficiency shall be fully paid, but without interest, or
dividends upon the Cumulative Preferred Stock in such amount
shall be declared and a sum sufficient for the payment thereof
set apart, before any dividends shall be declared or paid upon
or set apart, for, or any other distribution shall be ordered or
made in respect of, the Common Stock or Preference Stock and
before any sums shall be paid or set apart for the redemption of
less than all of the Cumulative Preferred Stock then outstanding
or for the purchase or other retirement of any Cumulative
Preferred Stock.
(3) Preference Upon Liquidation: In the event of any
liquidation, dissolution or winding up of the Corporation, or any
reduction of its capital, resulting in any distribution of its
assets to its stockholders, the holders of Cumulative Preferred
Stock shall be entitled to receive, for each share thereof, out
of the assets of the Corporation, whether from capital, surplus
or earnings, available for distribution to its shareholders, an
amount fixed for each series as, or in the manner, hereinabove
provided before any distribution of assets of the Corporation
shall be made to the holders of Common Stock or Preference Stock;
but the holders of Cumulative Preferred Stock shall be entitled
to no further participation in such distribution. If, upon any
such liquidation, dissolution, winding up or reduction, the
assets of the Corporation distributable as aforesaid among the
holders of Cumulative Preferred Stock shall be insufficient to
permit the payment to them of the full preferential amounts, then
the entire assets of the Corporation to be so distributed shall
be distributed ratably among all the holders of Cumulative
Preferred Stock in proportion to the full preferential amounts to
which they are respectively entitled. Nothing in this paragraph
shall be deemed to prevent the purchase or redemption of
Cumulative Preferred Stock or the purchase of Common Stock or
purchase or redemption of Preference Stock in any manner
permitted by law or herein provided for; provided, however, that
anything herein to the contrary notwithstanding, the Corporation
shall not, so long as any Cumulative Preferred Stock remain
outstanding, purchase any of its Common Stock or purchase or
redeem any of its Preference Stock. A consolidation or merger of
the Corporation, or a sale or transfer of substantially all of
its assets as an entirety, shall not be regarded as a
liquidation, dissolution or winding up of the Corporation or as a
reduction of its capital.
(4) Redemption and Purchase: The Corporation may, at its
option, expressed by resolution of its Board of Directors, at any
time or from time to time, redeem the whole or any part of any
series of Cumulative Preferred Stock at the redemption price for
each share fixed for such series. Notice of any proposed
redemption of Cumulative Preferred Stock shall be given by the
Corporation, by mailing a copy of such notice at least 30 days
prior to the date fixed for such redemption to the holders of
record of the Cumulative Preferred Stock to be redeemed, at
their respective addresses appearing on the books of the
Corporation. If less than all of any series of the Cumulative
Preferred Stock are to be redeemed as herein provided, the
redemption shall be made in such amount, at such place, by such
method, either by lot or pro rata, and subject to such
provisions of convenience as shall from time to time be provided
by bylaws of the Corporation or be determined by resolution of
the Board of Directors. From and after the date fixed in any
such notice as the date of redemption, unless default shall be
made by the Corporation in providing moneys at the time and
place specified for the payment of the redemption price pursuant
to said notice, all dividends on the Cumulative Preferred Stock
thereby called for redemption shall cease to accrue; and from
and after the date so fixed (unless the default be made as
aforesaid) or the date of the earlier deposit by the
Corporation, in a special account with a solvent bank or trust
company doing business in the City of Chicago, Illinois, of
funds sufficient for such redemption (a statement of the
intention so to deposit having been included in said notice),
all rights of the holders of said Cumulative Preferred Stock so
called for redemption as shareholders of the Corporation, except
only the right to receive the redemption price without interest,
shall cease and determine, and such shares shall be deemed no
longer to be outstanding; but the making of said deposit with
any such bank or trust company shall not relieve the Corporation
of liability for payment of the redemption price. Any moneys so
deposited which shall remain unclaimed by the holders of such
Cumulative Preferred Stock at the end of six (6) years after the
redemption date, together with any interest thereon that shall
have been allowed by the bank or trust company with which the
deposit shall have been made, shall be paid by it to the
Corporation. The Corporation may also, from time to time,
purchase any of its Cumulative Preferred Stock with any funds
available for such purpose at not exceeding the price at which
the same may be redeemed. No redemption or purchase of
Cumulative Preferred Stock as herein provided shall be made or
ordered (i) unless full cumulative dividends at the appropriate
dividend rate upon all of the Cumulative Preferred Stock then
outstanding which is not to be redeemed or purchased, from the
date from which dividends on such Cumulative Preferred Stock
became cumulative to the end of the then current dividend period
for such Cumulative Preferred Stock, shall have been paid or
declared and a sum sufficient for the payment thereof set apart
and (ii) unless provision shall have been made for the
satisfaction of any obligations then or theretofore matured in
respect of any sinking fund for the benefit of Cumulative
Preferred Stock which is then outstanding and is not to be
redeemed or purchased. Any amounts applied out of the surplus
of the Corporation to the purchase or redemption of any of its
Cumulative Preferred Stock shall be charged against paid-in
surplus or earned surplus, as the Board of Directors may in its
discretion determine. The redemption, purchase or acquiring by
the Corporation of any shares of Cumulative Preferred Stock,
shall not be deemed to reduce the authorized number of shares of
stock of the Corporation. Any shares of the Cumulative
Preferred Stock redeemed, retired, purchased or otherwise
acquired (including shares acquired by conversion) shall be
cancelled and shall assume the status of authorized but unissued
Cumulative Preferred Stock in the same manner as if the shares
had never been issued as shares of any series of the Cumulative
Preferred Stock and be undesignated as to future series.
(5) Restriction on Certain Corporate Action and Voting
Power: The holders of the Cumulative Preferred Stock shall be
entitled to vote only as in this paragraph (5) provided, or as
otherwise required by law. In any case where the holders of the
Cumulative Preferred Stock shall not be entitled to vote, they
shall not be entitled to notice of any shareholders' meeting
except as otherwise provided by law.
If at any time the Corporation shall fail to declare and pay
or set apart for payment in full eight quarterly dividends
(whether or not consecutive) on all of the outstanding Cumulative
Preferred Stock, then the holders of the outstanding Cumulative
Preferred Stock shall, thereupon, have the right, voting as a
single class irrespective of series, to elect such number of
directors of the Corporation as shall constitute one less than
the smallest number of directors necessary to constitute a
majority of the full Board of Directors, and such right shall
continue (and may be exercised at any annual or other meeting of
shareholders for the election of Directors) until the
Corporation shall have paid or declared and set apart for
payment all accrued dividends on the Cumulative Preferred Stock
for all past quarterly dividend periods. The term of office of
all persons who may be Directors of the Corporation at any time
when such right shall accrue to the holders of the Cumulative
Preferred Stock, shall terminate upon the election of their
successors at a special meeting of shareholders of the
Corporation, which shall be held, at any time after the accrual
of such right, upon the notice provided in the bylaws of the
Corporation for the annual meeting of shareholders at the
request in writing of the holders of record of at least 5% of
the number of Cumulative Preferred Stock then outstanding. In
default of the calling of said meeting by a proper officer of
the Corporation within five days after the making of such
request, such meeting may be called on like notice by the
holders of record of at least 5% of the number of Cumulative
Preferred Stock then outstanding, for which purpose such holders
of the Cumulative Preferred Stock shall have the right to have
access to the stock books of the Corporation. If such special
meeting is not called prior to the next annual meeting, the
holders of the Cumulative Preferred Stock, voting as a single
class irrespective of series, shall elect the minority of the
Board of Directors at such annual meeting, unless previously
thereto all such dividend defaults shall have been cured. Upon
the termination at any time of such right of the holders of the
Cumulative Preferred Stock to elect a minority of the Board of
Directors, the term of office of all Directors then in office
shall end upon the election of their successors, which election
may be held on like notice at a special meeting called at the
request in writing of the holders of record of at least 5% of
the number of shares of stock entitled to vote then outstanding.
If such special meeting is not called within five (5) days
after the making of such request by a proper officer of the
Corporation, such meeting may be called on like notice by the
holders of record of at least 5% of such outstanding stock, for
which purpose such holders shall have access to the stock books
of the Corporation. If such special meeting is not called prior
to the next annual meeting, a Board of Directors shall be
elected at such annual meeting.
In addition to any other approvals or consents herein
required, the Corporation shall not, without the consent of the
holders of record of at least two-thirds of the Cumulative
Preferred Stock, at the time outstanding, voting as a single
class irrespective of series, given by their affirmative vote at
an annual or special meeting called for that purpose, (i)
authorize or issue any other class of stock having a priority or
preference over or ranking on a parity with the Cumulative
Preferred Stock as to dividends or assets, or (ii) amend the
provisions hereof so as to affect adversely any of the powers,
preferences or special rights hereby given to the Cumulative
Preferred Stock.
(6) The following resolution was duly adopted by the
Directors of the Corporation on the 1st day of December, 1978,
pursuant to Article III, Section 2, Division A, paragraph (1) of
these Articles:
RESOLVED, that 80,000 Shares of Cumulative Preferred
Stock are hereby established as a series of the Cumulative
Preferred Stock and are designated "$2.3125, Series A,
Convertible Cumulative Preferred Stock". All shares of this
series shall be identical and shall possess the preferences,
rights and privileges and voting powers of the Cumulative
Preferred Stock and shall have the following relative rights
and preferences:
(a) Dividend Rights. The rate of dividend which the
holders of shares of this series shall be entitled to
receive shall be $2.3125 per share per annum and no
more, and such dividends shall accrue from the date of
original issue and be payable commencing February 15,
1979.
(b) Redemption. The amount per share which the holders of
said shares of this series shall be entitled to receive
if said shares are redeemed shall be $25 per share plus
all dividends accrued or in arrears thereon.
(c) Rights on Liquidation. The preferential amount payable
upon the shares of this series in the event of any
voluntary or involuntary liquidation, dissolution or
winding up of the Company or reduction of capital
resulting in the distribution of assets to the
shareholders, shall be equal to $25 per share together
with an amount equal to dividends accrued or in arrears
thereon.
(d) Sinking Fund. There are no sinking fund or purchase
fund provisions provided for the redemption or purchase
of shares of this series.
(e) Conversion Privilege. The holders of shares of this
series shall have the right, at their option, to
convert such shares into shares of Common Stock of the
Company at any time subject to the following terms and
conditions:
(1) The shares of this series shall be convertible at
the office of any transfer agent or at the offices
of the Company, and at such other office or
offices, if any, as the Board of Directors may
designate, into fully paid and nonassessable
shares (calculated as to each conversion to the
nearest 1/100th of a share) of Common Stock of the
Company, at the Conversion Price, determined as
hereinafter provided, in effect at the time of
conversion, each share of this series being valued
at $25.00 for the purpose of such conversion. The
price at which shares of Common Stock shall be
delivered upon conversion (as adjusted from time
to time as herein provided, herein called the
"Conversion Price") shall be initially $20.00 per
share of Common Stock. The conversion price shall
be reduced in certain instances as provided in
paragraphs (3), (9) and (10) below, and shall be
increased in certain instances as provided in
paragraph (10) below.
No payment or adjustment shall be made upon any
conversion on account of any dividends accrued on
the shares of this series surrendered for
conversion or on account of any dividends on the
Common Stock issued upon such conversion.
(2) In order to convert shares of this series into
Common Stock, the holder thereof shall surrender
at any office hereinabove mentioned the
certificate or certificates therefor, duly
endorsed to the Company or in blank, and give
written notice to the Company at said office that
he elects to convert such shares. Shares of this
series shall be deemed to have been converted
immediately prior to the close of business on the
day of the surrender of such shares for conversion
as provided above, and the person or persons
entitled to receive the Common Stock issuable upon
such conversion shall be treated for all purposes
as the record holder or holders of such Common
Stock at such time. As promptly as practicable on
or after the conversion date, the Company shall
issue and shall deliver at said office a
certificate or certificates for the number of full
shares of Common Stock issuable upon such
conversion, together with cash in lieu of any
fraction of a share, as hereinafter provided, to
the person or persons entitled to receive the
same. In case shares of this series are called
for redemption, the right to convert such shares
shall cease and terminate at the close of business
on the day preceding the date fixed for
redemption, unless default shall be made in
payment of the redemption price.
(3) In case the Conversion Price in effect immediately
prior to the close of business on any day after
November 16, 1978 shall exceed by 25 cents or more
the amount determined at the close of business on
such date by dividing:
(i) a sum equal to (a) 649,683 multiplied by
$20.00 (being the initial conversion price),
plus (b) the aggregate of the amounts of all
consideration received by the Company upon
the issuance of Additional Shares of Common
Stock (as hereinafter defined), minus (c) the
aggregate of the amounts of all dividends and
other distributions which have been paid or
made after November 16, 1978 on Common Stock,
other than in cash out of its earned surplus
or in Common Stock, by
(ii) the sum of (a) 649,683 and (b) the number of
Additional Shares of Common Stock which shall
have been issued,
the conversion price shall be reduced, effective
immediately prior to the opening of business on
the next succeeding day, to the amount so
determined. The foregoing amount of 25 cents (or
such amount as theretofore adjusted) shall be
subject to adjustment as provided in paragraphs
(9) and (10) below, and such amount (or such
amount as theretofore adjusted) is referred to in
such paragraphs as the "Differential Amount."
(4) The term "Additional Shares of Common Stock" as
used herein shall mean, without duplication, all
shares of Common Stock issued after November 16,
1978 (including shares deemed to be Additional
Shares of Common Stock pursuant to paragraph (10)
below), whether or not subsequently reacquired or
retired by the Company, other than:
(i) shares issued upon conversion of shares of
this series;
(ii) shares issued by way of dividend or other
distribution on shares of Common Stock
excluded from the definition of Additional
Shares of Common Stock by the foregoing
clause (i) or this clause (ii) or on shares
of Common Stock resulting from any
subdivision or combination of shares of
Common Stock so excluded.
The sale or other disposition of any shares of
Common Stock or other securities held in the
treasury of the Company shall not be deemed an
issuance thereof.
(5) In case of the issuance of Additional Shares of
Common Stock for a consideration, part or all of
which shall be cash, the amount of the cash
consideration therefor shall be deemed to be the
amount of cash received by the Company for such
shares (or, if such Additional Shares of Common
Stock are offered by the Company for subscription,
the subscription price, or, if such Additional
Shares of Common Stock are sold to underwriters or
dealers for public offering without a subscription
offering, the initial public offering price),
without deducting therefrom any compensation or
discount in the sale, underwriting or purchase
thereof by underwriters or dealers or others
performing similar services or for any expenses
incurred in connection therewith.
(6) In case of the issuance (otherwise than as a
dividend or other distribution on any stock of the
Company or upon conversion or exchange of other
securities of the Company) of Additional Shares of
Common Stock for a consideration, part or all of
which shall be other than cash, the amount of the
consideration therefor other than cash shall be
deemed to be the value of such consideration as
determined by the Board of Directors, irrespective
of the accounting treatment thereof. The
reclassification of securities other than Common
Stock into securities including Common Stock shall
be deemed to involve the issuance for a
consideration other than cash of such Common Stock
immediately prior to the close of business on the
date fixed for the determination of shareholders
entitled to receive such Common Stock.
(7) Additional Shares of Common Stock issuable by way
of dividend or other distribution on any class of
capital stock of the Company shall be deemed to
have been issued without consideration, and shall
be deemed to have been issued immediately prior to
the close of business on the date fixed for the
determination of shareholders entitled to receive
such dividend or other distribution, except that
if the total number of shares constituting such
dividend or other distribution exceeds five
percent of the total number of shares of Common
Stock outstanding at the close of business on the
date fixed for the determination of shareholders
entitled to receive such dividend or other
distribution, such Additional Shares of Common
Stock shall be deemed to have been issued
immediately after the opening of business on the
day following the date fixed for the determination
of shareholders entitled to receive such dividend
or other distribution.
A dividend or other distribution in cash or in
property (including any dividend or other
distribution in securities other than Common
Stock) shall be deemed to have been paid or made
immediately prior to the close of business on the
date fixed for the determination of shareholders
entitled to receive such dividend or other
distribution and the amount of such dividend or
other distribution in property shall be deemed to
be the value of such property as of the date of
the adoption of the resolution declaring such
dividend or other distribution, as determined by
the Board of Directors at or as of that date. In
the case of any such dividend or other
distribution of Common Stock which consists of
securities which are convertible into or
exchangeable for shares of Common Stock, such
securities shall be deemed to have been issued for
a consideration equal to the value thereof as so
determined.
If, upon the payment of any dividend or other
distribution in cash or in property (excluding
Common Stock but including all other securities),
outstanding shares of Common Stock are cancelled
or required to be surrendered for cancellation, on
a pro rata basis, the number of shares of Common
Stock outstanding immediately prior thereto in
excess of the number to be outstanding immediately
thereafter (less that portion of such excess
attributable to the cancellation of shares
excluded from the definition of Additional Shares
of Common Stock by clause (i) or (ii) of paragraph
(4) above), shall be deducted from the sum
computed pursuant to clause (ii) of paragraph (3)
above for the purpose of all determinations under
such paragraph (3) made immediately prior to the
close of business on the date fixed for the
determination of shareholders entitled to receive
such dividend or other distribution and at any
time thereafter.
The reclassification (including any
reclassification upon a consolidation or merger in
which the Company is the continuing corporation)
of Common Stock into securities including other
than Common Stock shall be deemed to involve (a) a
distribution on Common Stock of such securities
other than Common Stock made immediately prior to
the close of business on the effective date of the
reclassification, and (b) a combination or
subdivision, as the case may be, of the number of
shares of Common Stock outstanding immediately
prior to such reclassification into the number of
shares of Common Stock outstanding immediately
thereafter.
The issuance by the Company of rights or warrants
to subscribe for or purchase securities of the
Company shall not be deemed to be a dividend or
distribution of any kind.
(8) In case of the issuance of Additional Shares of
Common Stock upon conversion or exchange of other
securities of the Company, the amount of the
consideration received by the Company for such
Additional Shares of Common Stock shall be deemed
to be the total of (a) the amount of the
consideration, if any, received by the Company
upon the issuance of such other securities, plus
(b) the amount of the consideration, if any, other
than such other securities, received by the
Company (except in adjustment of interest or
dividends) upon such conversion or exchange. In
determining the amount of the consideration
received by the Company upon the issuance of such
other securities (i) the amount of the
consideration in cash and other than cash shall be
determined pursuant to paragraphs (5), (6) and (7)
above, and (ii) if securities of the same class or
series of a class as such other securities were
issued for different amounts of consideration, or
if some were issued for no consideration, then the
amount of the consideration received by the
Company upon the issuance of each of the
securities of such class or series, as the case
may be, shall be deemed to be the average amount
of the consideration received by the Company upon
the issuance of all the securities of such class
or series, as the case may be.
(9) In case at any time after November 16, 1978
Additional Shares of Common Stock are issued as a
dividend or other distribution on any class of
capital stock of the Company and the total number
of shares constituting such dividend or other
distribution exceeds five per cent of the total
number of shares of Common Stock outstanding at
the close of business on the date fixed for the
determination of shareholders entitled to receive
such dividend or other distribution, the
conversion price and the Differential Amount in
effect at the opening of business on the day
following the date fixed for such determination
shall be reduced by multiplying each of them by a
fraction of which the numerator shall be the
number of shares of Common Stock outstanding at
the close of business on the date fixed for such
determination and the denominator shall be the sum
of such number of shares and the total number of
shares constituting such dividend or other
distribution, such reductions to become effective
immediately after the opening of business on the
day following the date fixed for such
determination. For the purposes of this paragraph
(9), the number of shares of Common Stock at any
time outstanding shall not include shares held in
the treasury of the Company but shall include any
shares issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common
Stock (other than shares of Common Stock which,
upon issuance, would not constitute Additional
Shares of Common Stock). The Company will not pay
any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company.
(10) In case at any time after November 16, 1978
outstanding shares of Common Stock shall be
subdivided into a greater number of shares of
Common Stock, the conversion price and the
Differential Amount in effect at the opening of
business on the day following the day upon which
such subdivision becomes effective shall each be
proportionately reduced, and, conversely, in case
at any time after the above stated date,
outstanding shares of Common Stock shall be
combined into a smaller number of shares of Common
Stock, the conversion price and the Differential
Amount in effect at the opening of business on the
day following the day upon which such combination
becomes effective shall each be proportionately
increased, such reductions or increases, as the
case may be, to become effective immediately after
the opening of business on the day following the
day upon which such subdivision or combination
becomes effective. In the event of any such
subdivision, the number of shares of Common Stock
outstanding immediately thereafter, to the extent
of the excess thereof over the number outstanding
immediately prior thereto (less that portion of
such excess attributable to the subdivision of
shares excluded from the definition of Additional
Shares of Common Stock by clause (i) or (ii) of
paragraph (4) above), shall be deemed to be
Additional Shares of Common Stock and to have been
issued immediately after the opening of business
on the day following the day upon which such
division shall have become effective and without
consideration. In the event of any such
combination, the excess of the number of shares of
Common Stock outstanding immediately prior thereto
over the number outstanding immediately thereafter
(less that portion of such excess attributable to
the combination of shares excluded from the
definition of Additional Shares of Common Stock by
clause (i) or (ii) of paragraph (4) above), shall
be deducted from the sum computed pursuant to
clause (ii) of paragraph (3) above for the
purposes of all determinations under such
paragraph (3) made on any day after the day upon
which such combination becomes effective. Shares
of Common Stock held in the treasury of the
Company and shares issuable in respect of any
scrip certificates issued in lieu of fractions of
shares of Common Stock (other than shares of
Common Stock which, upon issuance, would not
constitute Additional Shares of Common Stock)
shall be considered outstanding for the purposes
of this paragraph (10).
(11) Whenever the conversion price is adjusted as
herein provided:
(a) the Company shall compute the adjusted
conversion price in accordance with this
subdivision (e) and shall prepare a
certificate signed by the Secretary or an
Assistant Secretary of the Company setting
forth the adjusted conversion price and
showing in reasonable detail the facts upon
which such adjustment is based, including a
statement of the consideration received or to
be received by the Company for, and the
amount of, any Additional Shares of Common
Stock issued since the last such adjustment,
and such certificate shall forthwith be filed
with the transfer agents for this series, if
any; and
(b) a notice stating that the conversion price
has been adjusted and setting forth the
adjusted conversion price shall forthwith be
required, and as soon as practicable after it
is required, such notice shall be mailed to
the holders of record, of the outstanding
shares of this series; provided, however,
that if within ten days after the completion
of mailing of such a notice, an additional
notice is required, such additional notice
shall be deemed to be required pursuant to
this clause (b) as of the opening of business
on the tenth day after such completion of
mailing and shall set forth the conversion
price as adjusted at such opening of
business, and upon the mailing of such
additional notice no other notice need be
given of any adjustment in the conversion
price occurring at or prior to such opening
of business and after the time that the next
preceding notice given by mail became
required.
(12) In case at any time after November 16, 1978:
(a) the Company shall declare a dividend (or any
other distribution) in its Common Stock
payable otherwise than in cash out of its
earned surplus; or
(b) the Company shall authorize the granting to
the holders of its Common Stock of rights to
subscribe for or purchase any shares of
capital stock of any class or of any other
rights; or
(c) any reclassification of the capital stock of
the Company (other than a subdivision or
combination of its outstanding shares of
Common Stock), or any consolidation or merger
to which the Company is a party and for which
approval of any shareholders of the Company
is required, or the sale or transfer of all
or substantially all of the assets of the
Company occurs; or
(d) the voluntary or involuntary dissolution,
liquidation, or winding up of the Company
occurs;
then the Company shall cause to be mailed to the
transfer agent or agents for this series, if any,
and to the holders of record of the outstanding
shares of this series, at least twenty days (or
ten days in any case specified in clause (a) or
(b) above) prior to the applicable record date
hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the
purpose of such dividend, distribution or rights,
or, if a record is not to be taken, the date as of
which the holders of Common Stock of record to be
entitled to such dividend, distribution or rights
are to be determined, or (y) the date on which
such reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or
winding up is expected to become effective, and
the date as of which it is expected that holders
of Common Stock of record shall be entitled to
exchange their shares of Common Stock for
securities or other property deliverable upon such
reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up.
(13) The Company shall at all times reserve and keep
available free from preemptive rights, out of its
authorized but unissued Common Stock, for the
purpose of effecting the conversion of the shares
of this series, the full number of shares of
Common Stock then deliverable upon the conversion
of all shares of this series then outstanding and,
if at any time the number of authorized but
unissued shares of Common Stock (including shares
held in the treasury) shall be less than the
number of shares of Common Stock into which the
shares then outstanding of this series shall be
convertible, the Company shall take such action as
is necessary to increase the number of shares
which the Company is authorized to issue so that
the Company will have a sufficient number of
authorized but unissued shares available for the
conversion of the shares of this series. Under no
circumstances will the Company take any action
which could cause the conversion price to be
reduced below the par value, if any, of the Common
Stock unless the Company first restricts a surplus
account or accounts (in an amount at least equal
to the product of the number of shares of Common
Stock into which the shares of this series are
convertible, on the effective date of such action,
times the par value of a share of Common Stock,
less the amount in the stated capital account for
the shares of this series) to use only for the
purpose of serving as consideration for shares of
Common Stock issuable upon conversion of shares of
this series.
(14) No fractional shares of Common Stock shall be
issued upon conversion, but instead of any
fraction of a share which would otherwise be
issuable, the Company shall pay a cash adjustment
in respect of such fraction in an amount equal to
the same fraction of the conversion price per
share of Common Stock immediately prior to the
close of business on the day of conversion.
(15) The Company will pay any and all taxes, other than
any income taxes, that may be payable in respect
of the issue or delivery of shares of Common Stock
on conversion of shares of this series pursuant
hereto. The Company shall not, however, be
required to pay any tax which may be payable in
respect of any transfer involved in the issue and
delivery of shares of Common Stock in a name other
than that in which the shares of this series so
converted were registered, and no such issue or
delivery shall be made unless and until the person
requesting such issue has paid to the Company the
amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has
been paid.
(16) For the purpose of this subdivision (e), the term
"Common Stock" shall include any stock of any
class of the Company which has no preference in
respect to dividends or to amounts payable in the
event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company, and
which is not subject to redemption by the Company.
However, shares issuable on conversion of shares
of this series shall include only shares of the
class designated as Common Stock of the Company as
of November 16, 1978, or shares of any class or
classes resulting from any reclassification or
reclassifications thereof and which have no
preference in respect to dividends or to amounts
payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up
of the Company and which are not subject to
redemption by the Company; provided that if at any
time there shall be more than one such resulting
class, the shares of each such class then so
issuable shall be substantially in the proportion
which the total number of shares of such class
resulting from all such reclassifications bears to
the total number of shares of all such classes
resulting from all such reclassifications.
(17) If any shares issuable upon the conversion of
shares of this series require registration with or
approval of any governmental authority under any
Federal or State law before such shares may be
validly issued upon conversion, then the Company
shall in good faith and as expeditiously as
possible endeavor to secure such registration or
approval as the case may be.
(f) Dividends Accrued. The amount of dividends
accrued or in arrears as used in these
resolutions as of any date shall mean an
amount equal to simple interest on the sum of
$25 at the rate of 9.25% per annum, from the
date on which dividends on shares of this
series first became cumulative (i.e. the date
of original issue) to the date as
of which the computation is made, less the
aggregate amount, without interest, of all
dividends theretofore paid or declared and
set apart for payment upon said series. Any
shares of said series at any time owned by
the Company shall, for the purpose of this
definition, be deemed to have received in
dividends an amount per share equal to that
which, during the time such shares were so
owned, was paid upon or became payable to
holders of record of the outstanding shares
of this series then not so owned by the
Company.
DIVISION B. Preference Stock, $1 Par Value
(7) Issuable in Series: The Preference Stock may be
divided into and issued in series. Each series shall be so
designated as to distinguish the shares thereof from the shares
of all other series and classes of shares.
The Board of Directors is hereby expressly vested with
authority and shall have authority by resolution or resolutions
from time to time adopted to divide the shares of the
Preference Stock into series and, within the limitations set
forth in the laws of the State of Michigan and in these
articles, fix and determine the relative rights and preferences
of the shares of any series so established.
(8) Rank: Preference Stock ranks junior to all series of
Preferred Stock as to the payment of dividends and the
distribution of assets, except to the extent that a specific
series of Preferred Stock provides otherwise.
(9) On January 16,1997, the Board of Directors approved
adoption of the following resolution creating a series of
Preference Stock designated as Series A Preference Stock:
RESOLVED that, immediately following shareholder
approval of an amendment to the Articles providing for a new
class of Preference Stock, a series of Preference Stock be
created, with the following characteristics:
(a) Designation and Amount. The shares of such series
shall be designated as "Series A Preference Stock"
and the number of shares constituting such series
shall initially be 2,000,000.
(b) Dividends and Distributions.
(A) Preference Stock is entitled to receive
dividends on the fifteenth day of March,
June, September and December each year (each
a "Quarterly Dividend Payment Date") in an
amount per share (rounded to the nearest
cent) equal to the greater of (a) $10.00 or
(b) the Adjustment Number times the per share
amount of all cash dividends, and the
Adjustment Number times the per share amount
(payable in kind) of all non-cash dividends
or other distributions (other than a dividend
payable in shares of Common Stock or a
subdivision of the shares of Common Stock),
declared on the Common Stock since the
preceding Quarterly Dividend Payment Date,
or, if later, since the issuance of such
Series A Preference Stock.
(B) The Corporation shall declare any dividend
required by Paragraph (A) immediately after
it declares the triggering dividend or
distribution on the Common Stock.
(C) Dividends shall accrue and be cumulative on
Series A Preference Stock from the Quarterly
Dividend Payment Date next preceding the date
of issue. If the date of issue is prior to
the first Quarterly Dividend Payment Date,
dividends shall accrue from the date of
issue. However, if the date of issue is
after a record date and before a Quarterly
Dividend Payment Date, dividends shall accrue
from such Quarterly Dividend Payment Date.
Unpaid dividends shall not bear interest.
Dividends less than the total amount payable
shall be allocated pro rata. The Board may
fix a record date no more than 30 days prior
to the date fixed for the payment of
dividends.
(c) Voting Rights. Series A Preference Stock has the
following voting rights:
(A) Series A Preference Stock are entitled to a
number of votes equal to the Adjustment
Number times the number of votes to which
Common Stock is entitled.
(B) Except as otherwise provided herein or by
law, Series A Preference Stock and Common
Stock shall vote together as one class on all
matters submitted to a vote of Common
Stockholders.
(C) (i) If dividends on Series A Preference
Stock shall be in arrears by six (6) or
more quarterly dividends, a "default
period" shall begin. The default period
shall end when all accrued dividends
shall have been paid or set apart for
payment. During a default period,
Series A Preference Stock shall have the
right to elect two (2) Directors. This
vote shall be as a class for all series
of Preference Stock entitled to vote.
(ii) During any default period, such voting
right may be exercised initially at a
special meeting or at any annual meeting
of stockholders, and thereafter at
annual meetings of stockholders. Such
voting shall not occur unless ten
percent (10%) of Preference Stock
entitled to vote is present in person or
by proxy. A quorum for Common Stock
votes need not be present. At any
special meeting, Preference stockholders
shall have the right to increase the
number of Directors to permit their
election of two Directors. In any
default period, the number of Directors
shall not otherwise be changed except
pursuant to the rights of any securities
ranking senior to or equal with the
Series A Preference Stock.
(iii) The Board of Directors may order, or
any stockholders owning not less than
ten percent (10%) of the Preference
Stock entitled to vote may request, the
calling of a special meeting. The
meeting shall thereupon be called by the
President, a Vice-President or the
Secretary. Notice of any meeting at
which Preference Stock is entitled to
vote shall be given to each holder of
record of Preference Stock by mail.
Such meeting shall be called not earlier
than 20 days and not later than 60 days
after such order or request. In default
of the timely calling of such meeting,
such meeting may be called on similar
notice by stockholders owning not less
than ten percent (10%) of the Preference
Stock entitled to vote. No special
meeting shall be called less than 60
days preceding the date fixed for the
next annual meeting of Common
Stockholders.
(iv) In any default period, other classes of
stock shall continue to be entitled to
elect the whole number of Directors if
the holders of Preference Stock do not
exercise their right to elect two (2)
Directors. Directors elected by
Preference Stock shall continue in
office until their successors are
elected or until the expiration of the
default period. Otherwise, any vacancy
in the Board may be filled by a majority
of the remaining Directors elected by
the class of stock which elected the
Director whose office is vacant.
(v) Upon the expiration of a default period,
(x) the right of Preference Stock to
elect Directors shall cease, (y) the
term of Directors elected by Preference
Stock shall terminate, and (z) the
number of Directors shall be unaffected
by any increase made pursuant to
Paragraph (C)(ii). Any vacancies in the
Board effected by clauses (y) and (z)
may be filled by a majority of the
remaining Directors.
(D) Except as set forth herein or provided by
law, Series A Preference Stock shall have no
voting rights or consent requirement for any
corporate action.
(d) Certain Restrictions.
(A) Whenever dividends on Series A Preference
Stock are in arrears, the Corporation shall
not
(i) make any distributions on, or acquire
for consideration, any stock ranking
junior (either as to dividends or
assets) to the Series A Preference
Stock;
(ii) make any distributions on stock ranking
on a parity (either as to dividends or
assets) with the Series A Preference
Stock, except dividends paid ratably on
all such parity stock;
(iii) acquire for consideration any stock
ranking on a parity (either as to
dividends or assets) with the Series A
Preference Stock, provided that the
Corporation may acquire stock in
exchange for stock ranking junior (as to
dividends and assets) to the Series A
Preference Stock; or
(iv) acquire for consideration Series A
Preference Stock, or any stock ranking
on a parity with the Series A Preference
Stock, except in accordance with a
purchase offer made in writing to all
holders of such shares upon such terms
as the Board, after consideration of the
respective dividend rates and other
relative rights and preferences, shall
determine in good faith will result in
fair and equitable treatment among the
respective series or classes.
(B) The Corporation shall not permit any
subsidiary to acquire stock unless the
Corporation could, under Paragraph (A), so
acquire such stock.
(e) Reacquired Shares. Series A Preference Stock
acquired by the Corporation in any manner shall be
retired and canceled promptly after its
acquisition. All such shares shall be authorized
but unissued shares and may be reissued as part of
any series of Preference Stock.
(f) Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation, dissolution or winding
up, no distribution shall be made for shares
ranking junior (either as to dividends or
assets) to the Series A Preference Stock
unless, prior thereto, the Series A
Preference Stockholders shall receive $100
per share, plus an amount equal to accrued
and unpaid dividends to the date of such
payment (the "Series A Liquidation
Preference"). No additional distributions
shall be made for Series A Preference Stock
unless, prior thereto, Common Stockholders
shall have received an amount per share (the
"Common Adjustment") equal to the quotient
obtained by dividing (i) the Series A
Liquidation Preference by (ii) the Adjustment
Number. Series A Preference Stockholders and
Common Stockholders shall receive their
ratable share of the remaining assets to be
distributed in the ratio of the Adjustment
Number to 1.
(B) If there are not sufficient assets available
to permit payment in full of the liquidation
preferences of all series of Preference Stock
ranking on a parity, remaining assets shall
be distributed ratably in proportion to
respective liquidation preferences. If there
are not sufficient assets available to permit
payment in full of the Common Adjustment,
then remaining assets shall be distributed
ratably to Common Stockholders.
(g) Consolidation, Merger, etc. If the Corporation
shall enter into any transaction in which the
shares of Common Stock are exchanged for, or
changed into, any other property, Series A
Preference Stock shall at the same time be
similarly exchanged, or changed, in an amount per
share equal to the Adjustment Number times the
amount of property into which, or for which, each
share of Common Stock is changed or exchanged.
(h) No Redemption. Series A Preference Stock is not
redeemable.
(i) Ranking. The Series A Preference Stock ranks
junior to all series of Preferred Stock as to the
payment of dividends and the distribution of
assets, unless the terms of any series shall
provide otherwise.
(j) Amendment. The Articles of Incorporation shall
not be amended in any manner which would
materially adversely affect the powers,
preferences or special rights of the Series A
Preference Stock without the affirmative vote of a
majority of the Series A Preference Stock.
(k) Fractional Shares. Series A Preference Stock may
be issued in fractions of a share.
(l) Adjustment Number. The Adjustment Number shall be
100 initially. If the Corporation shall, (i) pay
any dividend on Common Stock in shares of Common
Stock, (ii) subdivide the Common Stock, or (iii)
combine the Common Stock into a smaller number of
shares, the Adjustment Number shall be modified by
multiplying it by a fraction, the numerator of
which is the number of shares of Common Stock
outstanding immediately after such event and the
denominator of which is the number of shares of
Common Stock outstanding immediately prior to such
event.
DIVISION C. Common Stock, $1 Par Value
(10) Dividends: After full cumulative dividends on the
Cumulative Preferred Stock and Preference Stock shall have been
paid or set apart for payment in accordance with paragraph (2) of
Division A above and if provision has been made for the
satisfaction of any obligations then or theretofore matured in
respect of any sinking fund provided for each series of the
Cumulative Preferred Stock and Preference Stock then
outstanding, dividends may be declared and paid upon the Common
Stock if, when and as declared by the Board of Directors in its
discretion, out of the surplus of the Corporation.
(11) Distribution of Assets: In the event of any
liquidation, dissolution or winding up of the Corporation, or any
reduction of its capital, resulting in a distribution of its
assets to its shareholders, whether voluntary or involuntary,
after there shall have been paid to or set apart for the holders
of the Cumulative Preferred Stock the full preferential amounts
to which they are respectively entitled under the provisions of
paragraph (3) of Division A above, the holders of the Common
Stock shall be entitled to receive as a class, pro rata, the
remaining assets of the Corporation available for distribution
to its shareholders subject to the rights of holders of
Preference Stock.
(12) Voting Power: Except as provided in paragraph (5) of
Division A above, the holders of the Common Stock shall possess
full voting power for the election of directors and for all
other purposes subject to the rights of holders of Preference
Stock.
DIVISION D. General Provisions
(13) Preemptive Rights: No holder of shares of capital
stock of any class of the Corporation shall have any preemptive
right to subscribe for or acquire any additional shares of
capital stock of the Corporation of the same or of any other
class or any obligations or securities of any kind which may be
convertible into capital stock, whether such shares of capital
stock or obligations or other securities are authorized or
created at the date of filing of these Articles or thereafter;
nor shall any holder of capital stock of any class of the
Corporation have any preemptive right to acquire any shares of
capital stock of the Corporation of the same or of any other
class or any obligations or any securities of any kind of the
Corporation which may be held in the treasury of the
Corporation, and all such shares of capital stock of any class
or obligations or other securities, whether authorized and
unissued or held in the treasury of the Corporation may, with
respect to the holders of shares of capital stock of the
Corporation, be sold for such lawful considerations, at such
times and to such persons or entities as the Board of Directors
may from time to time determine.
(14) Issuance of Capital Stock: Except as may be provided
herein and by law, the shares of capital stock of any class or
series may be issued by the Corporation from time to time without
action by the stockholders, for such lawful considerations as may
from time to time be fixed by the Board of Directors to such
persons, firms and/or corporations as the Board of Directors in
its discretion may determine.
(15) Cumulative Voting: At all elections of directors of
the Corporation by the stockholders, except as expressly provided
herein, each stockholder of the Corporation entitled to vote
thereat shall be entitled to as many votes as shall equal the
number of his shares multiplied by the number of directors to be
elected and for which he is then entitled to vote, and each such
stockholder may cast all of such votes for a single director or
may distribute them among the total number of directors for
which he is then entitled to vote or among any two or more of
such directors, as such stockholder may see fit, which right,
when exercised, shall be termed cumulative voting.
ATTACHMENT 2
TO
CERTIFICATE OF AMENDMENT TO ARTICLES OF INCORPORATION
OF
SOUTHEASTERN MICHIGAN GAS ENTERPRISES, INC.
(hereafter SEMCO Energy, Inc.)
ARTICLE VI.
The Board of Directors of the Corporation shall be divided
into three classes: Class I, Class II and Class III. Such
classes shall be as nearly equal in number as possible. The term
of office of the initial Class I Directors shall expire at the
annual meeting of shareholders in 1989; the term of office of the
initial Class II Directors shall expire at the annual meeting of
shareholders in 1990; and the term of office of the initial Class
III Directors shall expire at the annual meeting of shareholders
in 1991; or in each case thereafter when their respective
successors are elected and have qualified. At each annual
election held after the initial election of Directors according
to classes, the Directors chosen to succeed those whose terms
then expire, shall be identified as being of the same class as
the Directors they succeed and shall be elected for a term
expiring at the third succeeding annual meeting of shareholders
or in each case thereafter when their respective successors are
elected and have qualified. If the number of Directors is
changed, any increase or decrease in Directors shall be
apportioned among the classes so as to maintain all classes as
nearly equal in number as possible, but in no case shall a
decrease in number of Directors shorten the term of any incumbent
Director.
A director may be removed by shareholders, but only for
cause, at an annual meeting of shareholders and by the
affirmative vote of a majority of the shares then entitled to
vote for the election of directors. For purposes of this
Article, cause for removal shall be construed to exist only if a
director whose removal is proposed has been convicted of a felony
by a court of competent jurisdiction and such conviction is no
longer subject to appeal or has been adjudged by a court of
competent jurisdiction to be liable for willful misconduct in the
performance of his or her duty to the Corporation in a matter of
substantial importance to the Corporation and such adjudication
is no longer subject to appeal.
The provisions set forth in this Article may not be repealed
or amended in any respect unless such repeal or amendment is
approved by the affirmative vote or consent of the holders of not
less than two-thirds (2/3) of all shares of stock of the
Corporation entitled to vote in elections of directors,
considered for purposes of this Article as one class.
The provisions set forth in this Article are subject to the
rights of Cumulative Preferred Stockholders and Preference
Stockholders which may accrue under Article III.