EXHIBIT 3
ARTICLES OF AMENDMENT
TO THE
RESTATED ARTICLES OF INCORPORATION, AS AMENDED
OF
FPL GROUP, INC.
AMENDING AND RESTATING
THE STATEMENT OF RESOLUTION ESTABLISHING THE
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
OF
FPL GROUP, INC.
Pursuant to the provisions of Section 607.0602 of the Florida Business
Corporation Act, the undersigned corporation submits the following
statement for the purpose of establishing and designating a series within
the class of its Serial Preferred Stock, $.01 par value (the "Serial
Preferred Stock"), and fixing and determining the relative rights and
preferences thereof:
1. The name of the corporation is FPL Group, Inc. (the "Corporation").
2. The following resolutions, establishing and designating a series of
Serial Preferred Stock, and fixing and determining the relative rights
and preferences thereof, were duly adopted by the Board of
Directors of the Corporation on June 17, 1996, and amend and
restate in its entirety the Statement of Resolution establishing the
Series A Junior Participating Preferred Stock filed on July 1, 1986:
RESOLVED, that pursuant to the authority
expressly granted to and vested in the Board of Directors of this
Corporation (hereinafter called the "Board of Directors" or the
"Board") by the provisions of Article III of the Restated Articles
of Incorporation, as amended, of the Corporation, the Board of
Directors hereby establishes a series of Serial Preferred Stock
designated as Series A Junior Participating Preferred Stock,
consisting of 3,000,000 shares.
FURTHER RESOLVED, that the designation,
preferences, and relative and other rights of the Series A
Preferred Stock and the qualifications, limitations and
restrictions thereof are as follows:
1. Designation and Amount. The shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" (the
"Series A Preferred Stock") and the number of shares constituting
the Series A Preferred Stock shall be 3,000,000. Such number may
be increased or decreased by resolution of the Board of Directors;
provided, that no decrease shall reduce the number of shares of
Series A Preferred Stock to a number less than the number of
shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or
warrants or upon the conversion of any outstanding securities
issued by the corporation convertible into Series A Preferred Stock.
2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock or any similar stock ranking
prior and superior to the Series A Preferred Stock with respect to
dividends, the holders of shares of Series A Preferred Stock, in
preference to the holders of Common Stock, $.01 par value (the
"Common Stock"), of the Corporation, and of any other junior stock,
shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June,
September and December in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or fraction of a share of Series A Preferred
Stock, in an amount per share (rounded to the nearest cent) equal
to the greater of (a) $10 and (b) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate per share
amount of all cash dividends, and 100 times the aggregate 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 outstanding shares of Common Stock
(by reclassification or otherwise), declared on the Common Stock
since the immediately preceding Quarterly Dividend Payment Date
or, with respect to the first Quarterly Dividend Payment Date, since
the first issuance of any share or fraction of a share of Series A
Preferred Stock. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the amount to which
holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount 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 that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on
the Series A Preferred Stock as provided in paragraph (A) of this
Section immediately after it declares a dividend or distribution on the
Common Stock (other than a dividend payable in shares of Common
Stock); provided that, in the event no dividend or distribution shall
have been declared on the Common Stock during the period
between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $10 per
share on the Series A Preferred Stock shall nevertheless be payable
on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such
shares, unless the date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date of
issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either or which events such dividends
shall begin to accrue and be cumulative from such Quarterly
Dividend Payment Date. Accrued but unpaid dividends shall not
bear interest. Dividends paid on the shares of Series A Preferred
Stock in an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be allocated pro
rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Preferred Stock
entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to
the date fixed for the payment thereof.
3. Voting Rights. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter
set forth, the holder of a whole or fractional share of Series A
Preferred Stock shall be entitled to vote on all matters submitted to
a vote of the shareholders of the Corporation on the basis of 100
votes for each whole share. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable
in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of
Common Stock, then in each such case the number of votes per
share to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event shall be adjusted by
multiplying such number 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 that were outstanding immediately prior to such
event.
(B) Except as otherwise provided herein, in the terms of
any other series of Serial Preferred Stock or any similar stock, or
by law, the holders of shares of Series A Preferred Stock and the
holders of shares of Common Stock and any other capital stock of
the Corporation having general voting rights shall vote together as
one class on all matters submitted to a vote of shareholders of the
Corporation.
(C) Except as otherwise provided herein, or in the
Restated Articles of Incorporation, as amended, of the Corporation,
or by law, holders of Series A Preferred Stock shall have no special
voting rights.
4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of
Series A Preferred Stock outstanding shall have been paid in full,
the Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A
Preferred Stock, except dividends paid ratably on
the Series A Preferred Stock and all such parity
stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders
of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred
Stock, provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares
of any such junior stock in exchange for shares of
any stock of the Corporation ranking junior (either as
to dividends or upon dissolution, liquidation or
winding up) to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred
Stock, or any shares of stock ranking on a parity
(either as to dividends or upon liquidation,
dissolution or winding up) with the Series A
Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders
of such shares upon such terms as the Board of
Directors, after consideration of the respective
annual dividend rates and other relative rights and
preferences of the respective series and classes,
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 of
the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless
the Corporation could, under paragraph (A) of this Section
4, purchase or otherwise acquire such shares at such time
and in such manner.
5. Reacquired Shares. Any shares of Series A Preferred
Stock redeemed, purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and
canceled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but
unissued shares of Serial Preferred Stock and may be
reissued as part of a new series of Serial Preferred Stock
subject to the conditions and restrictions on issuance set
forth herein, in the Restated Articles of Incorporation, in any
amendment to the Restated Articles of Incorporation
establishing a series of Serial Preferred Stock or any
similar stock or as otherwise required by law.
6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (1) to the holders of shares of
stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares
of Series A Preferred Stock shall have received the greater
of (i) $100 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, and (ii) an
aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the
aggregate amount to be distributed per share to holders of
shares of Common Stock, or (2) to the holders of shares of
stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A
Preferred Stock, except distributions made ratably on the
Series A Preferred Stock and all such parity stock in
proportion to the total amounts to which the holders of all
such shares are entitled upon such liquidation, dissolution
or winding up. In the event the Corporation shall at any
time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision
or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then
in each such case, the aggregate amount to which holders
of shares of Series A Preferred Stock were entitled
immediately prior to such event under the proviso in clause
(1) of the preceding sentence shall be adjusted by
multiplying such amount 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 that were outstanding immediately prior to such
event.
7. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities,
cash and/or any other property, then in any such case each
share of Series A Preferred Stock shall at the same time be
similarly exchanged or changed into an amount per share,
subject to the provision for adjustment hereinafter set forth,
equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind),
as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the
Corporation at any time declares or pays any dividend on
the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the amount set
forth in the preceding sentence with respect to the
exchange or change of shares of Series A Preferred Stock
shall be adjusted by multiplying such amount 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 that were outstanding prior to such event.
8. Redemption.
(A) The shares of Series A Preferred Stock shall be
redeemable at the option of the Corporation, as a whole or
in part, at any time or from time to time after June 30,
2006, at a redemption price per share equal to the greater
of (1) 100 multiplied by the Purchase Price (as such term is
defined in the Rights Agreement, dated as of July 1, 1996,
between the Corporation and The First National Bank of
Boston, as Rights Agent (the "Rights Agreement")) and (2)
the current per share market price (as such term is defined
in the Rights Agreement) of the Series A Preferred Stock
on the date of notice of redemption, plus, in either case, all
accrued but unpaid dividends.
(B) In the event that fewer than all the outstanding
shares of the Series A Preferred Stock are to be redeemed,
the number of shares to be redeemed and the method for
selection of those shares shall be on a pro rata or by lot
basis as determined by the Board of Directors.
(C) In the event the Corporation shall redeem shares of
the Series A Preferred Stock, notice of such redemption
shall be given by first class mail, postage prepaid, mailed
not less than 30 nor more than 60 days prior to the
redemption date, to each holder of record of the shares to
be redeemed, at such holder's address as the name
appears on the stock register of the Corporation. Each
such notice shall state: (1) the redemption date; (2) the
number of shares of the Series to be redeemed and, if
fewer than all the shares held by such holder are to be
redeemed, the number of such shares to be redeemed from
such holder; (3) the redemption price; (4) the place or
places where certificates for such shares are to be
surrendered for payment of the redemption price; and (5)
that dividends on the shares to be redeemed will cease to
accrue on such redemption date.
(D) Notice having been mailed as aforesaid, from and
after the redemption date (unless default shall be made by
the Corporation in providing money for the payment of the
redemption price) dividends on the shares of the Series A
Preferred Stock so called for redemption shall cease, and
said shares shall no longer be deemed to be outstanding,
and all rights of the holders thereof as shareholders of the
Corporation (except the right to receive from the
Corporation the redemption price) shall cease. Upon
surrender in accordance with said notice of the certificates
for any shares so redeemed (properly endorsed or
assigned for transfer, if the Board of Directors of the
Corporation shall so require and the notice shall so state),
such shares shall be redeemed by the Corporation at the
aforesaid redemption price. In case fewer than all the
shares represented by any such certificate are redeemed, a
new certificate shall be issued representing the
unredeemed shares without cost to the holder thereof.
(E) Notwithstanding the foregoing provisions of this
Section 8, if any dividends on the Series A Preferred Stock
are in arrears, no shares of this Series shall be redeemed
unless all outstanding shares of the Series are
simultaneously redeemed, and the Corporation shall not
purchase or otherwise acquire any shares of the Series;
provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of the Series pursuant to
a purchase or exchange offer made on the same terms to
holders of all outstanding shares of the Series and which
complies with Section 4(A)(iv) hereof.
9. Rank. The Series A Preferred Stock shall rank junior with
respect to the payment of dividends and the distribution of
assets to all series of any class of the Corporation's Serial
Preferred Stock or any similar stock that specifically provide
that they shall rank prior to the Series A Preferred Stock.
Nothing herein shall preclude the Board from creating any
series of Serial Preferred Stock or any similar stock ranking
on a parity with or prior to the Series A Preferred Stock as
to the payment of dividends or the distribution of assets.
10. Amendment. The Restated Articles of Incorporation of the
Corporation shall not be amended in any manner which
would materially alter or change the powers, preferences or
special rights of the Series A Preferred Stock so as to
affect them adversely without the affirmative vote of the
holders of at least two-thirds of the outstanding shares of
Series A Preferred Stock, voting together as a single class.
IN WITNESS WHEREOF, the Corporation has caused this
Statement to be executed in its name by the undersigned, thereunto duly
authorized, on June 27, 1996.
FPL GROUP, INC.
By: DENNIS P. COYLE
Dennis P. Coyle
General Counsel and Secretary