Exhibit 3.5
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
IES UTILITIES INC.
ARTICLE I
The name of the corporation is IES UTILITIES INC.
ARTICLE II
The principal place of business of this Corporation shall be at Cedar
Rapids in the County of Linn and the State of Iowa.
ARTICLE III
The general nature of the business of the Corporation and the objects
or purposes to be transacted, provided for and carried on, for itself or
for other corporations, associations or individuals are to own, sell,
lease, construct, purchase, erect or otherwise acquire buildings wherein
business of the Corporation may be carried on; to own, sell dispose of,
lease, construct, purchase, or otherwise acquire, equip, maintain and
operate electric light plants, electric transmission lines, electric power
plants, gas plants, heating plants, and other public utilities not herein
referred to; to manufacture, buy, sell, accumulate, store, transmit,
furnish and distribute electrical energy for light, heat, power and other
purposes; to produce or in any manner acquire, sell, dispose of and
distribute gas, its by-products and residual products; to sell and furnish
the products of such public utilities as the Corporation may at any time
own, lease or operate; to deal in all apparatus and things required for,
or capable of being used in connection with, the generation, distribution,
supply, accumulation, use and employment of electrical energy, gas and
heat; to produce, create, develop and in any manner acquire water powers;
to improve and utilize such water powers; to sell in any manner, dispose
of and distribute such water powers in the generation of electrical
energy; to acquire, hold, use, dispose of and sell rights and franchises
of every kind, nature and class; to purchase, sell, assign, transfer,
mortgage, pledge or otherwise dispose of shares of capital stock, bonds,
debentures, evidences of indebtedness, and other securities of any
corporation or association, provided, however, except in the case of
securities of a corporation owning or operating railway properties, the
principal business of the issuers of such capital stock, bonds,
debentures, evidences of indebtedness or other securities so acquired by
the Corporation shall be one of the businesses in which this Corporation
is engaged at the time, and while this Corporation is the holder of any
such shares of stock to exercise all the rights, powers, and privileges of
ownership, including the right to vote thereon in the same manner as a
natural person might or could; to aid, facilitate and assist in the
construction, building, extension, improvement, equipment, maintenance and
operation of any electric generating plant, gas plant, heating plant and
other public utility; to aid any corporation, association or individual of
which any stock, bonds, evidences of indebtedness or any other securities
are held by the Corporation, provided the principal business of the issuer
is a business in which this Corporation is engaged at that time; to do any
acts or things designed to protect, preserve, improve or enhance the value
of stock, bonds or other evidences of indebtedness or other securities
owned by this Corporation; to borrow money and issue its obligations
therefor, and to secure the payment of its obligations by mortgage or
pledge of all or any part of its property now owned or hereafter
acquired, and the rents, income and profits thereof; to draw, make,
execute, accept, endorse, discount, transfer, and assign promissory notes,
bills of exchange, warrants, and other obligations; to acquire and hold
and to sell and transfer shares of its own capital stock, but no share of
stock of the Corporation while held, owned or controlled by it, directly
or indirectly, shall be voted at any meeting of the stockholders of the
Corporation.
This Corporation may conduct its business in the State of Iowa and in
other states, districts and territories of the United States, and may
hold, own, improve, sell, convey and otherwise dispose of real and
personal property of every class and description in any of the states,
districts and territories of the United States, subject to the respective
laws of such states, district and territories, and the Corporation shall
have the right to do and perform all acts necessary or pertaining to such
lines of business as it may lawfully engage in and for the successful
conduct thereof, and may exercise all of the powers, rights and privileges
conferred by the laws of Iowa upon corporations organized for pecuniary
profit, and all such rights, powers and privileges as may hereafter be
conferred by the laws of Iowa upon corporations organized for the purpose
of pecuniary profit. It is the intention that no object or purpose
specified in this article, except when otherwise expressed, shall be in
any wise limited or restricted by reference to or inference from any other
clause in these articles, but the several objects and purposes specified
in this article shall be regarded as independent objects and purposes.
ARTICLE IV
CAPITAL STOCK
Section 1. The authorized capital stock of the Corporation shall
consist of 25,166,406 shares, of which 146,406 shall be 4.80% Cumulative
Preferred Stock of the par value of $50 each, 120,000 shares shall be
4.30% Cumulative Preferred Stock of the par value of $50 each, 200,000
shares shall be Cumulative Preferred Stock of the par value of $50 each
issuable in series as hereinafter provided, 700,000 shares shall be
Cumulative Preference Stock of the par value of $100 each issuable in
series as hereinafter provided and 24,000,000 shares shall be Common Stock
of the par value of $2.50 each.
Section 2. The designations, rights, preferences and conditions of
the 4.80% Cumulative Preferred Stock and Common Stock of the Corporation
shall be as follows:
1. The 4.80% Cumulative Preferred Stock shall be entitled, in
preference to the Common Stock but pari passu with any additional class of
cumulative preferred stock which may be authorized pursuant to the
provisions of Paragraph 10 of Section 2 of Article IV hereof, to dividends
from surplus (whether earned or paid-in) or profits at the rate of four
and eight-tenths per cent (4.80%) of the par value thereof per annum,
payable quarterly on April 1, July 1, October 1 and January 1 of each
year, when and as declared by the Board of Directors. Such dividends with
respect to each share shall be cumulative from the first day of the
dividend period in which such share shall originally have been issued. No
share of the 4.80% Cumulative Preferred Stock shall be entitled to any
dividends in excess of the aforesaid dividends at the rate of four and
eight-tenths per cent (4.80%) of the par value thereof per annum.
2. In the event of involuntary dissolution or liquidation of the
Corporation, the holders of the 4.80% Cumulative Preferred Stocks shall be
entitled, in preference to the Common Stock, but pari passu with any
additional class of cumulative preferred stock which may be authorized
pursuant to the provisions of Paragraph 10 of Section 2 of Article IV
hereof, to receive Fifty Dollars ($50) per share, the par value of their
shares, plus an amount equal to the accrued and unpaid dividends on such
shares to the date of dissolution or liquidation. In the event of any
voluntary dissolution or liquidation, the holders of the 4.80% Cumulative
Preferred Stock shall be entitled, in preference to the Common Stock, but
pari passu with any additional class of cumulative preferred stock, which
may be authorized pursuant to the provisions of Paragraph 10 of Section 2
of Article IV hereof, to receive Fifty Dollars ($50) per share, plus an
amount equal to the accrued and unpaid dividends on such shares to the
date of dissolution or liquidation and plus a premium of $2.00 per share
if such dissolution or liquidation should occur on or prior to June 30,
1953; a premium of $1.50 per share if such dissolution or liquidation
should occur subsequent to June 30, 1953, but on or prior to June 30,
1956; a premium of $1.00 per share if such dissolution or liquidation
should occur subsequent to June 30, 1956, but on or prior to June 30,
1960; and a premium of 25 cents per share if such dissolution or
liquidation should occur at any time subsequent to June 30, 1960.
3. The 4.80% Cumulative Preferred Stock may be redeemed in whole or
in part at any time at the applicable redemption price for each share of
4.80% Cumulative Preferred Stock redeemed. The redemption price from time
to time shall be: $52.00 per share if redeemed on or before June 30,1953;
$51.50 per share if redeemed thereafter and on or before June 30, 1956;
$51.00 per share if redeemed thereafter and on or before June 30, 1960;
and $50.25 per share if redeemed thereafter; together, in each case, with
an amount equal to the accrued and unpaid dividends to and including the
date of redemption. If less than all of the shares of the 4.80%
Cumulative Preferred Stock are to be redeemed, they shall be selected in
such manner as the Board of Directors shall determine. Nothing herein
contained shall limit any right of the Corporation to purchase or
otherwise acquire any shares of the 4.80% Cumulative Preferred Stock.
Notice of the intention of the Corporation to redeem shares of 4.80%
Cumulative Preferred Stock or any thereof shall be mailed at least thirty
(30) days before the date of redemption to each holder of record of the
shares to be redeemed, at his last known post office address as shown by
the records of the Corporation. If the Corporation shall deposit on or
prior to any date fixed for redemption of 4.80% Cumulative Preferred
Stock, with any bank or trust company having a capital, surplus and
undivided profits aggregating at least $5,000,000, as a trust fund, a fund
sufficient to redeem the shares called for redemption, with irrevocable
instructions and authority to such bank or trust company to cause said
notice to be mailed if not already mailed and to pay on or after the date
of such deposit, to the respective holders of such shares, the redemption
price thereof upon the surrender of their share certificates, then from
and after the date of such deposit (although prior to the date fixed for
redemption) such shares so called shall be deemed to be redeemed and
dividends thereon shall cease to accrue after said date fixed for
redemption, and such deposit shall be deemed to constitute full payment of
said shares to the holders thereof and thereafter said shares shall no
longer be deemed to be outstanding, and the holders thereof shall cease to
be shareholders with respect to such shares, and shall have no rights with
respect thereto except only the right to receive from said bank or trust
company payment of the redemption price of such shares without interest,
upon surrender of their certificates therefor. Any moneys deposited by
the Corporation pursuant to this Paragraph 3 and unclaimed at the end of
six years from the date fixed for redemption shall be repaid to the
Corporation upon its request expressed in a resolution of its Board of
Directors, after which repayment such holders shall look only to the
Corporation for such payment of the redemption price. If at any time
dividends on any of the outstanding shares of 4.80% Cumulative Preferred
Stock, or on any shares of stock of any class ranking on a parity with the
4.80% Cumulative Preferred Stock, shall be in default, thereafter and
until all arrears in payment of quarterly dividends on the 4.80%
Cumulative Preferred Stock and dividends on any such shares of stock
ranking on a parity with the 4.80% Cumulative Preferred stock have been
paid the Corporation shall not redeem less than all of the 4.80%
Cumulative Preferred Stock at the time outstanding and shall not purchase
or otherwise acquire for value any 4.80% Cumulative Preferred Stock except
in accordance with an offer made to all holders of 4.80% Cumulative
Preferred Stock. Any shares of 4.80% Cumulative Preferred Stock which are
redeemed or retired shall be cancelled and shall not be reissued.
4. So long as any shares of the 4.80% Cumulative Preferred Stock are
outstanding, the Corporation shall not, without the affirmative vote or
consent of the holders of at least two-thirds of the outstanding shares
thereof, voting as a class: (a) authorize any stock ranking prior in any
respect to the 4.80% Cumulative Preferred Stock; or (b) make any change in
the terms or provisions of the 4.80% Cumulative Preferred Stock that would
adversely affect the rights and preferences of the holders thereof; or (c)
issue any shares of cumulative preferred stock theretofore authorized
pursuant to Paragraph 10 of Section 2 of Article IV hereof but unissued or
shares or any other class of stock pari passu with the 4.80% Cumulative
Preferred Stock, other than in exchange for, or for the purpose of
effecting the redemption or other retirement of, not less than an equal
aggregate par value of shares of 4.80% Cumulative Preferred Stock, or of
any stock pari passu therewith, at the time outstanding, unless the net
earnings of the Corporation available for dividends determined in
accordance with sound accounting practices, for a period of any twelve
consecutive months within the fifteen calendar months immediately
preceding the first day of the month in which such additional stock is
issued are at least one and one-half times the sum of (i) the interest
requirements for one year on the funded debt and notes payable of the
Corporation maturing twelve months or more after the respective dates of
issue thereof, and to be outstanding at, the date of issue of such
additional shares and (ii) the dividend requirements for one year on all
shares of the 4.80% Cumulative Preferred Stock and of cumulative preferred
stock that may be authorized pursuant to Paragraph 10 of Section 2 of
Article IV hereof and of all other classes of stock ranking pari passu
with or prior to the 4.80% Cumulative Preferred Stock in respect of
dividends or assets, to be outstanding immediately after such proposed
issue of additional shares.
5. So long as any of the shares of 4.80% Cumulative Preferred Stock
are outstanding, the Corporation shall not, without the affirmative vote
or consent of the holders of at least a majority of the outstanding shares
of 4.80% Cumulative Preferred Stock, voting as one class, merge or
consolidate with any other corporation or corporations or sell
substantially all of the property of the Corporation, provided the
provisions of this Paragraph 5 shall not apply to any mortgage of all or
substantially all of the property of the Corporation.
6. Except as otherwise required by law, and subject to the
provisions of Paragraphs 4 and 5 of Section 2 of Article IV hereof, no
holder of 4.80% Cumulative Preferred Stock shall have any right to vote
for the election of directors or for any other purpose; provided, however,
that if at the time of any annual meeting of stockholders, dividends
payable on the 4.80% Cumulative Preferred Stock shall be accrued and
unpaid in an amount equal to four quarterly dividends, the holders of the
4.80% Cumulative Preferred Stock and of other shares of preferred stock
ranking pari passu therewith, voting as a class, shall be entitled to
elect a majority of the total number of directors, and the holders of
Common Stock, voting separately as a class, shall be entitled to elect the
remaining directors. Whenever the right shall vest in the holders of the
4.80% Cumulative Preferred Stock and of other shares of preferred stock
ranking pari passu therewith to elect such directors, the Board of
Directors shall, at least fifteen days prior to such annual meeting at
which such dividends remain accrued and unpaid, cause to be mailed to each
stockholder, at his last known post office address as shown on the stock
records of the Corporation, a notice to this effect. At all meetings of
stockholders where the holders of the 4.80% Cumulative Preferred Stock and
of other preferred stock ranking pari passu therewith shall have such
right to elect such directors, the presence in person or by proxy of the
holders of a majority of the aggregate number of outstanding shares of
4.80% Cumulative Preferred Stock shall be required to constitute a quorum
for the election of such directors; further provided, however, that the
absence of a quorum of the holders of 4.80% Cumulative Preferred Stock
shall not prevent the election at any such meeting or adjournments thereof
of directors in the usual manner by the holders of Common Stock if the
necessary quorum of the holders of Common Stock is present in person or by
proxy at such meeting. When all dividends accrued and unpaid on the 4.80%
Cumulative Preferred Stock shall have been paid or declared and set apart
for payment, holders of 4.80% Cumulative Preferred stock and of other
preferred stock ranking pari passu therewith shall at the next annual
meeting be divested of their rights in respect of such election of a
majority of the directors, and the voting power of the holders of the
4.80% Cumulative Preferred Stock and of other preferred stock ranking pari
passu therewith and the holders of the Common Stock shall revert to the
status existing before the first dividend payment date on which dividends
on the 4.80% Cumulative Preferred Stock were not paid in full; but always
subject to the same provisions for vesting such special rights in the
holders of the 4.80% Cumulative Preferred Stock and of other preferred
stock ranking pari passu therewith in the event dividends on the 4.80%
Cumulative Preferred Stock shall again become accrued and unpaid in an
amount equal to four quarterly dividends. Vacancies among directors
elected by holders of 4.80% Cumulative Preferred Stock and of other
preferred stock ranking pari passu therewith during any period for which
directors shall have been so elected shall be filled until the next annual
or special meeting for the election of directors, by the vote of a
majority of the remaining directors elected by the 4.80% holders of
Cumulative Preferred Stock and of other preferred stock ranking pari passu
therewith. Vacancies among directors elected by the Common Stock shall be
filled by the vote of a majority of the remaining directors elected by the
holders of Common Stock until the next annual meeting for the election of
directors or special meeting in lieu thereof.
7. At any meeting of the stockholders each holder of shares of
capital stock entitled to vote upon the subject or subjects to be acted
upon, shall be entitled to one vote for each share of preferred stock
and/or common stock registered in his name on the stock books of the
Corporation ten (10) days prior to the date of the meeting.
8. So long as any shares of 4.80% Cumulative Preferred Stock shall
be outstanding, no dividend or other distribution (except in common stock
of the Corporation) shall be declared or paid on the Common Stock of the
Corporation, and the Corporation shall not directly or indirectly acquire
or redeem shares of the Common Stock, unless all dividends on the 4.80%
Cumulative Preferred Stock for all past quarterly dividend periods shall
have been paid or declared and set apart. The foregoing provisions of
this paragraph shall not, however, apply to the acquisition of any shares
of Common Stock in exchange for, or through application of the proceeds of
the sale of, any shares of Common Stock. After the payment of the limited
dividends and/or shares in distribution of assets or amounts payable upon
dissolution or liquidation to which the holders of 4.80% Cumulative
Preferred Stock are expressly entitled in preference to the Common Stock
in accordance with the provisions hereinabove set forth, the Common Stock
alone (subject to the rights of any class of stock hereafter authorized)
shall receive all other dividends, from surplus (whether earned or paid-
in) or profits, and shares in distribution.
9. No holder of 4.80% Cumulative Preferred Stock of Common Stock
shall be entitled, as such, as a matter of right, to subscribed for or
purchase any part of any new or additional issue of stock or securities of
the Corporation convertible into stock, of any class whatsoever, whether
now or hereafter authorized, and whether issued for cash, property,
services or otherwise.
10. Additional classes of cumulative preferred stock of the par
value of Fifty Dollars ($50) per share ranking pari passu or junior to the
4.80% Cumulative Preferred Stock may be authorized upon the vote of a
majority of all the directors of the Corporation and approved as an
amendment to the Articles of Incorporation by a majority of the holders of
Common Stock represented at a meeting called for such purpose pursuant to
notice at which not less than twenty-five percent (25%) of the outstanding
Common Stock shall be represented. No such class of cumulative preferred
stock shall rank prior to the 4.80% Cumulative Preferred Stock but
otherwise may contain such dividend rates, redemption and voluntary
liquidation prices, sinking fund provisions and provisions for conversion
into common stock as may be provided pursuant to action taken in
accordance with this Paragraph 10. The issuance of any stock so
authorized shall be subject to the provisions of clause (c) of Paragraph 4
of Section 2 of Article IV hereof.
The designations, rights, preferences and conditions of the 4.30%
Cumulative Preferred Stock of the Corporation shall be as follows:
A. The 4.30% Cumulative Preferred Stock shall be entitled, in
preference to the Common stock but pari passu with all other classes
of cumulative preferred stock heretofore authorized or which may
hereafter be authorized pursuant to the provisions of Paragraph 10 of
Section 2 of Article IV hereof, to dividends from surplus (whether
earned or paid-in) or profits at the rate of four and three-tenths
per cent (4.30%) of the par value thereof per annum, payable
quarterly on April 1, July 1, October 1 and January 1 of each year,
when and as declared by the Board of Directors. Such dividends with
respect to each share shall be cumulative from the first day of the
dividend period in which such share shall originally have been
issued. No share of the 4.30% Cumulative Preferred Stock shall be
entitled to any dividends in excess of the aforesaid dividends at the
rate of four and three-tenths per cent (4.30%) of the par value
thereof per annum.
B. In the event of involuntary dissolution or liquidation of
the Corporation, the holders of 4.30% Cumulative Preferred Stock
shall be entitled, in preference to the Common Stock, but pari passu
with all other classes of cumulative preferred stock heretofore
authorized or which may hereafter be authorized pursuant to the
provisions of Paragraph 10 of Section 2 of Article IV hereof, to
receive Fifty Dollars ($50) per share, the par value of their shares,
plus an amount equal to the accrued and unpaid dividends on such
shares to the date of dissolution or liquidation. In the event of
any voluntary dissolution or liquidation, the holders of the 4.30%
Cumulative Preferred Stock shall be entitled, in preference to the
Common Stock, but pari passu with all other classes of cumulative
preferred stock heretofore authorized or which may hereafter be
authorized pursuant to the provisions of Paragraph 10 of Section 2 of
Article IV hereof, to receive Fifty Dollars ($50) per share, plus an
amount equal to the accrued and unpaid dividends on such shares to
the date of dissolution or liquidation and plus a premium of $2.15
per share if such dissolution or liquidation should occur prior to
April 1, 1959; a premium of $1.65 per share if such dissolution or
liquidation should occur after March 31, 1959, but prior to April 1,
1964; and a premium of $1.00 per share if such dissolution or
liquidation should occur at any time after March 31, 1964.
C. The 4.30% Cumulative Preferred Stock may be redeemed in
whole or in part at any time at the applicable redemption price for
each share of 4.30% Cumulative Preferred Stock redeemed. The
redemption price from time to time shall be: $52.15 per share if
redeemed prior to April 1, 1959; $51.65 per share if redeemed after
March 31, 1959 and prior to April 1, 1964; and $51.00 per share if
redeemed at any time after March 31, 1964; together, in each case,
with an amount equal to the accrued and unpaid dividends to and
including the date of redemption. If less than all of the shares of
the 4.30% Cumulative Preferred Stock are to be redeemed, they shall
be selected in such manner as the Board of Directors shall determine.
Nothing herein contained shall limit any right of the Corporation to
purchase or otherwise acquire any shares of the 4.30% Cumulative
Preferred Stock. Notice of the intention of the Corporation to
redeem shares of 4.30% Cumulative Preferred Stock or any thereof
shall be mailed at least thirty (30) days before the date of
redemption to each holder of record of the shares to be redeemed, at
his last known post office address as shown by the records of the
Corporation. If the Corporation shall deposit on or prior to any
date fixed for redemption of 4.30% Cumulative Preferred Stock, with
any bank or trust company having a capital, surplus and undivided
profits aggregating at least $5,000,000, as a trust fund, a fund
sufficient to redeem the shares called for redemption, with
irrevocable instructions and authority to such bank or trust company
to cause said notice to be mailed if not already mailed and to pay on
and after the date of such deposit, to the respective holders of such
shares, the redemption price thereof upon the surrender of their
share certificates, then from and after the date of such deposit
(although price to the date fixed for redemption) such shares so
called shall be deemed to be redeemed and dividends thereon shall
case to accrue after said date fixed for redemption, and such deposit
shall be deemed to constitute full payment of said shares to the
holders thereof and thereafter said shares shall no longer be deemed
to be outstanding, and the holders thereof shall cease to be
shareholders with respect to such shares, and shall have no rights
with respect thereto except only the right to receive from said bank
or trust company payment of the redemption price of such shares
without interest, upon surrender of their certificates therefor. Any
moneys deposited by the Corporation pursuant to this paragraph C and
unclaimed at the end of six years from the date fixed for redemption
shall be repaid to the Corporation upon its request expressed in a
resolution of its Board of Directors, after which repayment such
holders shall look only to the Corporation for such payment of the
redemption price. If at any time dividends on any of the outstanding
shares of 4.30% Cumulative Preferred Stock, or on any shares of stock
of any class ranking on a parity with the 4.30% Cumulative Preferred
Stock, shall be in default, thereafter and until all arrears in
payment of quarterly dividends on the 4.30% Cumulative Preferred
Stock and dividends on any such shares of stock ranking on a parity
with the 4.30% Cumulative Preferred Stock have been paid the
Corporation shall not redeem less than all of the 4.30% Cumulative
Preferred Stock at the time outstanding and shall not purchase or
otherwise acquire for value any 4.30% Cumulative Preferred Stock
except in accordance with an offer made to all holders of 4.30%
Cumulative Preferred Stock. Any shares of 4.30% Cumulative Preferred
Stock which are redeemed or retired shall be cancelled and shall not
be reissued.
D. So long as any shares of the 4.30% Cumulative Preferred
Stock are outstanding, the Corporation shall not, without the
affirmative vote or consent of the holders of at least two-thirds of
the outstanding shares thereof, voting as a class: (a) authorize any
stock ranking prior in any respect to the 4.30% Cumulative Preferred
Stock; or (b) make any change in the terms or provisions of the 4.30%
Cumulative Preferred Stock that would adversely affect the rights and
preferences of the holders thereof; or (c) issue any shares of
cumulative preferred stock theretofore authorized pursuant to
Paragraph 10 of Section 2 of Article IV hereof but unissued or shares
of any other class of stock pari passu with the 4.30% Cumulative
Preferred Stock, other than in exchange for, or for the purpose of
effecting the redemption or other retirement of, not less than an
equal aggregate par value of shares of 4.30% Cumulative Preferred
Stock, or of any stock pari passu therewith, at the time outstanding,
unless the net earnings of the Corporation available for dividends
determined in accordance with sound accounting practices, for a
period of any twelve consecutive months within the fifteen calendar
months immediately preceding the first day of the month in which such
additional stock is issued are at least one and one-half times the
sum of (i) the interest requirements for one year on the funded debt
and notes payable of the Corporation maturing twelve months or more
after the respective dates of issue thereof, and to be outstanding
at, the date of issue of such additional shares and (ii) the dividend
requirements for one year on all shares of the 4.30% Cumulative
Preferred Stock and of cumulative preferred stock that may have been
heretofore authorized or may hereafter be authorized pursuant to
Paragraph 10 of Section 2 of Article IV hereof and of all other
classes of stock ranking pari passu with or prior to the 4.30%
Cumulative Preferred Stock in respect of dividends or assets, to be
outstanding immediately after such proposed issue of additional
shares.
E. So long as any of the shares of 4.30% Cumulative Preferred
Stock are outstanding, the Corporation shall not, without the
affirmative vote or consent of the holders of at least a majority of
the outstanding shares of 4.30% Cumulative Preferred Stock, voting as
one class, merge or consolidate with any other corporation or
corporations or sell substantially all of the property of the
Corporation, provided the provisions of this Paragraph E shall not
apply to any mortgage of all or substantially all of the property of
the Corporation.
F. Except as otherwise required by law, and subject to the
provisions of Paragraphs D and E of Section 2 of Article IV hereof,
no holder of 4.30% Cumulative Preferred Stock shall have any right to
vote for the election of directors or for any other purpose;
provided, however, that if at the time of any annual meeting of
stockholders, dividends payable on the 4.30% Cumulative Preferred
Stock shall be accrued and unpaid in an amount equal to four
quarterly dividends, the holders of the 4.30% Cumulative Preferred
Stock and of other shares of preferred stock ranking pari passu
therewith, voting as a class, shall be entitled to elect a majority
of the total number of directors, and the holders of Common Stock,
voting separately as a class shall be entitled to elect the remaining
directors. So long as any of the 4.30% Cumulative Preferred Stock
shall be outstanding all of the provisions of Paragraph 6 of Section
2 of Article IV hereof following the first sentence thereof shall
continue in effect and apply to election held because of defaults in
any payment of dividends on the 4.30% Cumulative Preferred Stock,
provided, however, in the event the 4.80% Cumulative Preferred Sock
shall have been retired, in the application of such provisions there
shall be substituted for the "4.80% Cumulative Preferred Stock"
appearing therein the "4.30% Cumulative Preferred Stock."
G. So long as any shares of 4.30% Cumulative Preferred Stock
shall be outstanding, no dividend or other distribution (except in
common stock of the Corporation) shall be declared or paid on the
Common Stock of the Corporation, and the Corporation shall not
directly or indirectly acquire or redeem shares of the Common Stock,
unless all dividends on the 4.30% Cumulative Preferred Stock for all
past quarterly dividend periods shall have been paid or declared and
set apart. The foregoing provisions of this paragraph shall not,
however, apply to the acquisition of any shares of Common Stock in
exchange for, or through application of the proceeds of the sale of,
any shares of Common Stock. After the payment of the limited
dividends and/or shares in distribution of assets or amounts payable
upon dissolution or liquidation to which the holders of 4.30%
Cumulative Preferred Stock are expressly entitled in preference to
the Common Stock in accordance with the provisions hereinabove set
forth, the Common Stock alone (subject to the rights of any class of
stock heretofore or hereafter authorized) shall receive all other
dividends from surplus (whether earned or paid-in) or profits, and
shares in distribution.
H. No holder of 4.30% Cumulative Preferred Stock shall be
entitled, as such, as a matter of right, to subscribe for or purchase
any part of any new or additional issue of stock or securities of the
Corporation convertible into stock, of any class whatsoever, whether
now or hereafter authorized, and whether issued for cash, property,
services or otherwise.
CUMULATIVE PREFERRED STOCK, PAR VALUE $50 PER SHARE
The designations, rights, preferences and conditions of the
Cumulative Preferred Stock of the Corporation, except as otherwise
provided by law or determined in accordance with the provisions
hereinafter set forth, shall be as follows:
I. Issuance in Series. The Cumulative Preferred Stock of the
par value of $50 per share shall be issued either in whole or in part
as one or more series as hereinafter provided or as shall be
determined from time to time by the Board of Directors.
To the extent that variations in the relative rights and
preferences as between series of the Cumulative Preferred Stock are
not established, fixed and determined herein, authority is hereby
expressly vested in the Board of Directors to fix and determine the
relative rights and preferences of the shares of any series of such
Cumulative Preferred Stock hereafter established, but all shares of
Cumulative Preferred Stock shall be identical except as to the
following relative rights and preferences, as to which there may be
variations between different series:
(1) The rate of dividend;
(2) The price at and the terms and conditions on which the
shares may be redeemed;
(3) The amount payable upon shares in event of involuntary
liquidation;
(4) The amount payable upon shares in event of voluntary
liquidation;
(5) Sinking fund provisions for the redemption or purchase of
shares; and
(6) The terms and conditions on which shares may be converted,
if the shares of any series are issued with the privilege of
conversion.
All shares of Cumulative Preferred Stock shall be of equal rank
with each other, regardless of series, and shall be identical with
each other in all respects except as provided pursuant to this
Paragraph I; and the shares of Cumulative Preferred Stock of any one
series shall be identical with each other in all respects, except as
to the dates from and after which dividends thereon shall be
cumulative. As used herein, the term "of equal rank" means neither
enjoying nor being subject to any priority with respect either to
payment of dividends or to the distribution of assets upon the
liquidation, dissolution or winding up of the Corporation, and has no
reference to the rate or amount of such dividends or distributions or
to other terms of the shares.
The Cumulative Preferred Stock shall rank pari passu and on a
parity with the 4.80% Cumulative Preferred Stock, the 4.30%
Cumulative Preferred Sock and all other classes of preferred stock of
equal rank hereafter authorized (hereinafter called "preferred stock
of equal rank").
The shares of Cumulative Preferred Stock may be issued for such
consideration, not less than the par value thereof, as shall be fixed
from time to time by the Board of Directors.
II. Dividend Rights. The holders of the Cumulative Preferred
Stock of each series shall be entitled to receive, out of any funds
legally available for the purpose, when and as declared by the Board
of Directors, cumulative cash dividends thereon at such rate per
annum as shall be fixed by resolution of the Board of Directors in
the case of each such series, and no more. Dividends on the
Cumulative Preferred Stock of all series shall be payable quarterly
on the first day of the months of January, April, July and October in
each year. Dividends on Cumulative Preferred Stock of each series
shall be cumulative with respect to each share from the first day of
the dividend period in which such share shall originally have been
issued. Accumulations of dividends shall not bear interest.
Whenever there shall be paid on the Cumulative Preferred Stock of any
series the full amount or any part of the dividends payable thereon,
there shall also be paid at the same time upon the shares of each
other series of Cumulative Preferred Stock and of preferred stock of
equal rank then outstanding the full amount or the same proportionate
part, as the case may be, of the dividends payable thereon.
III. Preference upon Liquidation, Dissolution, or Winding
Up. In the event of any partial or complete liquidation, dissolution
or winding up of the affairs of the Corporation, whether voluntary or
involuntary, before any distribution shall be made to the holders of
any shares of Common Stock, the Cumulative Preferred Stock of each
series shall be entitled, pari passu with all preferred stock of
equal rank, to receive for each share thereof, out of any legally
available assets of the Corporation:
(a) if such liquidation, dissolution or winding up shall
be involuntary, a sum in cash equal to $50 per share; or
(b) if such liquidation, dissolution or winding up shall
be voluntary, a sum in cash equal to the redemption price that
would have been payable had the Corporation, instead, at its
option redeemed the same on the date when the first distribution
is made upon the shares of Cumulative Preferred Stock in
connection with such voluntary liquidation, dissolution or
winding up;
plus, in each case, an amount equal to all unpaid cumulative
dividends thereon, whether or not declared or earned, accrued to the
date when payment of such preferential amounts shall be made
available to the holders of the Cumulative Preferred Stock; and the
Cumulative Preferred Stock shall be entitled to no further
participation in such distribution.
If, upon any such liquidation, dissolution or winding up of the
affairs of the Corporation, the assets of the Corporation available
for distribution as aforesaid among the holders of the Cumulative
Preferred Stock of all series and of all preferred stock of equal
rank shall be insufficient to permit the payment to them of the full
preferential amounts aforesaid, then the entire assets of the
Corporation so to be distributed shall be distributed ratably among
the holders of the Cumulative Preferred Stock of all series and of
all preferred stock of equal rank in proportion to the full
preferential amounts to which they are respectively entitled.
A consolidation or merger of the Corporation, or a sale or
transfer of all or substantially all of its assets as an entirety
shall not be regarded as a "liquidation, dissolution or winding up of
the affairs of the Corporation" within the meaning of this Paragraph
III.
IV. Redemptions. (a) The Corporation may, unless otherwise
prohibited by any provisions of these Articles of Incorporation, as
amended, or any resolution adopted by the Board of Directors
providing for the issue of any series of Cumulative Preferred Stock
of which there are shares then outstanding, at its option, expressed
by resolution of its Board of Directors, at any time redeem the whole
or any part of the Cumulative Preferred Stock or of any series
thereof at the time outstanding, by the payment in cash for each
share of stock to be redeemed of the then applicable redemption price
or prices as shall be fixed by resolution of the Board of Directors
in the case of each such series, plus, in any such case, a sum of
money equivalent to all accrued and unpaid cumulative dividends,
whether or not declared or earned, thereon to the date fixed for
redemption.
Notice of any proposed redemption of shares of Cumulative
Preferred Stock shall be given by the Corporation by mailing a copy
of such notice at least 30 days prior to the date fixed for such
redemption to the holders of record of the shares of Cumulative
Preferred Stock to be redeemed, at their respective addresses
appearing on the books of the Corporation. Said notice shall specify
the shares called for redemption, the redemption price and the place
at which and the date on which the shares called for redemption will,
upon presentation and surrender of the certificates of stock
evidencing such shares, be redeemed and the redemption price therefor
paid.
If less than all of the shares of any series of Cumulative
Preferred Stock then outstanding are to be redeemed, the shares to be
redeemed shall be selected by such method, either by lot or pro rata,
as shall from time to time be determined by resolution of the Board
of Directors, subject to any limitation contained in resolutions of
the Board of Directors or in these Articles of Incorporation, as
amended, providing for any series of Cumulative Preferred Stock.
From and after the date fixed in any such notice as the date of
redemption, unless default shall be made by the Corporation in
providing moneys at the time and place specified for the payment of
the redemption price pursuant to said notice, all dividends on the
shares of Cumulative Preferred Stock thereby called for redemption
shall cease to accrue and all rights of the holders thereof as
stockholders of the Corporation except the right to receive the
redemption price, but without interest, shall cease and determine;
provided, however, the Corporation may, in the event of any such
redemption, and prior to the redemption date specified in the notice
thereof, deposit in trust, for the account of the holders of the
shares of Cumulative Preferred Stock to be redeemed, with any bank or
trust company having a capital, surplus and undivided profits
aggregating at least $5,000,000, all funds necessary for such
redemption, and thereupon all shares of the Cumulative Preferred
Stock with respect to which such deposit shall have been made shall
forthwith upon the making of such deposit no longer be deemed to be
outstanding and all rights of the holders thereof with respect to
such shares of Cumulative Preferred Stock shall thereupon cease and
terminate, except the right of such holders to receive from the funds
so deposited the amount payable upon the redemption thereof, but
without interest, or, if any right of conversion conferred upon such
shares shall not, by the terms thereof, previously have expired, to
exercise the right of conversion thereof on or before the redemption
date specified in such notice, unless such right of conversion by the
terms thereof expires at any earlier time, and then only on or before
such earlier time for the expiration of such right of conversion.
Any funds so set aside or deposited which, because of the exercise of
any right of conversion of shares called for redemption, shall not be
required for such redemption, shall be released or repaid forthwith
to the Corporation. Any funds so set aside or deposited, which shall
be unclaimed at the end of six years from such redemption date, shall
be released or repaid to the Corporation upon its request expressed
in a resolution of its Board of Directors, and any depositary thereof
shall thereby be relieved of all responsibility in respect thereof,
after which release or repayment the holders of shares so called for
redemption shall look only to the Corporation for payment of the
redemption price, but without interest. Any interest on funds so
deposited which may be allowed by any bank or trust company with
which such deposit was made shall belong to the Corporation.
(b) If and so long as any quarterly dividend on any series of
Cumulative Preferred Stock shall be in arrears, the Corporation shall
not redeem, purchase or otherwise acquire, by way of sinking fund
payments or otherwise, any Cumulative Preferred Stock or any
preferred stock of equal rank unless all outstanding shares of
Cumulative Preferred Stock are simultaneously redeemed.
(c) Whenever there shall be deposited or set aside the whole or
any part of the funds required to be deposited or set aside by the
Corporation as a sinking fund for any series of Cumulative Preferred
Stock there shall be also deposited or set aside at the same time the
full amount or the same proportionate part, as the case may be, of
the funds, if any, then due to be deposited or set aside as a sinking
fund for each other series of Cumulative Preferred Stock then
outstanding.
(d) All shares of Cumulative Preferred Stock which shall have
been redeemed, converted, purchased or otherwise acquired by the
Corporation shall be retired and cancelled and shall have the status
of authorized but unissued shares of Cumulative Preferred Stock.
V. Voting Rights. The holders of the outstanding shares of
Cumulative Preferred Stock shall have no right to vote for the
election of directors or for any other purpose, except as provided in
this Paragraph V or as otherwise required by law.
So long as any shares of the Cumulative Preferred Stock are
outstanding, the Corporation shall not, without the affirmative vote
or consent of the holders of at least two-thirds of the outstanding
shares thereof, voting as a class: (a) authorize any stock ranking
prior in any respect to the Cumulative Preferred Stock; or (b) make
any change in the terms or provisions of the Cumulative Preferred
Stock that would adversely affect the rights and preferences of the
holders thereof; or (c) issue any shares of cumulative preferred
stock theretofore authorized pursuant to Paragraph 10 of Section 2 of
Article IV hereof but unissued or shares of any other class of stock
pari passu with the Cumulative Preferred Stock, other than in
exchange for, or for the purpose of effecting the redemption or other
retirement of, not less than an equal aggregate par value of shares
of Cumulative Preferred Stock, or of any stock pari passu therewith,
at the time outstanding, unless the net earnings of the Corporation
available for dividends determined in accordance with sound
accounting practices, for a period of any twelve consecutive months
within the fifteen calendar months immediately preceding the first
day of the month in which such additional stock is issued are at
least one and one-half times the sum of (i) the interest requirements
for one year on the funded debt and notes payable of the Corporation
maturing twelve months or more after the respective dates of issue
thereof, and to be outstanding at, the date of issue of such
additional shares and (ii) the dividend requirements for one year on
all shares of the Cumulative Preferred Stock and of cumulative
preferred stock that may have been heretofore authorized or may
hereafter be authorized pursuant to Paragraph 10 of Section 2 of
Article IV hereof and of all other classes of stock ranking pari
passu with or prior to the Cumulative Preferred Stock in respect of
dividends or assets, to be outstanding immediately after such
proposed issue of additional shares.
So long as any of the shares of Cumulative Preferred Stock are
outstanding, the Corporation shall not, without the affirmative vote
or consent of the holders of at least a majority of the outstanding
shares of Cumulative Preferred Stock, voting as one class, merge or
consolidate with any other corporation or corporations or sell
substantially all of the property of the Corporation, provided the
provisions of this subparagraph shall not apply to any mortgage of
all or substantially all of the property of the Corporation.
If at the time of any annual meeting of stockholders, dividends
payable on the Cumulative Preferred Stock shall be accrued and unpaid
in an amount equal to four quarterly dividends, the holders of the
Cumulative Preferred Stock and of other shares of preferred stock
ranking pari passu therewith, voting as a class, shall be entitled to
elect a majority of the total number of directors, and the holders of
Common Stock, voting separately as a class shall be entitled to elect
the remaining directors. So long as any of the Cumulative Preferred
Stock shall be outstanding all of the provisions of Paragraph 6 of
Section 2 of Article IV hereof following the first sentence thereof
shall continue in effect and apply to election held because of
defaults in any payment of dividends on the Cumulative Preferred
Stock, provided, however, in the event the 4.80% Cumulative Preferred
Stock shall have been retired, in the application of such provisions
there shall be substituted for the "4.80% Cumulative Preferred Stock"
appearing therein the "Cumulative Preferred Stock."
VI. Restrictions on Common Stock Dividends and
Distributions. So long as any shares of any series of the Cumulative
Preferred Stock shall remain outstanding, no dividend (other than a
dividend payable in shares of Common Stock) shall be paid or
declared, nor shall any distribution be made on Common Stock and no
Common Stock shall be redeemed, purchased, retired or otherwise
acquired either directly or indirectly, unless
(a) all dividends on the Cumulative Preferred Stock of all
series then outstanding for all past quarterly dividend periods
and for the current quarterly dividend period shall have been
paid or declared and a sum sufficient for the payment thereof
set apart; and
(b) all sinking fund payments and all purchase fund
payments or other obligations of the Corporation for the
periodic retirement of shares of Cumulative Preferred Stock of
all series then outstanding required to have been made or
performed by the Corporation shall have been made or performed.
---------------
6.10% SERIES CUMULATIVE PREFERRED STOCK
The designations, rights, preferences and conditions of the
Cumulative Preferred Stock of the par value of $50 each, consisting of
100,000 shares, to the extent not set forth above, shall be as follows:
(1) Designation of series: The series of Cumulative Preferred
Stock hereby established shall be designated as "6.10% Series
Cumulative Preferred Stock" and shall consist of 100,000 shares.
(2) The rate of dividend: The rate of dividend payable on the
shares of 6.10% Series Cumulative Preferred Stock shall be 6.10% of
the par value thereof per annum.
(3) The price at and the terms and conditions on which the
shares may be redeemed: The 6.10% Series Cumulative Preferred Stock
shall be subject to redemption at any time and from time to time in
the manner provided in Paragraph IV above of Section 2 of Article IV
hereof at the redemption price per share of $56.25 if redeemed on or
before August 31, 1972, $52.50 if redeemed thereafter and on or
before August 31, 1977, and $51.00 if redeemed thereafter. If less
than all of the shares of 6.10% Series Cumulative Preferred Stock are
to be redeemed, the shares to be redeemed shall be apportioned on a
pro rata basis between the registered holders of 2.5% or more of the
then outstanding shares of 6.10% Series Cumulative Preferred Stock as
a group and the registered holders of less than 2.5% of the then
outstanding shares of 6.10% Series Cumulative Preferred Stock as a
group. The portion of such shares to be redeemed from within such
group of registered holders of 2.5% or more shall be apportioned on a
pro rata basis between or among such holders. The portion of such
shares to be redeemed from within such group of registered holders of
less than 2.5% shall be apportioned by lot or pro rata as shall from
time to time be determined by resolution of the Board of Directors.
In a pro rata apportionment of shares of 6.10% Series Cumulative
Preferred Stock in a partial redemption, the Corporation need not
issue any fractional shares.
(4) The amount payable upon shares in event of involuntary
liquidation: The 6.10% Series Cumulative Preferred Stock shall be
entitled to receive the amount provided in Paragraph III(a) above of
Section 2 of Article IV hereof in the event of involuntary
liquidation.
(5) The amount payable upon shares in event of voluntary
liquidation: The 6.10% Series Cumulative Preferred Stock shall be
entitled to receive the amount provided in Paragraph III(b) above of
Section 2 of Article IV hereof in the event of voluntary liquidation.
(6) Sinking fund provisions for the redemption or purchase of
shares: There are no sinking funds provisions for the redemption or
purchase of shares of 6.10% Series Cumulative Preferred Stock.
(7) Pre-emptive rights: So long as any shares of 6.10% Series
Cumulative Preferred Stock shall be outstanding, no holder of any
shares of any series of the aforementioned Cumulative Preferred Stock
shall be entitled, as such, as a matter of right, to subscribe for or
purchase any part of any new or additional issue of stock or
securities of the Corporation convertible into stock, of any class
whatsoever, whether now or hereafter authorized, and whether issued
for cash, property, services or otherwise.
---------------
CUMULATIVE PREFERENCE STOCK, PAR VALUE $100 PER SHARE
The designations, rights, preferences and conditions of the
Cumulative Preference Stock of the Corporation, except as otherwise
provided by law or determined in accordance with the provisions
hereinafter set forth shall be as follows:
I. Issuance in Series. The Cumulative Preference Stock of the
par value of $100 per share shall be issued in whole or in part as
one or more series as hereinafter provided or as shall be determined
from time to time by the Board of Directors.
To the extent that variations in the relative rights and
preferences as between series of the Cumulative Preference Stock are
not established, fixed and determined herein, authority is hereby
expressly vested in the Board of Directors to fix and determine the
relative rights and preferences of the shares of any series of such
Cumulative Preference Stock hereafter established, but all shares of
Cumulative Preference Stock shall be identical except as to the
following relative rights and preferences, as to which there may be
variations between different series:
(1) The rate of dividend;
(2) The price at and the terms and conditions on which the
shares may be redeemed;
(3) The amount payable upon shares in event of involuntary
liquidation;
(4) The amount payable upon shares in event of voluntary
liquidation;
(5) Sinking fund provisions for the redemption or purchase
of shares; and
(6) The terms and conditions on which shares may be
converted, if the shares of any series are issued with the
privilege of conversion.
All shares of Cumulative Preference Stock shall be of equal rank
with each other, regardless of series, and shall be identical with
each other in all respects except as provided pursuant to this
Paragraph I; and the shares of Cumulative Preference Stock of anyone
series shall be identical with each other in all respects, except as
to the dates from and after which dividends thereon shall be
cumulative. As used herein, the term "of equal rank" means neither
enjoying nor being subject to any priority with respect either to
payment of dividends or to the distribution of assets upon the
liquidation, dissolution or winding up of the Corporation, and has no
reference to the rate or amount of such dividends or distributions or
to other terms of the shares.
The Cumulative Preference Stock is subject to the prior rights
and preferences of the 4.80% Cumulative Preferred Stock, the 4.30%
Cumulative Preferred Stock, the Cumulative Preferred Stock and all
other classes of preferred stock of equal rank therewith now or
hereafter authorized (hereinafter referred to collectively as the
"Cumulative Preferred Stock").
The shares of Cumulative Preference Stock may be issued for such
consideration, not less than the par value thereof, as shall be fixed
from time to time by the Board of Directors; provided, however, that
no additional shares of Preference Stock may be issued if, after
giving effect to such issuance on a pro forma basis, the amount of
the capitalization of the Corporation on a pro forma basis (as
determined in accordance with generally accepted accounting practice)
represented by Cumulative Preferred Stock and Cumulative Preference
Stock, plus the premium, if any, on preferred and preference stock
outstanding, would exceed 20% of the Total Capitalization of the
Corporation.
The term "Total Capitalization of the Corporation" shall mean,
at any date as of which the amount thereof is to be determined, the
aggregate of: (a) Shareholders' Equity of the Corporation, and (b)
the aggregate principal amount of all debt of the Corporation
maturing by its term more than one year after the date of creation
thereof of the Corporation outstanding on such date.
II. Dividend Rights. Subject to the prior rights and
preferences of the Cumulative Preferred Stock, the holders of
Cumulative Preference Stock of each series shall be entitled to
receive, out of any funds legally available for the purpose, when and
as declared by the Board of Directors, cumulative cash dividends
thereon at such rate per annum as shall be fixed by resolution of the
Board of Directors in the case of each such series, and no more.
Dividends on the Cumulative Preference Stock of all series shall be
payable quarterly on the first day of the months of January, April,
July and October in each year. Dividends on Cumulative Preference
Stock of each series shall be cumulative with respect to each share
from such date, if any, as may be fixed by resolution of the Board of
Directors prior to the issue thereof or, if no such date is
established, from the first day of the dividend period in which such
share shall originally have been issued. Accumulations of dividends
shall not bear interest. Whenever there shall be paid on the
Cumulative Preference Stock of any series the full amount or any part
of the dividends payable thereon, there shall also be paid at the
same time upon the shares of each other series of Cumulative
Preference Stock and of shares of stock of equal rank thereto then
outstanding the full amount or the same proportionate part, as the
case may be, of the dividends payable thereon.
III. Preference upon Liquidation, Dissolution, or Winding
Up. In the event of any partial or complete liquidation, dissolution
or winding up of the affairs of the Corporation, whether voluntary or
involuntary, before any distribution shall be made to the holders of
any shares of Common Stock, but subject to the prior rights and
preferences of the Cumulative Preferred Stock, the Cumulative
Preference Stock of each series shall be entitled, pari passu with
all stock of equal rank, to receive for each share thereof, out of
any legally available assets of the Corporation:
(a) if such liquidation, dissolution or winding up shall
be involuntary, a sum in cash equal to $100 per share; or
(b) if such liquidation, dissolution or winding up shall
be voluntary, a sum in cash equal to the redemption price that
would have been payable had the Corporation, instead, at its
option redeemed the same on the date when the first distribution
is made upon the shares of Cumulative Preference Stock in
connection with such voluntary liquidation, dissolution or
winding up;
plus, in each case, an amount equal to all unpaid cumulative
dividends thereon, whether or not declared or earned, accrued to the
date when payment of such preferential amounts shall be made
available to the holders of the Cumulative Preference Stock; and the
Cumulative Preference Stock shall be entitled to no further
participation in such distribution.
If, upon any such liquidation, dissolution or winding up of the
affairs of the Corporation, the assets of the Corporation available
for distribution as aforesaid among the holders of the Cumulative
Preference Stock of all series and of all stock of equal rank shall
be insufficient to permit the payment to them of the full
preferential amounts aforesaid, then the entire assets of the
Corporation so to be distributed shall be distributed ratably among
the holders of the Cumulative Preference Stock of all series and of
all stock of equal rank in proportion to the full preferential
amounts to which they are respectively entitled.
A consolidation or merger of the Corporation, or a sale or
transfer of all or substantially all of its assets as an entirety
shall not be regarded as a "liquidation, dissolution or winding up
of the affairs of the Corporation" within the meaning of this
Paragraph III.
IV. Redemptions. (a) The Corporation may, unless otherwise
prohibited by any provisions of these Articles of Incorporation, as
amended, or any resolution adopted by the Board of Directors
providing for the issue of any series of Cumulative Preference Stock
of which there are shares then outstanding, at its option, expressed
by resolution of its Board of Directors, at any time redeem the whole
or any part of the Cumulative Preference Stock or of any series
thereof at the time outstanding, by the payment in cash for each
share of stock to be redeemed of the then applicable redemption price
or prices as shall be fixed by resolution of the Board of Directors
in the case of each such series, plus, in any such case, a sum of
money equivalent to all accrued and unpaid cumulative dividends,
whether or not declared or earned, thereon to the date fixed for
redemption.
Notice of any proposed redemption of shares of Cumulative
Preference stock shall be given by the Corporation by mailing a copy
of such notice at least 30 days prior to the date fixed for such
redemption to the holders of record of the shares of Cumulative
Preference Stock to be redeemed, at their respective addresses
appearing on the books of the Corporation. Said notice shall specify
the shares called for redemption, the redemption price and the place
at which and the date on which the shares called for redemption will,
upon presentation and surrender of the certificates of stock
evidencing such shares, be redeemed and the redemption price therefor
paid.
If less than all of the shares of any series of Cumulative
Preference Stock then outstanding are to be redeemed, the shares to
be redeemed shall be selected by such method, either by lot or pro
rata, as shall from time to time be determined by resolution of the
Board of Directors, subject to any limitation contained in
resolutions of the Board of Directors or in these Articles of
Incorporation, as amended, providing for any series of Cumulative
Preferred Stock or Cumulative Preference Stock.
From and after the date fixed in any such notice as the date of
redemption, unless default shall be made by the Corporation in
providing moneys at the time and place specified for the payment of
the redemption price pursuant to said notice, all dividends on the
shares of Cumulative Preference Stock thereby called for redemption
shall cease to accrue and all rights of the holders thereof as
stockholders of the Corporation except the right to receive the
redemption price, but without interest shall cease and determine;
provided, however, the Corporation may, in the event of any such
redemption, and prior to the redemption date specified in the notice
thereof, deposit in trust, for the account of the holders of the
shares of Cumulative Preference Stock to be redeemed, with any bank
or trust company having a capital, surplus and undivided profits
aggregating at least $5,000,000, all funds necessary for such
redemption, and thereupon all shares of the Cumulative Preference
Stock with respect to which such deposit shall have been made shall
forthwith upon the making of such deposit no longer be deemed to be
outstanding and all rights of the holders thereof with respect to
such shares of Cumulative Preference Stock shall thereupon cease and
terminate, except the right of such holders to receive from the funds
so deposited the amount payable upon the redemption thereof, but
without interest, or, if any right of conversion conferred upon such
shares shall not, by the terms thereof, previously have expired, to
exercise the right of conversion thereof on or before the redemption
date specified in such notice, unless such right of conversion by the
terms thereof expires at an earlier time, and then only on or before
such earlier time for the expiration of such right of conversion.
Any funds so set aside or deposited which, because of the exercise of
any right of conversion of shares called for redemption, shall not be
required for such redemption, shall be released or repaid forthwith
to the Corporation. Any funds so set aside or deposited, which shall
be unclaimed at the end of six years from such redemption date, shall
be released or repaid to the Corporation upon its request expressed
in a resolution of its Board of Directors, and any depositary thereof
shall thereby be relieved of all responsibility in respect thereof,
after which release or repayment of the holders of shares so called
for redemption shall look only to the Corporation for payment of the
redemption price, but without interest. Any interest on funds so
deposited which may be allowed by any bank or trust company with
which such deposit was made shall belong to the Corporation.
(b) If and so long as any quarterly dividend on any series of
Cumulative Preferred Stock or Cumulative Preference Stock shall be in
arrears, the Corporation shall not redeem, purchase or otherwise
acquire, by way of sinking fund payment or otherwise, any Cumulative
Preference Stock or any stock of equal rank unless all outstanding
shares of Cumulative Preference Stock are simultaneously redeemed.
(c) Whenever there shall be deposited or set aside the whole or
any part of the funds required to be deposited or set aside by the
Corporation as a sinking fund for any series of Cumulative Preference
Stock there shall be also deposited or set aside at the same time the
full amount or the same proportionate part, as the case may be, of
the funds, if any, then due to be deposited or set aside as a sinking
fund for each other series of Cumulative Preference Stock then
outstanding.
(d) All shares of the Cumulative Preference Stock which shall
have been redeemed, converted, purchased or otherwise acquired but
the Corporation shall be retired and cancelled and shall have the
status of authorized by unissued shares of Cumulative Preference
Stock.
V. Voting Rights. The holders of shares of Cumulative
Preference Stock shall have no right to vote for the election of
directors or for any other purpose, except as provided or required by
law.
VI. Restrictions on Common Stock Dividends and
Distributions. So long as any shares of any series of the Cumulative
Preference Stock shall remain outstanding, no dividend (other than a
dividend payable in shares of Common Stock) shall be paid or
declared, nor shall any distribution be made on Common Stock and no
Common Stock shall be redeemed, purchased, retired or otherwise
acquired either directly or indirectly, unless:
(a) All dividends on the Cumulative Preference Stock of all
series then outstanding for all past quarterly dividend periods and
for the current quarterly dividend period shall have been paid or
declared and a sum sufficient for the payment thereof set apart; and
(b) All sinking fund payments and all purchase fund payments or
other obligations of the Corporation for the periodic retirement of
shares of Cumulative Preference Stock of all series then outstanding
required to have been made or performed by the Corporation shall have
been made or performed.
VII. Pre-emptive Rights. No holder of shares of Cumulative
Preference Stock shall be entitled, as such, as a matter of right, to
subscribe for or purchase any part of any new or additional issue of
stock or securities of the Corporation convertible into stock, of any
class whatsoever, whether now or hereafter authorized, and whether
issued for cash, property, services or otherwise.
Section 3. Subject to the provisions of this Article IV and
compliance with the laws of the State of Iowa, the Board of Directors of
the Corporation shall have full power to issue, to sell at prices to be
fixed by the Board of Directors of the Corporation, or to exchange for
property or outstanding stock of the Corporation, any shares of any class
of stock of the Corporation authorized to be issued, at such times as may
be fixed by the Board of Directors of the Corporation; provided, however,
no stock shall be issued or sold for a consideration less than the par
value thereof.
Section 4. Shares of stock of the Corporation shall be transferable
only upon the books of the Corporation in person or by attorney, duly
authorized in writing.
Certificates for shares of capital stock of the Corporation shall be
in such form as shall be approved by the Board of Directors; provided,
however, such certificates shall comply with all of the existing
requirements of the laws of the State of Iowa with respect thereto. The
Board of Directors shall be authorized to appoint registrars and/or
transfer agents to act as agents of the Corporation in recording transfers
and registering ownership of capital stock of the Corporation. In the
event of the appointment of a registrar and/or transfer agent and the
signature of a registrar or the signature or counter signature of a
transfer agent on stock certificates issued by the Corporation the
signatures of officers of the Corporation signing stock certificates may
be a facsimile thereof in lieu of the actual signature of such officer or
officers, and may be either engraved or printed on the stock certificates.
The fact that at the time of the actual issue or delivery of a stock
certificate, the officer whose signature either actual or facsimile,
appears on such stock certificate shall prior thereto have ceased to be
such officer, shall not invalidate the signature, nor such certificate.
Section 5. Subject to the provisions of Article IV of these Articles
the Board of Directors shall have power to close the stock transfer books
of the Corporation for a period not exceeding forty days preceding the
date of any meeting of stockholders or the date for payment of any
dividend or the date for the allotment of rights or the date when any
change or conversion or exchange of capital stock shall go into effect;
provided, however, that in lieu of closing the stock transfer books as
aforesaid, the Board of Directors may fix in advance a date, not exceeding
forty days preceding the date of any meeting of stockholders or the date
for the payment of any dividend or the date for the allotment of rights or
the date when any change or conversion or exchange of capital stock shall
go into effect, as a record date for the determination of the stockholders
entitled to notice of, and to vote at, any such meeting, or entitled to
receive payment of any such dividends or to any such allotment of rights
or to exercise the rights in respect of any such change, conversion or
exchange of capital stock, and in such case such stockholders only as
shall be stockholders of record on the date so fixed shall be entitled to
such notice of, and to vote at such meeting, or to receive payment of such
dividend or to receive such allotment of rights or to exercise such
rights, as the case may be, notwithstanding any transfer of any stock on
the books of the Corporation after any such record date fixed as
aforesaid.
Section 6. At any meeting of the stockholders each holder of a share
of capital stock entitled to vote upon the subject or subjects to be acted
upon shall be entitled to one vote for each share of Preferred Stock
and/or Common Stock registered in his name on the stock books of the
Corporation ten (10) days prior to the date of meeting, subject, however,
to the right of the Board of Directors to fix a record date for
determination of stockholders entitled to vote as provided in Section 5
of this Article IV. If so provided in the Bylaws of the Corporation such
voting may be by proxy subject to such restrictions as may be provided in
the Bylaws.
Section 7. All of the issued and outstanding shares of Common Stock
of the Corporation, except for those shares held by IES Industries Inc.,
shall be cancelled; and the shares of Common Stock of the Corporation held
by IES Industries Inc. shall be split into and become an equal number of
shares of Common Stock of the Corporation that was outstanding at the
close of business on May 19, 1986; all without affecting the authorized
Capital Stock of the Corporation as described in this Article.
ARTICLE V
Subject to the provisions of Article IV of these Articles of
Incorporation, any provisions of these Articles of Incorporation may be
amended, altered or repealed at an annual or special meeting of the
stockholders of the Corporation upon the affirmative vote of the holders
of a majority of the Common Stock of the Corporation at the time issued
and outstanding.
The notice of any meeting whereat it is proposed to amend, alter or
repeal any article or articles or provision or provisions of these
Articles of Incorporation shall set forth in full the article or articles
or provision or provisions so to be amended, altered or repealed, and the
changes proposed to be made in the same.
ARTICLE VI
The property and business of the Corporation shall be under the
general management and control of the Board of Directors consisting of the
number of persons fixed by the Bylaws of the Corporation. In addition to
the powers and authority expressly conferred upon the said Board of
Directors by these Articles of Incorporation and by the laws of the State
of Iowa, such Board of Directors may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute
or by these Articles of Incorporation directed or required to be exercised
or done by the stockholders.
The Board of Directors shall elect a President, one or more Vice
Presidents, a Secretary and a Treasurer, and such other officers as such
Board of Directors may deem advisable or as may be provided for by the
Bylaws of the Corporation. Any two offices may be filled by one and the
same person, subject, however, to any specific restrictions which may be
provided for in the Bylaws of the Corporation.
ARTICLE VII
Section 1. Meetings of Stockholders. The annual meeting of
stockholders shall be held, in each year, at such place or places within
or without the State of Iowa and on such date and at such time as shall be
fixed by the directors and stated in the notice of meeting.
Section 2. Election of Directors. The number of directors
constituting the Board of Directors shall be as fixed from time to time by
the Bylaws of the Corporation, but the number so fixed shall not be less
than five (5). The directors of the Corporation shall be divided into
three classes as nearly equal in number as possible, to serve for
staggered three-year terms or until their respective successors are duly
elected and qualified as provided for in the Bylaws of the Corporation.
If, at any annual meeting of the stockholders, directors of more than one
class are to be elected, each class of directors to be elected at such
meeting shall be nominated and voted for in a separate election.
Section 3. Bylaws. The Bylaws of the Corporation shall be adopted
by the Board of Directors of the Corporation. The power to alter, amend,
or repeal the Bylaws, or to adopt new Bylaws, shall be vested in the Board
of Directors. The Bylaws may contain any provisions for the regulation
and management of the affairs of the Corporation not inconsistent with the
laws of the State of Iowa, or these Articles of Incorporation.
Section 4. Executive Committee. If the Bylaws so provide, the Board
of Directors, by resolution adopted by a majority of the number of
directors, may designate two or more directors to constitute an Executive
Committee, which Committee, to the extent provided in such resolution or
the Bylaws, shall have and may exercise all of the authority of the Board
of Directors in the management of the Corporation; but the designation of
such Executive Committee and the delegation thereto of authority shall not
operate to relieve the Board of Directors, or any member thereof, of any
responsibility imposed upon the Board of Directors or any member thereof
by law.
ARTICLE VIII
The private property of the stockholders of the Corporation shall be
exempt from the debts of the Corporation.
ARTICLE IX
The Corporation shall commence business upon the date its certificate
of incorporation is issued to it by the Secretary of the State of Iowa,
and shall continue in perpetuity.
ARTICLE X
The Corporation may be liquidated or dissolved or, subject to the
provisions of Article IV of these Articles of Incorporation, all of the
property of the Corporation may be sold, by the affirmative vote in favor
thereof of a majority of the Common Stock of the Corporation at the time
issued and outstanding.
ARTICLE XI
Section 1. Liability. A director of this Corporation shall not be
personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability
(i) for any breach of the director's duty of loyalty to the Corporation or
its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or knowing violation of the law, (iii) for
any transaction from which the director derived an improper personal
benefit, or (iv) under Section 490.833 of the Iowa Business Corporation
Act. If, after approval by the stockholders of this section, the Iowa
Business Corporation Act is amended to permit the further elimination or
limitation of the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Iowa Business Corporation Act, as so amended. Any
repeal of this section by the stockholders of the Corporation shall not
adversely affect any right or protection of a director of the Corporation
in respect of any act or omission occurring prior to the time of repeal or
modification.
Section 2. Indemnification. The Corporation shall indemnify its
directors, officers, employees and agents to the full extent permitted by
the Iowa Business Corporation Act, as amended from time to time. The
Corporation may purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director,
officer, employee, or agent of another corporation, partnership, joint
venture, trust, or other enterprise against any liability asserted against
and incurred by such person in any such capacity or arising out of such
person's status as such, whether or not the Corporation would have the
power to indemnify such person against such liability under the provisions
of this section.