Exhibit 3(a)
06/13/88
RESTATED ARTICLES OF INCORPORATION
OF
THE MONTANA POWER COMPANY
Pursuant to the provisions of Section 58 of the Montana
Business Corporation Act, the undersigned Corporation adopts the
following Restated Articles of Incorporation:
ARTICLE I. The name of the Corporation is The Montana Power
Company.
ARTICLE II. The objects and purposes for which The Montana
Power Company is formed are as follows:
To manufacture, produce, generate, store, acquire, purchase,
sell, control, use, dispose of, transmit, distribute and supply
electricity and electrical energy or any other power or force in
any form and for any purpose whatsoever;
To purchase, lease or otherwise acquire, hold, use, operate,
sell, lease, or otherwise dispose of machinery, generators,
motors, plants, apparatus, devices and supplies of every kind
pertaining to or otherwise connected with the production, use,
transmission, distribution, regulation, control or application of
electricity or electrical energy;
To transform power generated by hydraulic or other plants
into electrical or other energy for any and all purposes;
To purchase, mine, produce, process, sell, distribute, use,
lease, or otherwise acquire, use, or dispose of coal, coal mines,
coal properties, machinery, appliances, and equipment of every
kind and nature whatsoever used or useful in connection with the
mining, production, transportation, use, sale or disposition of
coal, coal mines or coal properties;
To purchase, lease or otherwise acquire, hold, use, operate,
sell, lease or otherwise dispose of all water rights, water
powers and water privileges;
To construct, purchase or otherwise acquire, hold, use,
operate, sell, lease or otherwise dispose of hydraulic, electric
and other works, plants, buildings, machinery, equipment, pipe
lines, distributing systems, transmission lines, dams, flumes,
ditches, canals, apparatus, devices or processes for use in
connection with such works;
To acquire, buy, hold, own, sell, lease, exchange, dispose
of, transmit, distribute, deal in, use, manufacture, produce,
furnish and supply bus service, natural or artificial gas, light,
heat, ice, refrigeration, water and steam in any form and for any
purposes whatsoever, and any power or force or energy in any form
and for any purposes whatsoever;
To construct, purchase, lease or otherwise acquire, hold,
use, operate, sell, lease or otherwise dispose of natural gas,
manufactured gas, gas works, gas plants, gas transmission
systems, distributing systems, gas reserves, gas rights, gas
storage fields and facilities and all properties of any kind
whatsoever used or useful in the gas business, together with
licenses, permits, authorizations or consents of every kind and
nature whatsoever which may be used or useful in connection with
any or all of the foregoing;
To purchase or otherwise acquire, hold, use, operate, sell,
lease or otherwise dispose of machinery, engines, mechanical
devices and articles of every character and description;
To acquire, build, construct, equip, own and operate street
railways and other railway properties of all kinds and
descriptions and with any kind of motive power, and to sell and
lease the same, but the powers in this paragraph set forth shall
be exercised only in connection with and as part of the other
objects and purposes referred to in this Article;
To purchase or otherwise acquire, hold, use, operate, sell,
lease, or otherwise dispose of such real and personal estate,
property rights, rights-of-way, easements, privileges, grants,
consents and franchises, individually or in association with
others, as may be necessary for or appropriate to or useful in
connection with the business and purposes of the company;
To apply for, purchase or otherwise acquire, and to hold,
use, own, operate and to sell, assign or otherwise dispose of,
and to grant or receive licenses in respect of or otherwise to
turn to account any and all inventions, improvements, patents,
patent rights, processes, trademarks and trade names, secured by
or issued under the laws of the United States of America or of
any other government or country;
To acquire by purchase or otherwise, and to hold, invest in,
sell, or otherwise dispose of the shares, bonds, debentures and
other evidences of indebtedness of any persons, firms,
associations and corporations, including the Corporation created
by these Articles; and when owner of any such shares, bonds,
debentures, securities or other obligations, to exercise all the
rights, powers and privileges of ownership, including the right
to vote thereon for any and all purposes; to aid in any manner
any corporation whose shares, bonds, debentures or other
obligations are owned or held by it, or in the shares, bonds,
debentures, securities or other obligations of which it is in any
way interested; and to guarantee the shares, bonds, debentures,
securities or other act or thing for the preservation,
protection, improvement or enhancement of the value of any such
shares, bonds, debentures, securities or obligations;
To construct, operate and maintain facilities for the
service of water to the public;
Without limitation to hold, purchase, mortgage and convey
real and personal property of every kind and description in any
state or territory of the United States or elsewhere;
In general, to do all such things as are incidental or
conducive to the accomplishment of the foregoing purposes, and to
engage in any and all lawful business whatever necessary or
convenient therefor, with all rights, privileges and powers now
or hereafter granted by the State of Montana to corporations.
ARTICLE III. Unless and until changed in the manner
provided by law, the address of the registered office of the
Corporation in the State of Montana is 40 East Broadway, Butte,
and the name of its registered agent at such address is
T. 0. McElwain.
ARTICLE IV. The period of duration of this Corporation
shall be perpetual.
ARTICLE V. The number of Directors of this Corporation
shall be fixed by the Bylaws, but shall be not less than
three (3) nor more than eighteen (18). In the absence of a Bylaw
fixing the number of directors, the number of Directors shall be
eleven (11).
ARTICLE VI. No Director of the Corporation shall be
personally liable to the Corporation or its shareholders for
monetary damages for breach of fiduciary duty as a Director;
provided, however, that this Article VI shall not eliminate or
limit the liability of a Director to the extent provided by
applicable law (a) for a breach of the Director's duty of loyalty
to the Corporation or its shareholders, (b) for acts or omissions
that constitute willful misconduct, recklessness, or a knowing
violation of law, (c) under 35-1-409 of the Montana Code
Annotated, (d) for a transaction from which the Director derives
an improper personal benefit, or (e) for any act or omission
occurring prior to the effective date of this Article VI. No
amendment to or repeal of this Article VI 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 or repeal.
ARTICLE VII. The aggregate number of shares which the
Corporation has authority to issue is 65,000,000 shares without
nominal or par value, consisting of 5,000,000 Preferred shares
and 60,000,000 Common shares.
At the date hereof, the aggregate number of shares, issued
and unissued, itemized by class and series, if any, within each
class is as follows:
Issued Unissued Total
Common 23,750,936 36,249,064 60,000,000
Preferred:
$6.00 Series 159,589
$4.20 Series 60,000
$2.15 Series 1,200,000
Undesignated 3,580,411 5,000,000
(a) The Preferred shares shall be issued from time to time
in one or more series. The shares of any such series shall bear
such distinctive serial designation as shall be stated and
expressed in the resolution or resolutions providing for the
issue of such shares from time to time adopted by the Board of
Directors; and in such resolution or resolutions providing for
the issue of shares of each particular series, the Board of
Directors is expressly empowered to fix:
1. The dividend rate for the particular series, and
the date or dates from which dividends on shares of such
series shall be cumulative;
2. The terms on which the shares of the particular
series may be redeemed;
3. The amount which shall be paid to the holders of
shares of the particular series in the case of dissolution
or any distribution of assets; and
4. The terms or amount of any sinking fund provided
for the purchase or redemption of the shares of the
particular series.
All of the Preferred shares of any one series shall be
identical in all respects, except as to the dates from which
dividends thereon shall be cumulative; and all of the Preferred
shares shall be of equal rank, regardless of series, and shall be
identical in all respects except as herein otherwise provided.
(b) The holders of Preferred shares at the time outstanding
shall be entitled to receive dividends when and as declared by
the Board of Directors, out of the surplus or net profits of the
Corporation, payable in the case of each series at the annual
dividend rate for that particular series theretofore fixed by the
Board of Directors as hereinbefore provided. Such dividends on
Preferred shares shall be cumulative from the date or dates
theretofore fixed for the purpose by the Board of Directors, as
hereinbefore provided, so that if dividends on all outstanding
shares of each particular series of the Preferred shares, at the
annual dividend rate fixed by the Board of Directors, as
hereinbefore provided, shall not have been paid or declared and
set apart for payment for all past dividend periods and for the
current dividend periods, the deficiency shall be fully paid or
dividends equal thereto declared and set apart for payment at
said rate, but without interest, before any dividends on the
Common shares shall be paid or declared and set apart for
payment. No dividends shall be paid or declared and set apart
for payment on any series of Preferred shares for any particular
dividend period unless at the same time all unpaid dividends, if
any, on all the outstanding Preferred shares for all dividend
periods terminating prior to or concurrently with the termination
of such particular dividend period shall be paid or declared and
set apart for payment thereon. Dividends may be paid upon the
Common shares only when dividends at the respective annual
dividend rates fixed by the Board of Directors, as hereinbefore
provided, upon all the outstanding Preferred shares shall have
been paid or declared and set apart for payment for all past
dividend periods and for the then current dividend periods, but
whenever there shall have been paid or declared and set apart for
payment all such dividend upon the Preferred shares, as
aforesaid, then dividends upon the Common shares may be declared
payable then or thereafter out of any surplus or net profits then
remaining. The holders of shares of each series of the Preferred
shares shall not be entitled to receive any dividends thereon
other than the aforesaid dividends at the annual dividend rate
for the particular series fixed by the Board of Directors, as
hereinbefore provided.
Dividends may also be declared and paid in cash out of
depletion reserves in the manner and to the extent provided by
law.
(c) In the event of any liquidation, dissolution or winding
up of the affairs of the Corporation or any distribution of
capital, whether voluntary or involuntary, the holders of
Preferred shares at the time outstanding shall be entitled to be
paid the amount fixed by the Board of Directors, as hereinbefore
provided, before any distribution or payment shall be made to the
holders of Common shares. The holders of the Preferred shares
shall not be entitled to receive any distributive amounts upon
the liquidation, dissolution or winding up of the affairs of the
Corporation or upon any distribution of capital other than the
distributive amounts at the rates for the respective series fixed
by the Board of Directors, as hereinbefore provided, but, after
such payment to the holders of the Preferred shares, the
remaining assets and funds of the Corporation (subject to the
rights of any class of shares hereafter authorized) shall be
divided and distributed among the holders of the Common shares
alone according to their respective shares.
(d) A consolidation, merger or amalgamation of the
Corporation with or into any other corporation or corporations
shall not be deemed a distribution of assets of the Corporation
within the meaning of any of the provisions hereof.
(e) Except as hereinafter otherwise provided, each holder
of record of Preferred or Common shares shall be entitled to one
vote for each share of stock held by him, except that holders of
Preferred shares shall not be entitled to notice of or to vote at
any annual or special meeting of shareholders called for the
purpose of redeeming the whole or any part of the Preferred
shares at the time outstanding, and except that at all elections
for Directors, each holder of Preferred or Common shares shall be
entitled to as many votes as shall equal the number of his
Preferred or Common shares multiplied by the number of Directors
to be elected, and may cast all of such votes in person or by
proxy for a single Director, or may distribute them among the
number to be voted for, or any two or more of them as he may see
fit.
(f) No holder of Preferred shares 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 any class whatsoever,
or of securities convertible into stock of any class whatsoever,
whether now or hereafter authorized or whether issued for cash,
for a consideration other than cash or by way or dividend.
(g) Upon any issue for money or other consideration of any
shares of the Corporation that may be authorized from time to
time, no holder of shares, irrespective of the kind of such
shares, shall have any preemptive or other right to subscribe
for, purchase or receive any proportionate or other share of the
shares so issued, but the Board of Directors may dispose of all
or any portion of such shares as and when it may determine free
of any such rights, whether by offering the same to shareholders
or by sale of other disposition, as said Board may deem
advisable.
(h) The Corporation may redeem the whole or any part of the
Preferred shares at the time outstanding, or the whole or any
part of any series thereof, at any time or from time to time,
upon the terms fixed by the Board of Directors as hereinbefore
provided for the redemption of the Preferred shares to be
redeemed; provided, however, that no Preferred shares of the
$6 Series, the $4.20 Series or the $2.15 Series shall be redeemed
without either the written consent, or the affirmative vote at
any annual meeting or at any special meeting called for that
purpose, of the holders of record of a majority of the Common
shares issued and outstanding. If less than all of the shares of
any particular series of the Preferred shares are to be redeemed,
the shares of such series to be redeemed shall be selected in
such manner as the Board of Directors or the Executive Committee
shall determine. The Board of Directors by the vote or consent
of two-thirds (2/3) of all of the members thereof shall have the
power to select for redemption any particular share or shares of
the Preferred shares to be redeemed, designating the share or
shares of such Preferred shares so selected by the number or
numbers appearing on the then outstanding certificate or
certificates representing the shares so selected. Notice of
intention of the Corporation to redeem Preferred shares and of
the date and place of redemption shall be mailed not less than
thirty (30) days (or in case the Board of Directors shall have
fixed a longer period as hereinbefore provided, then not less
than such longer period) before the date of redemption to each
holder of record of the shares to be redeemed, at his last known
post office address as shown by the records of the Corporation.
The holders of any Preferred shares so called for redemption
shall, on the redemption date specified in such notice, cease to
be shareholders of the Corporation with respect to such shares
and all rights with respect to such Preferred shares so called
for redemption shall, on such redemption date, cease and
terminate except only the right of the holders thereof to receive
the redemption price therefor without interest.
At any time after such notice of redemption of any Preferred
shares has been mailed or otherwise given, the Corporation may
deposit, or may cause its nominee to deposit, the aggregate
redemption price (or the portion thereof not already paid in the
redemption of shares so to be redeemed) with any bank or trust
company in the State of Montana having a capital and undivided
surplus of not less than $500,000 named in a notice mailed to
holders of the shares called for redemption and represented by
certificates not theretofore surrendered, payable in the proper
amounts to the respective orders of the record holders of such
shares to be redeemed on endorsement, if required, and surrender
of their certificates for said shares, and from and after the
making of such deposit said holders shall have no interest in or
claim against the Corporation or its nominee, with respect to
said shares, but shall be entitled only to receive said moneys
from said bank or trust company, without interest, on
endorsement, if required, and surrender of their certificates as
aforesaid. The Corporation shall be entitled to receive from any
such bank or trust company the interest, if any, allowed by said
bank or trust company on any moneys deposited as in this
paragraph provided, and the holders of any shares so redeemed
shall have no claim to any such interest. Any moneys so
deposited and remaining unclaimed at the end of six years from
the date fixed for redemption shall, if thereafter requested by
resolution of the Board of Directors or of the Executive
Committee, be repaid to the Corporation, and in the event of such
repayment to the Corporation, such holders of record of the
shares so redeemed as shall not have made claim against such
moneys prior to such repayment to the Corporation, shall be
deemed to be unsecured creditors of the Corporation for an amount
equivalent to the amount deposited as above-stated for the
redemption of such shares and so repaid to the Corporation, but
shall in no event be entitled to any interest. If such deposit
shall be made by the nominee of the Corporation, as aforesaid,
such nominee shall upon such deposit become the owner of the
shares with respect to which such deposit is made, and
certificates for shares may be issued to such nominee in evidence
of such ownership.
The Corporation may require any shares so called for
redemption to be delivered, duly assigned to a nominee of the
Corporation upon payment by such nominee in the manner
hereinabove provided of all amounts payable on such redemption
with respect to said shares. Any shares delivered to or acquired
by the nominee of the Corporation under the provisions hereof
shall be converted into or exchanged for such other securities of
the Corporation and on such terms as on or before such delivery
or acquisition may have been provided by the Corporation in
accordance with the next three paragraphs hereof.
The Corporation from time to time may resell any of its own
shares purchased or otherwise acquired by it as herein provided
for at such price as may be fixed by its Board of Directors or
Executive Committee.
The Corporation, in order to acquire funds with which to
redeem any Preferred shares of any class, may issue and sell
shares of any class then authorized but unissued, bonds, notes,
evidences of indebtedness or other securities.
The Board of Directors of the Corporation may at any time
authorize the conversion or exchange of the whole or any
particular share or shares of the outstanding Preferred shares of
any class, with the consent of the holder or holders thereof,
into or for shares of any other class at the time of such consent
authorized but unissued and may fix the terms and conditions upon
which such conversion or exchange may be made; provided that
without the consent of the holders of record of two-thirds (2/3)
of the Common shares outstanding given at a meeting of the
holders of the Common shares called and held as provided by the
Bylaws or given in writing without a meeting, the Board of
Directors shall not authorize the conversion or exchange of any
Preferred shares of any class into or for Common shares or
authorize the conversion or exchange of any Preferred shares of
any class into or for Preferred shares of any other class, if by
such conversion or exchange the amount which the holders of the
shares so converted or exchanged would be entitled to receive
either as dividends or shares in distribution of assets in
preference to the Common shares would be increased.
The Board of Directors shall have full power and authority,
subject to the limitations and provisions herein contained, to
prescribe the manner in which and the terms and conditions upon
which Preferred shares shall be redeemed from time to time.
(i) Except as herein otherwise provided, upon the vote of a
majority of all of the Directors of the Corporation and of the
holders of record of a majority of the total number of shares
then issued and outstanding and entitled to vote on such question
as herein stipulated, irrespective of class (or if the vote of a
larger number or different proportion of shares is required by
the laws of the State of Montana, notwithstanding the above
agreement of the shareholders of the Corporation to the contrary,
then upon the vote of the larger number or different proportion
of shares so required), the Corporation may from time to time
create or authorize one or more other classes of shares with such
preferences, designations, rights, privileges, powers,
restrictions, limitations and qualifications as may be determined
by said vote, which may be the same as or different from the
preferences, designations, rights, privileges, powers,
restrictions, limitations and qualifications of the classes of
shares of the Corporation then authorized. Any vote authorizing
the creation of a new class of shares may provide that all moneys
payable by the Corporation with respect to any class of shares
thereby authorized shall be paid in the money of any foreign
country named therein or designated by the Board of Directors
pursuant to authority therein granted. Any such vote may
authorize any shares of any class then authorized but unissued to
be issued as shares of such new class or classes.
So long as any of the Preferred shares are outstanding, the
Corporation 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 the Preferred shares then
outstanding.
1. Create or authorize any new shares ranking prior
to the Preferred shares as to dividends, in liquidation,
dissolution, winding up or distribution, or create or
authorize any security convertible into such shares; or
2. Amend, alter, change or repeal any of the express
terms of the Preferred shares then outstanding in a manner
substantially prejudicial to the holders thereof.
(j) All shares of the Corporation without nominal or par
value, whether authorized by these Articles or by subsequent
increase of capital or pursuant to any amendment hereof, may be
issued from time to time for such consideration as may be fixed
from time to time by the Board of Directors, and authority to the
Board of Directors so to fix such consideration is hereby granted
by the shareholders; and any and all shares so issued, the full
consideration for which shall have been paid or delivered, shall
be conclusively deemed to be fully paid and nonassessable and the
holders thereof shall not be liable to the Corporation or its
creditors in respect thereof.
At the time of the issue of any shares without nominal or
par value, the Board of Directors may determine conclusively in
the exercise of their reasonable discretion what capital
valuation shall be placed upon any property (other than money)
acquired by the Corporation in payment upon original issue of any
of its shares without nominal or par value.
(k) The Corporation may issue securities, notes, bonds,
debentures or other obligations convertible into shares of any
class, in the amounts and on such terms as may be provided by
resolution of the Board of Directors; provided, however, that the
shares issued upon conversion thereof shall not have prior or
superior rights and preferences to the shares of any class
outstanding at the time the convertible securities, notes, bonds,
debentures or other obligations are issued, and the issuance of
such shares shall not substantially prejudice the holders of
shares of any class outstanding at the time such convertible
securities, notes, bonds, debentures or other obligations are
issued.
1. The Corporation may issue notes, bonds, debentures
and other obligations of the Corporation in such amounts and
upon such terms and conditions as may be authorized by
resolution of the Board of Directors.
ARTICLE VIII. Unless the laws of the State of Montana
otherwise provide, any action which at any meeting of
shareholders requires the vote, assent or consent of two-
thirds (2/3) in interest of all the shareholders or of two-
thirds (2/3) in interest of each class of shareholders having
voting powers, or which requires such assent or consent in
writing to be filed, may be taken upon the assent of and the
assent given and filed of two-thirds (2/3) in interest of the
shareholders present and voting at such meeting in person or by
proxy; provided that where assent by classes is required, such
assent shall be given by two-thirds (2/3) in interest of each
class so present and voting.
ARTICLE IX. The Board of Directors may appoint from the
Directors an Executive Committee, of which a majority shall
constitute a quorum, and to such extent as shall be provided in
the Bylaws, such Executive Committee shall have and may exercise
all of the delegable powers of the Board of Directors, including
power to cause the seal of the Corporation to be affixed to all
papers that may require it.
The power of appointment of committees (other than the
Executive Committee) and of Officers (other than the President,
the Vice Presidents, the Secretary and the Treasurer) and other
persons employed by the Company may to the extent permitted by
the Bylaws be delegated by the Board of Directors to the
President or to the Executive Committee.
The Board of Directors shall have the power from time to
time to fix and to determine and to vary the amount of the
working capital of the Corporation, and to direct and determine
the use and disposition of any surplus or net profits over and
above the capital paid in.
The Board of Directors from time to time shall determine
whether and to what extent, and at what times and places and
under what conditions and regulations, the accounts and books of
the Corporation, or any of them, shall be open to the inspection
of the shareholders, and no shareholder shall have any right to
inspect any account or book or document of the Corporation,
except as conferred by Statute or authorized by the Board of
Directors, or by a resolution of the shareholders.
ARTICLE X. The shareholders may alter or amend the Bylaws
of the Corporation by a majority vote (or if required by the laws
of the State of Montana, a larger number or different proportion
of the shares outstanding) of all the outstanding shares of the
Corporation entitled to vote given at any meeting duly held as
provided in the Bylaws, the notice of which includes notice of
the proposed alterations or amendment. The Board of Directors
may also alter or amend the Bylaws at any time by affirmative
vote of a majority (or if required by the laws of the State of
Montana, a larger number or different proportion of the members
of the Board of Directors) of the Board of Directors given at a
duly convened meeting of the Board of Directors, the notice of
which includes notice of the proposed alterations or amendments,
subject to the power of shareholders to change or repeal such
Bylaws; provided that the Board of Directors shall not make or
alter any Bylaw fixing their qualifications or changing the
number of shares required to constitute a quorum for a
shareholders' meeting.
ARTICLE XI. A. In addition to any affirmative vote
required by law or under any other provision of these Restated
Articles of Incorporation, and except as otherwise expressly
provided in paragraph B., a Business Combination (as hereinafter
defined) shall require the affirmative vote of the holders of at
least 70 percent of the outstanding shares of Capital Stock (as
hereinafter defined) of the Corporation entitled to vote
generally in the election of Directors ("Voting Shares"). Such
affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that some lesser percentage may be
specified, by law or in any agreement with any national
securities exchange or otherwise.
B. The provisions of paragraph A. of this Article shall
not be applicable to any particular Business Combination, and
such Business Combination shall require only such affirmative
vote as is required by law and any other provision of these
Restated Articles of Incorporation, if all of the conditions
specified in subparagraphs 1. or 2. shall have been satisfied:
1. The Business Combination shall have been approved
by two-thirds (whether such approval is made prior to or
subsequent to the acquisition of beneficial ownership of the
Voting Shares that caused the 10% Shareholder [as
hereinafter defined] to become a 10% Shareholder) of the
Continuing Directors (as hereinafter defined); or
2. All of the following conditions shall have been met:
(a) The aggregate amount of the cash and the Fair
Market Value (as hereinafter defined) as of the date of the
consummation of the Business Combination of consideration
other than cash to be received per share by holders of
Common shares in such Business Combination shall be at least
equal to the highest amount determined under clauses (i) and
(ii) 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 10% Shareholder for any Common shares in connection
with the acquisition by the 10% Shareholder of
beneficial ownership of Common shares (A) within the
two-year period immediately prior to the first public
announcement of the proposed Business Combination (the
"Announcement Date") or (B) in the transaction in which
it became a 10% Shareholder, whichever is higher; and
(ii) The Fair Market Value per Common share on the
Announcement Date or on the date on which the
10% Shareholder became a 10% Shareholder (such latter
date referred to in this Article as the "Determination
Date"), whichever is higher.
All per share prices and Fair Market Values
shall be adjusted to reflect any intervening stock
splits, stock dividends and reverse stock splits.
(b) The aggregate amount of the 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 shares of any class or
series of outstanding Capital Stock, other than Common
shares, shall be at least equal to the highest amount
determined under clauses (i), (ii) and (iii) 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 10% Shareholder for any share of such class or
series of Capital Stock in connection with the
acquisition by the 10% Shareholder of beneficial
ownership of shares of such class or series of Capital
Stock (A) within the two-year period immediately prior
to the Announcement Date or (B) in the transaction in
which it became a 10% Shareholder, whichever is higher.
(ii) The Fair Market Value per share of such class
or series of Capital Stock on the Announcement Date or
on the Determination Date, whichever is higher; and
(iii) (if applicable) The highest preferential
amount per share to which the holders of shares of such
class or series of Capital Stock would be entitled in
the event of any voluntary or involuntary liquidation,
dissolution or winding up of the corporation,
regardless of whether the Business Combination to be
consummated constitutes such an event.
All per share prices and Fair Market Values
shall be adjusted for intervening stock splits, stock
dividends and reverse stock splits.
The provisions of this subparagraph (b) shall
be required to be met with respect to every class or
series of outstanding Capital Stock, whether or not the
10% Shareholder has previously acquired beneficial
ownership of any shares of a particular class or series
of Capital Stock.
(c) The consideration to be received by holders of a
particular class or series of outstanding Capital Stock
(including Common shares) shall be cash or in the same form
as previously has been paid by or on behalf of the
10% Shareholder in connection with its direct or indirect
acquisition of beneficial ownership of shares of such class
or series of Capital Stock. If the consideration so paid
for shares of any class or series of Capital Stock varied as
to form, the form of consideration for such class or series
of Capital Stock shall be either cash or the form used to
acquire beneficial ownership of the largest number of shares
of such class or series of Capital Stock previously acquired
by the 10% Shareholder.
(d) After such 10% Shareholder has become a
10% Shareholder and prior to the consummation of such
Business Combination:
(i) except as approved by two-thirds of the
Continuing Directors, there shall have been no failure
to declare and pay at the regular date therefor any
full quarterly dividends (whether or not cumulative) in
accordance with the terms of the outstanding Preferred
shares;
(ii) there shall have been (A) no reduction in the
annual rate of dividend paid on the Common shares
(except as necessary to reflect any stock split, stock
dividend or subdivision of the Common Shares), except
as shall have been approved by two-thirds of the
Continuing Directors, and (B) an increase in such
annual rate of dividends as necessary to reflect any
reclassification (including any reverse stock split),
recapitalization, reorganization or any similar
transaction which has the effect of reducing the number
of outstanding Common shares, unless the failure so to
increase such annual rate shall have been approved by
two-thirds of the Continuing Directors; and
(iii) such 10% Shareholder shall have not become
the beneficial owner of any additional Voting Shares
except as part of the transaction which results in such
10% Shareholder becoming a 10% Shareholder and except
in a transaction that, after giving effect thereto,
would not result in any increase in the
10% Shareholder's percentage beneficial ownership of
any class or series of Capital Stock.
(e) After such 10% Shareholder has become a
10% Shareholder, such 10% Shareholder shall not have:
(i) received the benefit, directly or indirectly
(except proportionately as a shareholder), 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; or
(ii) made any major change in the Corporation's
business or equity capital structure without the
approval of two-thirds of the Continuing Directors.
(f) A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934 and the
rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations) shall
have been mailed to holders of outstanding Voting Shares of
the Corporation at least thirty (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 (or inadvisability) 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 lack thereof) of the terms of the
Business Combination from a financial point of view to the
holders of the outstanding Voting Shares other than the
10% Shareholder and its Affiliates or Associates (as
hereinafter defined).
C. For the purposes of this Article:
1. The term "Business Combination" shall mean:
(a) any merger, consolidation or share exchanges of the
Corporation or any Subsidiary (as hereinafter defined) with:
(i) any 10% Shareholder, or
(ii) any other company (whether or not such other
company is a 10% Shareholder) which is, or after such
merger or consolidation would be, an Affiliate or
Associate of a 10% Shareholder; or
(b) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition or security arrangement,
investment, loan, advance, guarantee, agreement to purchase,
agreement to pay, extension of credit, joint venture
participation or other arrangement (in one transaction or a
series of transactions) with or for the benefit of any
10% Shareholder or any Affiliate or Associate of any
10% Shareholder involving any assets, securities or
commitments of the Corporation or any Subsidiary having an
aggregate Fair Market Value and/or involving aggregate
commitments of five million dollars ($5,000,000) or more;
(c) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to any 10% Shareholder or any Affiliate or
Associate of any 10% Shareholder in exchange for cash,
securities or other property (or a combination thereof)
having an aggregate Fair Market Value of five million
dollars ($5,000,000) or more;
(d) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or
on behalf of any 10% Shareholder or any Affiliate or
Associate of any 10% Shareholder;
(e) any reclassification of any securities of the
Corporation (including any reverse stock split),
recapitalization or reorganization of the Corporation,
merger or consolidation of the Corporation with any
Subsidiary, or any other transaction (whether or not with or
otherwise involving a 10% Shareholder or any Affiliate or
Associate of any 10% Shareholder) that has the effect,
directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or
convertible securities of the Corporation or any Subsidiary
that is beneficially owned by any 10% Shareholder or any
Affiliate or Associate of any 10% Shareholder; or
(f) any other transaction or series of transactions
that is similar in purpose or effect to, or any agreement,
contract or other arrangement providing for any one or more
of the actions specified in the foregoing subparagraphs (a)
through (e).
2. A "person" shall mean any individual, firm, corporation
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 or understanding, directly or indirectly, for the
purpose of acquiring, holding, voting or disposing of Capital
Stock.
3. "10% Shareholder" shall mean, in respect of any
Business Combination, any person or Affiliate or Associate (other
than the Corporation or any Subsidiary and other than any profit
sharing, employee stock ownership or other employee benefit plan
of the Corporation or any Subsidiary or any trustee or fiduciary
of any such plan when acting in such capacity) who or which, as
of the record date for the determination of shareholders entitled
to notice of and to vote on such Business Combination, or
immediately prior to the consummation of any such transaction:
(a) is the beneficial owner, directly or indirectly,
of not less than ten percent of the Voting Shares; or
(b) is an Affiliate or Associate of the Corporation
and at any time within three (3) years prior thereto was the
beneficial owner, directly or indirectly, of not less than
ten percent of the then outstanding Voting Shares; or
(c) is an assignee or has otherwise succeeded to
control of any Voting Shares of the Corporation which were
at any time within three (3) years prior thereto
beneficially owned by any 10% Shareholder, if such
assignment or succession shall have occurred in the course
of a transaction or series of transactions not involving a
public offering within the meaning of the Securities Act of
1933.
4. A person shall be the "beneficial owner" of any Voting
Shares:
(a) which such person or any of its Affiliates and
Associates beneficially owns, directly or indirectly; or
(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 only after the passage of
time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion
rights, exchange rights, warrants, options, or
otherwise, or
(ii) the right to vote pursuant to any agreement,
arrangement or understanding; or
(c) which are beneficially owned, directly or
indirectly, by any other person with which such first
mentioned 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 Voting
Shares.
5. Voting Shares shall include shares deemed beneficially
owned through application of subparagraph 4 above but shall not
include any Voting Shares which may be issuable pursuant to any
agreement, arrangement or understanding or upon exercise of
conversion rights, warrants, options, or otherwise.
6. "Continuing Director" shall mean any member of the
Board of Directors who is not an Affiliate or Associate or
representative of the 10% Shareholder and who was a member of the
Board of Directors of the Corporation prior to the date as of
which any 10% Shareholder acquired in excess of five percent of
the then outstanding Voting Shares, or a person designated
(before his initial election as a Director) as a Continuing
Director by a majority of the then Continuing Directors.
7. In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash
to be received" shall mean Common shares and/or the shares of any
other class of outstanding Voting Shares of the Corporation
retained by the holders of such shares.
8. "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule l2b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in
effect on January 1, 1986.
9. "Subsidiary" means any company of which a majority of
any class of equity security is owned, directly or indirectly, by
the Corporation; provided, however, that for the purposes of the
definition of 10% Shareholder set forth in subparagraph 3 of this
paragraph C., the term "Subsidiary" shall mean only a company of
which a majority of each class of equity security is owned,
directly or indirectly, by the Corporation.
10. The term "Capital Stock" shall mean all capital stock
of this Corporation authorized to be issued from time to time
under these Articles of Incorporation as amended from time to
time.
11. The term "Fair Market Value" means:
(a) in the case of shares, the highest closing sale
price during the 30-day period immediately preceding the
date in question of such a share on the New York Stock
Exchange; and
(b) in the case of property other than cash or shares,
the fair market value of such property on the date in
question as determined by a majority of Continuing Directors
then on the Board.
D. A majority of the Continuing Directors shall have the
power and duty to determine for the purposes of this Article on
the basis of information known to them:
1. The number of Voting Shares beneficially owned by
any person,
2. Whether a person is an Affiliate or Associate of
another,
3. Whether a person has an agreement, arrangement or
understanding with another as to the matters referred to in
subparagraph 4 of paragraph C. of this Article,
4. Whether the assets which are the subject of any
Business Combination have an aggregate Fair Market Value of
five million dollars ($5,000,000) or more, and
5. Any other matters with respect to which a
determination is required under this Article. Any such
determinations made in good faith shall be binding and
conclusive on all parties.
E. Consideration for shares to be paid to any shareholder
pursuant to this Article shall be the minimum consideration
payable to the shareholder and shall not limit a shareholder's
right under any provision of law or otherwise to receive greater
consideration for any shares of the Corporation.
F. The fact that any Business Combination complies with
the provisions of subparagraph B.2. of this Article 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, or any member thereof, with respect to evaluations of
or actions and responses taken with respect to such Business
Combination.
G. Notwithstanding any other provisions of these Restated
Articles of Incorporation or the Bylaws of the Corporation any
amendment, alteration, change or repeal of this Article shall
require the affirmative vote of the holders of at least
70 percent of the then outstanding Voting Shares; provided that
this paragraph G. shall not apply to, and such 70 percent vote
shall not be required for, any amendment, alteration, change or
repeal recommended to the shareholders by two-thirds of the
Continuing Directors.
H. Nothing contained in this Article shall be construed to
relieve any 10% Shareholder from any fiduciary obligation imposed
by law.
ARTICLE XII. These Restated Articles of Incorporation
correctly set forth without change the corresponding provisions
of the Articles of Incorporation as heretofore amended and hereby
amended, and supersede the original articles of incorporation and
all amendments thereto.
Dated June 10, 1988
/s/ John Carl
-------------------------------
Vice President
/s/ Patricia L. du Toit
-------------------------------
Assistant Secretary
ARTICLES OF AMENDMENT AND CERTIFICATE
OF ADOPTION OF RESTATED ARTICLES OF INCORPORATION
OF
THE MONTANA POWER COMPANY
Pursuant to Sections 35-1-209 and 35-1-213, M.C.A., the
undersigned corporation hereby makes the following statement:
FIRST: The name of the corporation is THE MONTANA POWER
COMPANY.
SECOND: The annexed Restated Articles of Incorporation of
THE MONTANA POWER COMPANY were adopted by the shareholders on
May 10, 1988.
THIRD: The number of shares outstanding, and the number of
shares of each class entitled to vote thereon was:
Class No. of Shares
Common 23,750,936
Preferred 1,419,589
Total 24,170,525
FOURTH: (a) The number of shares voted for and against the
Restatement of the Articles of Incorporation was:
No. Voted Against
No. Voted for Restated Restated Articles
Class Articles of Incorporation of Incorporation
All Classes 19,901,320 755,210
No class of shares is entitled to vote as a class on the
Restatement of the Articles of Incorporation.
(b) The number of shares voted for and against the
Amendment to the Articles of Incorporation adding a new
Article VI, relating to the liability of Directors, and
renumbering the existing Article VI and those following was:
No. Voted for No. Voted Against
Class the Amendment the Amendment
All Classes 19,901,320 755,210
No class of shares is entitled to vote as a class on the
Amendment to the Articles of Incorporation.
FIFTH: Neither the Restated Articles of Incorporation nor
the Amendment to the Articles of Incorporation provide for an
exchange, reclassification or cancellation of issued shares.
DATED: June 10, 1988
THE MONTANA POWER COMPANY
By /s/ John Carl
---------------------------
Vice President
(SEAL)
By /s/ P. O. McElwain
---------------------------
Assistant Secretary
STATE OF MONTANA )
) ss.
County of Silver Bow )
I, the undersigned Notary Public, do hereby certify that on
this 10th day of June 1988, personally appeared before me John
Carl, who, being by me first duly sworn, declared that he is a
Vice President of THE MONTANA POWER COMPANY, that he signed the
foregoing document as Vice President of the Corporation, and that
the statements therein contained are true.
/s/ Jessica G. Eyde
------------------------------
Notary Public for the State of
(SEAL) Montana
Residing at Butte, Montana
My Commission expires 10-29-88.
ARTICLES OF AMENDMENT
to the
of
THE MONTANA POWER COMPANY
Pursuant to the provisions of Section 35-1-209, MCA, the
undersigned corporation adopts the following Articles of
Amendment to its Articles of Incorporation.
FIRST: The name of the corporation is THE MONTANA POWER
COMPANY.
SECOND: The following amendment to its Articles of
Incorporation was adopted by the shareholders of the corporation
on May 8, 1990, in the manner prescribed by the Montana Business
Corporation Act.
The first paragraph of Article VI of the Restated Articles
of Incorporation of the corporation is amended to read as
follows:
"The aggregate number of shares which the corporation
has authority to issue is 125,000,000 shares without nominal
or par value, consisting of 5,000,000 Preferred shares and
120,000,000 Common shares."
THIRD: The number of Common shares of the corporation
outstanding at the time of such adoption was 49,613,012 Common
shares having no par value; and the number of such shares
entitled to vote thereon was 49,456,153. The number of Preferred
shares of the corporation outstanding at the time of such
adoption was 1,419,589 Preferred shares having no par value; and
the number of such shares entitled to vote thereon was 1,419,589.
FOURTH: The vote to increase the number of authorized
Common shares was as follows:
For Against
Common 39,015,717 2,267,098
Preferred 1,074,899 54,306
Total 40,090,616 2,321,404
DATED: May 15, 1990
THE MONTANA POWER COMPANY
/s/ John Carl
--------------------------
Vice President
(SEAL)
/s/ P. O. McElwain
--------------------------
Assistant Secretary
STATE OF MONTANA )
)ss.
County of Silver Bow )
I, the undersigned Notary Public, do hereby certify that on
this 15th day of May 1990, personally appeared before me John
Carl, who, being by me first duly sworn, declared that he is a
Vice President of THE MONTANA POWER COMPANY, that he signed the
foregoing document as Vice President of the Corporation, and that
the statements therein contained are true.
/s/ Jessica G. Eyde
--------------------------------------
Notary Public for the State of Montana
(SEAL) Residing at Butte, Montana
My Commission expires 10-29-91.
ARTICLES OF AMENDMENT
to the
RESTATED ARTICLES OF INCORPORATION
of
THE MONTANA POWER COMPANY
Pursuant to the provisions of Section 35-1-619, Montana Code
Annotated, the undersigned corporation adopts the following
Articles of Amendment to its Restated Articles of Incorporation.
FIRST: The name of the corporation is THE MONTANA POWER
COMPANY.
SECOND: On August 24, 1993 and October 26, 1993, the Board
of Directors of the corporation established and designated a
Fourth Series of Preferred Stock, determining with respect to
such Series the dividend rate, periods and payment dates, the
redemption prices and the amount to be paid in the event of
liquidation, dissolution or winding up of the affairs of the
corporation or any distribution of its capital, and authorized
the amendment to the Restated Articles of Incorporation set forth
below under THIRD.
THIRD: The text of the amendment so authorized is as
follows, and will be inserted as a new, undesignated subparagraph
at the end of Section (a) of Article VII of the Restated Articles
of Incorporation:
Fourth Series
The Fourth Series of Preferred Stock of the Company
(the "Fourth Series"), consists of 500,000 shares designated
as "Preferred Stock, $6.875 Series," and has the relative
rights, preferences and limitations as set forth in these
Restated Articles of Incorporation, and as follows:
(A) The dividend rate for the Fourth Series shall
be $6.875 per share per annum; quarterly periods ending
January 31, April 30, July 31, and October 31 of each
year hereby are established as the regular dividend
periods for the shares of such Series and dividends for
such periods shall be payable, in arrears, on
February 1, May 1, August 1, and November 1 of each
year; provided, however, the first dividend shall be
payable, in arrears, on February 1, 1994, for the
period from the date of the original issue through
January 31, 1994; and dividends on shares of the Fourth
Series shall be cumulative from the date of original
issue;
(B) The shares of the Fourth Series shall not be
redeemable prior to November 1, 2003; the shares shall be
redeemable, at the option of the Company, in whole or in
part, at any time upon not less than thirty (30) days'
notice, on and after November 1, 2003, at the redemption
prices per share set forth below, plus, in each case,
accumulated but unpaid dividends to the date of redemption:
Redemption Period Price
November 1, 2003 to October 31, 2004 $103.438
November 1, 2004 to October 31, 2005 $103.094
November 1, 2005 to October 31, 2006 $102.750
November 1, 2006 to October 31, 2007 $102.406
November 1, 2007 to October 31, 2008 $102.063
November 1, 2008 to October 31, 2009 $101.719
November 1, 2009 to October 31, 2010 $101.375
November 1, 2010 to October 31, 2011 $101.031
November 1, 2011 to October 31, 2012 $100.688
November 1, 2012 to October 31, 2013 $100.344
November 1, 2013 and thereafter $100.000
(C) The amount which shall be paid to the holders of
shares of the Fourth Series in the event of any liquidation,
dissolution or winding up of the affairs of the Company or
any distribution of its capital, whether voluntary or
involuntary, before any distribution or payment shall be
made to the holders of Common Stock, shall be $100 per
share, plus accumulated but unpaid dividends.
FOURTH: Shareholder approval of these Articles of
Amendment is not required.
DATED: October 26, 1993.
THE MONTANA POWER COMPANY
/s/ P. K. Merrill
----------------------------
Vice President and Secretary
(SEAL)
/s/ R. M. Ralph
----------------------------
Assistant Secretary
STATE OF MONTANA )
) ss.
County of Silver Bow )
I, the undersigned, Notary Public, do hereby certify that on
this 26th day of October, 1993, personally appeared before me P.
K. Merrell, who, being by me first duy sworn, declared that she
is Vice President and Secretary of THE MONTANA POWER COMPANY,
that she signed the foregoing document as Vice President and
Secretary of the corporation, and that the statements therein
contained are true.
(SEAL)
/s/ Jessica G. Eyde
--------------------------------------
Notary Public for the State of Montana
Residing at Butte, Montana
My Commission expires 10/29/94.