THIRD RESTATED ARTICLES OF
INCORPORATION
of
PACIFICORP
ARTICLE I
The name of the Company is PacifiCorp.
ARTICLE II
The purposes for which the Company is organized are the manufacture,
production, generation, storage, utilization, purchase, sale, supply,
transmission, distribution, or disposition of electric energy, natural or
artificial gas, water or steam, or power produced thereby; and the transaction
of any and all other lawful businesses for which corporations may be organized
under the Oregon Business Corporation Act.
ARTICLE III
(1) The total amount of the authorized capital stock of the Company is
769,626,533 shares, divided into 126,533 shares of 5% Preferred Stock of the
stated value of $100 per share, 3,500,000 shares of Serial Preferred Stock of
the stated value of $100 per share, 16,000,000 shares of No Par Serial Preferred
Stock (the 5% Preferred Stock, the Serial Preferred Stock and the No Par Serial
Preferred Stock collectively referred to herein as the "Senior Securities"), and
750,000,000 shares of Common Stock.
(2) The 5% Preferred Stock, pari passu with the other Senior Securities,
shall be entitled, but only when and as declared by the Board of Directors, out
of funds legally available for the payment of dividends, in preference to the
Common Stock, to dividends at the rate of
5 per centum (5%) per annum of the stated value thereof, and no more, payable
quarterly on February 15, May 15, August 15 and November 15 of each year or
otherwise as the Board of Directors may determine (such dates, including any
changes thereof, being hereinafter referred to as the "Payment Dates"), to
shareholders of record as of a date to be fixed by the Board of Directors, not
exceeding thirty (30) days and not less than ten (10) days preceding the Payment
Dates, such dividends to be cumulative from the day immediately following the
last period for which dividends on the 5% Preferred Stock of PacifiCorp, a Maine
corporation, have been declared (such date being hereinafter referred to as the
"Accrual Date"). The Serial Preferred Stock, pari passu with the other Senior
Securities, shall be entitled, but only when and as declared by the Board of
Directors, out of funds legally available for the payment of dividends, in
preference to the Common Stock, to dividends at the rate or rates, which may be
subject to adjustment, as to each series thereof, fixed and determined pursuant
to Section (5) or (6) of this Article at the time of the creation of such
series, and no more, payable as the Board of Directors may from time to time
determine, such dividends to be cumulative from the date of issue of such stock
or as otherwise provided in Section (6) of this Article. The No Par Serial
Preferred Stock, pari passu with the other Senior Securities, shall be entitled,
but only when and as declared by the Board of Directors, out of funds legally
available for the payment of dividends, in preference to the Common Stock, to
dividends at the rate or rates, which may be subject to adjustment, as to each
series thereof, fixed and determined pursuant to Section (5) or (7) of this
Article at the time of the creation of such series, and no more, payable as the
Board of Directors may from time to time determine, such dividends to be
cumulative from the date of issue of such stock or as otherwise provided in
Section (7) of this Article.
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(3) In the event of any voluntary liquidation, dissolution or winding up
of the Company, the 5% Preferred Stock, pari passu with the other Senior
Securities, shall also have a preference over the Common Stock until $110 per
share and five per centum (5%) per annum on the stated value thereof from and
after the date on which dividends on such stock became cumulative, shall have
been paid by dividends or distribution; the Serial Preferred Stock, pari passu
with the other Senior Securities, shall also have a preference over the Common
Stock, until there shall have been paid, by dividends or distribution on each
share of the Serial Preferred Stock, the amount as to each series thereof fixed
and determined by resolution of the Board of Directors or pursuant to
Section (6) of this Article at the time of the creation of each such series,
plus the amount, if any, by which dividends at the rate or rates fixed and
determined for such stock pursuant to Section (5) or (6) of this Article, from
and after the respective dates on which dividends on such stock became
cumulative to the date of such distribution, exceed the dividends actually paid
thereon or declared and set apart for payment thereon; and the No Par Serial
Preferred Stock, pari passu with the other Senior Securities, shall also have a
preference over the Common Stock, until there shall have been paid, by dividends
or distribution on each share of the No Par Serial Preferred Stock, the amount
as to each series thereof fixed and determined by resolution of the Board of
Directors or pursuant to Section (7) of this Article at the time of the creation
of each such series, plus the amount, if any, by which dividends at the rate or
rates fixed and determined for such stock pursuant to Section (5) or (7) of this
Article, from and after the respective dates on which dividends on such stock
became cumulative to the date of such distribution, exceed the dividends
actually paid thereon or declared and set apart for payment thereon.
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(4) In the event of any involuntary liquidation, dissolution or winding
up of the Company, which shall include any such liquidation, dissolution or
winding up which may arise out of or result from the condemnation or purchase of
all or a major portion of the properties of the Company by (i) the United States
Government or any authority, agency or instrumentality thereof, (ii) a state of
the United States or any authority, agency or instrumentality thereof, or
(iii) a district, cooperative or other association or entity not organized for
profit, the 5% Preferred Stock, pari passu with the other Senior Securities,
shall also have a preference over the Common Stock until the full stated value
thereof and five per centum (5%) per annum thereon from and after the date on
which dividends on such stock became cumulative, shall have been paid by
dividends or distribution; the Serial Preferred Stock, pari passu with the other
Senior Securities, shall also have a preference over the Common Stock until
there shall have been paid, by dividends or distribution on each share of the
Serial Preferred Stock, the full stated value thereof, plus the amount, if any,
by which dividends at the rate or rates fixed and determined for such stock
pursuant to Section (5) or (6) of this Article, from and after the respective
dates on which dividends on such stock became cumulative to the date of such
distribution, exceed the dividends actually paid thereon or declared and set
apart for payment thereon; and the No Par Serial Preferred Stock, pari passu
with the other Senior Securities, shall also have a preference over the Common
Stock until there shall have been paid, by dividends or distribution on each
share of the No Par Serial Preferred Stock, the amount as to each series thereof
fixed and determined by resolution of the Board of Directors as the
consideration therefor or pursuant to Section (7) of this Article at the time of
creation of each such series, plus the amount, if any, by which dividends at the
rate or rates fixed and determined for such stock
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pursuant to Section (5) or (7) of this Article, from and after the respective
dates on which dividends on such stock became cumulative to the date of such
distribution, exceed the dividends actually paid thereon or declared and set
apart for payment thereon.
(5) The Board of Directors shall have authority by resolution to divide
the Serial Preferred Stock into series designated " % Serial Preferred Stock"
or the " Serial Preferred Stock," as applicable, and to divide the No Par
Serial Preferred Stock into series designated "$ No Par Serial Preferred
Stock" or the " No Par Serial Preferred Stock," as applicable (inserting, in
each case, the annual dividend rate, as fixed and determined by the Board of
Directors for each series or, if the rate of dividends is subject to adjustment,
so indicating by appropriate language). All shares of Serial Preferred Stock,
irrespective of series, shall constitute one and the same class of stock, and
all shares of No Par Serial Preferred Stock, irrespective of series, shall
constitute one and the same class of stock. Within each such class of stock,
all shares shall be of equal rank and shall be identical in all respects except
as to designation thereof and except that in establishing a series within either
of said classes, the Board of Directors may fix and determine the relative
rights and preferences of such series as to any of the following:
(a) The dividend rate or rates, which may be subject to
adjustment in accordance with a method adopted by resolution of the Board of
Directors at the time of the creation of such series;
(b) The date or dates from which dividends on shares of each
series shall be cumulative;
(c) The dividend payment dates;
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(d) The amount to be paid upon redemption, if redeemable, or in
the event of voluntary liquidation, dissolution or winding up of the Company;
(e) The rights of conversion, if any, into shares of Common Stock
and the terms and conditions on which shares may be so converted, if the shares
of any series are issued with the privilege of conversion; and
(f) Provisions, if any, for the redemption or purchase of shares,
which may be at the option of the Company or upon the happening of a specified
event or events, for cash, at such time or times, price or prices, or rate or
rates, and with such adjustments as shall be fixed and determined by resolution
of the Board of Directors or from time to time in accordance with a method
adopted by resolution of the Board of Directors at the time of the creation of
such series;
and except further that in establishing a series of the No Par Serial Preferred
Stock, the Board of Directors may also fix and determine the voting rights of
such series.
All shares of the same series shall be identical in all respects
except as to the date or dates from which dividends upon shares of such series
may be cumulative. Each certificate for Serial Preferred Stock or No Par Serial
Preferred Stock shall state the designation of the series in which the shares
represented by such certificate are issued. Whenever an affirmative vote of the
Serial Preferred Stock or the No Par Serial Preferred Stock may be required for
any purpose, the shares voting shall be counted irrespective of series and not
by different series.
(6) Without limitation of the foregoing authority conferred upon the
Board of Directors, there follows a statement of the rights and preferences of
the respective series of Serial Preferred Stock created on the effective date of
the merger of PacifiCorp, a Maine
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corporation, and Utah Power & Light Company, a Utah corporation, into the
Company, being the initial series and the fourth through thirteenth series,
inclusive, thereof.
(a) There is hereby created an initial series of the Company's
Serial Preferred Stock which shall be designated as 4.52% Serial Preferred Stock
and which shall consist of 2,065 shares.
The annual dividend rate of said initial series of the Company's
Serial Preferred Stock shall be four and fifty-two one-hundredths per centum
(4.52%) of the stated value thereof. The date or dates from which dividends on
shares of said initial series of the Company's Serial Preferred Stock shall be
cumulative shall be the Accrual Date. The dividend payment dates for the
payment of dividends on shares of said initial series of the Company's Serial
Preferred Stock shall be the Payment Dates.
The amount to be paid upon redemption of shares of said initial
series of the Company's Serial Preferred Stock shall be $103.50 per share, plus
unpaid accumulated dividends, if any, to the date of redemption.
The amounts to be paid in respect of shares of said initial series
of the Company's Serial Preferred Stock in the event of voluntary liquidation,
dissolution or winding up of the Company shall be as follows: In the event of
any voluntary liquidation, dissolution or winding up of the Company, said
initial series of the Company's Serial Preferred Stock, pari passu with the
other Senior Securities, shall have a preference over the Common Stock, until
there shall have been paid, by dividends or distribution on each share of said
initial series of the Company's Serial Preferred Stock, an amount equal to the
redemption price applicable to shares of said initial series of the Company's
Serial Preferred Stock, plus the amount, if any, by which
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dividends at the rate of 4.52% per annum on the stated value thereof, from and
after the date on which dividends on such shares became cumulative to the date
of such distribution, exceed the dividends actually paid thereon or declared and
set apart for payment thereon.
(The second and third series of the Serial Preferred Stock of
PacifiCorp, a Maine corporation, were redeemed on September 6, 1963 and March 5,
1965, respectively.)
(b) There is hereby created a fourth series of the Company's
Serial Preferred Stock which shall be designated as 7.00% Serial Preferred Stock
and which shall consist of 18,060 shares.
The annual dividend rate of said fourth series of the Company's
Serial Preferred Stock shall be seven per centum (7.00%) of the stated value
thereof. The date from which dividends on shares of said fourth series of the
Company's Serial Preferred Stock shall be cumulative shall be the Accrual Date.
The dividend payment dates for the payment of dividends on shares of said fourth
series of the Company's Serial Preferred Stock shall be the Payment Dates.
The amounts to be paid in respect of said fourth series of the
Company's Serial Preferred Stock in the event of voluntary liquidation,
dissolution or winding up of the Company shall be as follows: In the event of
any voluntary liquidation, dissolution or winding up of the Company, said fourth
series of the Company's Serial Preferred Stock, pari passu with the other Senior
Securities, shall have a preference over the Common Stock, until there shall
have been paid, by dividends or distribution on each share of said fourth series
of the Company's Serial Preferred Stock, an amount equal to the full stated
value thereof, plus the amount, if any, by which dividends at the rate of 7.00%
per annum on the stated value thereof, from and after the
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date on which dividends on such shares became cumulative to the date of such
distribution, exceed the dividends actually paid thereon or declared and set
apart for payment thereon.
(c) There is hereby created a fifth series of the Company's
Serial Preferred Stock which shall be designated as 6.00% Serial Preferred Stock
and which shall consist of 5,932 shares.
The annual dividend rate of said fifth series of the Company's
Serial Preferred Stock shall be six per centum (6.00%) of the stated value
thereof. The date from which dividends on shares of said fifth series of the
Company's Serial Preferred Stock shall be cumulative shall be the Accrual Date.
The dividend payment dates for the payment of dividends on shares of said fifth
series of the Company's Serial Preferred Stock shall be the Payment Dates.
The amounts to be paid in respect of said fifth series of the
Company's Serial Preferred Stock in the event of voluntary liquidation,
dissolution or winding up of the Company shall be as follows: In the event of
any voluntary liquidation, dissolution or winding up of the Company, said fifth
series of the Company's Serial Preferred Stock, pari passu with the other Senior
Securities, shall have a preference over the Common Stock until there shall have
been paid, by dividends or distribution on each share of said fifth series of
the Company's Serial Preferred Stock, an amount equal to the full stated value
thereof, plus the amount, if any, by which dividends at the rate of 6.00% per
annum on the stated value thereof, from and after the date on which dividends on
such shares became cumulative to the date of such distribution, exceed the
dividends actually paid thereon or declared and set apart for payment thereon.
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(d) There is hereby created a sixth series of the Company's
Serial Preferred Stock which shall be designated as 5.00% Serial Preferred Stock
and which shall consist of 42,000 shares.
The annual dividend rate of said sixth series of the Company's
Serial Preferred Stock shall be five per centum (5.00%) of the stated value
thereof. The date from which dividends on shares of said sixth series of the
Company's Serial Preferred Stock shall be cumulative shall be the Accrual Date.
The dividend payment dates for the payment of dividends on shares of said sixth
series of the Company's Serial Preferred Stock shall be the Payment Dates.
The amount to be paid upon redemption of shares of said sixth series
of the Company's Serial Preferred Stock shall be $100 per share, plus unpaid
accumulated dividends, if any, to the date of redemption.
The amounts to be paid in respect of shares of said sixth series of
the Company's Serial Preferred Stock in the event of voluntary liquidation,
dissolution or winding up of the Company shall be as follows: In the event of
any voluntary liquidation, dissolution or winding up of the Company, said sixth
series of the Company's Serial Preferred Stock, pari passu with the other Senior
Securities, shall have a preference over the Common Stock, until there shall
have been paid, by dividends or distribution on each share of said sixth series
of the Company's Serial Preferred Stock, an amount equal to the full stated
value thereof, plus the amount, if any, by which dividends at the rate of 5.00%
per annum on the stated value thereof, from and after the date on which
dividends on such shares became cumulative to the date of such distribution,
exceeds the dividends actually paid thereon or declared and set apart for
payment thereon.
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(e) There is hereby created a seventh series of the Company's
Serial Preferred Stock which shall be designated as 5.40% Serial Preferred Stock
and which shall consist of 65,960 shares.
The annual dividend rate of said seventh series of the Company's
Serial Preferred Stock shall be five and forty one-hundredths per centum (5.40%)
of the stated value thereof. The date from which dividends on shares of said
seventh series of the Company's Serial Preferred Stock shall be cumulative shall
be the Accrual Date. The dividend payment dates for the payment of dividends on
shares of said seventh series of the Company's Serial Preferred Stock shall be
the Payment Dates.
The amount to be paid upon redemption of shares of said seventh
series of the Company's Serial Preferred Stock shall be $101.00 per share, plus
unpaid accumulated dividends, if any, to the date of redemption.
The amounts to be paid in respect of shares of said seventh series
of the Company's Serial Preferred Stock in the event of voluntary liquidation,
dissolution or winding up of the Company shall be as follows: In the event of
any voluntary liquidation, dissolution or winding up of the Company, said
seventh series of the Company's Serial Preferred Stock, pari passu with the
other Senior Securities, shall have a preference over the Common Stock, until
there shall have been paid, by dividends or distribution on each share of said
seventh series of the Company's Serial Preferred Stock, an amount equal to the
full stated value thereof, plus the amount, if any, by which dividends at the
rate of 5.40% per annum on the stated value thereof, from and after the date on
which dividends on such shares became cumulative to the
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date of such distribution, exceed the dividends actually paid thereon or
declared and set apart for payment thereon.
(f) There is hereby created an eighth series of the Company's
Serial Preferred Stock which shall be designated as 4.72% Serial Preferred Stock
and which shall consist of 69,890 shares.
The annual dividend rate of said eighth series of the Company's
Serial Preferred Stock shall be four and seventy-two one-hundredths per centum
(4.72%) of the stated value thereof. The date from which dividends on shares of
said eighth series of the Company's Serial Preferred Stock shall be cumulative
shall be the Accrual Date. The dividend payment dates for the payment of
dividends on shares of said eighth series of the Company's Serial Preferred
Stock shall be the Payment Dates.
The amount to be paid upon redemption of shares of said eighth
series of the Company's Serial Preferred Stock shall be $103.50 per share, plus
unpaid accumulated dividends, if any, to the date of redemption.
The amounts to be paid in respect of shares of said eighth series of
the Company's Serial Preferred Stock in the event of voluntary liquidation,
dissolution or winding up of the Company shall be as follows: In the event of
any voluntary liquidation, dissolution or winding up of the Company, said eighth
series of the Company's Serial Preferred Stock, pari passu with the other Senior
Securities, shall have a preference over the Common Stock, until there shall
have been paid, by dividends or distribution on each share of said eighth series
of the Company's Serial Preferred Stock, an amount equal to the redemption price
applicable to shares of said eighth series of the Company's Serial Preferred
Stock, plus the amount, if any, by which
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dividends at the rate of 4.72% per annum on the stated value thereof, from and
after the date on which dividends on such shares became cumulative to the date
of such distribution, exceed the dividends actually paid thereon or declared and
set apart for payment thereon.
(g) There is hereby created a ninth series of the Company's
Serial Preferred Stock which shall be designated as 4.56% Serial Preferred Stock
and which shall consist of 84,592 shares.
The annual dividend rate of said ninth series of the Company's
Serial Preferred Stock shall be four and fifty-six one-hundredths per centum
(4.56%) of the stated value thereof. The date from which dividends on shares of
said ninth series of the Company's Serial Preferred Stock shall be cumulative
shall be the Accrual Date. The dividend payment dates for the payment of
dividends on shares of said ninth series of the Company's Serial Preferred Stock
shall be the Payment Dates.
The amount to be paid upon redemption of shares of said ninth series
of the Company's Serial Preferred Stock shall be $102.34 per share, plus unpaid
accumulated dividends, if any, to the date of redemption.
The amounts to be paid in respect of shares of said ninth series of
the Company's Serial Preferred Stock in the event of voluntary liquidation,
dissolution or winding up of the Company shall be as follows: In the event of
any voluntary liquidation, dissolution or winding up of the Company, said ninth
series of the Company's Serial Preferred Stock, pari passu with the other Senior
Securities, shall have a preference over the Common Stock, until there shall
have been paid, by dividends or distribution on each share of said ninth series
of the Company's Serial Preferred Stock, an amount equal to the redemption price
applicable to shares of said
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ninth series of the Company's Serial Preferred Stock, plus the amount, if any,
by which dividends at the rate of 4.56% per annum on the stated value thereof,
from and after the date on which dividends on such shares became cumulative to
the date of such distribution, exceed the dividends actually paid thereon or
declared and set apart for payment thereon.
(The tenth, eleventh and twelfth series of the Serial Preferred
Stock of PacifiCorp, an Oregon corporation, were redeemed on July 12, 1996. The
thirteenth series of Serial Preferred Stock of PacifiCorp, an Oregon
corporation, was redeemed on October 10, 1989. The fourteenth series of the
Serial Preferred Stock of PacifiCorp, a Maine corporation, was redeemed on
January 11, 1987.)
(7) Without limitation of the foregoing authority conferred upon the
Board of Directors, there follows a statement of the rights and preferences of
the respective series of No Par Serial Preferred Stock created on the effective
date of the merger of PacifiCorp, a Maine corporation, and Utah Power & Light
Company, a Utah corporation, into the Company, being the second series and the
sixth through thirteenth series, inclusive, thereof, and the respective series
of No Par Serial Preferred Stock created thereafter and prior to the date of
this restatement, being the fourteenth through twentieth series, inclusive,
thereof.
(The initial series of the No Par Serial Preferred Stock of
PacifiCorp, a Maine corporation, was redeemed on May 15, 1987. The second
series of the No Par Serial Preferred Stock of PacifiCorp, an Oregon
corporation, was redeemed on July 12, 1996. The third, fourth and fifth series
of No Par Serial Preferred Stock of PacifiCorp, a Maine corporation, were
redeemed on May 15, 1987, October 3, 1984 and June 15, 1986, respectively. The
sixth series
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and seventh series of No Par Serial Preferred Stock of PacifiCorp, an Oregon
corporation, were exchanged and retired on June 29, 1992).
(a) There is hereby created an eighth series of the Company's No
Par Serial Preferred Stock, which shall be designated as $7.12 No Par Serial
Preferred Stock. Said eighth series of No Par Serial Preferred Stock shall
consist of 500,000 shares, shall have a stated value of $100 per share and shall
have the relative rights and preferences as follows:
The annual dividend on said eighth series of the Company's No Par
Serial Preferred Stock shall be $7.12 per share.
The date from which dividends on shares of said eighth series of the
Company's No Par Serial Preferred Stock shall be cumulative shall be the Accrual
Date. The dates for the payment of dividends on shares of said eighth series of
the Company's No Par Serial Preferred Stock shall be the Payment Dates.
The amounts to be paid upon optional redemption of the shares of
said eighth series of the Company's No Par Serial Preferred Stock shall be,
for the period from the date upon which dividends on said eighth series
became cumulative to and including March 31, 1992, $107.12 per share;
thereafter to and including March 31, 1997, $104.75 per share; thereafter to
and including March 31, 2002, $102.38 per share; and thereafter $100 per
share; plus, in each case, unpaid accumulated dividends, if any, to the date
of redemption; provided, however, that shares of said eighth series of the
Company's No Par Serial Preferred Stock shall not be redeemable prior to
April 1, 1992, directly or indirectly, as part of, or in anticipation of, any
refunding operation involving the incurring of indebtedness or the issuance
of shares of preferred stock ranking equally with or prior to shares of said
eighth series of the Company's No Par
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Serial Preferred Stock as to dividends or on liquidation, if the interest on
such indebtedness or the dividends on shares of any such preferred stock
would result in an effective cost to the Company (computed in accordance with
generally accepted financial practice) of less than 7.18% per annum.
As a sinking fund for said eighth series of No Par Serial Preferred
Stock, the Company shall redeem, out of funds legally available therefor, on
March 31 of each year, beginning with March 31, 1993, not less than 15,000
shares nor more than 30,000 shares of said eighth series of the Company's No Par
Serial Preferred Stock at a redemption price equal to $100 per share plus unpaid
accumulated dividends, if any, to the date of redemption; the option to redeem
in excess of 15,000 shares of said eighth series of No Par Serial Preferred
Stock on any March 31 shall not be cumulative; shares of said eighth series of
No Par Serial Preferred Stock acquired or redeemed by the Company otherwise than
through operation of the sinking fund may, at the option of the Company, be
credited against subsequent minimum sinking fund requirements; if the Company
shall be prevented, because of restriction or for any other reason, from
acquiring or redeeming on any March 31 the number of shares of said eighth
series of No Par Serial Preferred Stock that in the absence of such restriction
or other reason it would be required to acquire or redeem on such date, the
deficit shall be made good on the first succeeding March 31 on which the Company
shall not be prevented by such restriction or other reason from acquiring or
redeeming shares of said eighth series of No Par Serial Preferred Stock. If the
Company shall be in arrears in the redemption of shares of said eighth series of
No Par Serial Preferred Stock, 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
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Common Stock or on any other stock of the Company over which the No Par Serial
Preferred Stock has preference as to the payment of dividends or as to assets.
In the event of any involuntary liquidation, dissolution or winding
up of the Company, said eighth series of the Company's No Par Serial Preferred
Stock, pari passu with the other Senior Securities, shall have a preference over
the Common Stock until there shall have been paid, by dividends or distribution
on each share of said eighth series of the Company's No Par Serial Preferred
Stock, an amount equal to $100, plus the amount, if any, by which dividends of
$7.12 per annum, from and after the date on which dividends on such shares
became cumulative to the date of such distribution, exceed the dividends
actually paid thereon or declared and set apart for payment thereon.
In the event of any voluntary liquidation, dissolution or winding up
of the Company, said eighth series of the Company's No Par Serial Preferred
Stock, pari passu with the other Senior Securities, shall have a preference over
the Common Stock, until there shall have been paid, by dividends or distribution
on each share of said eighth series of the Company's No Par Serial Preferred
Stock, an amount equal to the then current redemption price applicable to shares
of said eighth series of the Company's No Par Serial Preferred Stock, plus the
amount, if any, by which dividends of $7.12 per annum, from and after the date
on which dividends on such shares became cumulative to the date of such
distribution, exceed the dividends actually paid thereon or declared and set
apart for payment thereon.
Every holder of record of said eighth series of the Company's No Par
Serial Preferred Stock, or his legal representative, at the record date for the
determination of persons
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entitled to vote at a meeting of shareholders, shall be entitled to one vote for
each share of such stock standing in his name on the books of the Company.
(b) There is hereby created a ninth series of the Company's No
Par Serial Preferred Stock which shall be designated as $1.28 No Par Serial
Preferred Stock. Said ninth series of No Par Serial Preferred Stock shall
consist of 400,000 shares, shall have a stated value of $25 per share and shall
have the relative rights and preferences as follows:
The annual dividend on said ninth series of the Company's No Par
Serial Preferred Stock shall be $1.28 per share.
The date from which dividends on shares of said ninth series of the
Company's No Par Serial Preferred Stock shall be cumulative shall be the day
immediately following the last period for which dividends on the Cumulative
Preferred Stock, $25 par value, of Utah Power & Light Company, a Utah
corporation, have been declared (such date being hereinafter referred to as the
"UP&L Accrual Date"). The dates for the payment of dividends on shares of said
ninth series of the Company's No Par Serial Preferred Stock shall be the Payment
Dates.
The amount to be paid upon redemption of the shares of said ninth
series of the Company's No Par Serial Preferred Stock shall be $26.35 per share,
plus unpaid accumulated dividends, if any, to the date of redemption.
In the event of any involuntary liquidation, dissolution or winding
up of the Company, said ninth series of the Company's No Par Serial Preferred
Stock, pari passu with the other Senior Securities, shall have a preference over
the Common Stock until there shall have been paid, by dividends or distribution
on each share of said ninth series of the Company's No Par Serial Preferred
Stock, an amount equal to $25, plus the amount, if any, by which dividends
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of $1.28 per annum, from and after the date on which dividends on such shares
became cumulative to the date of such distribution, exceed the dividends
actually paid thereon or declared and set apart for payment thereon.
In the event of any voluntary liquidation, dissolution or winding up
of the Company, said ninth series of the Company's No Par Serial Preferred
Stock, pari passu with the other Senior Securities, shall have a preference over
the Common Stock, until there shall have been paid, by dividends or distribution
on each share of said ninth series of the Company's No Par Serial Preferred
Stock, an amount equal to the redemption price applicable to shares of said
ninth series of the Company's No Par Serial Preferred Stock, plus the amount, if
any, by which dividends of $1.28 per annum, from and after the date on which
dividends on such shares became cumulative to the date of such distribution,
exceed the dividends actually paid thereon or declared and set apart for payment
thereon.
The holders of shares of said ninth series of the Company's No Par
Serial Preferred Stock shall have no voting rights except as provided in these
Restated Articles of Incorporation and except as otherwise required by law.
Whenever holders of shares of said ninth series of the Company's No Par Serial
Preferred Stock shall be entitled to vote, every holder, or his legal
representative, at the record date for the determination of persons entitled to
vote at a meeting of shareholders, shall be entitled to one-quarter (1/4) of a
vote for each share of such stock standing in his name on the books of the
Company.
The shares of said ninth series of the Company's No Par Serial
Preferred Stock, by their terms, shall not be entitled to a sinking fund or
purchase fund and shall not be convertible into or exchangeable for shares of
any other class or series.
19
(c) There is hereby created a tenth series of the Company's No
Par Serial Preferred Stock which shall be designated as $1.18 No Par Serial
Preferred Stock. Said tenth series of No Par Serial Preferred Stock shall
consist of 480,000 shares, shall have a stated value of $25 per share and shall
have the relative rights and preferences as follows:
The annual dividend on said tenth series of the Company's No Par
Serial Preferred Stock shall be $1.18 per share.
The date from which dividends on shares of said tenth series of the
Company's No Par Serial Preferred Stock shall be cumulative shall be the UP&L
Accrual Date. The dates for the payment of dividends on shares of said tenth
series of the Company's No Par Serial Preferred Stock shall be the Payment
Dates.
The amount to be paid upon redemption of the shares of said tenth
series of the Company's No Par Serial Preferred Stock shall be $26.15 per share,
plus unpaid accumulated dividends, if any, to the date of redemption.
In the event of any involuntary liquidation, dissolution or winding
up of the Company, said tenth series of the Company's No Par Serial Preferred
Stock, pari passu with the other Senior Securities, shall have a preference over
the Common Stock until there shall have been paid, by dividends or distribution
on each share of said tenth series of the Company's No Par Serial Preferred
Stock, an amount equal to $25, plus the amount, if any, by which dividends of
$1.18 per annum, from and after the date on which dividends on such shares
became cumulative to the date of such distribution, exceed the dividends
actually paid thereon or declared and set apart for payment thereon.
20
In the event of any voluntary liquidation, dissolution or winding up
of the Company, said tenth series of the Company's No Par Serial Preferred
Stock, pari passu with the other Senior Securities, shall have a preference over
the Common Stock, until there shall have been paid, by dividends or distribution
on each share of said tenth series of the Company's No Par Serial Preferred
Stock, an amount equal to the redemption price applicable to shares of said
tenth series of the Company's No Par Serial Preferred Stock, plus the amount, if
any, by which dividends of $1.18 per annum, from and after the date on which
dividends on such shares became cumulative to the date of such distribution,
exceed the dividends actually paid thereon or declared and set apart for payment
thereon.
The holders of shares of said tenth series of the Company's No Par
Serial Preferred Stock shall have no voting rights except as provided in these
Restated Articles of Incorporation and except as otherwise required by law.
Whenever holders of shares of said tenth series of the Company's No Par Serial
Preferred Stock shall be entitled to vote, every holder, or his legal
representative, at the record date for the determination of persons entitled to
vote at a meeting of shareholders, shall be entitled to one-quarter (1/4) of a
vote for each share of such stock standing in his name on the books of the
Company.
The shares of said tenth series of the Company's No Par Serial
Preferred Stock, by their terms, shall not be entitled to a sinking fund or
purchase fund and shall not be convertible into or exchangeable for shares of
any other class or series.
(d) There is hereby created an eleventh series of the Company's
No Par Serial Preferred Stock which shall be designated as $1.16 No Par Serial
Preferred Stock. Said eleventh
21
series of No Par Serial Preferred Stock shall consist of 200,000 shares, shall
have a stated value of $25 per share and shall have the relative rights and
preferences as follows:
The annual dividend on said eleventh series of the Company's No Par
Serial Preferred Stock shall be $1.16 per share.
The date from which dividends on shares of said eleventh series of
the Company's No Par Serial Preferred Stock shall be cumulative shall be the
UP&L Accrual Date. The dates for the payment of dividends on shares of said
eleventh series of the Company's No Par Serial Preferred Stock shall be the
Payment Dates.
The amount to be paid upon redemption of the shares of said eleventh
series of the Company's No Par Serial Preferred Stock shall be $26.11 per share,
plus unpaid accumulated dividends, if any, to the date of redemption.
In the event of any involuntary liquidation, dissolution or winding
up of the Company, said eleventh series of the Company's No Par Serial Preferred
Stock, pari passu with the other Senior Securities, shall have a preference over
the Common Stock until there shall have been paid, by dividends or distribution
on each share of said eleventh series of the Company's No Par Serial Preferred
Stock, an amount equal to $25, plus the amount, if any, by which dividends of
$1.16 per annum, from and after the date on which dividends on such shares
became cumulative to the date of such distribution, exceed the dividends
actually paid thereon or declared and set apart for payment thereon.
In the event of any voluntary liquidation, dissolution or winding up
of the Company, said eleventh series of the Company's No Par Serial Preferred
Stock, pari passu with the other Senior Securities, shall have a preference over
the Common Stock, until there shall
22
have been paid, by dividends or distribution on each share of said eleventh
series of the Company's No Par Serial Preferred Stock, an amount equal to the
redemption price applicable to shares of said eleventh series of the Company's
No Par Serial Preferred Stock, plus the amount, if any, by which dividends of
$1.16 per annum, from and after the date on which dividends on such shares
became cumulative to the date of such distribution, exceed the dividends
actually paid thereon or declared and set apart for payment thereon.
The holders of shares of said eleventh series of the Company's No
Par Serial Preferred Stock shall have no voting rights except as provided in
these Restated Articles of Incorporation and except as otherwise required by
law. Whenever holders of shares of said eleventh series of the Company's No Par
Serial Preferred Stock shall be entitled to vote, every holder, or his legal
representative, at the record date for the determination of persons entitled to
vote at a meeting of shareholders, shall be entitled to one-quarter (1/4) of a
vote for each share of such stock standing in his name on the books of the
Company.
The shares of said eleventh series of the Company's No Par Serial
Preferred Stock, by their terms, shall not be entitled to a sinking fund or
purchase fund and shall not be convertible into or exchangeable for shares of
any other class or series.
(The twelfth, thirteenth, fourteenth and fifteenth series of the No
Par Serial Preferred Stock of PacifiCorp, an Oregon corporation, were redeemed
on July 12, 1996, July 12, 1996, July 29, 1996 and December 29, 1992,
respectively).
(e) There is hereby created a sixteenth series of the Company's
No Par Serial Preferred Stock which shall be designated as $7.70 No Par Serial
Preferred Stock. The amount of the consideration received by the Company fixed
as a preference over the Common Stock in
23
the assets of the Company upon involuntary liquidation and that constitutes the
stated value of said sixteenth series of the Company's No Par Serial Preferred
Stock is $100 per share. Said sixteenth series of the Company's No Par Serial
Preferred Stock shall consist of 1,000,000 shares and shall have the relative
rights and preferences as follows:
The annual dividend on said sixteenth series of the Company's No Par
Serial Preferred Stock shall be $7.70 per share.
The date from which dividends on shares of said sixteenth series of
the Company's No Par Serial Preferred Stock shall be cumulative shall be the
date of issue of such shares. The dates for the payment of dividends on shares
of said sixteenth series of the Company's No Par Serial Preferred Stock shall be
the Payment Dates.
The shares of said sixteenth series of the Company's No Par Serial
Preferred Stock shall not be subject to redemption at the option of the Company
and shall not be subject to any sinking fund.
On August 15, 2001, the Company shall redeem all shares of said
sixteenth series of No Par Serial Preferred Stock then outstanding, out of funds
legally available therefor, at a redemption price equal to $100 per share plus
unpaid accumulated dividends, if any, to the date of redemption.
In the event of any voluntary liquidation, dissolution or winding up
of the Company, said sixteenth series of the Company's No Par Serial Preferred
Stock, pari passu with the other Senior Securities, shall have a preference over
the Common Stock, until there shall have been paid, by dividends or distribution
on each share of said sixteenth series of the Company's No Par Serial Preferred
Stock, an amount equal to $100, plus the amount, if any,
24
by which dividends of $7.70 per annum, from and after the date on which
dividends on such shares became cumulative to the date of such distribution,
exceed the dividends actually paid thereon or declared and set apart for payment
thereon.
Every holder of record of shares of said sixteenth series of the
Company's No Par Serial Preferred Stock, or his legal representative, at the
record date for the determination of persons entitled to vote at a meeting of
shareholders, shall be entitled to one vote for each share of such stock
standing in his name on the books of the Company.
(f) There is hereby created a seventeenth series of the Company's
No Par Serial Preferred Stock, which shall be designated as $1.98 No Par Serial
Preferred Stock, Series 1992. Said seventeenth series of No Par Serial
Preferred Stock shall consist of 5,000,000 shares. The amount of the
consideration received by the Company fixed as a preference over the Common
Stock in the assets of the Company upon involuntary liquidation, dissolution or
winding up of the Company and that constitutes the stated value of said
seventeenth series of the Company's No Par Serial Preferred Stock is $25 per
share.
The annual dividend on said seventeenth series of the Company's No
Par Serial Preferred Stock shall be $1.98 per share.
The date from which dividends on shares of said seventeenth series
of the Company's No Par Serial Preferred Stock shall be cumulative shall be the
date of issue of such shares. The dates for the payment of dividends on shares
of said seventeenth series of the Company's No Par Serial Preferred Stock shall
be the Payment Dates.
The shares of said seventeenth series of the Company's No Par Serial
Preferred Stock shall not be redeemable by the Company on or before May 31,
1997. After May 31,
25
1997, the outstanding shares of said seventeenth series of the Company's No Par
Serial Preferred Stock shall be redeemable at the option of the Company, in
whole or in part, out of funds legally available therefor, at a redemption price
equal to $25 per share plus unpaid accumulated dividends, if any, to the date of
redemption. The shares of said seventeenth series of the Company's No Par
Serial Preferred Stock shall not be subject to any sinking fund.
In the event of any voluntary liquidation, dissolution or winding up
of the Company, said seventeenth series of the Company's No Par Serial Preferred
Stock, pari passu with the other Senior Securities, shall have a preference over
the Common Stock, until there shall have been paid, by dividends or distribution
on each share of said seventeenth series of the Company's No Par Serial
Preferred Stock, an amount equal to $25, plus the amount, if any, by which
dividends of $1.98 per annum, from and after the date on which dividends on such
shares became cumulative to the date of such distribution, exceed the dividends
actually paid thereon or declared and set apart for payment thereon.
Every holder of record of shares of said seventeenth series of the
Company's No Par Serial Preferred Stock, or his legal representative, at the
record date for the determination of persons entitled to vote at a meeting of
shareholders, shall be entitled to one-quarter vote for each share of such stock
standing in his name on the books of the Company.
(g) There is hereby created an eighteenth series of the Company's
No Par Serial Preferred Stock, which shall be designated as $7.48 No Par Serial
Preferred Stock. Said eighteenth series of No Par Serial Preferred Stock shall
consist of 750,000 shares. The amount of the consideration received by the
Company fixed as a preference over the Common Stock in the assets of the Company
upon involuntary liquidation, dissolution or winding up of the
26
Company and that constitutes the stated value of said seventeenth series of the
Company's No Par Serial Preferred Stock is $100 per share.
The annual dividend on said eighteenth series of the Company's No
Par Serial Preferred Stock shall be $7.48 per share.
The date from which dividends on shares of said eighteenth series of
the Company's No Par Serial Preferred Stock shall be cumulative shall be the
date of issue of such shares. The dates for the payment of dividends on shares
of said eighteenth series of the Company's No Par Serial Preferred Stock shall
be the Payment Dates.
The shares of said eighteenth series of the Company's No Par Serial
Preferred Stock shall not be subject to redemption at the option of the Company,
other than as described below.
On June 15, 2007, the Company shall redeem all shares of said
eighteenth series of No Par Serial Preferred Stock then outstanding, out of
funds legally available therefor, at a redemption price equal to $100 per share
plus unpaid accumulated dividends, if any, to the date of redemption. As a
sinking fund for said eighteenth series of No Par Serial Preferred Stock, the
Company shall redeem, out of funds legally available therefor, on June 15 of
each year, beginning with June 15, 2002 and ending with June 15, 2006, not less
than 37,500 shares nor more than 75,000 shares of said eighteenth series of No
Par Serial Preferred Stock, in each case at a redemption price equal to $100 per
share plus unpaid accumulated dividends, if any, to the date of redemption; the
option to redeem in excess of 37,500 shares of said eighteenth series of No Par
Serial Preferred Stock on any June 15 from 2002 through 2006 shall not be
cumulative; shares of said eighteenth series of No Par Serial Preferred Stock
acquired by the Company otherwise than through operation of the sinking fund
may, at the option of the Company, be
27
credited against subsequent minimum sinking fund requirements; if the Company
shall be prevented, because of restriction or for any other reason, from
acquiring or redeeming on any June 15 from 2002 through 2006 the number of
shares of said eighteenth series of No Par Serial Preferred Stock that in the
absence of such restriction or other reason it would be required to acquire or
redeem on such date, the deficit shall be made good on the first succeeding
June 15 on which the Company shall not be prevented by such restriction or other
reason from acquiring or redeeming shares of said eighteenth series of No Par
Serial Preferred Stock. If the Company shall be in arrears in the redemption of
shares of said eighteenth series of No Par Serial Preferred Stock, 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 on any other stock of the Company over which the No Par Serial Preferred
Stock has preference as to the payment of dividends or as to assets.
In the event of any voluntary liquidation, dissolution or winding up
of the Company, said eighteenth series of the Company's No Par Serial Preferred
Stock, pari passu with the other Senior Securities, shall have a preference over
the Common Stock, until there shall have been paid, by dividends or distribution
on each share of said eighteenth series of the Company's No Par Serial Preferred
Stock, an amount equal to $100, plus the amount, if any, by which dividends of
$7.48 per annum, from and after the date on which dividends on such shares
became cumulative to the date of such distribution, exceed the dividends
actually paid thereon or declared and set apart for payment thereon.
Every holder of record of shares of said eighteenth series of the
Company's No Par Serial Preferred Stock, or his legal representative, at the
record date for the determination
28
of persons entitled to vote at a meeting of shareholders, shall be entitled to
one vote for each share of such stock standing in his name on the books of the
Company.
(The nineteenth and twentieth series of the No Par Serial Preferred Stock
of PacifiCorp, an Oregon corporation, were redeemed on August 9, 1996 and
January 25, 1993, respectively).
(8) Subject to the rights of the holders of the Senior Securities, and
subordinate thereto (and subject and subordinate to the rights of any class of
stock hereafter authorized), the Common Stock alone shall receive all dividends
and shares in liquidation, dissolution, winding up or distribution other than
those to be paid on shares of Senior Securities as provided in Sections (2)
through (7) of this Article.
(9) The Company, by a majority vote of its Board of Directors, may at
any time redeem all of said 5% Preferred Stock or may from time to time redeem
any part thereof, by paying in cash a redemption price of $110 per share, plus
unpaid accumulated dividends, if any, to the date of redemption; may at any time
redeem all or any part of any one or more series of Serial Preferred Stock,
other than the 7.00% Serial Preferred Stock and the 6.00% Serial Preferred Stock
created at the time of merger of PacifiCorp, a Maine corporation, and Utah
Power & Light Company, a Utah corporation, into the Company, by paying in cash a
redemption price fixed and determined by resolution of the Board of Directors or
pursuant to Section (6) of this Article at the time of creation of each such
series, plus unpaid accumulated dividends, if any, to the date of redemption;
and may at any time redeem all or any part of any one or more series of No Par
Serial Preferred Stock by paying in cash a redemption price fixed and determined
by resolution of the Board of Directors or pursuant to Section (7) of this
Article at the time of creation of each such series plus unpaid accumulated
dividends, if any, to the date of redemption. Notice of the intention of the
Company to redeem all or any part of the 5%
29
Preferred Stock, Serial Preferred Stock or No Par Serial Preferred Stock shall
be mailed not less than thirty (30) days nor more than sixty (60) days before
the date of redemption to each holder of record of 5% Preferred Stock, Serial
Preferred Stock or No Par Serial Preferred Stock to be redeemed, at his post
office address as shown by the Company's records or, in lieu of such mailing,
not less than thirty (30) days nor more than sixty (60) days' notice of such
redemption may be published in such manner as may be prescribed by resolution of
the Board of Directors of the Company; and, in the event of such publication, no
failure to mail such notice nor any defect therein or in the mailing thereof
shall affect the validity of the proceedings for the redemption of any shares of
5% Preferred Stock, Serial Preferred Stock or No Par Serial Preferred Stock so
to be redeemed. Contemporaneously with the mailing or the publication of such
notice as aforesaid or at any time thereafter prior to the date of redemption,
the Company may deposit the aggregate redemption price (or the portion thereof
not already paid in the redemption of such 5% Preferred Stock, Serial Preferred
Stock or No Par Serial Preferred Stock) with any bank or trust company in the
City of New York, New York, or in the City of Portland, Oregon, named in such
notice, payable to the order of the record holders of the 5% Preferred Stock,
Serial Preferred Stock or No Par Serial Preferred Stock so to be redeemed, on
the endorsement and surrender of their certificates, and thereupon said holders
shall cease to be shareholders with respect to such shares; and from and after
the making of such deposit such holders shall have no interest in or claim
against the Company with respect to said shares, but shall be entitled only to
receive such moneys from said bank or trust company, with interest, if any,
allowed by such bank or trust company, on such moneys deposited as in this
Section provided, on endorsement and surrender of their certificates, as
aforesaid. Any moneys so deposited, plus interest thereon, if any, and
remaining unclaimed at the end of six years from
30
the date fixed for redemption, if thereafter requested by resolution of the
Board of Directors, shall be repaid to the Company, and in the event of such
repayment to the Company such holders of record of the shares so redeemed as
shall not have made claim against such moneys prior to such repayment to the
Company, shall be deemed to be unsecured creditors of the Company for an amount,
without interest, equivalent to the amount deposited, plus interest thereon, if
any, allowed by such bank or trust company, as above stated, for the redemption
of such shares and so paid to the Company. If less than all of the shares of
the 5% Preferred Stock or of any series of Serial Preferred Stock or No Par
Serial Preferred Stock are to be redeemed, the shares to be redeemed shall be
selected by lot, in such manner as the Board of Directors of the Company shall
determine, by an independent bank or trust company selected for that purpose by
the Board of Directors of the Company. Nothing in this Section contained shall
limit any right of the Company to purchase or otherwise acquire any shares of 5%
Preferred Stock, Serial Preferred Stock or No Par Serial Preferred Stock.
(10) Except as hereinafter otherwise provided, every holder of record of
5% Preferred Stock, of Serial Preferred Stock or of Common Stock, or his legal
representative, at the record date for the determination of persons entitled to
vote at a meeting of shareholders, shall be entitled at such meeting to one vote
for each share of such stock standing in his name on the books of the Company,
and every holder of record of No Par Serial Preferred Stock, or his legal
representative, at the record date for the determination of persons entitled to
vote at a meeting of shareholders, shall be entitled to such voting rights as
shall be fixed and determined for the series of which his share or shares are a
part by Section (7) of this Article or the resolution establishing such series.
31
(11) If and when dividends payable on the Senior Securities shall be in
default in an amount equal to four full quarterly payments or more per share,
and thereafter until all dividends on the Senior Securities in default shall
have been paid, the holders of the Senior Securities, voting separately from the
Common Stock as one class, shall be entitled to elect the smallest number of
directors necessary to constitute a majority of the full Board of Directors, and
the holders of the Common Stock, voting separately from the Senior Securities as
a class, shall be entitled to elect the remaining directors of the Company,
anything herein and in the Bylaws of the Company to the contrary
notwithstanding. The terms of office, as directors, of all persons who may be
directors of the Company at the time shall terminate upon the election of a
majority of the Board of Directors by the holders of the Senior Securities,
except that if the holders of the Common Stock shall not have elected the
remaining directors of the Company, then, and only in that event, the directors
of the Company in office just prior to the election of a majority of the Board
of Directors by the holders of the Senior Securities shall elect the remaining
directors of the Company. Thereafter, while such default continues and the
majority of the Board is being elected by the holders of Senior Securities, the
remaining directors, whether elected by directors, as aforesaid, or whether
originally or later elected by holders of the Common Stock, shall continue in
office until their successors are elected by holders of the Common Stock and
shall qualify.
(12) If and when all dividends then in default on the Senior Securities
then outstanding shall be paid (such dividends to be declared and paid out of
any funds legally available therefor as soon as reasonably practicable), the
holders of the Senior Securities shall be divested of any special right with
respect to the election of directors, and the voting power of the holders of
Senior Securities and the holders of the Common Stock shall revert to the status
existing before the
32
first dividend payment date on which dividends on the Senior Securities were not
paid in full, but always subject to the same provisions for vesting such special
rights in the holders of the Senior Securities in the event of further like
default or defaults in the payment of dividends thereon. Upon termination of
any such special voting right upon payment of all accumulated and defaulted
dividends on the Senior Securities, the terms of office of all persons who may
have been elected directors of the Company by vote of the holders of Senior
Securities as one class, pursuant to such special voting right, shall forthwith
terminate, and the resulting vacancies shall be filled by the vote of a majority
of the remaining directors, and directors so elected shall hold office until
their successors are elected and shall qualify.
(13) In the case of any vacancy in the office of a director occurring
among the directors elected by the holders of the Senior Securities, voting
separately from the Common Stock as one class, the remaining directors elected
by the holders of the Senior Securities, by affirmative vote of a majority
thereof, or the remaining director so elected if there be but one, may elect a
successor or successors to hold office for the unexpired term or terms of the
director or directors whose place or places shall be vacant. Likewise, in case
of any vacancy in the office of a director occurring among the directors not
elected by the holders of the Senior Securities, the remaining directors not
elected by the holders of the Senior Securities by affirmative vote of a
majority thereof, or the remaining director so elected if there be but one, may
elect a successor or successors to hold office for the unexpired term or terms
of the director or directors whose place or places shall be vacant.
(14) Whenever the right shall have accrued to the holders of the Senior
Securities to elect directors, voting separately from the Common Stock as one
class, it shall be the duty of the President, a Vice-President or the Secretary
of the Company forthwith to cause notice to be
33
given to the shareholders entitled to vote at a meeting to be held at such time
as the Company's officers may fix, not less than ten (10) nor more than sixty
(60) days after the accrual of such right, for the purpose of electing
directors. At all meetings of shareholders held for the purpose of electing
directors during such time as the holders of the Senior Securities shall have
the special right, voting separately from the Common Stock as one class, to
elect directors, the presence in person or by proxy of the holders of a majority
of the outstanding Common Stock shall be required to constitute a quorum of such
class for the election of directors, and the presence in person or by proxy of
the holders of a majority in voting rights, of the outstanding Senior Securities
shall be required to constitute a quorum of such class for the election of
directors; provided, however, that the absence of a quorum of the holders of
stock of either such class shall not prevent the election at any such meeting or
adjournment thereof of directors by the other class, if the necessary quorum of
the holders of stock of such other class is present in person or by proxy at
such meeting or any adjournment thereof; and provided further, that in the event
a quorum of the holders of the Common Stock is present but a quorum of the
holders of the Senior Securities is not present, then the election of the
directors elected by the holders of the Common Stock shall not become effective
and the directors so elected by the holders of Common Stock shall not assume
their offices and duties until the holders of the Senior Securities, with a
quorum present, shall have elected the directors they shall be entitled to
elect; and provided further, however, that in the absence of a quorum of holders
of stock of either class, a majority of the holders of the stock of such class
who are present in person or by proxy shall have power to adjourn the election
of the directors to be elected by such class from time to time without notice
other than announcement at the meeting, until the requisite quorum of holders of
such class shall be made present in person or by proxy, but such adjournment
shall
34
not be to a date beyond the date for the mailing of the notice of the next
annual meeting of the Company or special meeting in lieu thereof.
(15) So long as any shares of the 5% Preferred Stock are outstanding, the
Company shall not, without the consent (given by a vote at a meeting called for
that purpose) of the holders of at least two-thirds of the total number of votes
entitled to be cast by the shares of the 5% Preferred Stock then outstanding:
(a) create or authorize any new stock ranking prior to the 5%
Preferred Stock as to dividends, in liquidation, dissolution, winding up or
distribution, or create or authorize any security convertible into shares of any
such stock; or
(b) amend, alter, change or repeal any of the express terms of
the 5% Preferred Stock then outstanding in a manner substantially prejudicial to
the holders thereof.
(16) So long as any shares of Serial Preferred Stock are outstanding, the
Company shall not, without the consent (given by a vote at a meeting called for
that purpose) of the holders of at least two-thirds of the total number of votes
entitled to be cast by the shares of Serial Preferred Stock then outstanding:
(a) create or authorize any new stock ranking prior to such
Serial Preferred Stock as to dividends, in liquidation, dissolution, winding up
or distribution, or create or authorize any security convertible into shares of
any such stock; or
(b) amend, alter, change or repeal any of the express terms of
such Serial Preferred Stock then outstanding in a manner substantially
prejudicial to the holders thereof.
(17) So long as any shares of No Par Serial Preferred Stock are
outstanding, the Company shall not, without consent (given by a vote at a
meeting called for that purpose) of the
35
holders of at least two-thirds of the total number of votes entitled to be cast
by the shares of No Par Serial Preferred Stock then outstanding:
(a) create or authorize any new stock ranking prior to such No
Par Serial Preferred Stock as to dividends, in liquidation, dissolution, winding
up or distribution, or create or authorize any security convertible into shares
of any such stock; or
(b) amend, alter, change or repeal any of the express terms of
such No Par Serial Preferred Stock then outstanding in a manner substantially
prejudicial to the holders thereof.
(18) So long as any shares of the Senior Securities are outstanding, the
Company shall not, without the consent (given by vote at a meeting called for
that purpose) of the holders of a majority of the total voting power of the
Senior Securities then outstanding, voting separately from the Common Stock, as
one class:
(a) merge or consolidate with or into any other corporation or
corporations; provided, that the provisions of this subparagraph (a) shall not
apply to a purchase or other acquisition by the Company of franchises or assets
of another corporation in any manner which does not involve a merger or
consolidation; or
(b) issue any unsecured notes, debentures or other securities
representing unsecured indebtedness, or assume any such unsecured indebtedness,
for purposes other than (i) the refunding of outstanding unsecured indebtedness
theretofore issued or assumed by the Company, or (ii) the reacquisition,
redemption or other retirement of all outstanding shares of the Senior
Securities, 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 Company, including unsecured
indebtedness then to be issued or assumed,
36
would exceed thirty per centum (30%) of the aggregate of (1) the total principal
amount of all bonds or other securities representing secured indebtedness issued
or assumed by the Company and then to be outstanding, and (2) the capital and
surplus of the Company as then to be stated on the books of account of the
Company; or
(c) issue, sell or otherwise dispose of any shares of the Senior
Securities or of any other class of stock ranking prior to, or on a parity with,
the Senior Securities as to dividends or distributions, unless the net income of
the Company determined, after provision for depreciation and all taxes and in
accordance with generally accepted accounting practices, to be available for the
payment of dividends for a period of twelve (12) consecutive calendar months
within the fifteen (15) calendar months immediately preceding the issuance, sale
or disposition of such stock, is at least equal to twice the annual dividend
requirements on all outstanding shares of the Senior Securities and all other
classes of stock ranking prior to, or on a parity with, the Senior Securities as
to dividends or distributions, including the shares proposed to be issued,
computed, in the case of any such shares on which the dividend rate is subject
to adjustment, at the dividend rate then in effect or, if such shares are the
shares proposed to be issued, at the dividend rate initially established for
such shares, and unless the gross income of the Company for such period,
determined in accordance with generally accepted accounting practices (but in
any event after deducting the amount for said period charged by the Company on
its books to depreciation expense and all taxes) to be available for the payment
of interest, shall have been at least one and one-half times the sum of (i) the
annual interest charges on all interest bearing indebtedness of the Company and
(ii) the annual dividend requirements on all outstanding shares of the Senior
Securities and all other classes of stock ranking prior to, or on a parity with,
the Senior Securities as to dividends or distributions, including the shares
proposed
37
to be issued, computed, in the case of any such indebtedness or shares on which
the interest or dividend rate is subject to adjustment, at the interest or
dividend rate then in effect or, if such shares are the shares proposed to be
issued, at the dividend rate initially established for such shares; provided,
that there shall be excluded from the foregoing computation interest charges on
all indebtedness and dividends on all shares of stock which are to be retired in
connection with the issue of such additional shares of Senior Securities or
other class of stock ranking prior to, or on a parity with, the Senior
Securities as to dividends or distributions; and provided further, that in any
case where such additional shares of Senior Securities or other class of stock
ranking prior to, or on a parity with, the Senior Securities as to dividends or
distributions, are to be issued in connection with the acquisition of new
property, the net earnings of the property to be so acquired may be included on
a pro forma basis in the foregoing computation, computed on the same basis as
the net earnings of the Company; or
(d) issue, sell or otherwise dispose of any shares of the Senior
Securities, or of any other class of stock ranking prior to, or on a parity
with, the Senior Securities as to dividends or distributions, unless the
aggregate of the capital of the Company applicable to the Common Stock and the
surplus of the Company shall be not less than the aggregate amount payable on
the involuntary dissolution, liquidation or winding up of the Company, in
respect of all shares of the Senior Securities and all shares of stock, if any,
ranking prior thereto, or on a parity therewith, as to dividends or
distributions, which will be outstanding after the issue of the shares proposed
to be issued; provided, that if, for the purposes of meeting the requirements of
this subparagraph (d), it becomes necessary to take into consideration any
earned surplus of the Company, the Company shall not thereafter pay any
dividends on shares of the Common Stock which would result in reducing the
Company's Common Stock equity to an amount less
38
than the aggregate amount payable, on dissolution, winding up or involuntary
liquidation of the Company, on all shares of the Senior Securities and of any
stock ranking prior to, or on a parity with, the Senior Securities as to
dividends or other distributions, at the time outstanding.
(19) The Company from time to time may, subject to the limitations or
requirements provided above in this Article III, purchase any of its stock
outstanding at such price as may be fixed by its Board of Directors or Executive
Committee and accepted by the holders of the stock purchased, and may resell any
stock so purchased at such price as may be fixed by its Board of Directors or
Executive Committee, but in the case the stock so purchased is subject to
redemption, the price paid therefor shall not exceed the price at which it is
redeemable.
(20) The Company from time to time may, subject to the limitations or
requirements provided above in this Article III, issue and sell Common Stock or
Preferred Stock of any class then authorized but unissued, bonds, notes or other
evidences of indebtedness convertible or not into Common Stock or stock of any
other class then authorized but unissued.
(21) No holder of any stock or other securities of the Company now or
hereafter authorized shall have any preemptive or other right to subscribe for,
purchase or receive any unissued shares, treasury shares, or other shares of any
class, whether now or hereafter authorized, or any notes, bonds, debentures, or
other securities convertible into, or carrying options or warrants to purchase,
shares of any class. The Company may issue and dispose of any of its authorized
shares for such consideration as may be fixed by the Board of Directors subject
to the laws then applicable.
39
ARTICLE IV
Meetings of shareholders of the Company may be held at such place,
either within or outside the State of Oregon, as shall be designated from time
to time by the Board of Directors.
ARTICLE V
(1) The number of directors of the Company shall be not less than nine
(9) nor more than twenty-one (21), and within such limits the exact number shall
be fixed and increased or decreased from time to time by resolution of the Board
of Directors. The directors shall be divided into three classes, as nearly
equal in number as possible, with the term of office of the first class
("Class I") to expire at the 1991 annual meeting of shareholders, the term of
office of the second class ("Class II") to expire at the 1989 annual meeting of
shareholders and the term of office of the third class ("Class III") to expire
at the 1990 annual meeting of shareholders. At each annual meeting of
shareholders following such initial classification and election, directors
elected to succeed those directors whose terms expire shall be elected to serve
three-year terms and until their successors are elected and qualified, so that
the term of one class of directors will expire each year. When the number of
directors is changed within the limits provided herein, any newly created
directorships, or any decrease in directorships, shall be so apportioned among
the classes as to make all classes as nearly equal as possible, provided that no
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
(2) All or any number of the directors of the Company may be removed
without cause only at a meeting of shareholders called expressly for that
purpose, by the vote of 80 percent of the votes then entitled to be cast for the
election of directors. The shareholders may remove
40
all or any number of directors for cause at a meeting of shareholders called
expressly for that purpose by the vote of two-thirds of the votes then entitled
to be cast for the election of directors. At any meeting of shareholders at
which one or more directors are removed, a majority of the votes then entitled
to be cast for the election of directors may fill any vacancy created by such
removal. If any vacancy created by removal of a director is not filled by the
shareholders at the meeting at which the removal is effected, such vacancy may
be filled by a majority vote of the remaining directors.
(3) The provisions of this Article V may not be amended, altered,
changed or repealed in any respect unless such action is approved by the
affirmative vote of not less than 80 percent of the votes then entitled to be
cast for the election of directors.
ARTICLE VI
The Company's Bylaws may be amended or repealed or new bylaws may be
made: (a) by the affirmative vote of the holders of record of a majority of the
outstanding capital stock of the Company entitled to vote thereon, irrespective
of class, given at any annual or special meeting of the shareholders; provided
that notice of the proposed amendment, repeal or new bylaw or bylaws be included
in the notice of such meeting or waiver thereof; or (b) by the affirmative vote
of a majority of the entire Board of Directors given at any regular meeting of
the Board, or any special meeting thereof; provided that notice of the proposed
amendment, repeal or new bylaw or bylaws be included in the notice of such
meeting or waiver thereof or all of the directors at the time in office be
present at such meeting.
ARTICLE VII
(1) Whether or not a vote of shareholders is otherwise required, the
affirmative vote of the holders of not less than 80 percent of the outstanding
shares of "Voting Stock" (as
41
hereinafter defined) of the Company shall be required for the approval or
authorization of any "Business Transaction" (as hereinafter defined) with any
"Related Person" (as hereinafter defined) or any Business Transaction in which a
Related Person has an interest (except proportionately as a shareholder of the
Company); provided, however, that the 80 percent voting requirement shall not be
applicable if either:
(a) The "Continuing Directors" (as hereinafter defined) of the
Company by at least a two-thirds vote (i) have expressly approved in advance the
acquisition of the outstanding shares of Voting Stock that caused such Related
Person to become a Related Person, or (ii) have expressly approved such Business
Transaction; or
(b) The cash or fair market value (as determined by at least a
majority of the Continuing Directors) of the property, securities or other
consideration to be received per share by holders of Voting Stock of the Company
(other than the Related Person) in the Business Transaction is not less than the
"Highest Purchase Price" or the "Highest Equivalent Price" (as those terms are
hereinafter defined) paid by the Related Person involved in the Business
Transaction in acquiring any of its holdings of the Company's Voting Stock.
(2) For purposes of this Article VII:
(a) The term "Business Transaction"
shall include, without limitation, (i) any merger,
consolidation or plan of exchange of the Company, or any
entity controlled by or under common control with the
Company, with or into any Related Person, or any entity
controlled by or under common control with such Related
Person, (ii) any merger, consolidation or plan of
exchange of a Related Person, or any entity controlled
by or under
42
common control with such Related Person, with or into the Company or
any entity controlled by or under common control with the Company,
(iii) any sale, lease, exchange, transfer or other disposition (in
one transaction or a series of transactions), including without
limitation a mortgage or any other security device, of all or any
"Substantial Part" (as hereinafter defined) of the property and
assets of the Company, or any entity controlled by or under common
control with the Company, to a Related Person, or any entity
controlled by or under common control with such Related Person,
(iv) any purchase, lease, exchange, transfer or other acquisition
(in one transaction or a series of transactions), including without
limitation a mortgage or any other security device, of all or any
Substantial Part of the property and assets of a Related Person or
any entity controlled by or under common control with such Related
Person, by the Company or any entity controlled by or under common
control with the Company, (v) any recapitalization of the Company
that would have the effect of increasing the voting power of a
Related Person, (vi) the issuance, sale, exchange or other
disposition of any securities of the Company, or of any entity
controlled by or under common control with the Company, by the
Company or by any entity controlled by or under common control with
the Company, (vii) any liquidation, spin-off, split-off, split-up or
dissolution of the Company, and
43
(viii) any agreement, contract or other arrangement providing for
any of the transactions described in this definition of Business
Transaction.
(b) The term "Related Person" shall
mean and include (i) any individual, corporation,
association, trust, partnership or other person or
entity (a "Person") which, together with its
"Affiliates" (as hereinafter defined) and "Associates"
(as hereinafter defined), "Beneficially Owns" (as
defined in Rule 13d-3 of the General Rules and
Regulations under the Securities Exchange Act of 1934 as
in effect at June 13, 1984) in the aggregate 20 percent
or more of the outstanding Voting Stock of the Company,
and (ii) any Affiliate or Associate (other than the
Company or a subsidiary of the Company of which the
Company owns, directly or indirectly, more than
80 percent of the voting stock) of any such Person. Two
or more Persons acting in concert for the purpose of
acquiring, holding or disposing of Voting Stock of the
Company shall be deemed a "Person."
(c) Without limitation, any share of
Voting Stock of the Company that any Related Person has
the right to acquire at any time (notwithstanding that
Rule 13d-3 deems such shares to be beneficially owned
only if such right may be exercised within 60 days)
pursuant to any agreement, contract, arrangement or
understanding, or upon exercise of conversion rights,
warrants or
44
options, or otherwise, shall be deemed to be Beneficially Owned by
such Related Person and to be outstanding for purposes of subsection
(b) above.
(d) For the purposes of subsection (b)
of Section 1 of Article VII, the term "other
consideration to be received" shall include, without
limitation, Common Stock or other capital stock of the
Company retained by its existing shareholders, other
than any Related Person or other Person who is a party
to such Business Transaction, in the event of a Business
Transaction in which the Company is the survivor.
(e) The term "Voting Stock" shall mean
all of the outstanding shares of capital stock of the
Company entitled to vote generally in the election of
directors, considered as one class, and each reference
to a proportion of shares of Voting Stock shall refer to
such proportion of the votes entitled to be cast by such
shares.
(f) The term "Continuing Director"
shall mean a director of the Company who became a
director on the effective date of the merger of
PacifiCorp, a Maine corporation, and Utah Power & Light
Company, a Utah corporation, into the Company, provided
that any person becoming a director subsequent to such
date whose election, or nomination for election, by the
Company's
45
shareholders was approved by a vote of at least a majority of the
Continuing Directors shall be considered a Continuing Director.
(g) A Related Person shall be deemed to
have acquired a share of the Voting Stock of the Company
at the time when such Related Person became the
Beneficial Owner thereof. With respect to the shares
owned by Affiliates, Associates or other Persons whose
ownership is attributed to a Related Person under the
foregoing definition of Related Person, if the price
paid by such Related Person for such shares is not
determinable by a majority of the Continuing Directors,
the price so paid shall be deemed to be the higher of
(i) the price paid upon the acquisition thereof by the
Affiliate, Associate or other Person or (ii) the market
price of the shares in question at the time when such
Related Person became the Beneficial Owner thereof.
(h) The terms "Highest Purchase Price"
and "Highest Equivalent Price" as used in this Article
VII shall mean the following: If there is only one
class of capital stock of the Company issued and
outstanding, the Highest Purchase Price shall mean the
highest price that can be determined to have been paid
at any time by the Related Person involved in the
Business Transaction for any share or shares of that
class of capital stock. If there is more than one class
of capital stock of the Company issued and outstanding,
the Highest Equivalent Price shall mean,
46
with respect to each class and series of capital stock of the
Company, the amount determined by a majority of the Continuing
Directors, on whatever basis they believe is appropriate, to be the
highest per share price equivalent to the highest price that can be
determined to have been paid at any time by the Related Person for
any share or shares of any class or series of capital stock of the
Company. The Highest Purchase Price and the Highest Equivalent
Price shall include any brokerage commissions, transfer taxes and
soliciting dealers' fees paid by a Related Person with respect to
the shares of capital stock of the Company acquired by such Related
Person. In the case of any Business Transaction with a Related
Person, the Continuing Directors shall determine the Highest
Purchase Price or the Highest Equivalent Price for each class and
series of the capital stock of the Company. The Highest Purchase
Price and Highest Equivalent Price shall be appropriately adjusted
to reflect the occurrence of any reclassification, recapitalization,
stock split, reverse stock split or other readjustment in the number
of outstanding shares of capital stock of the Company, or the
declaration of a stock dividend thereon, between the last date upon
which the Related Party paid the Highest Purchase Price or Highest
Equivalent Price and the effective date of the merger or
consolidation or the date of distribution to shareholders of the
47
Company of the proceeds from the sale of all or substantially all of
the assets of the Company.
(i) The term "Substantial Part" shall
mean 10 percent or more of the fair market value of the
total assets of the Person in question, as reflected on
the most recent balance sheet of such Person existing at
the time the shareholders of the Company would be
required to approve or authorize the Business
Transaction involving the assets constituting any such
Substantial Part.
(j) The term "Affiliate," used to
indicate a relationship with a specified Person, shall
mean a Person that directly, or indirectly through one
or more intermediaries, controls, or is controlled by,
or is under common control with, the Person specified.
(k) The term "Associate," used to
indicate a relationship with a specified Person, shall
mean (i) any entity of which such specified Person is an
officer or partner or is, directly or indirectly, the
beneficial owner of 10 percent or more of any class of
equity securities, (ii) any trust or other estate in
which such specified Person has a substantial beneficial
interest or as to which such specified Person serves as
trustee or in a similar fiduciary capacity, (iii) any
relative or spouse of such specified Person, or any
relative of such spouse, who has the same home as
48
such specified Person or who is a director or officer of the Company
or any of its subsidiaries, and (iv) any Person who is a director or
officer of such specified Person or any of its parents or
subsidiaries (other than the Company or an entity controlled by or
under common control with the Company).
(l) The term "Subsidiary," when used to
indicate a relationship with a specified Person, shall
mean an Affiliate controlled by such Person directly, or
indirectly through one or more intermediaries.
(3) For the purposes of this Article VII, a majority of the
Continuing Directors shall have the power to make a good faith determination, on
the basis of information known to them, of: (a) the number of shares of Voting
Stock that any Person Beneficially Owns, (b) whether a Person is an Affiliate or
Associate of another, (c) whether a Person has an agreement, contract,
arrangement or understanding with another as to the matters referred to in
subsection (2)(a)(viii) or (2)(c) hereof, (d) whether the assets subject to any
Business Transaction constitute a Substantial Part, (e) whether any Business
Transaction is one in which a Related Person has an interest (except
proportionately as a shareholder of the Company), and (f) such other matters
with respect to which a determination is required under this Article VII.
(4) The provisions set forth in this Article VII may not be amended,
altered, changed or repealed in any respect unless such action is approved by
the affirmative vote of the holders of not less than 80 percent of the
outstanding shares of Voting Stock of the Company.
49
ARTICLE VIII
The Company shall indemnify to the fullest extent not prohibited by
law any person who is made, or threatened to be made, a party to an action, suit
or proceeding, whether civil, criminal, administrative, investigative, or
otherwise (including an action, suit or proceeding by or in the right of the
Company) by reason of the fact that the person is or was a director, officer,
employee or agent of the Company or a fiduciary within the meaning of the
Employee Retirement Income Security Act of 1974 with respect to any employee
benefit plan of the Company, or serves or served at the request of the Company
as a director, officer, employee or agent, or as a fiduciary of an employee
benefit plan, of another corporation, partnership, joint venture, trust or other
enterprise. The Company shall pay for or reimburse the reasonable expenses
incurred by any such person in any such proceeding in advance of the final
disposition of the proceeding to the fullest extent not prohibited by law. This
Article shall not be deemed exclusive of any other provisions for
indemnification or advancement of expenses of directors, officers, employees,
agents and fiduciaries that may be included in any statute, bylaw, agreement,
general or specific action of the Board of Directors, vote of shareholders or
otherwise.
ARTICLE IX
No director of the Company shall be personally liable to the Company
or its shareholders for monetary damages for conduct as a director; provided
that this Article IX shall not eliminate the liability of a director for any act
or omission for which such elimination of liability is not permitted under the
Oregon Business Corporation Act. No amendment to the Oregon Business
Corporation Act that further limits the acts or omissions for which elimination
50
of liability is permitted shall affect the liability of a director for any act
or omission which occurs prior to the effective date of such amendment.
51