CERTIFICATE OF AMENDMENT
OF THE
RESTATED CERTIFICATE OF INCORPORATION
OF
INTERSTATE POWER COMPANY
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Under Section 242 of the General Corporation Law
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Pursuant to the provisions of Section 242 of the General Corporation
Law of the State of Delaware (the "GCL"), the undersigned corporation (the
"Corporation") does hereby certify:
FIRST: That the Board of Directors of the Corporation, at a meeting
duly held, unanimously adopted a resolution proposing and declaring advisable
the following amendment to the Restated Certificate of Incorporation of this
Corporation:
RESOLVED, that the Restated Certificate of Incorporation of Interstate
Power Company be amended by deleting Heading C and Paragraph XII of Article
FOURTH in their entirety and inserting in lieu thereof Heading C and Paragraph
XII as follows:
"C. Voting Rights of Common
Stock and Preferred Stock--Certain Voting
Rights of Preferred Stock and
Preference Stock as to Directors
XII. Except as otherwise required by the statutes of the State of Delaware
and as otherwise provided in this Article FOURTH, and subject to the provisions
of the By-Laws of the Corporation, as from time to time amended, with respect to
the closing of the transfer books and the fixing of a record date for the
determination of stockholders entitled to vote, the holders of the Common Stock
and the Preferred Stock shall exclusively possess all voting power for the
election of directors and for all other purposes, and the holders of the
Preference Stock shall have no voting power and shall not be entitled to any
notice of or to attend any meeting of stockholders. Except as otherwise
required by the statutes of the State of Delaware and as otherwise provided in
this Article FOURTH, the holders of the Preferred Stock and the holders of the
Common Stock shall vote together as one class on all matters submitted to a vote
of stockholders of the Corporation, with each share of Preferred Stock and each
share of Common Stock being entitled to one vote. Notwithstanding the
foregoing, (a) if and whenever full
cumulative dividends for four (4) quarterly dividend periods upon any series of
Preferred Stock shall be unpaid, the holders of the Preferred Stock as a class,
subject to any rights of the holders of the Preference Stock, if any, and
without regard to series shall thereafter at all elections of directors have the
exclusive right to elect the smallest number of directors of the Corporation
that shall constitute a majority of the Board of Directors as then constituted,
and the holders of the Common Stock of the Corporation as a class shall have the
exclusive right to elect the remaining number of directors of the Corporation,
which right of the holders of the Preferred Stock, shall however, cease when
full cumulative dividends upon the Preferred Stock of all series then
outstanding shall have been paid or declared and set apart for payment (and such
full cumulative dividends shall be declared and paid out of any funds legally
available therefor as soon as reasonably practicable), and/or (b) if and
whenever full cumulative dividends for six (6) quarterly dividend periods
(whether or not consecutive) upon any series of Preference Stock shall be
unpaid, in whole or in part, the number of directors then constituting the full
Board of Directors shall be increased by two (said two being referred to as the
"additional two directors") and the holders of the Preference Stock as a class
and without regard to series shall thereafter at all elections of directors have
the exclusive right to elect said "additional two directors"' and the holders of
the Common Stock and the Preferred Stock of the Corporation voting as one class,
subject to any additional rights of the holders of the Preferred Stock, if any,
shall have the exclusive right to elect the remaining number of directors of the
Corporation, which right of the holders of the Preference Stock shall, however,
cease when full cumulative dividends upon the Preference Stock of all series
then outstanding shall have been paid or declared and set apart for payment (and
such full cumulative dividends shall be declared and paid out of any funds
legally available therefor as soon as reasonably practicable).
The terms of office of all persons who may be directors of the Corporation
at the time when such right to elect a majority of the directors shall accrue to
holders of Preferred Stock and/or right to elect such additional two directors
shall accrue to holders of Preference Stock shall terminate upon the election of
the successors of such majority directors and/or such additional two directors
at the next annual meeting of the stockholders or (unless under the provisions
of the By-Laws of the Corporation, as then in effect, an annual meeting of the
stockholders is to be held within ninety (90) days after such right to elect a
majority of directors and/or such additional two directors shall have so
accrued) at an earlier special meeting of the stockholders held as hereinafter
in this Paragraph XII provided. A special meeting of the stockholders shall be
held at any time after such right to elect a majority of the directors shall
accrue to holders of Preferred Stock and/or such right to elect such two
additional directors shall accrue to holders of Preference Stock upon notice
similar to that provided in the
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By-Laws for an annual meeting, which notice shall be given not more than fifteen
(15) days after the accrual of such rights by the President, a Vice-President,
or the Secretary, of the Corporation, such meeting to be held not less than
sixty (60) nor more than ninety (90) days after the accrual of such rights.
At the first meeting of stockholders held for the purpose of electing
directors during such time as the holders of the Preferred Stock and/or
Preference Stock shall have the special rights voting as separate classes to
elect directors, the presence in person or by proxy of the holders of a majority
of the outstanding Common Stock, together with the Preferred Stock, shall be
required to constitute a quorum of such class for the election of directors, and
the presence in person or by proxy of the holders of a majority of the
outstanding Preferred Stock and/or Preference Stock shall be required to
constitute a quorum of each such class for the election of directors; provided,
however, that in the absence of a quorum of the holders of the Preferred Stock
and/or Preference Stock, no election of directors shall be held, but a majority
of the holders of the Preferred Stock and/or Preference Stock who are present in
person or by proxy shall have power to adjourn the election of the directors to
a date not less than fifteen nor more than fifty days from the giving of the
notice of such adjourned meeting hereinafter provided for; and provided,
further, that at such adjourned meeting, the presence in person or by proxy of
the holders of 35% of the outstanding Preferred Stock and/or Preference Stock
shall be required to constitute a quorum of each such class for the election of
directors. In the event such first meeting of stockholders shall be so
adjourned, it shall be the duty of the President, a Vice-President or the
Secretary of the Corporation, within ten days from the date on which such first
meeting shall have been adjourned, to cause notice of such adjourned meeting to
be given to the stockholders entitled to vote thereat, such adjourned meeting to
be held not less than fifteen days nor more than fifty days from the giving of
such second notice. Such second notice shall be given in the form and manner
hereinabove provided for with respect to the notice required to be given of such
first meeting of stockholders, and shall further set forth that a quorum was not
present at such first meeting and that the holders of 35% of the outstanding
Preferred Stock and/or Preference Stock shall be required to constitute a quorum
of each such class for the election of directors at such adjourned meeting. If
the requisite quorum of holders of the Preferred Stock and/or Preference Stock
shall not be present at said adjourned meeting, then the directors of the
Corporation then in office shall remain in office until the next annual meeting
of the Corporation, or special meeting in lieu thereof and until their
successors shall have been elected and qualify. Neither such first meeting nor
such adjourned meeting need be held on a date within sixty days of the next
annual meeting of the Corporation or special meeting in lieu thereof. At each
annual meeting of the Corporation, or special meeting in lieu thereof, held
during such time as the holders of the Preferred Stock
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and/or Preference Stock, voting as separate classes shall have the right to
elect Directors, the foregoing provisions of this paragraph shall govern each
annual meeting, or special meeting in lieu thereof, as if said annual meeting or
special meeting were the first meeting of stockholders held for the purpose of
electing directors after the right of the holders of the Preferred Stock and/or
Preference Stock, voting as separate classes, to elect Directors, should have
accrued with the exception, that if, at any adjourned annual meeting, or special
meeting in lieu thereof, the holders of 35% of the outstanding Preferred Stock
and/or Preference Stock are not present in person or by proxy, all the directors
shall be elected by a vote of the holders of a majority of the Common Stock and
the Preferred Stock of the Corporation present or represented at the meeting
voting as one class; provided, however, that notwithstanding the provisions of
this paragraph so long as any shares of the Preferred Stock and/or Preference
Stock of the Corporation shall be outstanding, the holders of a majority of the
Preferred Stock and/or Preference Stock shall be sufficient to constitute a
quorum of the outstanding Preferred Stock and/or Preference Stock for the
election of directors.
No delay or failure by the holders of the Preferred Stock and/or Preference
Stock to elect the members of the Board of Directors which such holders are
entitled to elect shall invalidate the election of the members of the Board of
Directors elected by the holders of the Common Stock and the Preferred Stock
voting as one class. Upon the termination of such right of the holders of the
Preferred Stock to elect a majority of directors, the terms of office of all the
directors of the Corporation shall terminate upon the election of the successors
of such directors at the next annual meeting of the stockholders or at an
earlier special meeting of the stockholders called in like manner and subject to
similar conditions as hereinbefore in this Paragraph XII provided with respect
to the call of a special meeting of stockholders for the election of directors
by the holders of the Preferred Stock.
If and when all dividends then in default on the Preference Stock of each
series then outstanding shall have been paid, the Preference Stock shall be
divested of such voting powers and the terms of office of the additional two
directors (whether elected by vote of the holders of Preference Stock or to fill
a vacancy) shall forthwith terminate and the number of directors constituting
the full Board of Directors shall be reduced accordingly.
Whenever the Preferred Stock and/or Preference Stock shall be entitled to
elect Directors, any holder of such stock shall have the right, during regular
business hours, in person or by a duly authorized representative, to examine and
to make transcripts of the stock records of the Corporation for the Preferred
Stock and/or Preference Stock for the purpose of
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communicating with other holders of such stock with respect to the exercise of
such right of election."
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IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by Wayne H. Stoppelmoor, its President, Chief Executive Officer and
Chairman of the Board, this ___day of _________, 1996.
INTERSTATE POWER COMPANY
By:
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Name: Wayne H. Stoppelmoor
Title: President, Chief
Executive Officer and
Chairman of the Board
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