RESTATED ARTICLES OF INCORPORATION
OF INTERSTATE POWER COMPANY
(a Wisconsin corporation)
Pursuant to Section 180.1007 of the Wisconsin Business Corporation
Law, these Restated Articles of Incorporation shall supersede and take the place
of the Corporation's heretofore existing Articles of Incorporation and all
amendments thereto.
FIRST: The name of this Corporation is
INTERSTATE POWER COMPANY
SECOND: Its registered office in the State of Wisconsin is located
at 777 East Wisconsin Avenue, 38th Floor, Milwaukee, Wisconsin 53202. The name
of the registered agent at such address is F&L Corp.
THIRD: The nature of the business or objects or purposes proposed
to be transacted, promoted or carried on by this Corporation are as follows:
(a) To generate, produce, buy, or in any manner acquire, and to
sell, dispose of and distribute electricity for light, heat, power and
other purposes and to carry on the business of furnishing, supplying and
vending light, heat, power and water and any and all businesses incident
thereto, and to build, construct, develop, improve, acquire, hold, own,
lease, maintain and operate plants, facilities and works for the
manufacture, generation, production, accumulation, transmission and
distribution of electric energy, gas and steam, for light, heat, power and
other purposes, and to acquire, construct, maintain and operate systems of
water works for the supply of water.
(b) To build, construct, develop, improve, acquire, hold, own,
lease, maintain and operate, by electricity, or other power, street
railways and interurban railways for the transportation of passengers,
mail, express, merchandise or other freight in any part of the world,
except that this Corporation shall not have power to construct, maintain or
operate railroads or railways within the State of Wisconsin.
(c) To produce, mine, buy, sell, store, market, deal in and
prospect for coal and minerals of all kinds and the products and by-
products thereof.
(d) To organize, incorporate, reorganize, finance and to aid and
assist financially or otherwise, companies, corporations, joint stock
companies, syndicates, partnerships and associations of all kinds,
particularly those engaged in operating public utilities, and to
underwrite, subscribe for and endorse the bonds, stocks, securities,
debentures, notes
or undertakings of any such company, corporation, joint stock company,
syndicate, partnership or association, and to make any guaranty in
connection therewith or otherwise for the payment of money or for the
performance of any obligation or undertaking, and to do any and all things
necessary or convenient to carry any of such purposes into effect.
(e) To carry on the business of engineering and contracting in
all of its branches; to appraise, value, design, build, construct, enlarge,
develop, improve, extend and repair light, heat, power, transmission and
hydraulic plants, electrical works, machinery and appliances, telegraph and
telephone lines, dams, reservoirs, canals, bridges, piers, docks, mines,
shafts, tunnels, wells, water works, street railways, interurban railways,
railways and buildings.
(f) To purchase and acquire securities, assets and property of
every kind and description at judicial, judiciary, trustee's, pledgee's,
mortgagee's, or liquidating or public or private sales, and to carry on a
general salvage, liquidation and realization business; and also to do a
general commission and brokerage business.
(g) To hold in trust, issue on commission, make advances upon or
sell, lease, license, transfer, organize, reorganize, incorporate or
dispose of any of the undertakings or resulting investments aforesaid, or
the stock or securities thereof, to act as agent, or depositary for any of
the above or like purposes, or any purpose herein mentioned, and to act as
fiscal agent of any other person, firm or corporation.
(h) To obtain the grant of, purchase, lease, or otherwise
acquire any concessions, rights, options, patents, privileges, lands,
rights of way, sites, properties, undertakings or business, or any right,
option or contract in relation thereto, and to perform, carry out and
fulfill the terms and conditions thereof, and to carry the same into
effect, and to develop, maintain, lease, sell, transfer, dispose of and
otherwise deal with the same.
(i) From time to time to apply for, purchase or acquire by
assignment, transfer or otherwise, and to exercise, carry out and enjoy any
license, power, authority, franchise, ordinance, order, right or privilege,
which any government or authority, supreme, municipal or local, or any
corporation or other public body shall enact, make or grant.
(j) To issue shares of the capital stock (of any class), bonds,
debentures, debenture stock, notes and other obligations of this
Corporation for cash, for labor done, for property, real or personal, or
leases thereof, or for any combination of any of the foregoing or in
exchange for the
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stock, debentures, debenture stock, bonds, securities or obligations of any
person, firm, association, corporation or other organization.
(k) To purchase, acquire and lease, and to sell, lease and
dispose of water, water rights, water records, power privileges and
appropriations for power, light, heat, mining, milling, irrigation,
agricultural, domestic or any other use or purpose.
(l) To acquire by purchase, lease, own, hold, sell, mortgage and
encumber both improved and unimproved real estate wherever situated; to
survey, subdivide, plat, colonize and improve the same for purposes of sale
or otherwise; and to construct and erect thereon factories, works, plants,
stores, mills, hotels, houses and buildings.
(m) To subscribe for, or cause to be subscribed for, buy, own,
hold, purchase, receive, or acquire, and to sell, negotiate, guarantee,
assign, deal in, exchange, transfer, mortgage, pledge or otherwise dispose
of, shares of the capital stock, scrip, bonds, coupons, mortgages,
debentures, debenture stock, securities, notes, acceptances, drafts and
evidences of indebtedness issued or created by other corporations, joint
stock companies or associations, whether public, private or municipal, or
any corporate body, and while the owner thereof, to possess and to exercise
in respect thereof all the rights, powers and privileges of ownership,
including the right to vote thereon; to guarantee the payment of dividends
on any shares of the capital stock of any of the corporations, joint stock
companies or associations in which this Corporation has or may at any time
have an interest, and to become surety in respect of, endorse or otherwise
guarantee the payment of the principal of or interest on any scrip, bonds,
coupons, mortgages, debentures, debenture stock, securities, notes, drafts,
bills of exchange or evidences of indebtedness, issued or created by any
such corporations, joint stock companies or associations; to become surety
for or guarantee the carrying out and performance of any and all contracts,
leases and obligations of every kind of any corporations, joint stock
companies or associations, and in particular of any corporation, joint
stock company or association any of whose shares, scrip, bonds, coupons,
mortgages, debentures, debenture stock, securities, notes, drafts, bills of
exchange or evidences of indebtedness, are at any time held by or for this
Corporation, and to do any acts or things designed to protect, preserve,
improve, or enhance the value of any such shares, scrip, bonds, coupons,
mortgages, debentures, debenture stock, securities, notes, drafts, bills of
exchange or evidences of indebtedness.
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(n) To manufacture, buy, sell and generally deal in goods,
wares, merchandise, property and commodities of any and every class and
description, and all articles used or useful in connection therewith,
insofar as may be permitted by the laws of the State of Wisconsin; to
engage in any business, whether manufacturing or otherwise which this
Corporation may deem advantageous or useful in connection with any or all
of the foregoing, and to purchase, acquire, manufacture, market or prepare
for market, sell and otherwise dispose of any article, commodity or thing
which this Corporation may use in connection with its business.
(o) To secure, purchase, acquire, apply for, register, own,
hold, sell or dispose of any and all copyrights, trademarks and other trade
rights.
(p) To organize, or cause to be organized, under the laws of the
State of Wisconsin, or of any other state, territory or country, or the
District of Columbia, a corporation or corporations, for the purpose of
accomplishing any or all of the objects for which this Corporation is
organized, and to dissolve, wind up, liquidate, merge or consolidate any
such corporation or corporations, or to cause the same to be dissolved,
wound up, liquidated, merged or consolidated.
(q) To purchase, apply for, obtain or otherwise acquire any and
all letters patent, licenses, patent rights, patented processes and similar
rights granted by the United States or any other government or country, or
any interest therein, or any inventions which may seem capable of being
used for or in connection with any of the objects or purposes of this
Corporation, and to use, exercise, develop, sell, dispose of, lease, grant
licenses in respect to, or other interests in the same, and otherwise turn
the same to account, and to carry on any business, manufacturing or
otherwise, which may be deemed to directly or indirectly aid, effectuate or
develop the objects or any of them of this Corporation.
(r) To borrow money for any of the purposes of this Corporation,
and to issue bonds, debentures, debenture stock, notes and other
obligations therefor, and to secure the same by pledge or mortgage of the
whole or any part of the property of this Corporation, either real or
personal, or to issue bonds, debentures, debenture stock, notes or other
obligations without any such security.
(s) To enter into, make, perform and carry out contracts of
every kind for any lawful purpose, without limit as to amount, with any
person, firm, association or corporation.
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(t) To draw, make, accept, endorse, discount, guarantee, execute
and issue promissory notes, bills of exchange, drafts, warrants, and all
kinds of obligations and certificates and negotiable or transferable
instruments.
(u) To purchase, hold, sell and transfer shares of its own
capital stock (of any class), bonds and other obligations of this
Corporation from time to time to such extent and in such manner and upon
such terms as its Board of Directors shall determine; provided that this
Corporation shall not use any of its funds or property for the purchase of
its own shares of capital stock when such use would cause any impairment of
the capital of this Corporation; and provided further that shares of its
own capital stock belonging to this Corporation shall not be voted upon
directly or indirectly.
(v) To have one or more offices, to carry on any or all of its
operations and business, and, without restriction or limit as to amount, to
purchase, lease, or otherwise acquire, hold and own, and to mortgage, sell,
convey, lease or otherwise dispose of, real and personal property of every
class and description, in any of the states or territories of the United
States and in the District of Columbia, and in any and all foreign
countries, subject to the laws of such state, district, territory or
country.
(w) To do any and all things herein set forth, and in addition
such other acts and things as are necessary or convenient to the attainment
of the purposes of this Corporation, or any of them, to the same extent as
natural persons lawfully might or could do in any part of the world,
insofar as such acts are permitted to be done by a corporation organized
under the Wisconsin Business Corporation Law.
The foregoing clauses shall be construed, both as objects and powers,
and it is hereby expressly provided that the foregoing enumeration of specific
powers shall not be held to limit or restrict in any manner the powers of this
Corporation, and are in furtherance of, and in addition to, and not in
limitation of the general powers conferred by the laws of the State of
Wisconsin.
It is the intention that the purposes, objects and powers specified in
this Article THIRD and all subdivisions thereof shall, except as otherwise
expressly provided, in nowise be limited or restricted by reference to or
inference from the terms of any other clause or paragraph of this Article, and
that each of the purposes, objects and powers specified in this Article THIRD
shall be regarded as independent purposes, objects and powers.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is thirty-four million (34,000,000),
of which two million (2,000,000)
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shares of the par value of Fifty Dollars ($50) each are to be of a class
designated Preferred Stock, two million (2,000,000) shares of the par value of
One Dollar ($1) each are to be of a class designated Preference Stock, and
thirty million (30,000,000) shares of the par value of Three Dollars and Fifty
Cents ($3.50) each are to be of a class designated Common Stock.
The designations and the voting powers, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, of the classes of stock of the Corporation which are
fixed by the Restated Articles of Incorporation, and the express grant of
authority to the Board of Directors of the Corporation (hereinafter referred to
as the Board of Directors) to fix by resolution or resolutions the designations
and the voting powers, preferences and relative, participating, optional or
other special rights, and qualifications, limitations or restrictions thereof,
of the Preferred Stock and of the Preference Stock, respectively, which are not
fixed by the Restated Articles of Incorporation, are as follows:
A. PREFERRED STOCK
I. The Preferred Stock may be issued at any time or from time to
time in any amount, not exceeding in the aggregate (including all shares of any
and all series thereof theretofore issued) the total number of shares of
Preferred Stock hereinabove authorized, as Preferred Stock of one or more
series, as hereinafter provided. All Shares of any one series of Preferred
Stock shall be alike in every particular, each series thereof shall be
distinctly designated by letter or descriptive words, and all series of
Preferred Stock shall rank equally and be identical in all respects except as
permitted by the provisions of Paragraph II of this Article FOURTH.
II. Authority is hereby expressly granted to and vested in the Board
of Directors at any time or from time to time to issue the Preferred Stock as
Preferred Stock of any series, and in connection with the creation of each such
series to fix by the resolution or resolutions providing for the issue of shares
thereof, the designations and the preferences and relative, participating,
optional or other special rights, and qualifications, limitations or
restrictions thereof, of such series, to the full extent now or hereafter
permitted by the laws of the State of Wisconsin, in respect to the matters set
forth in the following subparagraphs (a) to (g), inclusive:
(a) The distinctive designation of such series and the number of
shares which shall constitute such series, which number may be increased or
decreased (but not below the number of shares thereof then outstanding)
from time to time by resolution of the Board of Directors;
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(b) The dividend rate per annum of such series, the quarterly
payment dates for dividends on shares of such series, and the date from
which dividends on shares of such series shall be cumulative (hereinafter
called the "date of cumulation"), which date of cumulation shall be
identical for all shares of such series;
(c) The price or prices at which, and the terms and conditions
on which, the shares of such series may be redeemed at the option of the
Corporation (hereinafter called the "optional redemption price");
(d) The amount or amounts payable upon the shares of such series
in the event of voluntary liquidation, dissolution or winding up of the
Corporation;
(e) Whether or not the shares of such series shall be entitled
to the benefit of a sinking fund or a purchase fund to be applied to the
purchase or redemption of shares of such series, and if so entitled, the
amount of such fund and the manner of its application, including the price
or prices at which the shares of such series may be redeemed or purchased
through the application of such fund;
(f) Whether or not the shares of such series shall be made
convertible into, or exchangeable for, shares of any other class or classes
or of any other series of the same or any class or classes of stock of the
Corporation and, if made so convertible or exchangeable, the conversion
price or prices, or the rates of exchange, and the adjustments thereof, if
any, at which such conversion or exchange may be made, and any other terms
and conditions of such conversion or exchange; and
(g) Whether or not the issue of any additional shares of such
series, or any future series in addition to such series, or of any shares
of any other class of stock (except junior stock, as hereinafter in this
Article FOURTH defined) of the Corporation shall be subject to restrictions
and, if so, the nature thereof.
The designations and separate terms of the four separate series of the
Preferred Stock authorized as of the date of these Restated Articles of
Incorporation are as follows:
(i) 4.36% Preferred Stock
The Corporation is authorized to issue a series of Preferred Stock
which is hereby designated as "4.36% Preferred Stock", consisting initially of
200,000 authorized shares of the par value of $50 per share.
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The terms of the "4.36% Preferred Stock", in the respects in which the
shares of such series may vary from shares of other series of the Preferred
Stock (in addition to the voting powers, designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, set forth elsewhere in the Restated Articles of
Incorporation, which are applicable to the Preferred Stock of the par value of
$50 per share of all series) shall be as follows:
(a) The dividend rate of the 4.36% Preferred Stock shall be
4.36% per share per annum upon the par value thereof payable quarterly on
the first days of January, April, July and October in each year (the
quarterly periods ending on the first days of such months, respectively, to
be designated as dividend periods) and the date from which dividends on
shares of the 4.36% Preferred Stock shall be cumulative shall be __________
__, 19__ [THE DATE OF THE LAST DIVIDEND PAYMENT BY IPC PRIOR TO THE
EFFECTIVE DATE OF THESE RESTATED ARTICLES OF INCORPORATION].
(b) The prices at which the 4.36% Preferred Stock may be
redeemed at the option of the Corporation, on the terms and conditions
specified in Paragraph XXIII of Article FOURTH of the Restated Articles of
Incorporation shall be $52.30 per share plus, as provided in said Paragraph
XXIII, an amount equal to full cumulative dividends thereon to the
redemption date.
(c) The amounts payable upon the shares of 4.36% Preferred Stock
in the event of any voluntary liquidation or dissolution or winding up of
the Corporation shall be an amount equal to the redemption price (exclusive
of dividends) specified in paragraph (b) hereof above, then in effect,
plus, as provided in Paragraph XX of Article FOURTH of the Restated
Articles of Incorporation, an amount equal to full cumulative dividends
thereon to the date of final distribution to the holders of the Preferred
Stock.
(ii) 4.68% Preferred Stock
The Corporation is authorized to issue a series of Preferred Stock
which is hereby designated as "4.68% Preferred Stock" consisting initially of
166,000 authorized shares of the par value of $50 per share.
The terms of the "4.68% Preferred Stock", in the respects in which the
shares of such series may vary from shares of other series of the Preferred
Stock (in addition to the voting powers, designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, set forth elsewhere in the Restated Articles
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of Incorporation, which are applicable to the Preferred Stock of the par value
of $50 per share of all series) shall be as follows:
(a) The dividend rate of the 4.68% Preferred Stock shall be
4.68% per share per annum upon the par value thereof payable quarterly on
the first days of January, April, July and October in each year (the
quarterly periods ending on the first days of such months respectively, to
be designated as dividend periods) and the date from which dividends on
shares of the 4.68% Preferred Stock shall be cumulative shall be __________
__, 19__ [THE DATE OF THE LAST DIVIDEND PAYMENT BY IPC PRIOR TO THE
EFFECTIVE DATE OF THESE RESTATED ARTICLES OF INCORPORATION].
(b) The prices at which the 4.68% Preferred Stock may be
redeemed at the option of the Corporation, on the terms and conditions
specified in Paragraph XXIII of Article FOURTH of the Restated Articles of
Incorporation shall be $51.62 per share plus, as provided in said Paragraph
XXIII, an amount equal to full cumulative dividends thereon to the
redemption date.
(c) The amounts payable upon the shares of 4.68% Preferred Stock
in the event of any voluntary liquidation or dissolution or winding up of
the Corporation shall be an amount equal to the redemption price (exclusive
of dividends) specified in paragraph (b) hereof above, then in effect,
plus, as provided in Paragraph XX of Article FOURTH of the Restated
Articles of Incorporation, an amount equal to full cumulative dividends
thereon to the date of final distribution to the holders of the Preferred
Stock.
(iii) 7.76% Preferred Stock
The Corporation is authorized to issue a series of Preferred Stock
which is hereby designated as "7.76% Preferred Stock", consisting initially of
100,000 authorized shares of the par value of $50 per share.
The terms of the "7.76% Preferred Stock", in the respects in which the
shares of such series may vary from shares of other series of the Preferred
Stock (in addition to the voting powers, designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, set forth elsewhere in the Restated Articles of
Incorporation, which are applicable to the Preferred Stock of the par value of
$50 per share of all series) shall be as follows:
(a) The dividend rate of the 7.76% Preferred Stock shall be
7.76% per share per annum upon the par value thereof payable quarterly on
the first days of January, April, July and October in each year (the
quarterly periods ending on the
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first days of such months, respectively, to be designated as dividend
periods) and the date from which dividends on shares of the 7.76% Preferred
Stock shall be cumulative shall be __________ __, 19__ [THE DATE OF THE
LAST DIVIDEND PAYMENT BY IPC PRIOR TO THE EFFECTIVE DATE OF THESE RESTATED
ARTICLES OF INCORPORATION].
(b) The prices at which the 7.76% Preferred Stock may be
redeemed at the option of the Corporation, on the terms and conditions
specified in Paragraph XXIII of Article FOURTH of the Restated Articles of
Incorporation shall be $52.03 per share plus, as provided in said Paragraph
XXIII, an amount equal to full cumulative dividends thereon to the
redemption date.
(c) The amounts payable upon the shares of 7.76% Preferred Stock
in the event of any voluntary liquidation or dissolution or winding up of
the Corporation shall be an amount equal to the redemption price (exclusive
of dividends) specified in paragraph (b) hereof above, then in effect,
plus, as provided in Paragraph XX of Article FOURTH of the Restated
Articles of Incorporation, an amount equal to full cumulative dividends
thereon to the date of final distribution to the holders of the Preferred
Stock.
(iv) 6.40% Preferred Stock
The Corporation is authorized to issue a series of Preferred Stock
which is hereby designated as "6.40% Preferred Stock", consisting initially of
545,000 authorized shares of the par value of $50 per share.
The terms of the "6.40% Preferred Stock", in the respects in which the
shares of such series may vary from shares of other series of the Preferred
Stock (in addition to the voting powers, designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, set forth elsewhere in the Restated Articles of
Incorporation, which are applicable to the Preferred Stock of the par value of
$50 per share of all series) shall be as follows:
(a) The dividend rate of the 6.40% Preferred Stock shall be
6.40% per share per annum upon the par value thereof payable quarterly on
the first days of January, April, July and October in each year (the
quarterly periods ending on the first days of such months, respectively, to
be designated as dividend periods) and the date from which dividends on
shares of the 6.40% Preferred Stock shall be cumulative shall be __________
__, 19__ [THE DATE OF THE LAST DIVIDEND PAYMENT BY IPC PRIOR TO THE
EFFECTIVE DATE OF THESE RESTATED ARTICLES OF INCORPORATION].
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(b) The prices at which the 6.40% Preferred Stock may be
redeemed at the option of the Corporation, otherwise than for sinking fund
purposes, on the terms and conditions specified in Paragraph XXIII of
Article FOURTH of the Restated Articles of Incorporation shall be $53.20
per share, if redeemed on or before May 1, 2003, $51.60 per share if
redeemed thereafter and on or before May 1, 2009, $50.80 per share, if
redeemed thereafter and on or before May 1, 2014, and $50 per share, if
redeemed after May 1, 2014, plus, as provided in said Paragraph XXIII, an
amount equal to full cumulative dividends thereon to the redemption date;
except $50 per share if redeemed at any time for the sinking fund, plus, in
each case, accrued dividends to the date of redemption; provided, however,
that prior to May 1, 2003, none of the shares may be redeemed pursuant to
this paragraph (b) if such redemption is for the purpose or in anticipation
of refunding any such shares through the use, directly or indirectly, of
funds borrowed by the Corporation, or through the use, directly or
indirectly, of funds derived through the issuance by the Corporation of
stock ranking prior to or on a parity with the 6.40% Preferred Stock, as to
dividends or assets, if such borrowed funds have an interest rate or an
effective interest cost to the Corporation (computed in accordance with
generally accepted financial practice) or such stock has a dividend rate or
cost (so computed) of less than 6.40% per annum.
(c) The amounts payable upon the shares of 6.40% Preferred
Stock, in the event of any voluntary liquidation or dissolution or winding
up of the Corporation shall be an amount equal to the redemption price
(exclusive of dividends) specified in paragraph (b) hereof above, then in
effect, plus, as provided in Paragraph XX of Article FOURTH of the Restated
Articles of Incorporation, an amount equal to full cumulative dividends
thereon to the date of final distribution to the holders of the Preferred
stock.
(d) The holders of shares of 6.40% Preferred Stock shall be
entitled to the benefit of a sinking fund as follows: on May 1, 2003, and
on each May 1 (except that the final redemption shall be on May 1, 2022)
thereafter the Corporation shall redeem out of funds legally available
therefore 27,250 shares of this series (or the number of shares then
outstanding if less than 27,250) at a sinking fund redemption price equal
to $50.00 per share plus accrued and unpaid dividends to the redemption
date; on May 1, 2008, and on each May 1 thereafter the Corporation shall
have the non-cumulative option to redeem up to an additional 27,250 shares
of this series at a sinking fund redemption price equal to $50.00 per share
plus accrued and unpaid dividends to the redemption date; all shares
redeemed by the Corporation pursuant to the foregoing provisions shall be
cancelled; in the event that the
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Corporation shall at any time be in default in the performance of its
obligations under the foregoing provisions of this paragraph (d), no
dividends (other than dividends payable in Common Stock) shall be paid or
any other distribution of assets made, by purchase of shares or otherwise,
on Common Stock or any other stock of the Corporation over which the
Preferred Stock has preference as to the payment of dividends or as to
assets.
III. Out of the net profits or net assets of the Corporation legally
available for dividends the holders of Preferred Stock of each series shall be
entitled to receive, when and as declared by the Board of Directors, dividends
at the per annum rate for such series fixed by the Board of Directors pursuant
to the foregoing Paragraph II, and no more, payable quarterly on the dates fixed
by the Board of Directors pursuant to said Paragraph II for such series, in each
case from the date of cumulation of such series, and such dividends shall be
cumulative (whether or not in any dividend period or periods there shall be net
profits or net assets of the Corporation legally available for the payment of
such dividends), so that, if at any time full cumulative dividends, as
hereinafter in this Article FOURTH defined, to the end of the then current
dividend period upon the outstanding Preferred Stock of all series shall not
have been paid or declared and set apart for payment, the amount of the
deficiency shall be fully paid, but without interest, or dividends in such
amount declared on each such series and set apart for payment before any sum or
sums shall be set aside for or applied to the purchase or redemption of
Preferred Stock of any series and before any dividend shall be declared or paid
upon or set apart for, or any other distribution shall be ordered or made in
respect of, any junior stock and before any shares of junior stock shall be
purchased, redeemed or otherwise acquired for value (except in exchange for or
with the proceeds of the issue of other junior stock) by the Corporation.
All dividends declared on the Preferred Stock shall be declared pro
rata so that the amounts of dividends per share declared on the Preferred Stock
of different series shall in all cases bear to each other the same proportions
that the respective dividend rates of such respective series bear to each other.
IV. After full cumulative dividends to the end of the then current
dividend period upon the outstanding Preferred Stock of all series shall have
been paid or declared and set apart for payment, the Corporation shall set aside
as a sinking fund or purchase fund, when and as required, out of any funds
legally available for that purpose, in respect of such series of Preferred Stock
any shares of which shall at the time be outstanding and in respect of which a
sinking fund or purchase fund for the purchase or redemption thereof has been
provided for in the resolution or resolutions referred to in the foregoing
Paragraph II, the sum or
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sums required by the terms of such resolution or resolutions as a sinking fund
or purchase fund to be applied in the manner specified therein.
V. Out of any net profits or net assets of the Corporation legally
available for dividends remaining after full cumulative dividends to the end of
the then current dividend period upon the outstanding Preferred Stock of all
series shall have been paid or declared and set apart for payment and after the
Corporation shall have complied or made provision for compliance with the
provisions of the foregoing Paragraph IV in respect of any and all amounts then
or theretofore required to be set aside or applied in respect of any sinking
fund or purchase fund mentioned in said Paragraph IV, then and not otherwise,
the holders of any junior stock shall, subject to the provisions hereof and of
any resolution or resolutions of the Board of Directors with respect to any
series of Preferred Stock adopted pursuant to the foregoing Paragraph II, be
entitled to receive such dividends as may from time to time be declared by the
Board of Directors.
In the event of the issue of additional Preferred Stock of any then
existing series all dividends paid on Preferred Stock of such series prior to
the issue of such additional Preferred Stock and all dividends declared and
payable to holders of record of Preferred Stock of such series on any date prior
to such additional issue shall be deemed to have been paid on the additional
Preferred Stock so issued.
VI. So long as any shares of the Preferred Stock of any series shall
be outstanding, the right of the Corporation to make any distribution on junior
stock, as hereinafter in this Article FOURTH defined, shall be subject to the
following limitations:
(a) If and so long as the junior stock equity ratio, as
hereinafter in this Article FOURTH defined is 20% or more but less than
25%, the Corporation shall not make, during the twelve months' period
ending with and including the date of any proposed distribution on junior
stock, distributions on junior stock (including the proposed distribution
on junior stock) exceeding in aggregate amount 75% of the consolidated net
income of the Corporation and its subsidiaries, as hereinafter in this
Article FOURTH defined, for the twelve months' period ending with and
including the second calendar month preceding the date on which the Board
of Directors shall authorize such proposed distribution on junior stock;
and
(b) If and so long as the junior stock equity ratio is less than
20%, the Corporation shall not make, during the twelve months' period
ending with and including the date of any proposed distribution on junior
stock, distributions on junior stock (including the proposed distribution
on junior stock) exceeding in aggregate amount 50% of the consolidated
13
net income of the Corporation and its subsidiaries for the twelve months'
period ending with and including the second calendar month preceding the
date on which the Board of Directors shall authorize such proposed
distribution on junior stock.
B. PREFERENCE STOCK
VII. The Preference Stock shall be stock subordinate to the Preferred
Stock both as to dividends and upon any liquidation, dissolution or winding up
of the Corporation and shall be subject to the prior rights and preferences of
the Preferred Stock as defined in this Article FOURTH.
The Preference stock may be issued at any time or from time to time in
any amount, not exceeding in the aggregate (including all shares of any and all
series thereof theretofore issued) the total number of shares of Preference
Stock hereinabove authorized, as Preference Stock of one or more series, as
hereinafter provided. All consideration received by the Corporation from the
issuance and sale of shares of any series of Preference Stock in excess of its
par value shall be entered on its books as premium for such stock. All Shares
of any one series of Preference Stock shall be alike in every particular, each
series thereof shall be distinctly designated by letter or descriptive words,
and all series of Preference Stock shall rank equally and be identical in all
respects except as permitted by the provisions of Paragraph VIII of this Article
FOURTH.
VIII. Authority is hereby expressly granted to and vested in the
Board of Directors at any time or from time to time to issue the Preference
Stock as Preference Stock of any series, and in connection with the creation of
each such series to fix by the resolution or resolutions providing for the issue
of shares thereof, the designations and the preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof to the full extent now or hereafter permitted by the
laws of the State of Wisconsin, in respect of the matters set forth in the
following subparagraphs (a) to (g), inclusive:
(a) The distinctive designation of such series and the number of
shares which shall constitute such series, which number may be increased or
decreased (but not below the number of shares thereof then outstanding)
from time to time by resolution of the Board of Directors;
(b) The dividend rate per annum of such series, the quarterly
payment dates for dividends on shares of such series, and the date from
which dividends on shares of such series shall be cumulative (hereinafter
called the "date of
14
cumulation"), which date of cumulation shall be identical for all shares of
such series;
(c) The price or prices at which, and the terms and conditions
on which, the shares of such series may be redeemed at the option of the
Corporation (hereinafter called the "optional redemption price");
(d) The amount or amounts payable upon the shares of such series in
the event of voluntary liquidation, dissolution or winding up of the
Corporation;
(e) Whether or not the shares of such series shall be entitled
to the benefit of a sinking fund or a purchase fund to be applied to the
purchase or redemption of shares of such series, and if so entitled, the
amount of such fund and the manner of its application, including the price
or prices at which the shares of such series may be redeemed or purchased
through the application of such fund;
(f) Whether or not the shares of such series shall be made
convertible into, or exchangeable for, shares of any other class or classes
or of any other series of the same or any other class or classes of stock
of the Corporation and, if made so convertible or exchangeable, the
conversion price or prices, or the rates of exchange, and the adjustments
thereof, if any, at which such conversion or exchange may be made, and any
other terms and conditions of such conversion or exchange; and
(g) Whether or not the issue of any additional shares of such
series, or any future series in addition to such series, of the Corporation
shall be subject to restrictions and, if so, the nature thereof.
Any shares of Preference Stock redeemed or purchased pursuant to any
redemption or sinking fund provision, or converted pursuant to a convertible
provision, established by the Board of Directors shall be cancelled and shall
not thereafter be issued as shares of the same series of Preference Stock but
shall revert to the status of authorized but unissued shares of Preference Stock
undesignated as to series, or any rights or preferences thereof, and may
thereafter be issued by appropriate action of the Board of Directors just as if
such stock had never been issued, redeemed or purchased and cancelled.
IX. Subject to the prior rights and preferences of the Preferred
Stock, out of the net profits or net assets of the Corporation legally available
for dividends the holders of Preference Stock of each series shall be entitled
to receive, when and as declared by the board of Directors, dividends at the per
annum rate for such series fixed by the Board of Directors pursuant
15
to the foregoing Paragraph VIII and no more, payable quarterly on the dates
fixed by the Board of Directors pursuant to said Paragraph VIII for such series,
in each case from the date of cumulation of such series; and such dividends
shall be cumulative (whether or not in any dividend period or periods there
shall be net profits or net assets of the Corporation legally available for the
payment of such dividends), so that, if at any time full cumulative dividends,
as hereinafter in this Article FOURTH defined, to the end of the then current
dividend period upon the outstanding Preference Stock of all series shall not
have been paid or declared and set apart for payment, the amount of the
deficiency shall be fully paid, but without interest, or dividends in such
amount declared on each such series and set apart for payment, before any sum or
sums shall be set aside for or applied to the purchase or redemption of
Preference Stock of any series and before any dividend shall be declared or paid
upon or set apart for, or any other distribution shall be ordered or made in
respect of, any stock junior to the Preference Stock either as to dividends, or
upon liquidation, dissolution or winding up and before any shares of such stock
junior to the Preference Stock shall be purchased, redeemed or otherwise
acquired for value (except in exchange for or with the proceeds of the issue of
other such stock junior to the Preference Stock) by the Corporation.
All dividends declared on the Preference Stock shall be declared pro
rata so that the amounts of dividends per share declared on the Preference Stock
of different series shall in all cases bear to each other the same proportions
that the respective dividend rates of such respective series bear to each other.
X. Subject to the prior rights and preferences of the Preferred
Stock, after full cumulative dividends to the end of the then current dividend
period upon the outstanding Preference Stock of all series shall have been paid
or declared and set apart for payment, the Corporation shall set aside as a
sinking fund or purchase fund, when and as required, out of any funds legally
available for that purpose, in respect of each series of Preference Stock any
shares of which shall at the time be outstanding and in respect of which a
sinking fund or purchase fund for the purchase or redemption thereof has been
provided for in the resolution or resolutions referred to in the foregoing
Paragraph VIII, the sum or sums required by the terms of such resolution or
resolutions as a sinking fund or purchase fund to be applied in the manner
specified therein.
XI. Subject to the prior rights and preferences of the Preferred
Stock, out of any net profits or net assets of the Corporation legally available
for dividends remaining after full cumulative dividends to the end of the then
current dividend period upon the outstanding Preference Stock of all series
shall have been paid or declared and act apart for payment and after the
Corporation shall have complied or made provision for compliance
16
with the provisions of the foregoing Paragraph X in respect of any and all
amounts then or theretofore required to be set aside or applied in respect of
any sinking fund or purchase fund mentioned in said Paragraph X, then and not
otherwise, the holders of the Common Stock shall, subject to the provisions
hereof and of any resolution or resolutions of the Board of Directors with
respect to any series of Preference Stock adopted pursuant to the foregoing
Paragraph VIII, be entitled to receive such dividends as may from time to time
be declared by the Board of Directors.
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
Wisconsin 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 shareholders 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 shareholders. Except as otherwise
required by the statutes of the State of Wisconsin 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 shareholders 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
17
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 shareholders or (unless under
the provisions of the By-Laws of the Corporation, as then in effect, an annual
meeting of the shareholders 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 shareholders held as
hereinafter in this Paragraph XII provided. A special meeting of the
shareholders 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 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 shareholders 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 each 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
18
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 shareholders 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 shareholders 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 shareholders, 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 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 shareholders 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
19
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
shareholders or at an earlier special meeting of the shareholders 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 shareholders 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 communicating with
other holders of such stock with respect to the exercise of such right of
election.
D. NO CUMULATIVE VOTING
XIII. At all elections of directors by shareholders of the
Corporation, each holder of Common Stock, and each holder of Preferred Stock
and/or Preference Stock, if entitled to vote at such election, shall be entitled
to one vote for each share. The principle of cumulative voting shall not apply.
E. CERTAIN VOTING RIGHTS OF PREFERRED STOCK
XIV. So long as any shares of the Preferred Stock of any series shall
be outstanding, the Corporation shall not, without the consent by vote or in
writing of the holders of a majority of the shares of the Preferred Stock of all
series at the time outstanding, considered as a class without regard to series,
20
(a) Sell all or substantially all its assets or consolidate or
merge with or into any other corporation or corporations, except that no
such consent or vote shall be required if such sale, consolidation or
merger or the issuance or assumption of all securities to be issued or
assumed in connection with such sale, consolidation or merger shall have
been approved, permitted or ordered by the Securities and Exchange
Commission or by any successor commission or by any regulatory authority of
the United States of America having jurisdiction over such sale,
consolidation or merger or the issuance or assumption of securities in
connection therewith; provided, however, that the provisions of this
subparagraph (a) shall not apply to (i) a consolidation of the Corporation
with, or a merger into the Corporation of, any subsidiary of the
Corporation, or (ii) the purchase or other acquisition by the Corporation
of the franchises or assets of another corporation in any manner which does
not involve a consolidation or merger under the laws of the State of
Wisconsin; the term "subsidiary" as used in this subparagraph (a) shall
mean any corporation all of the outstanding shares of stock of which
(except directors' qualifying shares) at the time shall be owned directly
or indirectly by the Corporation or by a wholly-owned subsidiary of the
Corporation; or
(b) Increase the total authorized amount of Preferred Stock, or
authorized any other preferred stock on a parity therewith with respect to
the payment of dividends or the distribution of assets upon the
dissolution, liquidation or winding up of the Corporation, whether
voluntary or involuntary, or
(c) Issue any additional shares of Preferred Stock (including
the reissuance of reacquired Preferred Stock) ranking on a parity with the
outstanding shares of Preferred Stock either as to the payment of dividends
or as to the distribution of assets unless (i) the consolidated gross
income of the Corporation and its subsidiaries (after all taxes including
taxes based on income) for 12 consecutive calendar months within a period
of 15 calendar months immediately preceding the date of such issuance is
equal to at least one and one-half times the aggregate of all interest
charges on indebtedness of the Corporation and its subsidiaries on a
consolidated basis (excluding interest charges on indebtedness to be
retired by the application of the proceeds from the issuance of such
Preferred Stock) and the annual dividend requirements on all Preferred
Stock of the Corporation and its subsidiaries on a consolidated basis
(including dividend requirements on all Preferred Stock ranking as to
dividends or assets prior to or on a parity with the Preferred Stock to be
issued) which will be outstanding immediately after the issuance of such
Preferred Stock; and unless (ii) the aggregate par value, or stated capital
21
represented by the outstanding shares of the junior stock of the
Corporation, including premiums thereon plus any surplus of the Corporation
is equal to at least the aggregate amount payable in connection with an
involuntary liquidation of the Corporation with respect to all shares of
the Preferred Stock and all shares of stock, if any, ranking prior thereto
or on a parity therewith as to dividends or assets, which will be
outstanding immediately after the issuance of such Preferred Stock. If for
the purpose of meeting the requirements of clause (c)(ii) immediately
preceding it shall have been necessary to take into consideration any
earned surplus of the Corporation, the Corporation shall not thereafter pay
any dividends on, or make any distributions in respect of, or purchase or
otherwise acquire, junior stock which would result in reducing the junior
stock equity to an amount less than the amount payable on involuntary
liquidation of the Corporation with respect to all shares of the Preferred
Stock and all shares ranking prior to or on a parity with the Preferred
Stock as to dividends and assets at the time outstanding. If, during the
period for which gross income is to be determined for the purpose set forth
in clause (c)(i) above, the amount required to be expended by the
Corporation pursuant to a maintenance fund or similar fund established
under its mortgage indenture shall exceed the amount deducted in the
determination of gross income on account of depreciation and maintenance,
such excess shall also be deducted in determining gross income; or
(d) Issue or assume any unsecured notes, debentures or other
securities representing unsecured indebtedness for any purpose other than
(i) the refunding of unsecured indebtedness theretofore
created or assumed by the Corporation and then outstanding;
(ii) the reacquisition, redemption or other retirement of
any indebtedness, whether secured or unsecured, which
reacquisition, redemption or other retirement has been authorized
by any state or federal regulatory authority; or
(iii) the reacquisition, redemption or other retirement of
outstanding shares of one or more series of the Preferred Stock;
if immediately after such issue or assumption the total principal
amount of all unsecured notes, debentures or other securities
representing unsecured indebtedness issued or assumed by the
Corporation (including unsecured indebtedness then to be issued
or assumed) would exceed twenty per
22
centrum (20%) of the aggregate of (1) the total principal amount
of all bonds or other securities representing secured
indebtedness issued or assumed by the Corporation and then to e
outstanding and (2) the par value of, or stated capital
represented by, the shares of all classes of stock of the
Corporation then to be outstanding in the hands of the public,
plus premium on such stock, plus capital surplus, earned surplus
and any other surplus of the Corporation as then to be stated on
the books of account of the Corporation.
XV. So long as any shares of the Preferred Stock of any series shall
be outstanding, the Corporation shall not, without the consent by vote or in
writing of the holders of two-thirds of the number of shares of the Preferred
Stock of all series at the time outstanding considered as a class without regard
to series, authorize any class of stock ranking prior to the Preferred Stock
with respect to the payment of dividends or the distribution of assets upon the
dissolution, liquidation or winding up of the Corporation, whether voluntary or
involuntary.
XVI. So long as any shares of the Preferred Stock of any Series shall
be outstanding, the Corporation shall not change the express terms and
provisions of the Preferred Stock as such series so as to affect such series
adversely, without the consent by vote or in writing of the holders of two-
thirds of the number of shares of Preferred Stock of all series so affected,
considered as a class without regard to series.
F. CERTAIN VOTING RIGHTS OF PREFERENCE STOCK
XVII. So long as any shares of the Preference Stock of any series
shall be outstanding, the Corporation shall not, without the consent by vote or
in writing of the holders of two-thirds of the number of shares of Preference
Stock of all series at the time outstanding considered as a class without regard
to series, authorize or increase the authorized amount of any class of stock,
other than shares of the Preferred Stock (whether now or hereafter authorized or
increased) ranking prior to the Preference Stock with respect to the payment of
dividends or the distribution of assets upon the dissolution, liquidation or
winding up of the Corporation, whether voluntary or involuntary.
XVIII. So long as any shares of the Preference Stock of any series
shall be outstanding, the Corporation shall not change the express terms and
provisions of the Preference Stock of such series so as to affect such series
adversely, without the consent by vote or in writing of the holders of two-
thirds of the number of shares of Preference Stock of all series so affected,
considered as a class without regard to series.
23
XIX. So long as shares of the Preference Stock of any series
shall be outstanding, the Corporation shall not, without the consent by vote or
in writing of the holders of a majority of the shares of Preference Stock of all
series at the time outstanding considered as a class without regard to series,
either (a) increase the authorized amount of Preference Stock, or (b) authorize
or create, or increase the authorized amount of, any class of stock, which is
entitled to dividends or assets on a parity with the Preference Stock, (c) sell
all or substantially all its assets or consolidate or merge with or into any
other corporation or corporations, except that no such consent or vote shall be
required if such sale, consolidation or merger or the issuance or assumption of
all securities to be issued or assumed in connection with such sale,
consolidation or merger shall have been approved, permitted or ordered by the
Securities and Exchange Commission or by any successor commission or by any
regulatory authority of the United States of America having jurisdiction over
such sale, consolidation or merger or the issuance or assumption of securities
in connection therewith; provided, however, that the provisions of this
subparagraph (c) shall not apply to (i) a consolidation of the Corporation with,
or a merger into the Corporation of, any subsidiary of the Corporation, or (ii)
the purchase or other acquisition by the Corporation of the franchises or assets
of another corporation in any manner which does not involve a consolidation or
merger under the laws of the State of Wisconsin; the term "subsidiary" as used
in this subparagraph (c) shall mean any corporation all of the outstanding
shares of stock of which (except directors' qualifying shares) at the time shall
be owned directly or indirectly by the Corporation or by a wholly-owned
subsidiary of the Corporation, or (d) purchase, otherwise than upon tenders, or
redeem less than all of the outstanding Preference Stock, unless all past and
current dividends on the Preference Stock shall have been paid or provided for.
G. RIGHTS OF PREFERRED STOCK ON
LIQUIDATION, DISSOLUTION OR WINDING UP
XX. In the event of any liquidation or dissolution or winding up of
the Corporation the holders of the Preferred Stock of each series shall be
entitled to receive, out of the assets of the Corporation available for
distribution to its shareholders, before any distribution of assets shall be
made to the holders of any class of junior stock, (i) if such liquidation,
dissolution or winding up shall be involuntary, the sum of fifty dollars ($50)
per share plus full cumulative dividends thereon to the date of final
distribution to the holders of the Preferred Stock and (ii) if such liquidation,
dissolution or winding up shall be voluntary, the amount per share fixed by the
Board of Directors pursuant to the foregoing Paragraph II plus full cumulative
dividends thereon to the date of final distribution to the holders of the
Preferred Stock; and the holders of the junior stock shall be entitled, to the
exclusion of the holders of the Preferred Stock of any and all
24
series, to share ratably in all the assets of the Corporation then remaining
according to the number of shares of the junior stock held by them respectively.
If upon any liquidation or dissolution or winding up of the Corporation the net
assets of the Corporation shall be insufficient to pay the holders of all
outstanding shares of Preferred Stock the full amounts to which they
respectively shall be entitled, the holders of shares of Preferred Stock of all
series shall share ratably in any distribution of assets according to the
respective amounts payable in respect of the shares held by them upon such
distribution if all amounts payable on or with respect to the Preferred Stock of
all series were paid in full. Neither the merger nor consolidation of the
Corporation into or with other corporation, nor the merger or consolidation of
any other corporation into or with the Corporation, nor a sale, transfer or
lease of all or any part of the assets of the Corporation, shall be deemed to be
a liquidation, dissolution or winding up of the Corporation.
H. RIGHTS OF PREFERENCE STOCK ON
LIQUIDATION, DISSOLUTION OR WINDING UP
XXI. The shares of Preference Stock shall be subordinate to the
Preferred Stock but in preference to the Common Stock upon any dissolution,
liquidation or winding up of the Corporation, whether voluntary or involuntary.
Upon any such dissolution, liquidation or winding up of the Corporation, whether
voluntary or involuntary, the holders of Preference Stock of each series,
without any preference of the shares of any series of Preference Stock over the
shares of any other series of Preference Stock, shall be entitled to receive out
of the assets of the Corporation, whether capital, surplus or other, before any
distribution of the assets to be distributed shall be made to the holders of
Common Stock or of any other stock not having preference as to assets over the
Preference Stock, the amount determined to be payable on the shares of such
series in the event of voluntary liquidation, or the amount of consideration
originally received by the Corporation for the shares of such series in the
event of involuntary liquidation, as the case may be. In the case the assets
shall not be sufficient to pay in full the amounts determined to be payable on
all the shares of Preference Stock in the event of voluntary or involuntary
liquidation, as the case may be, then the assets available for such payment
shall be distributed ratably among the holders of the Preference Stock of all
series in accordance with the amounts determined to be payable on the shares of
each series, in the event of voluntary or involuntary liquidation, as the case
may be, in proportion to the full preferential amounts to which they are
respectively entitled. After payment to the holders of the Preference Stock of
the full preferential amounts hereinbefore provided for, the holders of the
Preference Stock as such shall have no right or claim to any of the remaining
assets of the Corporation, either upon any distribution of such assets or upon
dissolution, liquidation or winding up, and the remaining assets to
25
be distributed, if any, upon a distribution of such assets or upon dissolution,
liquidation or winding up, may be distributed among the holders of the Common
Stock or of any other stock over which the Preference Stock has preference as to
assets. Without limiting the right of the Corporation to distribute its assets
or to dissolve, liquidate or wind up in connection with any sale, merger, or
consolidation, neither the merger nor consolidation of the Corporation into or
with any other corporation, nor the merger or consolidation of any other
corporation into or with the Corporation, nor a sale, transfer or lease of all
or any part of the assets of the Corporation, shall be deemed to be a
liquidation, dissolution or winding up of the Corporation.
I. CERTAIN DEFINITIONS
XXII. The term "consolidated net income of the Corporation and its
subsidiaries" shall mean the consolidated gross earnings of the Corporation and
its subsidiaries from all sources less all proper deductions for operating
expenses, taxes (including income, excess profits and other taxes based on or
measured by income or undistributed earnings or income), interest charges and
other appropriate items, including provision for maintenance and depreciation,
and less all dividends paid or accrued on the Preferred Stock of the Corporation
which are applicable to the periods in question, and otherwise determined in
accordance with sound accounting practice in sue at the time, or, at the option
of the Corporation, in use at the date of this Certificate Amendment, but
determined without deducting any losses, expenses or provisions charged directly
to surplus in accordance with the Uniform Systems of Accounts prescribed by
regulatory commissions having jurisdiction over the Corporation and its
subsidiaries. The amount deducted for maintenance and depreciation of property
of the Corporation and its subsidiaries shall be at least equal to the aggregate
amount spent for maintenance and provided for depreciation by the Corporation
and its subsidiaries.
The term "consolidated surplus of the Corporation and its
subsidiaries" shall include capital surplus, earned surplus and any other
surplus of the Corporation and its subsidiaries, consolidated in accordance with
sound accounting practice.
The term "distribution on junior stock" shall mean a dividend (other
than a dividend payable in junior stock) or other distribution on junior stock,
a purchase or redemption of junior stock and any other acquisition for value of
junior stock (except in exchange for or with the proceeds of the issue of other
junior stock).
The term "full cumulative dividends" whenever used in this Article
FOURTH with reference to any share of any series of the Preferred Stock or
Preference Stock shall be deemed to mean (whether or not in any dividend period
or any part thereof in
26
respect of which such term is used there shall have been net profits or net
assets of the Corporation legally available for the payment of such dividends)
that amount which shall be equal to dividends at the rate per share fixed for
such series by the Board of Directors pursuant to Paragraphs II or VIII of this
Article FOURTH, for the period of time elapsed from the date of cumulation of
such series to the date as of which full cumulative dividends are to be computed
(including an amount equal to a dividend at such rate for the elapsed portion of
the current dividend period) less, in each case, the amount of all dividends
paid, or deemed paid, upon such stock.
The term "junior stock", whenever used in this Article FOURTH, shall
mean the Common Stock, Preference Stock and any other class or classes of stock
of the Corporation over which the Preferred Stock has preference or priority
with respect to the payment of dividends and the distribution of assets upon the
dissolution, liquidation or winding up of the Corporation, whether voluntary or
involuntary.
The term "junior stock equity", whenever used in this Article FOURTH,
shall mean the aggregate par value of, or stated capital represented by, the
outstanding shares of the junior stock of the Corporation including premiums
thereon plus any surplus of the Corporation.
The term "junior stock equity ratio" shall mean the ratio, computed as
of the end of the second calendar month preceding the date of the authorization
by the Board of Directors of the proposed distribution on junior stock and
adjusted to reflect the proposed distribution on junior stock, of
(i) the aggregate par value or, or stated capital represented
by, the outstanding shares of the junior stock, including premiums on
junior stock, plus the consolidated surplus of the Corporation and its
subsidiaries, as hereinafter in this Article FOURTH defined,
to
(ii) the total capitalization of the Corporation and its
subsidiaries, as hereinafter in this Article FOURTH defined, plus the
consolidated surplus of the Corporation and its subsidiaries.
The term "total Capitalization of the Corporation and its
subsidiaries" shall mean the aggregate of the principal amount of all
indebtedness of the Corporation and its subsidiaries outstanding in the hands of
the public maturing more than twelve (12) months from the date of determination
of total capitalization of the Corporation and its subsidiaries, plus the par
value of, or
27
stated capital represented by, the shares of all classes of stock of the
Corporation and its subsidiaries outstanding in the hands of the public, plus
premium on such stock plus, in the case of such stock of subsidiaries, any
surplus applicable thereto.
J. REDEMPTION OF PREFERRED
STOCK AND/OR PREFERENCE STOCK
XXIII. The Preferred Stock and/or Preference Stock of all series,
or of any series thereof, or any part of any series thereof, at any time
outstanding, may be redeemed by the Corporation, at its election expressed by
resolution of the Board of Directors, at any time or from time to time (which
time, when fixed in each case, is herein after called the "redemption date"),
upon not less than thirty (30) days' previous notice to the holders of record of
the Preferred Stock and/or Preference Stock to be redeemed, given by mail and by
publication in a newspaper of general circulation in the Borough of Manhattan,
City and State of New York, in such manner as may be prescribed by resolution or
resolutions of the Board of Directors, at the optional redemption price or
prices fixed by the Board of Directors pursuant to the foregoing Paragraph II
and/or Paragraph VIII, as the case may be, then applicable to the Preferred
Stock and/or Preference Stock to be redeemed, plus an amount equal to full
cumulative dividends thereon to the redemption date (the aggregate of which
amounts is hereinafter in this Paragraph XXIII called the "redemption price").
If less than all the outstanding shares of the Preferred Stock and/or Preference
Stock of any series are to be redeemed, the redemption may be made either by lot
or pro rata in such manner as may be prescribed by resolution of the Board of
Directors. The Corporation may, if it so elects, provide moneys for the payment
of the redemption price by depositing the amount thereof for the account of the
holders of Preferred Stock and/or Preference Stock entitled thereto, with a bank
or trust company doing business in the Borough of Manhattan, in the City of New
York, and having capital and surplus of at least Five Million Dollars
($5,000,000), at any time prior to the redemption date (the date of any such
deposit being hereinafter called the "date of deposit"). In such event, the
notice of redemption shall include a statement of the intention of the
Corporation to deposit such amount prior to the redemption date and the name and
address of the bank or trust company with which the deposit will be made. On
and after the redemption date (unless default shall be made by the Corporation
in providing moneys for the payment of the redemption price), or, if the
Corporation shall make such deposit on or before the date specified therefor in
the notice, then on and after the date of deposit, all dividends on the
Preferred Stock and/or Preference Stock thereby called for redemption shall
cease to accrue and, notwithstanding that any certificate for shares of
Preferred Stock and/or Preference Stock so called for redemption shall not have
been surrendered for cancellation; the shares represented thereby shall no
longer be deemed to be outstanding and all rights of the
28
holders thereof as shareholders of the Corporation shall cease and terminate,
except the right to receive the redemption price as hereinafter provided and
except any conversion or exchange rights not theretofore expired. Such
conversion or exchange rights, however, in any event shall cease and terminate
upon the redemption date or upon any earlier date fixed by the Board of
Directors pursuant to the foregoing Paragraph II and/or Paragraph VIII for the
termination of such rights. The Corporation may pay in regular course any
dividends reflected in the redemption price either to the holders of record on
the record date fixed for determination of shareholders entitled to receive such
dividends (in which event, anything herein to the contrary notwithstanding, the
amount so deposited need not include any dividends so paid or to be paid) or as
a part of the redemption price upon surrender of the certificates for the shares
redeemed. On and after the redemption date or, if the Corporation shall elect
to deposit the moneys for such redemption as herein provided, then on and after
the date of deposit, the holders of record of the Preferred Stock and/or
Preference Stock to be redeemed shall be entitled to receive the redemption
price upon actual delivery to the Corporation or, in the event of such a
deposit, to the bank or trust company with which such deposit is made, of
certificates for the shares to be redeemed (such certificates, if required, to
be properly stamped for transfer and duly endorsed in blank or accompanied by
proper instruments of assignment and transfer thereof duly endorsed in blank).
Any moneys so deposited which shall remain unclaimed by the holders of such
Preferred Stock and/or Preference Stock at the end of six (6) years after the
redemption date shall be paid by such bank or trust company to the Corporation;
provided, however, that all moneys so deposited, which shall not be required for
such redemption because of the exercise of any right of conversion or exchange,
shall be returned to the Corporation forthwith. Any interest accrued on moneys
so deposited shall be paid to the Corporation from time to time.
K. PURCHASE OF PREFERRED AND/OR PREFERENCE STOCK
XXIV. The Corporation may, from time to time, subject to the
provisions of Paragraph III and/or Paragraph IX, as the case may be, of this
Article FOURTH, purchase the whole of the Preferred Stock and/or Preference
Stock or any series thereof, or any part of any series thereof, upon the best
terms reasonably obtainable, but in no event at a price greater than the then
current redemption of the shares so purchased.
L. PREEMPTIVE RIGHTS
XXV. No holder of stock of the Corporation 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 of the Corporation of any class or of securities
convertible into stock of any class, whether now or hereafter authorized or
whether issued for money,
29
for consideration other than money or by way of dividend; provided, however,
that if the Board of Directors shall determine to offer any new or additional
shares of Common Stock, or any security convertible into Common Stock, for
money, other than: (a) by a public offering or an offering of such shares of
Common Stock or such security to or through underwriters or investment bankers
who shall have agreed to make a public offering thereof; (b) pursuant to a plan
offered to any one or more classes of security holders of the Corporation or of
any subsidiary of the Corporation under which such holders can invest dividends
paid on stock of the Corporation or of any such subsidiary and/or amounts of
cash in any of such shares or securities; or (c) pursuant to a thrift, savings,
employee stock ownership, pension or other employee benefit plan under which an
employee of the Corporation or of any subsidiary of the Corporation or a trust
for the benefit of any such employee can purchase or acquire any of such shares
or securities; the same shall first be offered pro rata to the holders of the
then outstanding shares of Common Stock of the Corporation upon terms not less
favorable to the purchaser (without deduction of such reasonable compensation,
allowance or discount for the sale, underwriting or purchase as may be fixed by
the Board of Directors) than those on which the Board of Directors issues and
disposes of stock or securities to others than such holders of Common Stock; and
provided further that the time within which such preemptive rights shall be
exercised may be limited by the Board of Directors to such time as said Board
may deem proper, not less, however, than ten (10) days after the mailing of
notice that such preemptive rights are available and may be exercised. For the
purposes of this Paragraph XXV, the term "subsidiary" shall mean any corporation
at least a majority of whose outstanding voting stock shall at the time be owned
by the Corporation or by one of more subsidiaries or by the Corporation and one
or more subsidiaries, and the term "voting stock" shall mean stock of any class
or classes, however designated, having ordinary voting power for the election of
a majority of the directors of such corporation, other than stock having such
power only by reason of the happening of a contingency.
M. SCRIP
XXVI. The Board of Directors may from time to time by resolution
or resolutions provide for the issue of scrip in lieu of fractional shares of
Common Stock, disregarding balances of less than 1/100 of a share. Such scrip
shall not confer upon the holder any right to dividends or any voting or other
rights of a shareholder of the Corporation, but the Corporation shall from time
to time, within such period as may be limited by resolution or resolutions of
the Board of Directors, issue one or more whole shares of Common Stock upon the
surrender of scrip for fractional shares aggregating the number of whole shares
issuable in respect of the scrip so surrendered, provided that the scrip so
surrendered shall be properly endorsed for transfer if in registered form. All
30
scrip certificates not so exchanged within such period as may be limited by
resolution or resolutions of the Board of Directors shall be and become null and
void and of no further force and effect.
FIFTH: A. HIGHER VOTE FOR CERTAIN BUSINESS TRANSACTIONS. In
addition to any affirmative vote required by law or these Restated Articles of
Incorporation or the By-Laws of the Corporation, and except as otherwise
expressly provided in Section C of this Article FIFTH:
(1) any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (a) any Interested Stockholder (as
hereinafter defined) or (b) any other company (whether or not itself an
Interested Stockholder) which is or after such merger or consolidation
would be an Affiliate (as hereinafter defined) or Associate (as hereinafter
defined) of an Interested Stockholder, or
(2) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to or
with any Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder, involving any assets or securities of the
Corporation, any Subsidiary or any Interested Stockholder or any Affiliate
or Associate of any Interested Stockholder, having an aggregate Fair Market
Value (as hereinafter defined) in excess of $25,000,000; or
(3) the adoption of any plan or proposal for the termination,
liquidation or dissolution of the Corporation proposed by or on behalf of
an Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder, or
(4) any reclassification of securities (including any reverse
stock split) or recapitalization of the Corporation or any merger or
consolidation of the Corporation with any Subsidy of the Corporation or any
other transaction (whether or not with or otherwise involving an Interested
Stockholder) that has the effect, directly or indirectly, of increasing the
proportionate share of any class or series of Common Stock (as hereinafter
defined), or any securities convertible into Common Stock or into equity
securities of the Corporation or any Subsidiary, that is beneficially owned
by an Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder, or
(5) any tender offer or exchange offer made by the Corporation
for shares of Common Stock which may have the effect of increasing an
Interested Stockholder's percentage beneficial ownership (as hereinafter
defined) so that following the completion of the tender offer or exchange
offer
31
the Interested Stockholder's percentage beneficial ownership of the
outstanding Common Stock may exceed 100% of the Interested Stockholder's
percentage beneficial ownership immediately prior to the commencement of
such tender offer or exchange offer; or
(6) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Stockholder or any Affiliate of any Interested Stockholder having an
aggregate Fair Market Value of $25,000,000; or
(7) any agreement, contract or other arrangement providing for
any one or more of the actions specified in the foregoing clauses (1) to
(6) shall require: (1) the affirmative vote of the holders of Voting Stock
(as hereinafter defined) representing shares equal to at least eighty
percent (80%) of the then issued and outstanding Voting Stock of the
Corporation authorized to be issued from time to time under Article FOURTH
of these Restated Articles of Incorporation; and (2) the affirmative vote
of a majority of the then issued and outstanding Voting Stock of the
Corporation, excluding any shares of Voting Stock beneficially owned by
such Interested Stockholder. Such affirmative vote shall be required
notwithstanding the fact that no vote may be required, or that a lesser
percentage may be specified, by law or any agreement with any national
securities exchange or otherwise.
B. DEFINITION OF "BUSINESS COMBINATION". For the purposes of this
Article FIFTH the term "Business Combination" shall mean any transaction that is
referred to in any one or more of the clauses (1) through (6) of Section A of
this Article FIFTH.
C. WHEN HIGHER VOTE IS NOT REQUIRED. The provisions of the
preceding Paragraph A shall not be applicable to any particular Business
Combination, and such Business Combination shall require only such affirmative
vote, if any, as is required by law or by any other provision of these Restated
Articles of Incorporation or the By-Laws of the Corporation or any agreement
with any national securities exchange, if all of the conditions specified in
either of the following Paragraphs (1) or (2) are met or, in the case of a
Business Combination not involving the payment of consideration to the holders
of the Corporation's outstanding Common Stock, if the condition specified in the
following Paragraph (1) is met:
(1) The Business Combination shall have been approved by a majority
(whether such approval is made prior to or subsequent to the acquisition of
beneficial ownership of the Voting Stock that caused the Interested
Stockholder to become
32
an Interested Stockholder) of the Continuing Directors (as hereinafter
defined).
(2) All of the following conditions shall have been met with respect
to the outstanding Common Stock, whether or not the Interested Stockholder
has previously acquired beneficial ownership of any shares of the Common
Stock:
(a) The aggregate amount of cash and the Fair Market Value, as
of the date of the consummation of the Business Combination, of
consideration other than cash to be received per share by holders of the
Common Stock in such Business Combination shall be at least equal to the
highest amount determined under clauses (i), (ii), (iii), and (iv) below:
(i) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by or on behalf of the Interested Stockholder for any share
of the Common Stock in connection with the acquisition by the
Interested Stockholder of beneficial ownership of shares of the Common
Stock (x) within the two-year period immediately prior to the first
public announcement of the proposed Business Combination (the
"Announcement Date") or (y) in the transaction in which it became an
Interested Stockholder, whichever is higher, in either case as
adjusted for any subsequent stock split, stock dividend, subdivision
or reclassification with respect to the Common Stock;
(ii) the Fair Market Value per share of the Common Stock on
the Announcement Date or on the date on which the Interested
Stockholder became an Interested Stockholder (the "Determination
Date"), whichever is higher, as adjusted for any subsequent stock
split, stock dividend, subdivision or reclassification with respect to
the Common Stock;
(iii) (if applicable) the price per share equal to the Fair
Market Value per share of the Common Stock determined pursuant to the
immediately preceding clause (ii), multiplied by the ratio of (x) the
highest price per share (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by or on behalf of the
Interested Stockholder for any share of the Common Stock in connection
with the acquisition by the Interested Stockholder of beneficial
ownership of shares of the Common Stock within the two-year period
immediately prior to the Announcement Date, as adjusted for any
subsequent stock split, stock dividend, subdivision or
reclassification with respect to the
33
Common Stock to (y) the Fair Market Value per share of the Common
Stock on the first day in such two-year period on which the Interested
Stockholder acquired beneficial ownership of any shares of the Common
Stock, as adjusted for any subsequent stock split, stock dividend,
subdivision or reclassification with respect to common Stock; and
(iv) the Corporation's net income per share of the Common
Stock for the four full consecutive fiscal quarters immediately
preceding the Announcement Date, multiplied by the higher of the then
price/earnings multiple (if any) of such Interested Stockholder or the
highest price/earnings multiple of the Corporation within the two-year
period immediately preceding the Announcement Date (such
price/earnings multiples being determined by dividing (x) an amount
equal to the highest price per share during a day as reported in the
Wall Street Journal from the Composite Tape for the New York Stock
Exchange by (y) the immediately preceding publicly reported twelve-
months earnings per share).
(b) The consideration to be received by holders of the Common
Stock shall be in cash or in the same form as previously has been paid by
or on behalf of the Interested Stockholder in connection with its direct or
indirect acquisition of beneficial ownership of shares of such Common
Stock. If the consideration previously paid by the Interested Stockholder
to acquire Common Stock varied among the recipients thereof as to form, the
form of consideration to be paid for such Common Stock in connection with
the Business Combination shall be either cash or the form used to acquire
beneficial ownership of the largest number of shares of such Common Stock
previously acquired by the Interested Stockholder.
(c) After the Determination Date and prior to the consummation
of such Business Combination: (i) there shall have been no reduction in
the annual rate of dividends paid on the Common Stock (except as necessary
to reflect any stock split, stock dividend or subdivision of the Common
Stock), except as approved by a majority of the Continuing Directors; (ii)
there shall have been an increase in the annual rate of dividends paid on
the Common Stock as necessary to reflect any reclassification (including
any reverse stock split), recapitalization, reorganization or any similar
transaction that has the effect of reducing the number of outstanding
shares of Common Stock, unless the failure so to increase such annual rate
is approved by a majority of Continuing Directors; and (iii) such
Interested Stockholder shall not have become the beneficial owner of any
additional shares of Common Stock except as part of the transaction that
results in such
34
Interested Stockholder becoming an Interested Stockholder and except in a
transaction that, after giving effect thereto, would not result in any
increase in the Interested Stockholder's percentage of beneficial ownership
of Common Stock.
(d) After the Determination date, such Interested Stockholder
shall not have received the benefit, directly or indirectly (except
proportionately as a shareholder of the Corporation), of any loans,
advances, guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by the Corporation, whether in
anticipation of or in connection with such Business Combination or
otherwise.
(e) A proxy or information describing the proposed Business
Combination and complying with the requirements of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder (the
"Act") (or any subsequent provisions amending or replacing such Act, rules
or regulations) shall be mailed to all shareholders of the Corporation at
least 30 days prior to the consummation of such Business Combination
(whether or not such proxy or information statement is required to be
mailed pursuant to such Act or subsequent provisions). The proxy or
information statement shall contain on the first page thereof, in a
prominent place, any statement as to the advisability of the Business
Combination that the Continuing Directors, or any of them, may choose to
make and, if deemed advisable by a majority of the Continuing Directors,
the opinion of an investment banking firm selected by a majority of the
Continuing Directors as to the fairness (or not) of the terms of the
Business Combination from a financial point of view to the holders of the
outstanding shares of the Common Stock other than the Interested
Stockholder and its Affiliates or Associates (as hereinafter defined), such
investment banking firm to be paid a reasonable fee for its services by the
Corporation.
(f) Such Interested Stockholder shall not have made any major
change in the Corporation's business or equity capital structure without
the approval of a majority of the Continuing Directors.
D. CERTAIN DEFINITIONS. The following definitions shall apply with
respect to this Article FIFTH.
(1) The term "Common Stock" or "Voting Stock" shall mean all
common stock of the Corporation authorized to be issued from time to time
under Article FOURTH of the Restated Articles of Incorporation that by its
terms may be voted on all matters submitted to shareholders of the
Corporation generally.
35
(2) The term "person" shall mean any individual, firm, company
or other entity and shall include any group comprised of any person and any
other person with whom such person or any Affiliate or Associate of such
person has any agreement, arrangement of understanding, directly or
indirectly, for the purpose of acquiring, holding, voting or disposing of
the Common Stock.
(3) The term "Interested Stockholder" shall mean any person
(other than the corporation or any Subsidiary and other than any profit-
sharing, employee stock ownership or other employee benefit or dividend
reinvestment plan of the Corporation or any Subsidiary or any trustee of or
fiduciary with respect to any such plan when acting in such capacity) who
(a) is the beneficial owner of Voting Stock representing five percent (5%)
or more of the votes entitled to be cast by the holders of all then
outstanding shares of Voting Stock; or (b) is an Affiliate or Associate of
the Corporation and at any time within the two-year period immediately
prior to the Announcement Date was the beneficial owner of Voting Stock
representing five percent (5%) or more of the votes entitled to be cast by
the holders of all then outstanding shares of Voting Stock.
(4) A person shall be a "beneficial owner" of any Common Stock
(a) which such person or any of its Affiliates or Associates beneficially
owns, directly or indirectly, (b) which such person or any of its
Affiliates or Associates has, directly, or indirectly, (i) the right to
acquire (whether such right is exercisable immediately or subject only to
the passage of time), pursuant to any agreement, arrangement or
understanding; or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (ii) the right to vote pursuant to
any agreement, arrangement or understanding, or (c) which is beneficially
owned, directly or indirectly, by any other person with which such person
or any of its Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or disposing of
any shares of Common Stock. For purposes of determining whether a person
is an Interested Stockholder pursuant to Paragraph 4 of this Section D, the
number of shares of Common Stock deemed to be outstanding shall include
shares deemed beneficially owned by such person through application of
Paragraph 5 of this Section D, but shall not include any other shares of
Common Stock that may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants, or options,
or otherwise.
(5) An "Affiliate" of a specified person is a person that
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under
36
common control with, the person specified. The term "Associate", used to
indicate a relationship with any person, means (a) any company (other than
the Corporation or any Subsidiary) of which such person is an officer or
partner or is, directly or indirectly, the beneficial owner of ten percent
(10%) or more of any class of equity securities, (b) any trust or other
estate in which such person has a substantial beneficial interest or as to
which such person serves as trustee or in a similar fiduciary capacity, and
(c) any relative or spouse of such person, or any relative of such spouse,
who has the same house as such person or who is a director or officer of
the Corporation or of any parent or Subsidiary of the Corporation.
(6) The term "Subsidiary" means any company of which a majority
of any class of equity security is beneficially owned by the Corporation;
provided, however, that for the purposes of the definition of Interested
Stockholder set forth in Paragraph (3) of this Section D, the term
"Subsidiary" shall mean only a company of which a majority of each class of
equity security is beneficially owned by the Corporation.
(7) The term "Continuing Director" means any member of the Board
of Directors of the Corporation (the "Board of Directors"), who, while such
person is a member of the Board of Directors, is not an Affiliate or
Associate or representative of any Interested Stockholder and who was a
member of the Board of Directors prior to the time than any Interested
Stockholder became an Interested Stockholder, and any successor of a
Continuing Director, who, while such successor is a member of the Board of
Directors, is not an Affiliate or Associate or representative of any
Interested Stockholder and who is recommended or elected to succeed the
Continuing Director by a majority of Continuing Directors.
(8) The term "Fair Market Value" means (a) in the case of cash,
the amount of such cash; (b) in the case of stock, the highest closing sale
price during the 30-day period immediately preceding the date in question
of a share of such stock on the Composite Tape for New York Stock Exchange
- Listed Stocks, or if such stock is not quoted on the Composite Tape, on
the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered
under the Act on which such stock is listed, or, if such stock is not
listed on any such exchange, the highest closing bid quotation with respect
to a share of such stock during the 30-day period preceding the date in
question on the National Association of Securities Dealers, Inc. Automated
Quotations System or any similar system then in use, or if no such
quotations are available, the fair market value on the date in question of
a share of
37
such stock as determined by a majority of the Continuing Directors in good
faith; and (c) in the case of property other than cash or stock, the fair
market value of such property on the date in question as determined in good
faith by a majority of the Continuing Directors.
(9) In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash to be
received" as used in Paragraphs 2(a) and 2(b) of Section C of this Article
FIFTH shall include the shares of Common Stock and/or the shares of any
other class of Voting Stock retained by the holders of such shares.
E. POWERS OF THE CONTINUING DIRECTORS. A majority of the Continuing
Directors shall have the power and duty to determine for purposes of this
Article FIFTH, on the basis of information known to them after reasonable
inquiry, (1) whether a person is an Interested Stockholder, (2) the number of
shares of Common Stock or other securities beneficially owned by any person, (3)
whether a person is an Affiliate or Associate of another, and (4) whether the
assets that are the subject of any Business Combination have, or the
consideration to be received for the issuance or transfer of securities by the
Corporation or any Subsidiary in any Business Combination has, an aggregate Fair
Market Value in excess of the amounts set forth in clauses (2) and (6) of
Section A of this Article FIFTH.
Any such determination made in good faith by a majority of the
Continuing Directors shall be binding and conclusive for all the purposes of
this Article FIFTH.
F. NO EFFECT OF FIDUCIARY OBLIGATIONS OF INTERESTED STOCKHOLDERS.
Nothing contained in this Article FIFTH shall be construed to relieve any
Interested Stockholder from any fiduciary obligation imposed by law.
G. NO EFFECT ON FIDUCIARY OBLIGATIONS OF DIRECTORS. The fact that
any Business Combination complies with the provisions of Section C, Paragraph 2
of this Article FIFTH shall not be construed to impose any fiduciary duty,
obligation or responsibility on the Board of Directors, or any member thereof,
to approve such Business Combination or recommend its adoption or approval to
the shareholders of the Corporation, nor shall such compliance limit, prohibit
or otherwise restrict in any manner the Board of Directors, or any member
thereof, with respect to evaluations of or actions and responses taken with
respect to such Business Combination.
SIXTH: The existence of this Corporation is to be perpetual.
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SEVENTH: The private property of the shareholders of this Corporation
shall not be subject to the payment of corporate debts to any extent whatever,
except as provided by Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law.
EIGHTH: (1) The number of directors of this Corporation shall be
fixed and may be altered from time to time as may be provided in the By-Laws.
Vacancies on the Board of Directors and newly created directorships resulting
from any increase in the authorized number of directors may be filled by a
majority vote of the directors then in office, though less than a quorum or by a
sole remaining director at any meeting of the Board of Directors and the
directors so chosen shall hold office until the next election of the Class for
which such directors shall have been chosen and until their successors shall
have been duly elected and qualified, unless sooner displaced. If there are no
directors in office, then an election of directors may be held in the manner
provided by statute. If, at the time of filling any vacancy or any newly
created directorship, the directors then in office shall constitute less than a
majority of the whole board (as constituted immediately prior to any such
increase), the Court of Chancery may, upon application of any shareholder or
shareholders holding at least ten percent of the total number of the shares at
the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office. Subject to the provisions of Paragraph XII of Article FOURTH hereof,
any director may be removed by the shareholders at any annual or special meeting
thereof only for cause. Directors of this Corporation need not be shareholders
therein.
(2) At each annual meeting of shareholders, directors of the
Corporation shall be elected to hold office until the expiration of the term for
which they are elected, and until their successors have been duly elected and
qualified; except that if any such election shall not be so held, such election
shall take place at a shareholders' meeting called and held in accordance with
the Wisconsin Business Corporation Law. The directors of the Corporation shall
be divided into three classes as nearly equal in size as is practicable, hereby
designated Class I, Class II and Class III. The term of office of the initial
Class I directors shall expire at the next succeeding annual meeting of
shareholders, the term of office of the initial Class II directors shall expire
at the second succeeding annual meeting of shareholders and the term of office
of the initial Class III directors shall expire at the third succeeding annual
meeting of the shareholders. For the purposes hereof, the initial Class I,
Class II and Class III directors shall be those directors elected at the first
annual meeting following the effective date of these Restated Articles of
Incorporation, and designated as members of such Class. At each annual meeting
after the first annual meeting following the
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effective date of these Restated Articles of Incorporation, directors to replace
those of a Class whose terms expire at such annual meeting shall be elected to
hold office until the third succeeding annual meeting and until their respective
successors shall have been duly elected and shall qualify. If the number of
directors is hereafter changed, any newly created directorships or decrease in
directorships shall be so apportioned among the classes as to make all classes
as nearly equal in number as is practicable.
Anything to the contrary notwithstanding, after the first annual
meeting following the effective date of these Restated Articles of
Incorporation, any director's term shall be subject to being mandatorily
shortened to a period of less than the term for which he or she was elected,
depending upon the attainment of a particular age of the director or upon
relocation of the director from the Corporation's service area, subject to
short-term extensions for a period no longer than the term for which he or she
was elected, based on the judgment of the directors as to what is in the best
interests of the Corporation, as may be provided by By-Laws implementing these
provisions.
The foregoing provisions relating to the classification of the Board
are subject to the provisions of Paragraph XII of Article FOURTH hereof.
NINTH: In furtherance and not in limitation of the powers conferred
by statute the Board of Directors is expressly authorized:
(a) To fix, determine and vary from time to time the amount to
be maintained as surplus and the amount or amounts to be set apart as
working capital.
(b) To make, amend, alter, change, add to or repeal By-Laws for
this Corporation, without any action on the part of the shareholders. The
By-Laws made by the directors may be amended, altered, changed, added to or
repealed by the shareholders.
(c) By resolution passed by a majority of the whole Board, to
designate three or more directors to constitute an Executive Committee
which committee shall have and exercise (except when the Board of Directors
shall be in session) such powers and rights of the Board of Directors in
the management of the business and affairs of this Corporation as may be
provided in the By-Laws or in said resolution, and shall have power to
authorize the seal of this Corporation to be affixed to all papers which
may require it.
(d) To authorize and cause to be executed mortgages and liens,
without limit as to amount, upon the real and personal property of this
Corporation.
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(e) From time to time to determine whether and to what extent,
at what time and place, and under what conditions and regulations the
accounts and books of this Corporation or any of them, shall be open to the
inspection of any shareholder, and no shareholder shall have any right to
inspect any account or book or document of this Corporation except as
conferred by statute or the By-Laws or as authorized by a resolution of the
shareholders or Board of Directors.
(f) To sell, assign, convey and otherwise dispose of a part of
the property, assets and effects of this Corporation less than the whole or
less than substantially the whole thereof, on such terms and conditions as
they shall deem advisable, without the assent of the shareholders in
writing or otherwise; and also to see, assign, transfer, convey and
otherwise dispose of the whole or substantially the whole of the property,
assets, effects, franchises and goodwill of this Corporation on such terms
and conditions as they shall deem advisable, but only with the assent in
writing or pursuant to the affirmative vote of the holders of not less than
a majority in interest of the Common Stock then outstanding, but in any
event not less than the amount required by law.
(g) All of the powers of this Corporation, in so far as the same
lawfully may be vested by this certificate in the Board of Directors, are
hereby conferred upon the Board of Directors of this Corporation.
TENTH: In the absence of fraud, no contract or transaction between
this Corporation and any other association or corporation shall be affected by
the fact that any of the directors or officers of this Corporation are
interested in or are directors or officers of such other association or
corporation, and any director or officer of this Corporation individually may be
a party to, or may be interested in any such contract or transaction of this
Corporation; and no such contract or transaction of this Corporation with any
person or persons, firm, association or corporation, shall be affected by the
fact that any director or officer of this Corporation is a party to, or
interested in such contract or transaction, or in any way connected with such
person or persons, firm, association or corporation; and each and every person
who may become a director or officer of this Corporation is hereby relieved from
any liability that might otherwise exist from thus contracting with this
Corporation for the benefit of himself or any person, firm, association or
corporation in which he may be in any way interested.
ELEVENTH: This Corporation may in its By-Laws fix the number (not less
than the number required by law or in these Restated Articles of Incorporation)
of shares, the holders of which must consent to, or which must be voted in favor
of, any specific act or acts by this Corporation, or its Board of Directors or
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Executive Committee, and during the period for which such number remains so
fixed, such specified act or acts shall not and may not be performed or carried
out by this Corporation, or its Board of Directors or Executive Committee
without the consent or affirmative vote of the holders of at least the number of
shares so fixed.
TWELFTH: Except where other notice is specifically required by
statute written notice only of any shareholders' meeting given as provided in
the By-Laws shall be sufficient without publication or other form of notice.
THIRTEENTH: Any officer or agent elected or appointed by the Board
of Directors, or by the Executive Committee, or by the shareholders, or any
member of the Executive Committee, or of any other committee, may be removed at
any time, with or without cause, in such manner as shall be provided in the
By-Laws of this Corporation.
FOURTEENTH: This Corporation may in its By-Laws make any other
provisions or requirements for the management or conduct of the business of this
Corporation, provided the same be not inconsistent with the provisions of this
certificate, or contrary to the laws of the State of Wisconsin or of the United
States.
FIFTEENTH: This Corporation reserves the right to amend, alter,
change, add to or repeal any provision contained in these Articles of
Incorporation in the manner now or hereafter prescribed by statute, and all
rights conferred on officers, directors and shareholders herein are granted
subject to this reservation.
SIXTEENTH: To the full extent permitted by the Wisconsin Business
Corporation Law or any other applicable laws as presently or hereafter in
effect, no director of the Corporation shall be personally liable to the
Corporation or its shareholders for or with respect to any acts or omissions in
the performance of his or her duties as a director of the Corporation. No
amendment to or repeal of this Article SIXTEENTH shall apply to or have any
effect on the liability or alleged liability of any director of the Corporation
for or with respect to any acts or omissions of such director occurring prior to
such amendment.
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