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EXHIBIT 3.1
COMPOSITE
RESTATED ARTICLES OF INCORPORATION
OF
WICOR, Inc.
Effective January 28, 1980
Amended February 28, 1980, August 31, 1982, May 7, 1987, January 31,
1989, and April 27, 1989, Restated August 9, 1991, amended May 15, 1992
and April 23, 1998.
The following Restated Articles of Incorporation of WICOR, Inc., a
Wisconsin corporation, were duly adopted in accordance with the
Wisconsin Business Corporation Law and supersede and take the place of
the corporation's existing Articles of Incorporation and all amendments
thereto:
ARTICLE I
Name
The name of the corporation is WICOR, Inc.
ARTICLE II
Purposes
The purposes for which the Company is organized are to engage in any
lawful activity within the purposes for which corporations may be
organized under the Wisconsin Business Corporation Law, Chapter 180,
Wisconsin Statutes.
ARTICLE III
Authorized Shares
A. AUTHORIZED NUMBER AND CLASSES.
The authorized shares of the Company shall consist of 1,500,000 shares
of Cumulative Preferred Stock with a par value of $1.00 per share, and
120,000,000 shares of Common Stock with par value of $1.00 per share.
B. CUMULATIVE PREFERRED STOCK.
(1) SERIES AND VARIATIONS BETWEEN SERIES. The Cumulative Preferred
Stock may be divided into and issued in series. The Board of Directors
is hereby expressly vested with authority to divide such shares into
series and cause such shares to be issued from time to time in series
and, by resolution adopted prior to the issue of shares of a particular
series, to fix and determine, subject to the provisions of this Division
B, the distinctive serial designation of the shares of such series, the
number of authorized shares of such series (which number by like action
without further shareholder approval from time to time thereafter may be
increased except where otherwise provided by the Board of Directors in
creating such series, or may be decreased but not below the number of
shares thereof then outstanding), and the following relative rights and
preferences with respect to such series, as to which matters the shares
of a particular series may vary from those of any or all other series:
(a) the annual rate of dividends payable on shares of such series, and
the date from which dividends on all shares of such series issued prior
to the record date for the first dividend shall be cumulative;
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(b) the price or prices at and the terms and conditions on which
shares may be redeemed;
(c) the amount or amounts payable upon the shares in the event of
voluntary or involuntary liquidation;
(d) sinking fund provisions, if any, for the redemption or purchase of
such shares;
(e) the terms and conditions on which such shares may be converted if
the shares of such series are issued with the privilege of conversion;
and
(f) the voting rights, if any, of such shares.
Except as the shares of a particular series may vary from those of any
or all other series in the foregoing respects, all of the shares of the
Cumulative Preferred Stock, regardless of series, shall in all respects
be equal and shall have the relative rights and preferences herein
fixed.
(2) DIVIDENDS.
(a) The holders of shares of Cumulative Preferred Stock of each
series, in preference to the holders of any junior stock, shall be
entitled to receive, as and when declared payable by the Board of
Directors from funds legally available for the payment thereof,
dividends in lawful money of the United States of America at the rate
per annum fixed and determined as herein authorized for the shares of
such series, but no more, payable quarterly on dates to be established
for all series when established by the Board of Directors for the first
series (the quarterly dividend payment dates), in each year with respect
to the quarterly period ending on the day prior to each such respective
dividend payment date. Such dividends shall be cumulative, in the case
of shares of each particular series:
(i) if issued prior to the record date for the first dividend on
shares of such series, then from the date fixed for this purpose by the
Board of Directors as provided in subparagraph (1) (a) of this Division
B;
(ii) if issued during the period commencing immediately after the
record date for a dividend on shares on such series and terminating at
the close of the payment date for such dividend, then from such last
mentioned dividend payment date; and
(iii) otherwise from the quarterly dividend payment date next
preceding the date or original issue of such shares.
Dividends on the Cumulative Preferred Stock shall be deemed to
accumulate from day to day. No dividends shall be paid upon, or declared
or set apart for, any share of Cumulative Preferred Stock for any
quarterly dividend period unless at the same time a like proportionate
dividend for the same quarterly dividend period shall be paid upon, or
declared or set apart for, all shares of Cumulative Preferred Stock of
all series then issued and outstanding. No dividends shall be paid upon
junior stock until all such cumulative dividends on the Cumulative
Preferred Stock for all past quarterly dividends shall have been paid or
funds for the payment thereof (without interest) set apart therefore.
Junior stock as used herein means any stock, including the Common Stock,
ranking junior to the Cumulative Preferred Stock as to dividends and
payments on liquidation.
(b) Each share of Cumulative Preferred Stock shall rank on a parity
with each other share of Cumulative Preferred Stock, irrespective of
series, with respect to dividends at the respective rates fixed for such
series, and no dividends shall be declared or paid or set apart for
payment on the Cumulative Preferred Stock of any series, unless at the
same time a dividend, bearing the same proportion to the applicable
dividend accrual, shall also be declared or paid or set apart for
payment as the case may be, on the Cumulative Preferred Stock of each
other series then outstanding.
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(c) So long as any shares of Cumulative Preferred Stock remain
outstanding, no dividend shall be paid or declared, or other
distribution made, on shares of junior stock, nor shall any shares of
junior stock be purchased, redeemed, retired or otherwise acquired for a
consideration unless dividends on outstanding shares of Cumulative
Preferred Stock for all past quarterly dividend periods shall have been
paid, or declared and set apart for payment; provided, however, that the
restrictions of this subparagraph shall not apply to the declaration and
payment of dividends on shares of junior stock if payable solely in
shares of junior stock, nor to the acquisition of any shares of junior
stock through application of proceeds of any shares of junior stock sold
at or about the time of such acquisition, nor shall such restrictions
prevent the transfer of any amount from surplus to stated capital.
(d) So long as any shares of the Cumulative Preferred Stock of any
series remain outstanding. the Company shall not declare any dividends
or other distribution, other than dividends or distributions payable in
junior stock, to the holders of shares of its junior stock if after
giving effect to such declaration or distribution the capital of the
Company represented by its junior stock as would then be stated on its
books of account, together with the surplus of the Company at the end of
any period of twelve (12) consecutive calendar months within a period of
fifteen (15) consecutive calendar months immediately preceding the month
in which such dividends or distributions are declared, shall in the
aggregate be less than the involuntary liquidating value of all shares
of its then outstanding Cumulative Preferred Stock. For the purpose of
this subparagraph, such surplus of the Company shall be adjusted for
any other dividends or distributions declared by, and changes in capital
or paid-in surplus of, the Company to and including the date of such
declaration.
(3) LIQUIDATION PREFERENCES.
(a) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company, the holders of
shares of Cumulative Preferred Stock of each series shall be entitled to
be paid out of the assets of the Company before any distribution or
payment shall be made to the holders of any shares of junior stock, such
amount or amounts as shall have been fixed and determined by the Board
of Directors pursuant to paragraph (1) of this Division B when the
shares of such Cumulative Preferred Stock were issued, plus an amount
equivalent to all dividends accrued and unpaid thereon and no more.
(b) If upon any such liquidation, dissolution or winding up, two or
more series of Cumulative Preferred Stock are outstanding, any
distribution to holders of Cumulative Preferred Stock in an aggregate
amount less than the total payable with respect to all outstanding
Cumulative Preferred Stock shall be made ratably among all series of
Cumulative Preferred Stock in proportion to the full amount payable upon
such liquidation, dissolution or winding up in respect of each such
series.
(c) Neither a consolidation nor merger of the Company with or into any
other corporation, nor a merger of any other corporation into the
Company, nor the purchase or redemption of all or any part of the
outstanding shares of any class or classes of stock of the Company, nor
the sale or transfer of the property and business of the Company as or
substantially as an entirety shall be construed to be a dissolution or
liquidation of the Company within the meaning of the foregoing
provisions.
(4) REDEMPTION.
(a) If so provided by the Board of Directors pursuant to subparagraph
(1) (b) of this Division B, the Company, at the option of the Board
of Directors, or in accordance with the requirements of any sinking
fund for the Cumulative Preferred Stock or any series thereof, may
redeem the whole or any part of the Cumulative Preferred Stock at
any time outstanding, or the whole or any part of any series
thereof, at such time or times and from time to time and at such
redemption price or prices as may be fixed by the Board of
Directors pursuant t
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subparagraph (1) (b) of this Division B, together in each case
with an amount equal to all unpaid dividends accrued thereon to the
date fixed for such redemption, and otherwise upon the terms and
conditions fixed by the Board of Directors for any such redemption.
(b) Subject to applicable law and this Article III, the Company may
from time to time purchase or otherwise acquire outstanding shares of
Cumulative Preferred Stock at a price per share not exceeding the amount
(inclusive of any accrued dividends) then payable in the event of
redemption thereof otherwise than through operation of a sinking fund,
if any.
(c) No shares of Cumulative Preferred Stock shall be purchased,
redeemed or otherwise acquired for a valuable consideration (i) in any
case if all dividends on the Cumulative Preferred Stock for all past
quarter yearly dividend periods shall not have been paid or declared and
a sum sufficient for the payment thereof set apart, or (ii) at any time
when the Company shall be in default or deficient under any requirement
of a sinking fund established with respect to outstanding shares of any
series of Cumulative Preferred Stock for any period then elapsed, except
for the purpose of wholly or partially eliminating such default or
deficiency.
(d) All shares of Cumulative Preferred Stock which at any time shall
have been redeemed or otherwise retired by the Company shall assume the
status of authorized but unissued Cumulative Preferred Stock
undesignated as to series and may thereafter be reclassified into one or
more other series and again issued in the same manner as other
authorized but unissued Cumulative Preferred Stock unless otherwise
provided by the Board of Directors at the time of establishment of the
series or at the time of redemption or retirement.
(5) VOTING RIGHTS.
(a) The holders of the Cumulative Preferred Stock shall have only such
voting rights as are fixed for shares of such series by the Board of
Directors pursuant to subparagraph (1) (f) of this Division B or as are
provided by Wisconsin law.
(b) Except where some mandatory provision of law shall be controlling
except with respect to the special rights of any one or more but less
than all of the then outstanding series of the Cumulative Preferred
Stock as provided in the resolutions creating such series, whenever
shares of two or more series of the Cumulative Preferred Stock are
outstanding, no particular series of the Cumulative Preferred Stock
shall be entitled to vote as a separate series on any matter and all
shares of the Cumulative Preferred Stock of all series shall be deemed
to constitute but one class for any purpose for which a vote of the
stockholders of the Company by classes may now or hereafter be required.
(c) Except as otherwise provided by these Articles or mandatorily
provided by statute at the time, holders of shares of Cumulative
Preferred Stock shall not be entitled to receive notice of any meeting
of shareholders at which they are not entitled to vote or consent.
C. COMMON STOCK.
(1) DIVIDENDS. Subject to the provisions of this Article III, the
Board of Directors may, in its discretion, out of funds legally
available for the payment of dividends and at such times and in such
manner as determined by the Board of Directors, declare and pay
dividends on the Common Stock.
(2) LIQUIDATION RIGHTS. In the event of any liquidation, dissolution
or winding up of the Company, after there shall have been paid to or
set aside for the holders of outstanding shares having superior
liquidation preferences to Common Stock the full preferential amounts
to which they are respectively entitled, the holders of outstanding
shares of Common Stock shall be entitled to receive prorata, according
to the number of shares held by each, the remaining assets of the
Company available for distribution
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(3) VOTING RIGHTS. Except as otherwise provided by the laws of the
State of Wisconsin and except as may be determined by the Board of
Directors with respect to Cumulative Preferred Stock pursuant to
paragraph (1) of Division B of Article III, only the holders of Common
Stock shall be entitled to vote for the election of directors of the
Company and for all other corporate purposes. Upon any such vote the
holders of Common Stock shall be entitled to one vote for each share of
Common Stock held by them respectively.
D. REQUISITE VOTES.
Subject to such voting rights and requisite votes as may be determined
by the Board of Directors pursuant to paragraph (1) of Division B of
Article III, the requisite affirmative votes necessary to adopt
amendments to these Articles of Incorporation and for all other purposes
provided in Section 180.25(2) of or otherwise provided in the Wisconsin
Statutes (1977) shall be the affirmative vote of the holders of a
majority of shares entitled to vote on the proposal.
E. PREEMPTIVE RIGHTS.
Except as the Board of Directors of the Company may otherwise
determine from time to time, no shareholder of the Company shall have
any preferential or preemptive right to subscribe for or purchase from
the Company any new or additional shares of capital stock of the Company
or securities convertible into shares of capital stock, whether now or
hereafter authorized.
ARTICLE IV
Board of Directors
A. POWERS, NUMBER AND CLASSIFICATION.
The general powers, number, classification, tenure and qualifications
of Company directors shall be as set forth in Sections 3.1 and 3.2 of
Article III of the By-laws (as such Sections shall exist from time to
time). Sections 3.1 and 3.2 of the By-laws, or any provision thereof,
shall be amended, altered, changed or repealed only by the affirmative
vote of shareholders holding at least seventy-five percent (75%) of the
voting power of the then outstanding shares of all classes of capital
stock of the Company generally possessing voting rights in the election
of directors, considered for this purpose as a single class; provided,
however, that the Board of Directors, by resolution adopted by the
Requisite Vote (as hereinnafter defined), may amend, alter, change or
repeal Sections 3.1 and 3.2 of the By-laws, or any provision thereof,
without a vote of the shareholders. As used herein, the term "Requisite
Vote" shall mean the affirmative vote of the number of directors in the
two largest classes of directors provided for in Section 3.1 of the By-
laws, plus one director.
B. REMOVAL OF DIRECTORS.
Any director may be removed from office, but only for Cause (as
hereinafter defined) by the affirmative vote of shareholders holding at
least a majority of the voting power of the then outstanding shares of
all classes of capital stock of the Company generally possessing voting
rights in the election of directors, considered for this purpose as a
single class; provided, however, that if the Board of Directors by
resolution adopted by the Requisite Vote shall have recommended removal
of a director, then the shareholders may remove such director from
office by the foregoing vote without Cause. As used herein, "Cause"
shall exist only if the director whose removal is proposed (i) has been
convicted of a felony by a court of competent jurisdiction and such
conviction is no longer subject to direct appeal or (ii) has been
adjudged by a court of competent juridisdiction to be liable for willful
misconduct in the performance of his duties to the Company in a matter
which has a material adverse effect on the business of the Company and
such adjudication is no longer subject to direct appeal.
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C. VACANCIES.
Any vacancy occurring in the Board of Directors including a vacancy
created by the removal of a director or an increase in the number of
directors, shall be filled by the affirmative vote of a majority of the
directors then in office, although less than a quorum of the Board of
Directors. Any director so elected shall serve until the next election
of the class for which such director shall have been chosen and until
his successor shall be elected be qualified.
D. AMENDMENTS.
(1) Notwithstanding any other provision of these Articles of
Incorporation, the provision of this Article IV shall be amended,
altered, changed or repealed only by the affirmative vote of
shareholders holding at least seventy-five percent (75%) of the voting
power of the then outstanding shares of all classes of capital stock of
the Company generally possessing voting rights in the election of
directors, considered for this purpose as a single class.
(2) Notwithstanding the foregoing and any provision in the By-laws of
the Company, whenever the holders of any one or more series of
Cumulative Preferred Stock issued by the Company pursuant to Article III
hereof shall have the right, voting separately as a class or by series,
to elect directors at an annual or special meeting of shareholders, the
election, term of office, filling of vacancies and other features of
such directorships shall be governed by the terms of the series of
Cumulative Preferred Stock applicable thereto, and such directors so
elected shall not be divided into classes unless expressly provided by
the terms of the applicable series.
ARTICLE V
REGISTERED OFFICE AND AGENT
The address of the registered office of the Company is 626 East
Wisconsin Avenue, P.O. Box 344, Milwaukee, Wisconsin 53201 and the name
of the registered agent is Robert A. Nuernberg.