Exhibit 3.02
SOUTH CAROLINA ELECTRIC & GAS COMPANY
RESTATED ARTICLES OF INCORPORATION
TABLE OF CONTENTS
(This Table of Contents is not part of the Restated Articles of
Incorporation and has been inserted herein for convenience only.
Nothing contained in this Table of Contents shall be deemed to affect
the meaning or construction of any of the provisions contained in the
Restated Articles of Incorporation.)
Page
RECITAL.................................................................. 1
ARTICLE I
Name of Company................................................. 2
ARTICLE II
Perpetual existence, rights, powers and liabilities
under laws of South Carolina................................... 3
ARTICLE III
Principal place of business...................................... 3
ARTICLE IV
General powers clauses........................................... 3
ARTICLE V
Number of shares authorized...................................... 5
Classes of series of shares
A. Seniority of Preferred Stock...................................... 5
B. Preferred Stock
1. Issuable in Series........................................ 5
2. Terms of Preferred Stock which may vary among series...... 5
3. Relative rights and preferences........................... 6
C. Dividends on Preferred Stock
1. Dividend rates ........................................... 6
2. Dividends-Received Percentage for 6.52% Cumulative
Preferred Stock........................................... 8
3. Ratable dividend payments ................................ 10
4. Restrictions on payment of dividends on Common Stock...... 10
5. Definitions:
"dividends"............................................... 12
"Common Stock Equity"..................................... 12
"Total Capitalization".................................... 12
"Net Income of Company available for dividends on
Common Stock"........................................ 12
6. Consolidated subsidiaries............................... 12
7. Reserves................................................ 13
D. Amounts payable upon liquidation, whether voluntary or involuntary. 13
1. Purchase Fund for 4.60% Cumulative Preferred Stock.. 14
2. Purchase Fund for 4.50% Cumulative Preferred Stock.. 15
3. Purchase Fund for 4.60% (Series A) Cumulative
Preferred Stock................................. 16
4. Purchase Fund for 5.125% Cumulative Preferred Stock. 18
5. Purchase Fund for 4.60% (Series B) Cumulative
Preferred Stock................................. 19
6. Purchase Fund for 6% Cumulative Preferred Stock...... 21
7. Sinking Fund for 9.40% Cumulative Preferred Stock.... 22
8. Sinking Fund for 8.12% Cumulative Preferred Stock.... 22
9. Sinking Fund for 7.70% Cumulative Preferred Stock.... 23
10. Sinking Fund for 8.72% Cumulative Preferred Stock.... 23
E. Redemption provisions relating to Preferred Stock........... 24
F. Redemption provisions relating to certain series of
Preferred Stock......................................... 26
G. Voting Powers.............................................. 26
H. Required consent or vote of Preferred Stock to:
1. (a) Create or issue shares of stock ranking equally or
prior to the Preferred Stock or increase authorized
Preferred Stock..................................... 27
(b) Amend charter affecting preferences, voting powers,
restrictions and qualifications....................... 27
(c) Issue shares of stock in addition to certain series of
Preferred Stock.................................... 28
2. Consolidations, mergers or sales of assets............... 28
3. Issuance of unsecured indebtedness; exceptions
and limitations....................................... 29
I. Holders of Preferred Stock not entitled to preemptive right
to purchase any capital stock or securities convertible
into capital stock.........................................29
J. Holders of Common Stock not entitled to preemptive right
to purchase Shares of Common Stock, options or rights
of securities convertible into Common Stock.............. 29
ARTICLE VI
Number of directors required...................................... 30
EXHIBIT A.................................................................. A-1
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
RESTATED ARTICLES OF INCORPORATION
Pursuant to Authority of Section 33-10-107 of the South Carolina
Business Corporation Act of 1988, the undersigned Corporation adopts the
following Restated Articles of Incorporation:
1. The name of the Corporation is SOUTH CAROLINA ELECTRIC & GAS
COMPANY.
2. The Registered Office of the Corporation is Palmetto Center, 1426
Main Street in the City of Columbia, County of Richland and the
State of South Carolina and the name of the Registered Agent at
such address is H. Thomas Arthur, II.
3. At a meeting thereof duly called and held on November 24, 1965,
the Board of Directors of SOUTH CAROLINA ELECTRIC & GAS COMPANY
(hereinafter sometimes referred to as the "Corporation" or the
"Company") authorized the adoption of a restatement of the
Articles of Incorporation of the Corporation so as to integrate
into a single document the text of the Agreement of
Consolidation, dated June 29, 1943, between the Corporation
(sometimes hereinafter referred to as "South Carolina Company")
and Lexington Water Power Company (sometimes hereinafter referred
to as "Lexington"), together with all amendments thereto
theretofore adopted, all as provided in Section 9.8 of the South
Carolina Business Corporation Act of 1962 (12-19.8 Supplement
Code 1962) and such Restated Articles of Incorporation, dated
November 24, 1965, were filed with the Secretary of State of
South Carolina on November 24, 1965, and thereupon became the
Articles of Incorporation of the Corporation.
4. At a meeting thereof duly called and held on May 27, 1966, the
Board of Directors of the Corporation authorized the adoption of
a restatement of the Articles of Incorporation of the Corporation
so as to integrate into a single document the text of the
Restated Articles of Incorporation, dated November 24, 1965,
together with all amendments thereto theretofore adopted, all as
provided in Section 9.8 of the South Carolina Business
Corporation Act of 1962 (12-19.8 Supplement to the South Carolina
Code of 1962).
5. At a meeting thereof duly called and held on May 21, 1971, the
Board of Directors of the Corporation authorized the adoption of
a restatement of the Articles of Incorporation of the Corporation
so as to integrate into a single document the text of the
Restated Articles of Incorporation, dated May 27, 1966, together
with all amendments thereto theretofore adopted, all as provided
in Section 9.8 of the South Carolina Business Corporation Act of
1962 (12-19.8 Supplement to the South Carolina Code of 1962).
6. At a meeting thereof duly called and held on August 28, 1974, the
Board of Directors of the Corporation authorized the adoption of
a restatement of the Articles of Incorporation of the Corporation
so as to integrate into a single document the text of the
Restated Articles of Incorporation, dated May 21, 1971, together
with all amendments thereto theretofore adopted, all as provided
in Section 9.8 of the South Carolina Business Corporation Act of
1962 (12-19.8 Supplement to the South Carolina Code of 1962).
7. At a meeting thereof duly called and held on July 28, 1976, the
Board of Directors of the Corporation authorized the adoption of
a restatement of the Articles of Incorporation of the Corporation
so as to integrate into a single document the text of the
Restated Articles of Incorporation, dated August 28, 1974,
together with all amendments thereto theretofore adopted, all as
provided in Section 9.8 of the South Carolina Business
Corporation Act of 1962 (12-19.8 Supplement to the South Carolina
Code of 1962).
8. At a meeting thereof duly called and held on November 26,
1980, the Board of Directors of the Corporation authorized the
adoption of a restatement of the Articles of Incorporation of
the Corporation so as to integrate into a single document the
text of the Restated Articles of Incorporation, dated July 28,
1976, together with all amendments thereto theretofore
adopted, all as provided in Section 9.8 of the South Carolina
Business Corporation Act of 1962 (Section 33-15-80 of the
South Carolina Code of 1976).
9. At a meeting thereof duly called and held on June 26, 1985,
the Board of Directors of the Corporation authorized the
adoption of a restatement of the Articles of Incorporation of
the Corporation so as to integrate into a single document the
text of the Restated Articles of Incorporation, dated November
26, 1980, together with all amendments thereto theretofore
adopted, all as provided in Section 33-15-80, as amended, of
the South Carolina Business Corporation Act of 1962.
10. At a meeting thereof duly called and held on June 28, 1989,
the Board of Directors of the Corporation authorized the
adoption of a restatement of the Articles of Incorporation of
the Corporation so as to integrate into a single document the
text of the Restated Articles of Incorporation, dated June 26,
1985, together with all amendments thereto theretofore
adopted, all as provided in Section 33-10-107 of the South
Carolina Business Corporation Act of 1988.
11. At a meeting thereof duly called and held on December 15,
1993, the Board of Directors of the Corporation authorized the
adoption of a restatement of the Articles of Incorporation of
the Corporation so as to integrate into a single document the
text of the Restated Articles of Incorporation, dated June 28,
1989, together with all amendments thereto theretofore
adopted, all as provided in Section 33-10-107 of the South
Carolina Business Corporation Act of 1988.
12. At a meeting thereof duly called and held on May 3, 2001, the
Board of Directors of the Corporation authorized the adoption
of the following restatement of the Articles of Incorporation
of the Corporation so as to integrate into a single document
the text of the Restated Articles of Incorporation, dated
December 15, 1993, together with all amendments thereto
theretofore adopted, all as provided in Section 33-10-107 of
the South Carolina Business Corporation Act of 1988.
13. This Restated Articles of Incorporation of the Corporation
purports merely to restate but not to change materially the
provisions of the aforesaid Restated Articles of
Incorporation, dated December 15, 1993, as heretofore amended
and supplemented, and there is no material discrepancy between
such provisions and the provisions of this Restated Articles
of Incorporation.
14. The undersigned Corporation adopts the following Restated
Articles of Incorporation, as heretofore amended and
supplemented.
ARTICLE I
The name of the Company is SOUTH CAROLINA ELECTRIC & GAS COMPANY.
ARTICLE II
The Company shall have perpetual existence and shall have and enjoy all
rights and powers accorded by the laws of South Carolina and be subject to all
liabilities imposed by such laws.
ARTICLE III
The principal place of business of the Company shall be Columbia, South
Carolina.
ARTICLE IV
Without limiting the nature of the business which the Company may do as
provided in the charters, as amended, of South Carolina Company and Lexington,
the general nature of the business which the Company proposes to do is the
manufacture, generation, transmission, distribution, purchase and sale, both at
wholesale and at retail, of electricity and gas, the sale of electric and gas
appliances, and the furnishing of bus transportation service in the City of
Columbia and its environs.
The general nature of the business provided in the charter, as amended,
of South Carolina Company is:
A. To construct, acquire by purchase, lease, consolidation,
merger or otherwise; to use, operate, maintain, sell, convey,
lease or otherwise dispose of, any works, constructions,
plants, systems or parts thereof, and any and all rights or
other property necessary or appropriate to the production,
use, distribution, sale, regulation, control or application of
electricity for any purpose whatsoever; to generate
electricity by water, steam or other power; to produce, buy,
acquire, deal in, use, lease, sell, furnish, transmit and
supply electricity in any form and for any purpose whatsoever.
B. To purchase, install, deal in, use, sell, lease or otherwise
dispose of, machinery, generators, motors, lamps, poles,
wires, apparatus, equipment, devices, supplies and articles of
every kind pertaining to, or in any wise connected with, the
production, use, distribution, regulation, control or
application of electricity or electrical apparatus for light,
heat, power, railway, manufacturing, and any and all other
purposes.
C. To build, construct, acquire by purchase, lease,
consolidation, merger or otherwise, and operate street
railways, motor bus lines and transportation lines for freight
and passengers, whether operated by steam, electricity or any
other motive power whatsoever (except those transportation
lines classed as railroads) and to sell, convey, lease or
otherwise dispose of the same.
D. To build, construct, acquire, by purchase, lease,
consolidation, merger or otherwise, and to maintain and
operate parks, places of amusement and other usual or useful
adjuncts to such properties or business, and to sell, convey,
lease or otherwise dispose of the same.
E. To manufacture, purchase, produce, sell, furnish and distribute
for light, heat, power and any other purposes whatsoever, natural
or artificial gas and to construct, equip, acquire by purchase,
lease, consolidation, merger or otherwise and to own, maintain,
operate, sell, convey, lease or otherwise dispose of, all
necessary and convenient works, conduits, plants, apparatus and
connections for holding, receiving, purifying, manufacturing,
selling, utilizing and distributing natural and artificial gas;
and to manufacture, purchase, sell or otherwise dispose of
chemicals or other products derived wholly or in part from gas or
gas works, or in the manufacture of gas, and to purchase,
install, manufacture, deal in, use, sell or otherwise handle or
dispose of gas fixtures and appliances in any way used or useful
in connection with the utilization or distribution of natural or
artificial gas.
F. To build, construct, acquire by purchase, lease,
consolidation, merger or otherwise; to own, equip, maintain
and operate telephone and telegraph lines of all kinds and
descriptions, and to sell, convey, lease, or otherwise dispose
of all necessary and convenient works, plants, apparatus and
connections necessary or desirable in connection therewith;
and to purchase, manufacture, install, use, sell or otherwise
deal in any and all fixtures, appliances or apparatus, useful,
necessary or desirable in connection with the installation or
operation of telephone or telegraph lines or systems.
G. To build, construct, acquire, by purchase, lease,
consolidation, merger or otherwise; to own, equip, maintain,
operate, sell, convey, lease or otherwise dispose of ice and
refrigerating plants and to manufacture, purchase, sell and
deal in ice; handling, selling or dealing in the same at
retail and/or wholesale.
H. To build, construct, acquire by purchase, lease, consolidation,
merger or otherwise; to own, equip, hold, operate, maintain,
sell, convey, lease or otherwise dispose of water powers, power
plants, hydro-electric plants, reservoirs, dams, canals, ditches,
flumes, pipe lines and such other works, plants, equipment,
appliances and appurtenances as may be necessary, useful or
appropriate for impounding, storing, conveying, distributing and
utilizing water for power, irrigation, sanitary, domestic,
manufacturing and otherwise and to use, supply and otherwise
dispose of water for all such uses; and to build, construct,
acquire by purchase, lease, consolidation, merger or otherwise;
to own, hold, operate, maintain, sell, convey, lease or otherwise
dispose of hydraulic and other works, transmission lines, lines
for the conveying of electric current for power, lighting,
heating or other purposes and transforming and distributing
stations and circuits.
I. To acquire by purchase, lease, consolidation, merger or
otherwise; to hold, use, own, sell, convey, lease or otherwise
dispose of rights of way, easements, privileges, grants,
consents and franchises, including franchises or special
grants or privileges or consents from the State of South
Carolina or other States, or from counties, cities and towns
situate in South Carolina or other States, for any of the
foregoing businesses or purposes.
J. To acquire by purchase, lease, consolidation, merger or
otherwise; to hold, improve, develop, use, let, sell, convey
or otherwise dispose of, real estate and rights and interests
in or in respect to real estate or other property; and to
exercise the rights of eminent domain in connection with any
or all of the objects and purposes for which the company is
formed in all respects as such right is now or shall hereafter
be authorized by law.
K. To purchase, hold, assign, transfer, mortgage, pledge or
otherwise dispose of the shares of the capital stock or any
bonds, securities, obligations or evidences of indebtedness of
any other corporation or corporations of this or any other
State, and, while owner of such stock, to exercise all the
rights, powers and privileges of ownership, including the
right to vote thereon, and to issue in exchange for any such
shares of capital stock, bonds, securities, obligations or
evidences of indebtedness, its stocks, bonds, or other
obligations.
L. To guarantee the payment of any bonds, debentures or other
securities or obligations issued by any company in which this
company is interested, and the payment of dividends and
interest on any stocks, bonds, debentures or other securities
issued by any such corporation.
M. The corporation shall have all the powers now or hereafter
conferred by the laws of South Carolina on corporations formed
for similar objects or purposes, and may carry on any business
or operation deemed advantageous, incidental or necessary to
any of the purposes or objects hereinbefore enumerated, and,
in general, may do whatever a natural person might do in the
premises, and may conduct its business in all its branches,
not only in the State of South Carolina but in any State,
territory, possession or dependency of the United States.
N. It is expressly provided that the foregoing shall be construed
both as objects and powers, and that the enumeration of
specific objects, purposes and powers shall in no wise be held
or construed to limit or restrict in any manner the general or
incidental powers of the corporation.
The general nature of the business provided in the charter, as amended,
of Lexington is to erect and maintain power houses for the generation of
electric power by steam or water power and to transmit by wire and sell such
electric power, to conduct, transact and carry on in all its branches the
manufacture, dyeing, finishing and sale of goods of every kind and description
made of cotton, wool or other fibrous material, either or both, of all
descriptions whatsoever, and any and all kinds of goods, wares and merchandise
made of leather, iron, wood or other material, and to buy and sell all material
for manufacture and all products of manufacture, and other goods and
merchandise; and to erect, maintain, own, lease and operate, or cause to be
operated planing mills, grist mills, saw mills, and all other kinds of mill
buildings, machine and work shops, stores, dwellings and other business
premises, and to do all such things as are necessary and usually incident to the
proper conduct of all or any portion of its business as above enumerated; to
construct a dam or dams, on its own lands, across the Saluda River, in Lexington
County, at Dreher's or Rauch's Shoals, or both, or at other points on their own
land, across said river, at which the said river is not now navigable, for the
purpose of utilizing the water power at these shoals to generate electricity and
for other purposes; and, having first obtained the approval of the County
Commissioners of Lexington or other Counties, Lexington shall have the right to
erect poles along the public highways of the County or Counties so approving,
and hang wires thereon, for the purpose of transmitting electric current from
its power plant on the Saluda River to towns and other municipalities and to
manufacturing and industrial enterprises.
ARTICLE V
The total number of shares which the Company shall be authorized to
issue, and the number of such shares which shall be Preferred Stock of the par
value of $25 per share, issuable in series, Preferred Stock of the par value of
$50 per share, issuable in series, Preferred Stock of the par value of $100 per
share, issuable in series, and Common Stock of the par value of $4.50 per share
is specified in Exhibit A hereto.
The relevant information regarding the shares, including classes and
series of shares, which the Company shall be authorized to issue, and the
designations, relative rights, preferences, and limitations of the shares of
each class, and as among the presently established series of Preferred Stock
designated as set forth in Exhibit A hereto, and any additional series hereafter
established by the Board of Directors of the Company (the "Board of Directors")
pursuant to Section B.2 of this Article V, are as follows:
A. The Preferred Stock is senior to the Common Stock and the Common
Stock is subject to all rights and preferences of the Preferred
Stock as herein set forth.
B.1. The Preferred Stock shall be issuable in series and shall
consist of the authorized but unissued shares undesignated as
to series and the authorized and outstanding shares designated
as to series specified in Exhibit A hereto.
2. The authorized but unissued shares of the Preferred Stock
undesignated as to series may be issued in one or more series
which shall be established by the Board of Directors. The
authorized number of shares of any such series, the
designation of such series, and the relative rights,
preferences and limitations as among such series and the
series which are designated as set forth in Exhibit A (in
those respects in which the shares of one series may vary from
the shares of other series as herein provided) shall be fixed
and determined at any time prior to the issuance thereof by
resolution or resolutions of the Board of Directors. All
shares of the same series shall be identical.
3. The Preferred Stock of all series shall be identical except as
to the par value (which shall be $25 per share, $50 per share,
or $100 per share as specified in Exhibit A hereto) and as to
the following relative rights and preferences:
(a) The rate of dividends on shares of such series;
(b) Whether shares of such series may be redeemed and, if
so, the redemption price and the terms and conditions
of redemption;
(c) The amount payable upon shares of such series in the
event of voluntary and involuntary liquidation;
(d) Sinking fund provisions, if any, for the redemption or
purchase of shares of such series for any sinking fund
or purchase fund;
(e) The terms and conditions, if any, on which shares of
such series may be converted into shares of any other
class or series; and
(f) The voting rights of the shares of such series. Except
as otherwise provided by law, by paragraph 2 of Section
G of this Article V, or by the resolutions establishing
any series of Preferred Stock in accordance with the
provisions of Section B.2 above, whenever the consent
or vote or other action on the part of the holders of
the Preferred Stock may be required for any purpose,
such consent, vote or other action shall be taken by
the holders of the Preferred Stock as a single body
(unless these Articles or the law of the State of South
Carolina specifically provides otherwise), and shall be
determined by weighing the vote cast for each share as
follows:
(i) Each share of the Preferred Stock of the par value of
$25 per share shall be entitled to one-quarter of one
vote per share;
(ii) Each share of the Preferred Stock of the par
value of $50 per share identified in Exhibit
A hereto as being entitled to one vote per
share shall have one vote per share;
(iii) Each share of the Preferred Stock of the par
value of $50 per share identified in Exhibit
A hereto as being entitled to one-half of
one vote per share shall have one-half of
one vote per share; and
(iv) Each share of the Preferred Stock of the par value of
$100 per share shall be entitled to one vote
per share.
C.1. Before any dividend shall be declared or paid upon or set
apart for, or any other distribution shall be made or ordered
in respect of, the Common Stock and before any sum shall be
paid or set apart for or applied to the purchase, redemption
or other retirement of stock of the Company of any class, the
holders of the Preferred Stock, without preference or priority
as between series, shall be entitled to receive out of the
assets of the Company available for dividends, but only when
and as declared by the Board of Directors, dividends as
follows:
(a) in the case of the 5% Preferred Stock, at the rate of
but not exceeding Two Dollars and Fifty Cents ($2.50)
per share per annum from July 1, 1943 in respect of
shares issued prior to October 1, 1943 and, in
respect of shares issued on and after October 1,
1943, from the quarterly dividend payment date which
coincides with or next precedes the date of issue
thereof, whichever is later, payable on October 1,
1943 and quarterly thereafter as to shares issued
prior to such date and payable as to all other shares
thereof on the first day of either January, April,
July or October, whichever of said days first occurs
after the issue thereof, and quarterly thereafter,
(b) in the case of the 4.60% Cumulative Preferred Stock,
at the rate of but not exceeding Two Dollars and
Thirty Cents ($2.30) per share per annum from the
date of the original issue of the first share
thereof, payable on the first day of either January,
April, July or October, whichever of said days first
occurs after the issue thereof, and quarterly
thereafter,
(c) in the case of the 4.50% Cumulative Preferred Stock,
at the rate of but not exceeding Two Dollars and
Twenty-five Cents ($2.25) per share per annum from
the date of the original issue of the first share
thereof, payable on the first day of either January,
April, July or October, whichever of said days first
occurs after the issue thereof, and quarterly
thereafter,
(d) in the case of the 4.60% (Series A) Cumulative
Preferred Stock, at the rate of but not exceeding Two
Dollars and Thirty Cents ($2.30) per share per annum
from the date of the original issue of the first
share thereof, payable on the first day of either
January, April, July or October, whichever of said
days first occurs after the issue thereof, and
quarterly thereafter,
(e) in the case of the 5.125% Cumulative Preferred Stock,
at the rate of but not exceeding Two Dollars and
Fifty-six and one-quarter Cents ($2.5625) per share
per annum from the date of the original issue of the
first share thereof, payable on the first day of
either January, April, July or October, whichever of
said days first occurs after the issue thereof, and
quarterly thereafter,
(f) in the case of the 4.60% (Series B) Cumulative
Preferred Stock, at the rate of but not exceeding Two
Dollars and Thirty Cents ($2.30) per share per annum
from the date of the original issue of the first
share thereof, payable on the first day of either
January, April, July or October, whichever of said
days first occurs after the issue thereof, and
quarterly thereafter,
(g) in the case of the 6% Cumulative Preferred Stock, at
the rate of but not exceeding Three Dollars ($3.00)
per share per annum from the date of the original
issue of the first share thereof, payable on the
first day of either January, April, July or October,
whichever of said days first occurs after the issue
thereof, and quarterly thereafter,
(h) in the case of the 9.40% Cumulative Preferred Stock,
at the rate of but not exceeding Four Dollars and
Seventy Cents ($4.70) per share per annum from the
date of the original issue of the first share
thereof, payable on the first day of either January,
April, July or October, whichever of said days first
occurs after the issue thereof, and quarterly
thereafter,
(i) in the case of the 8.12% Cumulative Preferred Stock,
at the rate of but not exceeding Eight Dollars and
Twelve Cents ($8.12) per share per annum from the
date of the original issue of the first share
thereof, payable on the first day of either January,
April, July or October, whichever of said days first
occurs after the issue thereof, and quarterly
thereafter,
(j) in the case of the 7.70% Cumulative Preferred Stock,
at the rate of but not exceeding Seven Dollars and
Seventy Cents ($7.70) per share per annum from the
date of the original issue of the first share
thereof, payable on the first day of either January,
April, July or October, whichever of said days first
occurs after the issue thereof, and quarterly
thereafter,
(k) in the case of the 8.40% Cumulative Preferred Stock,
at the rate of but not exceeding Eight Dollars and
Forty Cents ($8.40) per share per annum from the date
of the original issue of the first share thereof,
payable on the first day of either January, April,
July or October, whichever of said days first occurs
after the issue thereof, and quarterly thereafter,
(l) in the case of the 8.72% Cumulative Preferred Stock,
at the rate of but not exceeding Four Dollars and
Thirty-six Cents ($4.36) per share per annum from the
date of the original issue of the first share
thereof, payable on the first day of either January,
April, July or October, whichever of said days first
occurs after the issue thereof, and quarterly
thereafter, and
(m) in the case of the 6.52% Cumulative Preferred Stock
(the "6.52% Cumulative Preferred Stock"), at the rate
of but not exceeding Six Dollars and Fifty-two Cents
($6.52) per share per annum, as adjusted as provided
in Section C.2 herein, from the date of the original
issue of the first share thereof, payable on the
first day of either January, April, July or October,
whichever of said days first occurs after the issue
thereof, and quarterly thereafter, and
(n) in the case of any series of Preferred Stock
established by the Board of Directors pursuant to
Section B.2 of this Article V, at such rate as may be
fixed and determined by the resolution or resolutions
of the Board of Directors establishing such series
from the date of original issue of the first share
thereof, payable on the first day of either January,
April, July or October, whichever of said days first
occurs after the issue thereof, and quarterly
thereafter.
Such dividends upon the Preferred Stock shall be cumulative
from and after the respective dates specified above, so that
if dividends, at the rate per share per annum specified for
each of the series designated as set forth in (a) through (n)
above, and at such rate as may be fixed and determined by the
resolution or resolutions adopted by the Board of Directors
pursuant to Section B.2 (or its successor) of this Article V
in the case of any series of Preferred Stock established by
the Board of Directors pursuant to said Section B.2 (or its
successor), from the date upon which the dividends thereon
became cumulative to the end of the then quarterly dividend
period, shall not have been paid or declared and a sum
sufficient for the payment thereof set apart, then the amount
of the deficiency shall be fully paid, but without interest,
or dividends upon said shares 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 made or ordered in respect
of, the Common Stock and before any sum shall be paid or set
apart for or applied to the purchase, redemption or retirement
of stock of the Company of any class. The holders of the
Preferred Stock shall not be entitled to participate in or
receive any other or further dividend.
2. With respect to dividends payable on or relating to the shares of
6.52% Cumulative Preferred Stock under Section C.1(m) above, if,
prior to 18 months after the date of the original issuance of the
6.52% Cumulative Preferred Stock, one or more amendments to the
Internal Revenue Code of 1986, as amended (the "Code"), are
enacted that reduce the percentage of the dividends-received
deduction (currently 70%) as specified in section 243(a)(1) of
the Code or any successor provision (the "Dividends-Received
Percentage"), certain adjustments may be made in respect of the
dividends payable by the Company with respect to the 6.52%
Cumulative Preferred Stock, and Post Declaration Date Dividends
and Retroactive Dividends (as such terms are defined below) may
become payable, as described in the further provisions of this
Section C.2.
The amount of each dividend payable (if declared) per share of
6.52% Cumulative Preferred Stock for dividend payments made on
or after the effective date of such change in the Code will be
adjusted by multiplying the amount of the dividend payable at
the stated dividend rate of 6.52% (before adjustment) by a
factor, which will be the number determined in accordance with
the following formula (the "DRD Formula"), and rounding the
result to the nearest cent (with one-half cent rounded up):
1-.35 (1-.70)
- ----------------------------- --------------
1-.35 (1-DRP)
For the purposes of the DRD Formula, "DRP" means the
Dividends-Received Percentage (expressed as a decimal)
applicable to the dividend in question; provided, however,
that if the Dividends-Received Percentage applicable to the
dividend in question shall be less than 50%, then the DRP
shall equal .50. No amendment to the Code, other than a change
in the percentage of the dividends-received deduction set
forth in section 243(a)(1) of the Code or any successor
provision thereto, will give rise to an adjustment.
Notwithstanding the foregoing provisions, if, with respect to
any such amendment, the Company receives either an unqualified
opinion of nationally recognized independent tax counsel
selected by the Company or a private letter ruling or similar
form of authorization from the Internal Revenue Service
("IRS") to the effect that such amendment does not apply to a
dividend payable on the 6.52% Cumulative Preferred Stock, then
such amendment will not result in the adjustment provided for
pursuant to the DRD Formula with respect to such dividend. The
opinion referenced in the previous sentence shall be based
upon the legislation amending or establishing the DRP or upon
a published pronouncement of the IRS addressing such
legislation. Unless the context otherwise requires, references
to dividends in this Section C.2 mean dividends as adjusted by
the DRD Formula. The Company's calculation of the dividends
payable, as so adjusted and as certified accurate as to
calculation and reasonable as to method by the independent
certified public accountants regularly engaged by the Company,
shall be final and not subject to review absent manifest
error.
Notwithstanding the foregoing, if any such amendment to the
Code is enacted after the dividend payable on a dividend
payment date has been declared, the amount of the dividend
payable on such dividend payment date will not be increased;
instead, additional dividends (the "Post Declaration Date
Dividends") equal to the excess, if any, of (x) the product of
the dividend paid by the Company on such dividend payment date
and the DRD Formula (where the DRP used in the DRD Formula
would be equal to the greater of the Dividends-Received
Percentage applicable to the dividend in question and .50)
over (y) the dividend paid by the Company on such dividend
payment date, will be payable (if declared) to holders of
6.52% Cumulative Preferred Stock on the record date applicable
to the next succeeding dividend payment date or, if the 6.52%
Cumulative Preferred Stock is called for redemption prior to
such record date, to holders of 6.52% Cumulative Preferred
Stock on the applicable redemption date, as the case may be,
in addition to any other amounts payable on such date.
If any such amendment to the Code is enacted and the reduction
in the Dividends-Received Percentage retroactively applies to
a dividend payment date as to which the Company previously
paid dividends on the 6.52% Cumulative Preferred Stock (each,
an "Affected Dividend Payment Date"), the Company will pay (if
declared) additional dividends (the "Retroactive Dividends")
to holders of 6.52% Cumulative Preferred Stock on the record
date applicable to the next succeeding dividend payment date
(or, if such amendment is enacted after the dividend payable
on such dividend payment date has been declared, to holders of
6.52% Cumulative Preferred Stock on the record date following
the date of enactment), or, if the 6.52% Cumulative Preferred
Stock is called for redemption prior to such record date, to
holders of 6.52% Cumulative Preferred Stock on the applicable
redemption date, as the case may be, in an amount equal to the
excess of (x) the product of the dividend paid by the Company
on each Affected Dividend Payment Date and the DRD Formula
(where the DRP used in the DRD Formula would be equal to the
greater of the Dividends-Received Percentage and .50 applied
to each Affected Dividend Payment Date) over (y) the sum of
the dividend paid by the Company on each Affected Dividend
Payment Date. The Company will only make one payment of
Retroactive Dividends for any such amendment. Notwithstanding
the foregoing provisions, if, with respect to any such
amendment, the Company receives either an unqualified opinion
of nationally recognized independent tax counsel selected by
the Company or a private letter ruling or similar form of
authorization from the IRS to the effect that such amendment
does not apply to a dividend payable on an Affected Dividend
Payment Date for the 6.52% Cumulative Preferred Stock, then
such amendment will not result in the payment of Retroactive
Dividends with respect to such Affected Dividend Payment Date.
The opinion referenced in the previous sentence shall be based
upon the legislation amending or establishing the DRP or upon
a published pronouncement of the IRS addressing such
legislation.
Notwithstanding the foregoing, no adjustment in the dividends
payable by the Company shall be made, and no Post Declaration
Date Dividends or Retroactive Dividends shall be payable by
the Company, in respect of the enactment of any amendment to
the Code 18 months or more after the date of original issuance
of the 6.52% Cumulative Preferred Stock that reduces the
Dividends-Received Percentage.
In the event that the amount of dividends payable per share of
the 6.52% Cumulative Preferred Stock is adjusted pursuant to
the DRD Formula and/or Post Declaration Date Dividends or
Retroactive Dividends are to be paid, the Company will give
notice of each such adjustment and, if applicable, any Post
Declaration Date Dividends and Retroactive Dividends to the
holders of 6.52% Cumulative Preferred Stock.
3. In the event that the assets of the Company available for
dividends are insufficient to pay or to justify making
provision for the payment of the full quarterly dividend on
the Preferred Stock of all series then outstanding or in the
event of arrearages thereon, the Company shall, so long as
Preferred Stock of more than one series is outstanding, make
dividend payments ratably, to the extent declared, upon all
outstanding shares of Preferred Stock of all series then
outstanding in proportion to the amount of the cumulative
dividends (including arrears, if any) to which each
outstanding share of Preferred Stock of each series is
entitled upon the date of such dividend payment.
4. After the requirements in respect of the dividends upon the
Preferred Stock, as hereinbefore set forth, to the end of the
then current quarterly dividend period for said stock shall
have been met, and subject to any Purchase Fund or Sinking
Fund provisions heretofore or hereafter fixed and determined
for any series of Preferred Stock pursuant to this Article V,
the holders of the Common Stock shall be entitled to receive
out of the remaining assets of the Company available for
dividends, such dividends as may from time to time be declared
by the Board of Directors, subject, however, so long as any
shares of Preferred Stock shall be outstanding, to the
following restrictions:
(a) no dividends shall be paid on the Common Stock if after such
dividend the aggregate amount of such dividends paid since
December 31, 1945, exceeds the sum of the aggregate amount
credited to earned surplus subsequent to December 31, 1945,
less the aggregate amount charged to earned surplus
subsequent to December 31, 1945, otherwise than with respect
to any such dividends, provided, however, that no charge
shall be made to capital surplus accumulated prior to
January 1, 1946 or to earned surplus accumulated prior to
January 1, 1946 except that the Company may make charges to
earned surplus accumulated prior to January 1, 1946 or to
capital surplus accumulated prior to January 1, 1946 (i) for
the write-down or write-off of any portion of the Company's
Electric Plant which may be classified as Electric Plant
Adjustment or any portion of the Company's other utility
plant which may be classified as plant adjustment or plant
acquisition adjustment, which write-down or write-off the
Company is required to make pursuant to an order of the
South Carolina Public Service Commission or of the Federal
Power Commission entered in connection with the
determination of the "Original Cost", or (ii) for the
write-down or write-off of any portion of the Company's
Electric Plant which may be classified as Electric Plant
Acquisition Adjustment or Electric Plant Adjustment, which
write-down or write-off the Company is required to make
pursuant to an order of the Federal Power Commission entered
in connection with the determination of the "Actual
Legitimate Original Cost" of the properties of the Company,
and
(b) if and so long as the Common Stock Equity, as hereinafter
defined, at the end of the calendar month immediately
preceding the date on which a dividend on Common Stock is
declared is, or as a result of such dividend would become,
less than twenty per centum (20%) of Total Capitalization,
as defined, the Company shall not declare dividends on the
Common Stock in an amount which, together with all other
dividends on Common Stock declared within the year ending
with (and including) the date of such dividend declaration,
exceeds fifty per centum (50%) of the Net Income of the
Company Available for Dividends on the Common Stock, as
defined, for the twelve full calendar months immediately
preceding the month in which such dividends are declared,
and
(c) if and so long as the Common Stock Equity at the end of the
calendar month immediately preceding the date on which a
dividend on Common Stock is declared is, or as a result of
such dividend would become, less than twenty-five per centum
(25%) but not less than twenty per centum (20%) of Total
Capitalization, the Company shall not declare dividends on
the Common Stock in an amount which, together with all other
dividends on Common Stock declared subsequent to December
31, 1945, exceeds seventy-five per centum (75%) of Net
Income of the Company Available for Dividends on the Common
Stock for the period from December 31, 1945 to and including
the end of the calendar month immediately preceding the
month in which such dividends are declared, and
(d) at any time when the Common Stock Equity is twenty-five per
centum (25%) or more of Total Capitalization, the Company
may not pay dividends on shares of the Common Stock which
would reduce the Common Stock Equity below twenty-five per
centum (25%) of Total Capitalization; provided, however,
that even though the payment of such dividends would reduce
the Common Stock Equity below twenty-five per centum (25%)
of Total Capitalization, such dividends may be declared to
the extent that the same, together with all dividends on
Common Stock declared subsequent to December 31, 1945, do
not exceed seventy-five per centum (75%) of the Net Income
of the Company Available for Dividends on the Common Stock
for the period from December 31, 1945 to and including the
end of the calendar month immediately preceding the month in
which such dividends are declared.
In computing the amount available for any dividend,
distribution, purchase or acquisition, charges and credits to
earned surplus shall be made in accordance with sound
accounting practice.
5. For the purpose of this Section C of Article V:
The word "dividends" when used with reference to the
Common Stock shall include dividends or other distributions on
or the purchase or other acquisition for value of shares of
Common Stock, but shall not include any portion of dividends
payable in shares of the Common Stock.
The term "Common Stock Equity" shall mean the sum of
the amount of the par or stated value of the issued and
outstanding shares of the Common Stock and the surplus
(including capital or paid-in surplus) and premium on Common
Stock of the Company less the amount known, or estimated if
not known, to represent the excess, if any, of recorded value
over original cost of used and useful utility plant and other
property, and less any items set forth on the asset side of
the balance sheet as a result of accounting convention such as
unamortized debt discount and expense, capital stock discount
and expense, and the excess, if any, of the aggregate amount
payable on involuntary dissolution, liquidation or winding up
of the Company upon all outstanding shares of Preferred Stock
of all series over the aggregate par value of such shares,
unless such amount or items so to be deducted in the
determination of the Common Stock Equity are being amortized,
depreciated, or otherwise disposed of.
The term "Total Capitalization" shall mean the
aggregate of the par value of the issued and outstanding
shares of stock of all classes of the Company and the surplus
(including capital or paid-in surplus) and premium on capital
stock of the Company, plus the principal amount of all
outstanding debt maturing more than twelve months from the
date of the determination of Total Capitalization.
The term "Net Income of the Company Available for
Dividends on the Common Stock" shall mean, for any twelve
months' period, or for the period from December 31, 1945 to
the date as of which such net income is being determined, as
the case may be, an amount equal to the sum of the operating
revenues and income from investments and other miscellaneous
income for such period, less all deductions (including
accruals) for operating expenses for such period, including
maintenance and provision for depreciation or amortization,
income and excess profits and other taxes, interest charges,
other amortization charges and other income deductions
(provided, however, that no deduction shall be made with
respect to the appropriation in the amount of $500,000 made in
May, 1948 to create a reserve to partly provide for the excess
of cost of investment in South Carolina Power Company over its
underlying book value at date of acquisition by the Company),
all as shall be determined in accordance with sound accounting
practice, and less also current and accrued dividends on all
outstanding shares of stock of the Company ranking prior to
the Common Stock as to dividends or assets. For the purpose of
determining Net Income of the Company Available for Dividends
on the Common Stock the deduction on account of provision for
depreciation on all the property of the Company shall be in
the amount therefor shown on the books of the Company but,
with respect to property of the Company other than the
Company's motor coach transportation property, shall not be
less than 15% of the gross operating revenues of the Company
derived from the sale of electricity and manufactured or
natural gas during such period after deducting from such
revenues an amount equal to the aggregate cost of electricity
or manufactured or natural gas purchased during such period
for the purpose of resale in connection with the operation of
the Company's operating property, less an amount equal to the
aggregate of the charges to operating expense during such
period for current repairs and maintenance of such operating
property.
6. If at the time when any calculation of Common Stock Equity,
Total Capitalization or Net Income of the Company Available
for Dividends on the Common Stock is required to be made, the
Company shall have one or more subsidiaries whose accounts may
properly be consolidated with the accounts of the Company,
such calculation shall be made for the Company with such
subsidiaries on a consolidated basis in accordance with sound
accounting practice.
7. Anything herein contained to the contrary notwithstanding, the
rights of the holders of all classes of stock of the Company
in respect of dividends shall at all times be subject to the
power of the Board of Directors from time to time to set aside
such reserves and/or to make such other provisions, if any,
for working capital and for additions and improvements to
fixed properties and equipment as said Board shall deem to be
necessary or advisable.
D. In the event of any liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary, or any reduction of its capital stock
resulting in any distribution of its assets to its stockholders, the holders of
the Preferred Stock, without preference or priority as between series, shall be
entitled to receive out of the assets of the Company, whether from capital, from
surplus or from earnings, available for distribution to its stockholders, before
any amount shall be paid to the holders of the Common Stock, a sum per share
equal to the par value per share, plus, in the case of any distribution
resulting from a reduction of capital stock or in the event that such
dissolution, liquidation or winding up shall have been voluntary, (a) in the
case of the 5% Preferred Stock a premium of Two Dollars and Fifty Cents ($2.50)
per share, (b) in the case of the presently designated series of Preferred Stock
as set forth in Exhibit A hereto a premium per share in an amount equal to the
difference between the par value per share and the then redemption price per
share as provided in Sections E and F of this Article V, and (c) in the case of
any series of Preferred Stock established by the Board of Directors pursuant to
Section B.2 (or its successor) of this Article V, a premium in an amount equal
to the difference between the par value per share and the redemption price per
share of shares of such series fixed and determined by the resolution or
resolutions of the Board of Directors establishing such series, in effect at the
time of such voluntary dissolution, liquidation or winding up, and in addition
thereto, in all cases, an amount which, together with the aggregate of the
dividends previously paid upon such share, will be equal, in the case of all
presently designated series as set forth in Exhibit A hereto, to the annual
dividend rate for such series (but without interest) as set forth in 1(a)
through 1(n) of Section C.1 of this Article V, from the date upon which the
dividends thereon became cumulative to the date of the distribution upon such
liquidation or dissolution or winding up or reduction, and the holders of the
Preferred Stock shall not be entitled to any other or further distribution. If
the assets of the Company available for distribution to the holders of the
Preferred Stock shall be insufficient to permit the payment in full of the sums
payable as aforesaid to the holders of all the outstanding shares of Preferred
Stock of all series then outstanding upon such liquidation or dissolution or
winding up or reduction, all such assets of the Company shall be distributed
ratably among the holders of all the outstanding shares of Preferred Stock of
all series then outstanding, without preference or priority as between series,
in proportion to the full preferential amount (including cumulative dividends
and premiums, if any) which each such share would be entitled to receive, if
such assets were sufficient to permit distribution in full as aforesaid. The
redemption by the Company of its Preferred Stock of any series or the purchase
of shares of its Preferred Stock of any series or of its Common Stock in any
manner permitted by law shall not for the purpose of this Section D be regarded
as a liquidation, dissolution or winding up of the Company or as a reduction of
its capital; provided that, except as provided in any Purchase Fund or Sinking
Fund provisions heretofore or hereafter fixed and determined for any series of
Preferred Stock pursuant to this Article V, the Company shall not, so long as
any shares of Preferred Stock remain outstanding, purchase any of its Preferred
Stock or Common Stock otherwise than out of earned surplus or net profits of the
Company at the time available for payment of dividends on its Common Stock or
from the proceeds received within a period of six (6) months prior to such
purchase from the sale of stock of any class subordinate to the Preferred Stock
both as to dividends and assets. Nothing in this Section D contained, however,
shall prevent the Company from acquiring its Preferred Stock of any series for
retirement by the exchange therefor of any class of stock of the Company which
is now or hereafter may be lawfully authorized. A consolidation or merger of the
Company with, or into, any other corporation or corporations, or a consolidation
or merger of any other corporation or corporations into the Company, 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 Company within the
meaning of this Section D. A dividend or distribution to stockholders from net
profits or surplus earned after the date of any such reduction of capital stock
as does not result in any distribution of assets to holders of its Common Stock,
or the purchase or redemption of Preferred Stock of any series or of Common
Stock by the application of such net profits or surplus, shall not be deemed to
be a distribution resulting from such reduction. After payment in full of the
sums hereinabove stated to be payable in respect of the Preferred Stock upon any
such liquidation, dissolution, winding up, reduction or other distribution, then
the remaining assets of the Company available for distribution to the
stockholders shall be distributed ratably among the holders of the Common Stock.
1. On October 1, 1951 and on October 1 in each year thereafter so
long as any of the 4.60% Cumulative Preferred Stock shall remain
outstanding, the Company shall, subject to the provisions of Section C
of this Article V, set aside as a Purchase Fund for the 4.60%
Cumulative Preferred Stock (herein called the "Purchase Fund") an
amount equal to 2-1/2% of the aggregate par value of the largest
number of shares of 4.60% Cumulative Preferred Stock at any time
theretofore outstanding; provided, however, that amounts set aside for
Purchase Funds heretofore or hereafter established for the several
series of Preferred Stock shall be set aside without preference or
priority as between series so that if at any time there shall be a
deficiency (including any amount then required to be set aside) in the
Purchase Funds for two or more series of Preferred Stock, any
satisfaction of such deficiencies shall be made simultaneously for
such two or more Purchase Funds in proportion to the amounts of the
respective deficiencies therein. On or before each such October 1 the
Company shall in writing, addressed to all holders of record of the
4.60% Cumulative Preferred Stock, invite tenders of 4.60% Cumulative
Preferred Stock at the par value thereof, plus an amount equal to
accrued dividends to the next succeeding October 31, in an amount
sufficient to exhaust the moneys so set aside in the Purchase Fund.
The invitations for tenders shall specify how tenders shall be made
and how notification of acceptance thereof will be given. Tenders may
be made on or before October 25, in each year. If the par value of the
shares of 4.60% Cumulative Preferred Stock tendered in response to any
such invitation aggregates more than the amount available in the
Purchase Fund such tenders shall be accepted pro rata in proportion to
the total number of shares of 4.60% Cumulative Preferred Stock
tendered respectively by the holders thereof who shall have made such
tenders, provided that in any event, each holder of 4.60% Cumulative
Preferred Stock shall be entitled to tender and to have purchased by
the Company on each such invitation, at least the number of shares of
the 4.60% Cumulative Preferred Stock held by such holder which bears
the same ratio to the total number of shares to be purchased pursuant
to the invitation as the number of shares held of record by such
holder at the close of business on the last business day before the
date of such invitation, bears to the total number of shares of 4.60%
Cumulative Preferred Stock then outstanding. Tenders shall be accepted
of sufficient shares of 4.60% Cumulative Preferred Stock to exhaust
all of the moneys in the Purchase Fund. Payment for 4.60% Cumulative
Preferred Stock for which tenders shall have been accepted shall be
made on the October 31 following the last day for the making of
tenders. To the extent that tenders in any year are not made in an
amount sufficient to exhaust all of the moneys so held in the Purchase
Fund, such excess moneys in the Purchase Fund for that year shall be
released from the Purchase Fund and become free funds to the Company.
The obligation to set aside amounts in the Purchase Fund shall be
cumulative, so that if, on October 1 of each year cash in the required
amount shall not have been set aside in full, the amount of the
deficiency shall be added to the Purchase Fund for the next succeeding
year until the total aggregate amount which shall have been set aside
in such Purchase Fund, and used or released to the Company in
accordance with the provisions of this Section D.1, shall equal 2-1/2%
of the aggregate par value of the largest number of shares of 4.60%
Cumulative Preferred Stock at any time theretofore outstanding,
multiplied by the number of twelve month periods which shall have
elapsed since October 1, 1950. No dividends shall be declared or paid
upon or set apart for any shares of Common Stock or any sums applied
to the purchase, redemption or other retirement of Common Stock, so
long as any such deficiency shall exist in the Purchase Fund. Amounts
to satisfy any such deficiency in the Purchase Fund, in whole or in
part, may be set aside in the Purchase Fund at any time, for
application in the manner aforesaid on the next succeeding October 1,
provided however, that if at any time between any October 31 and July
1 of the following year the amount so set aside in the Purchase Fund
shall aggregate $30,000 or more, the Company shall immediately invite
tenders of 4.60% Cumulative Preferred Stock in the manner aforesaid,
in an amount sufficient to exhaust the moneys in the Purchase Fund, at
the par value thereof plus an amount equal to accrued dividends to a
date which shall be thirty days from the date of such invitation, the
invitation to remain open for twenty-five days; and on or before the
thirtieth day following the date of such invitation, the Company shall
accept tenders and make payment for 4.60% Cumulative Preferred Stock
tendered, at the pace aforesaid in the same manner as above provided
with respect to moneys set aside in the Purchase Fund on October 1 in
each year, and to the extent that tenders are not made in an amount
sufficient to exhaust the moneys so held in the Purchase Fund, such
moneys shall likewise be released from the Purchase Fund and become
free funds to the Company. Amounts equal to accrued dividends on 4.60%
Cumulative Preferred Stock purchased through the Purchase Fund shall
be paid by the Company by the use of moneys not in the Purchase Fund,
and shall not be charged to the Purchase Fund. Shares of 4.60%
Cumulative Preferred Stock purchased through the Purchase Fund shall
be cancelled and shall not be reissued.
2. On June 1, 1957 and on June 1 in each year thereafter so long
as any of the 4.50% Cumulative Preferred Stock shall remain
outstanding, the Company shall, subject to the provisions of Section C
of this Article V, set aside as a Purchase Fund for the 4.50%
Cumulative Preferred Stock (herein called the "4.50% Preferred Stock
Purchase Fund") an amount equal to 2% of the aggregate par value of
the largest number of shares of 4.50% Cumulative Preferred Stock at
any time theretofore outstanding; provided, however, that amounts set
aside for Purchase Funds heretofore or hereafter established for the
several series of Preferred Stock shall be set aside without
preference or priority as between series so that if at any time there
shall be a deficiency (including any amount then required to be set
aside) in the Purchase Funds for two or more series of Preferred
Stock, any satisfaction of such deficiencies shall be made
simultaneously for such two or more Purchase Funds in proportion to
the amounts of the respective deficiencies therein. On or before each
such June 1 the Company shall in writing, addressed to all holders of
record of the 4.50% Cumulative Preferred Stock, invite tenders of
4.50% Cumulative Preferred Stock at the par value thereof, plus an
amount equal to accrued dividends to the next succeeding June 30, in
an amount sufficient to exhaust the moneys so set aside in the 4.50%
Preferred Stock Purchase Fund. The invitations for tenders shall
specify how tenders shall be made and how notification of acceptance
thereof will be given. Tenders may be made on or before June 25, in
each year. If the par value of the shares of 4.50% Cumulative
Preferred Stock tendered in response to any such invitation aggregates
more than the amount available in the 4.50% Preferred Stock Purchase
Fund such tenders shall be accepted pro rata (as nearly as practicable
without the purchase or issuance of fractional shares or scrip
therefor) in proportion to the total number of shares of 4.50%
Cumulative Preferred Stock tendered respectively by the holders
thereof who shall have made such tenders, provided that in any event,
each holder of 4.50% Cumulative Preferred Stock shall be entitled to
tender and to have purchased by the Company on each such invitation,
at least the number of shares (as nearly as practicable without the
purchase or issuance of fractional shares or scrip therefor) of the
4.50% Cumulative Preferred Stock held by such holder which bears the
same ratio to the total number of shares to be purchased pursuant to
the invitation as the number of shares held of record by such holder
at the close of business on the last business day before the date of
such invitation, bears to the total number of shares of 4.50%
Cumulative Preferred Stock then outstanding. Tenders shall be accepted
of sufficient shares of 4.50% Cumulative Preferred Stock to exhaust
all of the moneys in the 4.50% Preferred Stock Purchase Fund. Payment
for 4.50% Cumulative Preferred Stock for which tenders shall have been
accepted shall be made on the June 30 following the last day for the
making of tenders. To the extent that tenders in any year are not made
in an amount sufficient to exhaust all of the moneys so held in the
4.50% Preferred Stock Purchase Fund, such excess moneys in the 4.50%
Preferred Stock Purchase Fund for that year shall be released from the
4.50% Preferred Stock Purchase Fund and become free funds to the
Company. The obligation to set aside amounts in the 4.50% Preferred
Stock Purchase Fund shall be cumulative, so that if, on June 1 of each
year cash in the required amount shall not have been set aside in
full, the amount of the deficiency shall be added to the 4.50%
Preferred Stock Purchase Fund for the next succeeding year until the
total aggregate amount which shall have been set aside in such 4.50%
Preferred Stock Purchase Fund, and used or released to the Company in
accordance with the provisions of this Section D.2, shall equal 2% of
the aggregate par value of the largest number of shares of 4.50%
Cumulative Preferred Stock at any time theretofore outstanding,
multiplied by the number of twelve month periods which shall have
elapsed since June 1, 1956. No dividends shall be declared or paid
upon or set apart for any shares of Common Stock or any sums applied
to the purchase, redemption or other retirement of Common Stock, so
long as any such deficiency shall exist in the 4.50% Preferred Stock
Purchase Fund. Amounts to satisfy any such deficiency in the 4.50%
Preferred Stock Purchase Fund, in whole or in part, may be set aside
in the 4.50% Preferred Stock Purchase Fund at any time, for
application in the manner aforesaid on the next succeeding June 1,
provided however, that if at any time between any June 30 and March 1
of the following year the amount so set aside in the 4.50% Preferred
Stock Purchase Fund shall aggregate $40,000 or more, the Company shall
immediately invite tenders of 4.50% Cumulative Preferred Stock in the
manner aforesaid, in an amount sufficient to exhaust the moneys in the
4.50% Preferred Stock Purchase Fund, at the par value thereof plus an
amount equal to accrued dividends to a date which shall be thirty days
from the date of such invitation, the invitation to remain open for
twenty-five days; and on or before the thirtieth day following the
date of such invitation, the Company shall accept tenders and make
payment for 4.50% Cumulative Preferred Stock tendered, at the price
aforesaid in the same manner as above provided with respect to moneys
set aside in the 4.50% Preferred Stock Purchase Fund on June 1 in each
year, and to the extent that tenders are not made in an amount
sufficient to exhaust the moneys so held in the 4.50% Preferred Stock
Purchase Fund such moneys shall likewise be released from the 4.50%
Preferred Stock Purchase Fund and become free funds to the Company.
Amounts equal to accrued dividends on 4.50% Cumulative Preferred Stock
purchased through the 4.50% Preferred Stock Purchase Fund shall be
paid by the Company by the use of moneys not in the 4.50% Preferred
Stock Purchase Fund, and shall not be charged to the 4.50% Preferred
Stock Purchase Fund. Shares of 4.50% Cumulative Preferred Stock
purchased through the 4.50% Preferred Stock Purchase Fund shall be
cancelled and shall not be reissued.
3. On June 1, 1958 and on June 1 in each year thereafter so long as any
of the 4.60% (Series A) Cumulative Preferred Stock shall remain
outstanding, the Company shall, subject to the provisions of Section C
of this Article V, set aside as a Purchase Fund for the 4.60% (Series
A) Cumulative Preferred Stock (herein called the "4.60% (Series A)
Preferred Stock Purchase Fund") an amount equal to 2% of the aggregate
par value of the largest number of shares of 4.60% (Series A)
Cumulative Preferred Stock at any time theretofore outstanding;
provided, however, that amounts set aside for Purchase Funds
heretofore or hereafter established for the several series of
Preferred Stock shall be set aside without preference or priority as
between series so that if at any time there shall be a deficiency
(including any amount then required to be set aside) in the Purchase
Funds for two or more series of Preferred Stock, any satisfaction of
such deficiencies shall be made simultaneously for such two or more
Purchase Funds in proportion to the amounts of the respective
deficiencies therein. On or before each such June 1 the Company shall
in writing, addressed to all holders of record of the 4.60% (Series A)
Cumulative Preferred Stock, invite tenders of 4.60% (Series A)
Cumulative Preferred Stock at the par value thereof, plus an amount
equal to accrued dividends to the next succeeding June 30, in an
amount sufficient to exhaust the moneys so set aside in the 4.60%
(Series A) Preferred Stock Purchase Fund. The invitations for tenders
shall specify how tenders shall be made and how notification of
acceptance thereof will be given. Tenders may be made on or before
June 25, in each year. If the par value of the shares of 4.60% (Series
A) Cumulative Preferred Stock tendered in response to any such
invitation aggregates more than the amount available in the 4.60%
(Series A) Preferred Stock Purchase Fund such tenders shall be
accepted pro rata (as nearly as practicable without the purchase or
issuance of fractional shares or scrip therefor) in proportion to the
total number of shares of 4.60% (Series A) Cumulative Preferred Stock
tendered respectively by the holders thereof who shall have made such
tenders, provided that in any event, each holder of 4.60% (Series A)
Cumulative Preferred Stock shall be entitled to tender and to have
purchased by the Company on each such invitation, at least the number
of shares (as nearly as practicable without the purchase or issuance
of fractional shares or scrip therefor) of the 4.60% (Series A)
Cumulative Preferred Stock held by such holder which bears the same
ratio to the total number of shares to be purchased pursuant to the
invitation as the number of shares held of record by such holder at
the close of business on the last business day before the date of such
invitation, bears to the total number of shares of 4.60% (Series A)
Cumulative Preferred Stock then outstanding. Tenders shall be accepted
of sufficient shares of 4.60% (Series A) Cumulative Preferred Stock to
exhaust all of the moneys in the 4.60% (Series A) Preferred Stock
Purchase Fund. Payment for 4.60% (Series A) Cumulative Preferred Stock
for which tenders shall have been accepted shall be made on the June
30 following the last day for the making of tenders. To the extent
that tenders in any year are not made in an amount sufficient to
exhaust all of the moneys so held in the 4.60% (Series A) Preferred
Stock Purchase Fund, such excess moneys in the 4.60% (Series A)
Preferred Stock Purchase Fund for that year shall be released from the
4.60% (Series A) Preferred Stock Purchase Fund and become free funds
to the Company. The obligation to set aside amounts in the 4.60%
(Series A) Preferred Stock Purchase Fund shall be cumulative, so that
if, on June 1 of each year cash in the required amount shall not have
been set aside in full, the amount of the deficiency shall be added to
the 4.60% (Series A) Preferred Stock Purchase Fund for the next
succeeding year until the total aggregate amount which shall have been
set aside in such 4.60% (Series A) Preferred Stock Purchase Fund, and
used or released to the Company in accordance with the provisions of
this Section D.3, shall equal 2% of the aggregate par value of the
largest number of shares of 4.60% (Series A) Cumulative Preferred
Stock at any time theretofore outstanding, multiplied by the number of
twelve month periods which shall have elapsed since June 1, 1957. No
dividends shall be declared or paid upon or set apart for any shares
of Common Stock or any sums applied to the purchase, redemption or
other retirement of Common Stock, so long as any such deficiency shall
exist in the 4.60% (Series A) Preferred Stock Purchase Fund. Amounts
to satisfy any such deficiency in the 4.60% (Series A) Preferred Stock
Purchase Fund, in whole or in part, may be set aside in the 4.60%
(Series A) Preferred Stock Purchase Fund at any time, for application
in the manner aforesaid on the next succeeding June 1, provided
however, that if at any time between any June 30 and March 1 of the
following year the amount so set aside in the 4.60% (Series A)
Preferred Stock Purchase Fund shall aggregate $50,000 or more, the
Company shall immediately invite tenders of 4.60% (Series A)
Cumulative Preferred Stock in the manner aforesaid, in an amount
sufficient to exhaust the moneys in the 4.60% (Series A) Preferred
Stock Purchase Fund, at the par value thereof plus an amount equal to
accrued dividends to a date which shall be thirty days from the date
of such invitation, the invitation to remain open for twenty-five
days; and on or before the thirtieth day following the date of such
invitation, the Company shall accept tenders and make payment for
4.60% (Series A) Cumulative Preferred Stock tendered, at the price
aforesaid in the same manner as above provided with respect to moneys
set aside in the 4.60% (Series A) Preferred Stock Purchase Fund on
June 1 in each year, and to the extent that tenders are not made in an
amount sufficient to exhaust the moneys so held in the 4.60% (Series
A) Preferred Stock Purchase Fund, such moneys shall likewise be
released from the 4.60% (Series A) Preferred Stock Purchase Fund and
become free funds to the Company. Amounts equal to accrued dividends
on 4.60% (Series A) Cumulative Preferred Stock purchased through the
4.60% (Series A) Preferred Stock Purchase Fund shall be paid by the
Company by the use of moneys not in the 4.60% (Series A) Preferred
Stock Purchase Fund, and shall not be charged to the 4.60% (Series A)
Preferred Stock Purchase Fund. Shares of 4.60% (Series A) Cumulative
Preferred Stock purchased through the 4.60% (Series A) Preferred Stock
Purchase Fund shall be cancelled and shall not be reissued.
4. On April 1, 1963 and on April 1 in each year thereafter so long as any
of the 5.125% Cumulative Preferred Stock shall remain outstanding, the
Company shall, subject to the provisions of Section C of this Article
V, set aside as a Purchase Fund for the 5.125% Cumulative Preferred
Stock (herein called the "5.125% Preferred Stock Purchase Fund") an
amount equal to 1% of the aggregate par value of the largest number of
shares of 5.125% Cumulative Preferred Stock at any time theretofore
outstanding; provided, however, that amounts set aside for Purchase
Funds heretofore or hereafter established for the several series of
Preferred Stock shall be set aside without preference or priority as
between series so that if at any time there shall be a deficiency
(including any amount then required to be set aside) in the Purchase
Funds for two or more series of Preferred Stock, any satisfaction of
such deficiencies shall be made simultaneously for such two or more
Purchase Funds in proportion to the amounts of the respective
deficiencies therein. On or before each such April 1 the Company shall
in writing, addressed to all holders of record of the 5.125%
Cumulative Preferred Stock, invite tenders of 5.125% Cumulative
Preferred Stock at the par value thereof, plus an amount equal to
accrued dividends to the next succeeding April 30, in an amount
sufficient to exhaust the moneys so set aside in the 5.125% Preferred
Stock Purchase Fund. The invitations for tenders shall specify how
tenders shall be made and how notification of acceptance thereof will
be given. Tenders may be made on or before April 25, in each year. If
the par value of the shares of 5.125% Cumulative Preferred Stock
tendered in response to any such invitation aggregates more than the
amount available in the 5.125% Preferred Stock Purchase Fund such
tenders shall be accepted pro rata (as nearly as practicable without
the purchase or issuance of fractional shares or scrip therefor) in
proportion to the total number of shares of 5.125% Cumulative
Preferred Stock tendered respectively by the holders thereof who shall
have made such tenders, provided that in any event, each holder of
5.125% Cumulative Preferred Stock shall be entitled to tender and to
have purchased by the Company on each such invitation, at least the
number of shares (as nearly as practicable without the purchase or
issuance of fractional shares or scrip therefor) of the 5.125%
Cumulative Preferred Stock held by such holder which bears the same
ratio to the total number of shares to be purchased pursuant to the
invitation as the number of shares held of record by such holder at
the close of business on the last business day before the date of such
invitation, bears to the total number of shares of 5.125% Cumulative
Preferred Stock then outstanding. Tenders shall be accepted of
sufficient shares of 5.125% Cumulative Preferred Stock to exhaust all
of the moneys in the 5.125% Preferred Stock Purchase Fund. Payment for
5.125% Cumulative Preferred Stock for which tenders shall have been
accepted shall be made on the April 30 following the last day for the
making of tenders. To the extent that tenders in any year are not made
in an amount sufficient to exhaust all of the moneys so held in the
5.125% Preferred Stock Purchase Fund, such excess moneys in the 5.125%
Preferred Stock Purchase Fund for that year shall be released from the
5.125% Preferred Stock Purchase Fund and become free funds to the
Company. The obligation to set aside amounts in the 5.125% Preferred
Stock Purchase Fund shall be cumulative, so that if, on April 1 of
each year cash in the required amount shall not have been set aside in
full, the amount of the deficiency shall be added to the 5.125%
Preferred Stock Purchase Fund for the next succeeding year until the
total aggregate amount which shall have been set aside in such 5.125%
Preferred Stock Purchase Fund, and used or released to the Company in
accordance with the provisions of this Section D.4, shall equal 1% of
the aggregate par value of the largest number of shares of 5.125%
Cumulative Preferred Stock at any time theretofore outstanding,
multiplied by the number of twelve month periods which shall have
elapsed since April 1, 1962. No dividends shall be declared or paid
upon or set apart for any shares of Common Stock or any sums applied
to the purchase, redemption or other retirement of Common Stock, so
long as any such deficiency shall exist in the 5.125% Preferred Stock
Purchase Fund. Amounts to satisfy any such deficiency in the 5.125%
Preferred Stock Purchase Fund, in whole or in part, may be set aside
in the 5.125% Preferred Stock Purchase Fund at any time, for
application in the manner aforesaid on the next succeeding April 1,
provided however, that if at any time between any April 30 and January
1 of the following year the amount so set aside in the 5.125%
Preferred Stock Purchase Fund shall aggregate $50,000 or more, the
Company shall immediately invite tenders of 5.125% Cumulative
Preferred Stock in the manner aforesaid, in an amount sufficient to
exhaust the moneys in the 5.125% Preferred Stock Purchase Fund, at the
par value thereof plus an amount equal to accrued dividends to a date
which shall be thirty days from the date of such invitation, the
invitation to remain open for twenty-five days; and on or before the
thirtieth day following the date of such invitation, the Company shall
accept tenders and make payment for 5.125% Cumulative Preferred Stock
tendered, at the price aforesaid in the same manner as above provided
with respect to moneys set aside in the 5.125% Preferred Stock
Purchase Fund on April I in each year, and to the extent that tenders
are not made in an amount sufficient to exhaust the moneys so held in
the 5.125% Preferred Stock Purchase Fund, such moneys shall likewise
be released from the 5.125% Preferred Stock Purchase Fund and become
free funds to the Company. Amounts equal to accrued dividends on
5.125% Cumulative Preferred Stock purchased through the 5.125%
Preferred Stock Purchase Fund shall be paid by the Company by the use
of moneys not in the 5.125% Preferred Stock Purchase Fund, and shall
not be charged to the 5.125% Preferred Stock Purchase Fund. Shares of
5.125% Cumulative Preferred Stock purchased through the 5.125%
Preferred Stock Purchase Fund shall be cancelled and shall not be
reissued.
5. On March 1, 1968 and on March 1 in each year thereafter so long as any
of the 4.60% (Series B) Cumulative Preferred Stock shall remain
outstanding, the Company shall, subject to the provisions of Section C
of this Article V, set aside as a Purchase Fund for the 4.60% (Series
B) Cumulative Preferred Stock (herein called the "4.60% (Series B)
Preferred Stock Purchase Fund") an amount equal to 2% of the aggregate
par value of the largest number of shares of 4.60% (Series B)
Cumulative Preferred Stock at any time theretofore outstanding;
provided, however, that amounts set aside for Purchase Funds
heretofore or hereafter established for the several series of
Preferred Stock shall be set aside without preference or priority as
between series so that if at any time there shall be a deficiency
(including any amount then required to be set aside) in the Purchase
Funds for two or more series of Preferred Stock, any satisfaction of
such deficiencies shall be made simultaneously for such two or more
Purchase Funds in proportion to the amounts of the respective
deficiencies therein. On or before each such March 1 the Company shall
in writing, addressed to all holders of record of the 4.60% (Series B)
Cumulative Preferred Stock, invite tenders of 4.60% (Series B)
Cumulative Preferred Stock at the par value thereof, plus an amount
equal to accrued dividends to the next succeeding March 31, in an
amount sufficient to exhaust the moneys so set aside in the 4.60%
(Series B) Preferred Stock Purchase Fund. The invitations for tenders
shall specify how tenders shall be made and how notification of
acceptance thereof will be given. Tenders may be made on or before
March 25, in each year. If the par value of the shares of 4.60%
(Series B) Cumulative Preferred Stock tendered in response to any such
invitation aggregates more than the amount available in the 4.60%
(Series B) Preferred Stock Purchase Fund such tenders shall be
accepted pro rata (as nearly as practicable without the purchase or
issuance of fractional shares or scrip therefor) in proportion to the
total number of shares of 4.60% (Series B) Cumulative Preferred Stock
tendered respectively by the holders thereof who shall have made such
tenders, provided that in any event, each holder of 4.60% (Series B)
Cumulative Preferred Stock shall be entitled to tender and to have
purchased by the Company on each such invitation, at least the number
of shares (as nearly as practicable without the purchase or issuance
of fractional shares or scrip therefor) of the 4.60% (Series B)
Cumulative Preferred Stock held by such holder which bears the same
ratio to the total number of shares to be purchased pursuant to the
invitation as the number of shares held of record by such holder at
the close of business on the last business day before the date of such
invitation, bears to the total number of shares of 4.60% (Series B)
Cumulative Preferred Stock then outstanding. Tenders shall be accepted
of sufficient shares of 4.60% (Series B) Cumulative Preferred Stock to
exhaust all of the moneys in the 4.60% (Series B) Preferred Stock
Purchase Fund. Payment for 4.60% (Series B) Cumulative Preferred Stock
for which tenders shall have been accepted shall be made on the March
31 following the last day for the making of tenders. To the extent
that tenders in any year are not made in an amount sufficient to
exhaust all of the moneys so held in the 4.60% (Series B) Preferred
Stock Purchase Fund, such excess moneys in the 4.60% (Series B)
Preferred Stock Purchase Fund for that year shall be released from the
4.60% (Series B) Preferred Stock Purchase Fund and become free funds
to the Company. The obligation to set aside amounts in the 4.60%
(Series B) Preferred Stock Purchase Fund shall be cumulative, so that
if, on March 1 of each year cash in the required amount shall not have
been set aside in full, the amount of the deficiency shall be added to
the 4.60% (Series B) Preferred Stock Purchase Fund for the next
succeeding year until the total aggregate amount which shall have been
set aside in such 4.60% (Series B) Preferred Stock Purchase Fund, and
used or released to the Company in accordance with the provisions of
this Section D.5, shall equal 2% of the aggregate par value of the
largest number of shares of 4.60% (Series B) Cumulative Preferred
Stock at any time theretofore outstanding, multiplied by the number of
twelve month periods which shall have elapsed since March 1, 1967. No
dividends shall be declared or paid upon or set apart for any shares
of Common Stock or any sums applied to the purchase, redemption or
other retirement of Common Stock, so long as any such deficiency shall
exist in the 4.60% (Series B) Preferred Stock Purchase Fund. Amounts
to satisfy any such deficiency in the 4.60% (Series B) Preferred Stock
Purchase Fund, in whole or in part, may be set aside in the 4.60%
(Series B) Preferred Stock Purchase Fund at any time, for application
in the manner aforesaid on the next succeeding March 1, provided
however, that if at any time between March 31 and December 1 of any
year the amount so set aside in the 4.60% (Series B) Preferred Stock
Purchase Fund shall aggregate $85,000 or more, the Company shall
immediately invite tenders of 4.60% (Series B) Cumulative Preferred
Stock in the manner aforesaid, in an amount sufficient to exhaust the
moneys in the 4.60% (Series B) Preferred Stock Purchase Fund, at the
par value thereof plus an amount equal to accrued dividends to a date
which shall be thirty days from the date of such invitation, the
invitation to remain open for twenty-five days; and on or before the
thirtieth day following the date of such invitation, the Company shall
accept tenders and make payment for 4.60% (Series B) Cumulative
Preferred Stock tendered, at the price aforesaid in the same manner as
above provided with respect to moneys set aside in the 4.60% (Series
B) Preferred Stock Purchase Fund on March 1 in each year, and to the
extent that tenders are not made in an amount sufficient to exhaust
the moneys so held in the 4.60% (Series B) Preferred Stock Purchase
Fund, such moneys shall likewise be released from the 4.60% (Series B)
Preferred Stock Purchase Fund and become free funds to the Company.
Amounts equal to accrued dividends on 4.60% (Series B) Cumulative
Preferred Stock purchased through the 4.60% (Series B) Preferred Stock
Purchase Fund shall be paid by the Company by the use of moneys not in
the 4.60% (Series B) Preferred Stock Purchase Fund, and shall not be
charged to the 4.60% (Series B) Preferred Stock Purchase Fund. Shares
of 4.60% (Series B) Cumulative Preferred Stock purchased through the
4.60% (Series B) Preferred Stock Purchase Fund shall be cancelled and
shall not be reissued.
6. On January 1, 1972 and on January 1 in each year thereafter so long as
any of the 6% Cumulative Preferred Stock shall remain outstanding, the
Company shall, subject to the provisions of Section C of this Article
V, set aside as a Purchase Fund for the 6% Cumulative Preferred Stock
(herein called the "6% Preferred Stock Purchase Fund") an amount equal
to 2% of the aggregate par value of the largest number of shares of 6%
Cumulative Preferred Stock at any time theretofore outstanding;
provided, however, that amounts set aside for Purchase Funds
heretofore or hereafter established for the several series of
Preferred Stock shall be set aside without preference or priority as
between series so that if at any time there shall be a deficiency
(including any amount then required to be set aside) in the Purchase
Funds for two or more series of Preferred Stock, any satisfaction of
such deficiencies shall be made simultaneously for such two or more
Purchase Funds in proportion to the amounts of the respective
deficiencies therein. On or before each such January 1 the Company
shall in writing, addressed to all holders of record of the 6%
Cumulative Preferred Stock, invite tenders of 6% Cumulative Preferred
Stock at the par value thereof, plus an amount equal to accrued
dividends to the next succeeding January 31, in an amount sufficient
to exhaust the moneys so set aside in the 6% Preferred Stock Purchase
Fund. The invitations for tenders shall specify how tenders shall be
made and how notification of acceptance thereof will be given. Tenders
may be made on or before January 25, in each year. If the par value of
the shares of 6% Cumulative Preferred Stock tendered in response to
any such invitation aggregates more than the amount available in the
6% Preferred Stock Purchase Fund such tenders shall be accepted pro
rata (as nearly as practicable without the purchase or issuance of
fractional shares or scrip therefor) in proportion to the total number
of shares of 6% Cumulative Preferred Stock tendered respectively by
the holders thereof who shall have made such tenders, provided that in
any event, each holder of 6% Cumulative Preferred Stock shall be
entitled to tender and to have purchased by the Company on each such
invitation, at least the number of shares (as nearly as practicable
without the purchase or issuance of fractional shares or scrip
therefor) of the 6% Cumulative Preferred Stock held by such holder
which bears the same ratio to the total number of shares to be
purchased pursuant to the invitation as the number of shares held of
record by such holder at the close of business on the last business
day before the date of such invitation, bears to the total number of
shares of 6% Cumulative Preferred Stock then outstanding. Tenders
shall be accepted of sufficient shares of 6% Cumulative Preferred
Stock to exhaust all of the moneys in the 6% Preferred Stock Purchase
Fund. Payment for 6% Cumulative Preferred Stock for which tenders
shall have been accepted shall be made on the January 31 following the
last day for the making of tenders. To the extent that tenders in any
year are not made in an amount sufficient to exhaust all of the moneys
so held in the 6% Preferred Stock Purchase Fund, such excess moneys in
the 6% Preferred Stock Purchase Fund for that year shall be released
from the 6% Preferred Stock Purchase Fund and become free funds to the
Company. The obligation to set aside amounts in the 6% Preferred Stock
Purchase Fund shall be cumulative, so that if, on January 1 of each
year cash in the required amount shall not have been set aside in
full, the amount of the deficiency shall be added to the 6% Preferred
Stock Purchase Fund for the next succeeding year until the total
aggregate amount which shall have been set aside in such 6% Preferred
Stock Purchase Fund, and used or released to the Company in accordance
with the provisions of this Section D.6, shall equal 2% of the
aggregate par value of the largest number of shares of 6% Cumulative
Preferred Stock at any time theretofore outstanding, multiplied by the
number of twelve month periods which shall have elapsed since January
1, 1971. No dividends shall be declared or paid upon or set apart for
any shares of Common Stock or any sums applied to the purchase,
redemption or other retirement of Common Stock, so long as any such
deficiency shall exist in the 6% Preferred Stock Purchase Fund.
Amounts to satisfy any such deficiency in the 6% Preferred Stock
Purchase Fund, in whole or in part, may be set aside in the 6%
Preferred Stock Purchase Fund at any time, for application in the
manner aforesaid on the next succeeding January 1, provided however,
that if at any time between January 31 and October 1 of any year the
amount so set aside in the 6% Preferred Stock Purchase Fund shall
aggregate $80,000 or more, the Company shall immediately invite
tenders of 6% Cumulative Preferred Stock in the manner aforesaid, in
an amount sufficient to exhaust the moneys in the 6% Preferred Stock
Purchase Fund, at the par value thereof plus an amount equal to
accrued dividends to a date which shall be thirty days from the date
of such invitation, the invitation to remain open for twenty-five
days; and on or before the thirtieth day following the date of such
invitation, the Company shall accept tenders and make payment for 6%
Cumulative Preferred Stock tendered, at the price aforesaid in the
same manner as above provided with respect to moneys set aside in the
6% Preferred Stock Purchase Fund on January 1 in each year, and to the
extent that tenders are not made in an amount sufficient to exhaust
the moneys so held in the 6% Preferred Stock Purchase Fund, such
moneys shall likewise be released from the 6% Preferred Stock Purchase
Fund and become free funds to the Company. Amounts equal to accrued
dividends on 6% Cumulative Preferred Stock purchased through the 6%
Preferred Stock Purchase Fund shall be paid by the Company by the use
of moneys not in the 6% Preferred Stock Purchase Fund, and shall not
be charged to the 6% Preferred Stock Purchase Fund. Shares of 6%
Cumulative Preferred Stock purchased through the 6% Preferred Stock
Purchase Fund shall be cancelled and shall not be reissued.
7. Subject to the provisions of Sections C and E of this Article V, prior
to October 1, 1973 and prior to October 1 in each year thereafter so
long as any of the 9.40% Cumulative Preferred Stock shall remain
outstanding, the Company shall deposit with the Transfer Agent, as a
Sinking Fund for the 9.40% Cumulative Preferred Stock, an amount equal
to 2% of the aggregate par value of the largest number of shares of
9.40% Cumulative Preferred Stock at any time theretofore outstanding,
plus an amount equal to dividends accrued thereon to such October 1.
The Transfer Agent shall apply the moneys in such fund to redeem on
each such October 1, in accordance with the provisions of Section E of
this Article V, shares of the 9.40% Cumulative Preferred Stock at
Fifty Dollars ($50.00) per share, plus dividends accrued to the date
of redemption, provided that, in addition to the restrictions
contained in Sections C and E of this Article V, if, at any time, the
Company shall be in default in the performance of its obligations
under this Sinking Fund, thereafter and until all such defaults shall
have been remedied, the Company shall not redeem any Preferred Stock
unless all the shares of Preferred Stock outstanding are redeemed, and
shall not purchase or otherwise acquire for value any shares of
Preferred Stock except out of amounts set aside as Purchase Funds or
Sinking Funds heretofore or hereafter established for one or more of
the series of Preferred Stock. The Company may, upon notice to the
Transfer Agent prior to August 15 in any year in which the Company
shall be obligated to redeem shares of the 9.40% Cumulative Preferred
Stock through the operation of the Sinking Fund, elect to reduce its
obligation in respect of the redemption of shares so required to be
redeemed by directing that any shares of the 9.40% Cumulative
Preferred Stock previously purchased by the Company (other than shares
purchased pursuant to the operation of the Sinking Fund or previously
applied as a credit against the Sinking Fund) shall be applied as a
credit, in whole or in part, in an amount equal to the aggregate par
value of the shares so applied, against the aggregate par value of the
shares required to be redeemed in such year pursuant to the operation
of the Sinking Fund.
8. Subject to the provisions of Sections C and E of this Article V, prior
to July 1, 1974 and prior to July 1 in each year thereafter so long as
any of the 8.12% Cumulative Preferred Stock shall remain outstanding,
the Company shall deposit with the Transfer Agent, as a Sinking Fund
for the 8.12% Cumulative Preferred Stock, an amount equal to 2% of the
aggregate par value of the largest number of shares of 8.12%
Cumulative Preferred Stock at any time theretofore outstanding, plus
an amount equal to dividends accrued to such July 1 on the shares to
be redeemed therewith. The Transfer Agent shall apply the moneys in
such fund to redeem on each such July 1, in accordance with the
provisions of Section E of this Article V, shares of the 8.12%
Cumulative Preferred Stock at One Hundred Dollars ($100.00) per share,
plus dividends accrued to the date of redemption. The Company may,
upon notice to the Transfer Agent prior to April 15 in any year in
which the Company shall be obligated to redeem shares of the 8.12%
Cumulative Preferred Stock through the operation of the Sinking Fund,
elect to reduce its obligation in respect of the redemption of shares
so required to be redeemed by directing that any shares of the 8.12%
Cumulative Preferred Stock previously purchased by the Company (other
than shares purchased pursuant to the operation of the Sinking Fund or
previously applied as a credit against the Sinking Fund) shall be
applied as a credit, in whole or in part, in an amount equal to the
aggregate par value of the shares so applied, against the aggregate
par value of the shares required to be redeemed in such year pursuant
to the operation of the Sinking Fund.
9. Subject to the provisions of Sections C and E of this Article V, prior
to July 1, 1975 and prior to July 1 in each year thereafter so long as
any of the 7.70% Cumulative Preferred Stock shall remain outstanding,
the Company shall deposit with the Transfer Agent, as a Sinking Fund
for the 7.70% Cumulative Preferred Stock, an amount equal to 2% of the
aggregate par value of the largest number of shares of 7.70%
Cumulative Preferred Stock at any time theretofore outstanding, plus
an amount equal to dividends accrued to such July 1 on the shares to
be redeemed therewith. The Transfer Agent shall apply the moneys in
such fund to redeem on each such July 1, in accordance with the
provisions of Section E of this Article V, shares of the 7.70%
Cumulative Preferred Stock at One Hundred Dollars ($100.00) per share,
plus dividends accrued to the date of redemption. The Company may,
upon notice to the Transfer Agent prior to April 15 in any year in
which the Company shall be obligated to redeem shares of the 7.70%
Cumulative Preferred Stock through the operation of the Sinking Fund,
elect to reduce its obligation in respect of the redemption of shares
so required to be redeemed by directing that any shares of the 7.70%
Cumulative Preferred Stock previously purchased by the Company (other
than shares purchased pursuant to the operation of the Sinking Fund or
previously applied as a credit against the Sinking Fund) shall be
applied as a credit, in whole or in part, in an amount equal to the
aggregate par value of the shares so applied, against the aggregate
par value of the shares required to be redeemed in such year pursuant
to the operation of the Sinking Fund.
10. Subject to the provisions of Sections C and E of this Article V, prior
to January 1, 1985 and prior to January 1 in each year thereafter so
long as any of the 8.72% Cumulative Preferred Stock shall remain
outstanding, the Company shall deposit with the Transfer Agent, as a
Sinking Fund for the 8.72% Cumulative Preferred Stock, an amount equal
to 4% of the aggregate par value of the largest number of shares of
8.72% Cumulative Preferred Stock at any time theretofore outstanding
and, in addition, the Company may, at its option, deposit in such fund
up to an equal amount plus, in each case, an amount equal to dividends
accrued to such January 1 on the shares to be redeemed therewith. The
right to make such optional deposit shall not be cumulative and shall
not reduce any subsequent mandatory Sinking Fund payment. If the
Company shall intend to exercise its right to make an optional Sinking
Fund payment in any year, it shall deliver to the Transfer Agent prior
to November 15 of such year notice of its intent to exercise such
optional right. Thereupon, the amount required to be deposited in such
fund by the first sentence of this paragraph shall be increased by,
and shall include, the additional amount specified in such notice. The
Transfer Agent shall apply the moneys in such fund to redeem on each
such January 1, in accordance with the provisions of Section E of this
Article V, shares of the 8.72% Cumulative Preferred Stock at Fifty
Dollars ($50.00) per share, plus dividends accrued to the date of
redemption. The Company may, upon notice to the Transfer Agent prior
to November 15 in any year in which the Company shall be obligated to
redeem shares of the 8.72% Cumulative Preferred Stock through the
operation of the Sinking Fund, elect to reduce its obligation in
respect of the redemption of shares so required to be redeemed by
directing that any shares of the 8.72% Cumulative Preferred Stock
previously purchased by the Company (other than shares purchased
pursuant to the operation of the Sinking Fund or previously applied as
a credit against the Sinking Fund) shall be applied as a credit, in
whole or in part, in an amount equal to the aggregate par value of the
shares so applied, against the aggregate par value of the shares
required to be redeemed in such year pursuant to the operation of the
Sinking Fund.
E. The Preferred Stock of any series at any time outstanding may be
redeemed by the Company (except as may be otherwise provided by the
resolution or resolutions adopted by the Board of Directors pursuant
to Section B.2 (or its successor) of this Article V in the case of any
series of Preferred Stock established by the Board of Directors
pursuant to said Section B.2 (or its successor)). Any such redemption
by the Company shall be at its election expressed by resolution
adopted by its Board of Directors, as a whole at any time or in part
from time to time, on not less than thirty (30) nor more than sixty
(60) days' prior written notice given as herein provided, at, except
with respect to shares of the 6.52% Cumulative Preferred Stock which
shall be as set forth in Section F below, (i) the then applicable
redemption prices per share set forth below with respect to shares of
the presently designated series of Preferred Stock as set forth in
Exhibit A hereto and (ii) in addition thereto, in each case, an amount
which, together with the aggregate of the dividends previously paid
upon such share, shall be equal to dividends accrued upon such share
at the annual dividend rate indicated below (but without interest)
from the date from which the dividends thereon became cumulative to
the date of redemption:
Annual
Date Fixed Redemption Dividend
Series for Redemption Price Rate
(a) 5% Preferred Stock Any date $ 52.50 $2.50
(b) 4.60% Cumulative Preferred Stock Any date $ 50.50 $2.30
(c) 4.50% Cumulative Preferred Stock Any date $ 51.00 $2.25
(d) 4.60% (Series A) Cumulative Any date $ 51.00 $2.30
Preferred Stock
(e) 5.125% Cumulative Preferred Stock Any date $ 51.00 $2.5625
(f) 4.60% (Series B) Cumulative Any date $ 50.50 $2.30
Preferred Stock
(g) 6% Cumulative Preferred Stock Any date $ 50.50 $3.00
(h) 9.40% Cumulative Preferred Stock Any date $ 51.175 $4.70
(i) 8.12% Cumulative Preferred Stock Any date $102.03 $8.12
(j) 7.70% Cumulative Preferred Stock Any date $101.00 $7.70
Annual
Date Fixed Redemption Dividend
Series for Redemption Price Rate
(k) 8.40% Cumulative Preferred Stock On or prior to
November 30, 1991 $104.70 $8.40
December 1, 1991 through
November 30, 1996 102.80
On and after
December 1, 1996 101.00
(l) 8.72% Cumulative Preferred Stock On or prior to
December 31, 1993 $ 52.00 $4.36
January 1, 1994 through
December 31, 1998 51.00
On and after
January 1, 1999 50.00
and, in the case of any series of Preferred Stock established
by the Board of Directors pursuant to Section B.2 (or its
successor) of this Article V to be redeemed, at the redemption
price per share of shares of such series fixed and determined
by the resolution or resolutions of the Board of Directors
establishing such series in effect at the time of such
redemption, and, in addition thereto, an amount which,
together with the aggregate of the dividends previously paid
upon such share, will be equal to the annual dividend rate for
such series fixed and determined by the resolution or
resolutions of the Board of Directors establishing such series
(but without interest) from the date from which the dividends
thereon became cumulative to the date of redemption.
Redemption may be made at any time of either the whole or any
part of the shares of any series of Preferred Stock without
redeeming the whole or any part of the shares of any other
series of Preferred Stock; provided that if, at any time, the
Company shall fail to pay dividends in full on any outstanding
shares of any series of Preferred Stock, thereafter and until
dividends in full on all such shares shall have been paid, or
declared and set apart for payment, for all past dividend
periods, the Company shall not redeem any Preferred Stock
unless all the shares of Preferred Stock outstanding are
redeemed, and shall not purchase or otherwise acquire for
value any shares of Preferred Stock otherwise than in
accordance with an offer made to all holders of shares of
Preferred Stock; and provided further if, at any time, the
Company shall be in default in the performance of its
obligations under any Purchase Fund or Sinking Fund provisions
heretofore or hereafter fixed and determined for any series of
Preferred Stock pursuant to this Article V, thereafter and
until all such defaults shall have been remedied, the Company
shall not redeem any Preferred Stock unless all the shares of
Preferred Stock outstanding are redeemed, and shall not
purchase or otherwise acquire for value any shares of
Preferred Stock except out of amounts set aside as Purchase
Funds or Sinking Funds heretofore or hereafter established for
one or more of the series of Preferred Stock. In case of the
redemption of a part only of any series of Preferred Stock at
the time outstanding, the shares of Preferred Stock to be
redeemed shall be selected by lot, in such manner as the
Company may determine, by a bank or trust company selected for
that purpose by the Company. Notice of the election of the
Company to redeem any of the Preferred Stock shall be given by
the Company by mailing a copy of such notice, postage prepaid,
not less than thirty (30) nor more than sixty (60) days prior
to the date designated therein as the date for such
redemption, to the holders of record on the date of such
mailing of the shares of Preferred Stock to be redeemed,
addressed to them at their respective addresses appearing on
the books of the Company. Such notice shall state that such
shares of Preferred Stock will be redeemed at the redemption
price aforesaid and on the date specified in such notice, upon
the surrender for cancellation, at the place designated in
such notice, of the certificates representing such shares of
Preferred Stock, properly endorsed in blank for transfer or
accompanied by proper instruments of assignment and transfer
in blank (if required by the Company) and bearing all
necessary transfer stamps thereto affixed and cancelled. On
and after the date specified in such notice, each holder of
shares of Preferred Stock called for redemption as aforesaid,
upon presentation and surrender at the place designated in
such notice of the certificates for shares of Preferred Stock
held by him, properly endorsed in blank for transfer or
accompanied by proper instruments of assignment and transfer
in blank (if required by the Company), and bearing all
necessary transfer tax stamps thereto affixed and cancelled,
shall be entitled to receive therefor the redemption price
hereinbefore specified. From and after the date of redemption
specified in such notice (unless default shall be made by the
Company in providing moneys for the payment of the redemption
price), all dividends on the shares of Preferred Stock so
called for redemption shall cease to accrue and, from and
after said date (unless default shall be made by the Company
as aforesaid), or, if the Company shall so elect, from and
after the date (prior to the date of redemption so specified)
on which the Company shall provide the moneys for the payment
of the redemption price by depositing the amount thereof with
a bank or trust company doing business in the Borough of
Manhattan, City and State of New York, and having a capital
and surplus of at least $5,000,000, provided that the notice
of redemption shall have stated the intention of the Company
to deposit such amount on a date in such notice specified, all
rights of the holders of the shares so called for redemption
as stockholders of the Company, except only the right to
receive the redemption price then due, shall cease and
determine. Subject to the foregoing provisions of this Section
E, the Company may also from time to time repurchase shares of
any series of its Preferred Stock at not exceeding the
respective redemption prices thereof. All shares of Preferred
Stock so redeemed shall be retired and shall not be reissued,
but the Company may, nevertheless, from time to time
thereafter increase and/or reclassify its capital stock in the
manner and to the extent permitted by law and by its Charter.
F. With respect to redemptions of shares of the 6.52% Cumulative
Preferred Stock, any such redemption by the Company shall be
accomplished pursuant to the provisions set forth in Section E
of this Article V, at a redemption price per share of $100
and, in addition thereto, in each case, an amount which,
together with the aggregate of the dividends previously paid
upon such share, shall be equal to dividends accrued upon such
share at the annual dividend rate indicated in paragraph 1(m)
of Section C.1 (but without interest) from the date from which
the dividends thereon became cumulative to but excluding the
date of redemption.
G. At all elections of directors of the Company, and on all other
matters, except on matters in respect of which the laws of the
State of South Carolina shall provide that all stockholders shall
have the right to vote irrespective of whether such right has
been relinquished by any of such stockholders and except as
otherwise herein provided, the holders of the Common Stock shall
have the exclusive right to vote, provided, however, that, if and
whenever four (4) quarterly dividends payable on the Preferred
Stock shall be unpaid in whole or in part, the holders of the
Preferred Stock as a class, all the shares of all series of
Preferred Stock then outstanding taken together constituting the
class, shall have the exclusive right to vote for and to elect
the smallest number of directors which shall constitute a
majority of the then authorized number of directors of the
Company, and in all matters other than the election of directors,
each holder of one or more shares of any series of Preferred
Stock shall be entitled to such vote for each such share held by
him as is provided in paragraph 3(f) of Section B of this Article
V. In the event of defaults entitling the Preferred Stock to vote
as aforesaid, the holders of the Common Stock as a class shall
have the exclusive right to vote for and to elect the greatest
number of directors which shall constitute a minority of the then
authorized number of directors of the Company and in all matters
other than the election of directors, each holder of Common Stock
shall be entitled to one vote for each share of stock held by
him. The voting rights of the holders of the Preferred Stock,
however, shall cease when all accumulated and unpaid dividends on
their stock shall have been paid in full. The terms of office of
all persons who may be directors of the Company, at the time when
the right to elect a majority of the directors shall accrue to
the holders of the Preferred Stock as herein provided, shall
terminate upon the election of their successors at a meeting of
the stockholders of the Company then entitled to vote. Whenever
the right shall have accrued to the holders of Preferred Stock to
elect directors, the Board of Directors shall, within ten days
after delivery to the Company at its principal office of a
request to such effect signed by any holder of shares of the
Preferred Stock entitled to vote, call a special meeting of the
stockholders to be held within forty days from the delivery of
such request for the purpose of electing directors. The notice of
such meeting shall be similar to that provided in the ByLaws for
an annual meeting of stockholders. Any vacancy in the Board of
Directors occurring during any period that the Preferred Stock
shall have representatives on the Board shall be filled by a
majority vote of the remaining directors representing the class
of stock theretofore represented by the director causing the
vacancy. Upon the termination of such exclusive right of the
holders of the Preferred Stock to elect a majority of the
directors of the Company, the terms of office of all the
directors of the Company shall terminate upon the election of
their successors at a meeting of the stockholders of the Company
then entitled to vote. Whenever the right of holders of shares of
Preferred Stock to elect directors shall have terminated, the
Board of Directors shall, within ten days after delivery to the
Company at its principal office of a request to such effect
signed by any holders of shares of Common Stock entitled to vote,
call a special meeting of the stockholders to be held within
forty days from the delivery of such request for the purpose of
electing directors. The notice of such meeting shall be similar
to that provided in the By-Laws for an annual meeting of
stockholders.
H. So long as any of the Preferred Stock shall be outstanding,
unless provision has been made for the redemption thereof as
provided in Section E of this Article V:
1. The Company shall not, without the affirmative vote or written
consent of the holders of at least two-thirds of the total voting
power of all shares of Preferred Stock then outstanding, all of
said shares voting as a single class (in addition to any other
vote or consent at the time required by law), (a) create or issue
any shares of stock, in addition to the shares which the Company
is then authorized to issue, which would rank equally with or
prior to the Preferred Stock or authorize any increase of the
Preferred Stock now authorized, or (b) amend its charter so as to
change, alter or repeal the provisions contained herein relating
to the preferences, voting powers, restrictions and
qualifications of any series of Preferred Stock, provided,
however, that if any such amendment, alteration or repeal would
decrease the rights and preferences of outstanding shares of
Preferred Stock of one or more series without proportionately
decreasing the rights and preferences of the outstanding shares
of the other series, then like consent by the holders of at least
two-thirds of the total voting power of the Preferred Stock of
the former one or more series (voting as a class) at the time
outstanding shall also be necessary for effecting or validating
any such amendment, alteration or repeal, provided further,
however, that the establishment and designation of any series of
Preferred Stock, and the fixing and determination of the relative
rights and preferences thereof, pursuant to Section B.2 (or its
successor) of this Article V including, without limiting the
generality of the foregoing, provisions for a Purchase Fund or
Sinking Fund, with respect to such series, which shall rank pari
passu with the Purchase Funds and Sinking Funds heretofore
provided for shares of the established series of Preferred Stock
designated as set forth in Exhibit A hereto or with any Purchase
Fund or Sinking Fund for any series of Preferred Stock hereafter
established, shall not be deemed to be an amendment of the
Company's charter which changes, alters or repeals the provisions
contained herein relating to the preferences, voting powers,
restrictions and qualifications of any series of Preferred Stock
or which decreases the rights and preferences of outstanding
shares of Preferred Stock of any series and shall not require the
affirmative vote or written consent of the holders of Preferred
Stock of any series heretofore or hereafter established, and
provided further, that if any such amendment or alteration would
increase the authorized number of shares of any series of
Preferred Stock referred to in Exhibit A hereto, then like
consent by the holders of at least two-thirds in amount of each
such series so affected shall also be necessary for effecting or
validating any such amendment or alteration, and provided further
that if any such amendment or alteration would increase the
authorized number of shares of any series of Preferred Stock
hereafter established by the Board of Directors pursuant to
Section B.2 (or its successor) of this Article V, then like
consent of the holders of at least two-thirds in amount of such
series shall also be necessary for effecting or validating any
such amendment or alteration or (c) issue any shares of Preferred
Stock in addition to the initial series of 125,234 shares of the
5% Preferred Stock, 60,000 shares of the 4.60% Cumulative
Preferred Stock, 80,000 shares of the 4.50% Cumulative Preferred
Stock, 100,000 shares of the 4.60% (Series A) Cumulative
Preferred Stock, 100,000 shares of the 5.125% Cumulative
Preferred Stock and 170,000 shares of the 4.60% (Series B)
Cumulative Preferred Stock (i) unless for any twelve consecutive
calendar months immediately preceding the calendar month within
which such additional shares of Preferred Stock shall be issued,
the net earnings of the Company available for the payment of
interest charges on the Company's indebtedness, determined after
provision for depreciation, amortization of utility plant
acquisition adjustment accounts, and all taxes, in accordance
with sound accounting practice, shall have been at least one and
one-half times the aggregate for a twelve months' period of the
interest charges on indebtedness of the Company and the dividend
requirements on all shares of Preferred Stock to be outstanding
immediately after the proposed issue of such additional shares
thereof, provided that there shall be excluded from the foregoing
computation interest charges on all indebtedness and dividends on
all stock which are to be retired in connection with the issue of
such additional shares of Preferred Stock, and also provided
that, where such additional shares of Preferred Stock are to be
issued in connection with the acquisition of new property, the
net earnings of the property to be so acquired may be included on
a pro forma basis in the foregoing computation, computed on the
same basis as the net earnings of the Company, and (ii) unless
the aggregate of the capital of the Company applicable to the
Common Stock and the surplus of the Company shall be not less
than the amount payable upon involuntary dissolution to the
holders of the Preferred Stock to be outstanding immediately
after the proposed issue of such additional Preferred Stock,
excluding from the foregoing computation all indebtedness and
stock which are to be retired in connection with the issue of
such additional shares of Preferred Stock, provided, that no
portion of the surplus of the Company which shall be used to meet
the requirements of this clause (ii) shall, after the issue of
such additional shares of Preferred Stock and until such
additional shares or a like number of other shares of Preferred
Stock shall have been retired, be available for dividends or
other distribution upon the Common Stock; and
2. The Company shall not, without the consent of the Preferred and
Common Stock at a meeting duly called for the purpose, which
consent must be evidenced by (a) a simple majority vote of the
total voting power of all shares of Preferred Stock then
outstanding, each of said shares being entitled to such vote per
share as is provided in paragraph 3(f) of Section B of this
Article V and voting as a single class, (b) a simple majority
vote of the total number of shares of Common Stock then
outstanding, each of said shares being entitled to one vote per
share, and (c) a two-thirds majority vote of the then outstanding
Preferred and Common Stock voting as a single class, each
outstanding share of Preferred Stock being entitled to twenty
times the vote per share provided in paragraph 3(f) of Section B
of this Article V and each outstanding share of Common Stock
being entitled to one vote per share (in addition to any other
vote or consent at the time required by law), consolidate or
merge with or into any other corporation or corporations, permit
the consolidation or merger of any other corporation or
corporations into it, or sell, lease or otherwise transfer all or
the greater part of the assets of the Company; provided, however,
that the Board of Directors of the Company, by resolution, shall
have the right at any time without the vote or consent of
stockholders of any class, to mortgage or otherwise subject to
lien or pledge all or any part of the assets of the Company for
proper corporate purposes.
3. The Company, except for the purposes of:
(a) refunding outstanding unsecured indebtedness
theretofore issued or assumed by the Company,
(b) redeeming or retiring all outstanding shares of
Preferred Stock, or
(c) reimbursing the Company, in whole or in part, for
moneys deposited by it to provide for the redemption or
retirement of all outstanding shares of one or more
series of the Preferred Stock,
shall not, without the consent (given by vote at a meeting
duly called for the purpose) of the holders of at least a
majority of the total voting power of all shares of Preferred
Stock then outstanding, all of said shares voting as a single
class, issue any unsecured notes, debentures or other
securities representing unsecured indebtedness, or assume any
such unsecured indebtedness, if, immediately after such issue
or assumption, as the case may be, the total principal amount
of all unsecured notes, debentures or other securities
representing unsecured indebtedness issued or assumed by the
Company and then outstanding (including unsecured securities
then to be issued or assumed) would exceed (i) $8,000,000 or
(ii) ten percent (10%) of the aggregate of the total principal
amount of all bonds or other securities representing secured
indebtedness issued or assumed by the Company and then
outstanding and the capital and surplus of the Company as then
stated on the books of account of the Company, whichever
amount is greater, provided, however, that no such consent
shall be required in connection with the Company's entering
into any agreement for the payment of such amounts of money as
may be necessary to meet payments of interest, principal or
premium on and incidental costs with respect to securities
issued by tax-exempt public agencies for the purpose of
financing, directly or indirectly, the cost of facilities used
or to be used by the Company or in connection with the
Company's business or operations which are designed to
eliminate, mitigate or prevent air or water pollution or
radiation emissions or otherwise to prevent or ameloriate
potentially adverse side effects of the Company's business or
operations on the environment or public health. Nothing herein
contained shall be deemed to require such vote of Preferred
Stockholders to enable the Company to make or assume any
indebtedness secured by mortgage, pledge or collateral.
I. The holders of shares of any series of Preferred Stock shall
have no right whatever to subscribe for or purchase or to have
offered to them for subscription or purchase any additional
shares of stock of any class, character or description, or
obligations of any kind of the Company convertible into stock
of any class of the Company, or to which shall be attached or
appertain any warrant or warrants or other instrument or
instruments that shall confer upon the holder or holders of
such obligations the right to subscribe for, or to purchase or
receive from the Company, any shares of capital stock of any
class of the Company, whether now or hereafter authorized.
J. No holder of Common Stock of the Company shall have any
preemptive right to subscribe for, purchase or otherwise
acquire any additional shares of Common Stock of the Company,
or any options or rights to purchase shares of Common Stock of
the Company, or any securities convertible into or carrying
options or rights to purchase shares of Common Stock of the
Company, whether now or hereafter authorized, and whether
issued or granted for cash, property, services or otherwise.
ARTICLE VI
The number of directors of the Corporation shall be such number
permitted by law as shall be fixed by the Corporation's By-Laws. They shall
manage the business, property and affairs of the Corporation.
Dated: May 3, 2001
SOUTH CAROLINA ELECTRIC & GAS COMPANY
By: s/Kevin B. Marsh
------------------------------------------
Senior Vice President and Chief Financial Officer
By: s/Lynn M. Williams
---------------------------------------------------
Secretary
Note: Any person signing this form, shall either opposite or beneath his
signature, clearly and legibly state his name and the capacity in which
he signs. Must be signed by the Chairman of the Board of Directors, the
president or another of its officers in accordance with Section
33-1-200 of the South Carolina Business Corporation Act of 1988.
STATE OF SOUTH CAROLINA )
)
COUNTY OF RICHLAND )
)
The undersigned KEVIN B. MARSH and LYNN M. WILLIAMS do hereby certify
that they are the duly elected and acting Senior Vice President and Chief
Financial Officer and Secretary, respectively, of SOUTH CAROLINA ELECTRIC & GAS
COMPANY and are authorized to execute this verification; that each of the
undersigned for himself does hereby further certify that he has read the
foregoing document, understands the meaning and purport of the statements
therein contained and the same are true to the best of his information and
belief.
Dated at Columbia, South Carolina, this 3rd day of May, 2001.
s/Kevin B. Marsh
----------------------------------------
Senior Vice President and
Chief Financial Officer
s/Lynn M. Williams
-------------------------------------------------
Secretary
A-2
A-1
EXHIBIT A
TO
RESTATED ARTICLES OF INCORPORATION
OF
SOUTH CAROLINA ELECTRIC & GAS COMPANY
Statement of Authorized Shares of Stock and of Preferred Stock
unissued and undesignated as to Series and issued,
outstanding and designated as to Series
As of the effective date of this Exhibit A:
1. Authorized Classes.
------------------
The total number of shares which the Company shall be authorized to
issue is 56,432,296, of which 2,000,000 shall be Preferred Stock of the par
value of $25 per share, issuable in series, 1,682,296 shall be Preferred Stock
of the par value of $50 per share, issuable in series, 2,750,000 shall be
Preferred Stock of the par value of $100 per share, issuable in series, and
50,000,000 shall be Common Stock of the par value of $4.50 per share.
2. Preferred Stock unissued and undesignated as to series
and issued, outstanding and designated as to series.
---------------------------------------------------
(a) Par Value $25 per share
(i) 2,000,000 unissued and undesignated as to series.
(b) Par Value $50 per share-entitled to one vote per share.
------------------------------------------------------
(i) 640,000 shares unissued and undesignated as to series
(ii) 125,209 shares unissued and outstanding designated
"5% Preferred Stock"
(iii) 9,600 shares issued and outstanding designated "4.50%
Cumulative Preferred Stock"
(iv) 16,052 shares issued and outstanding designated
"4.60% (Series A) Cumulative Preferred Stock"
(v) 67,000 shares issued and outstanding designated
"5.125% (Series A) Cumulative Preferred Stock"
(vi) 57,800 shares issued and outstanding designated
"4.60% (Series B) Cumulative Preferred Stock"
(vii) 66,635 shares issued and outstanding designated "6%
Cumulative Preferred Stock"
Total 982,296
(c) Par Value $50 per share-entitled
to one half of one vote per share
(i) 700,000 shares unissued and undesignated as to series
(d) Par Value $100 per share
(i) 1,750,000 unissued and undesignated as to series
(ii) 1,000,000 shares issued and outstanding designated
"6.52% Cumulative Preferred Stock"
Total 2,750,000
3. Shares Outstanding
The total number of shares issued and outstanding is 41,638,443,
consisting of:
(a) 40,296,147 shares of Common Stock;
(b) 0 shares of Preferred Stock par value $25 per share;
(c) 342,296 shares of Preferred Stock par value $50 per share-
entitled to one vote per share;
(d) 0 shares of Preferred Stock par value $50 per share-entitled
to one-half of one vote per share; and
(e) 1,000,000 shares of Preferred Stock par value $100 per share.
May 3, 2001