Exhibit (3)-2
Commonwealth Edison Company
Form 10-K File 1-1839
COMMONWEALTH EDISON COMPANY
RESTATED ARTICLES OF INCORPORATION
(REFLECTING AMENDMENTS THRU FEBRUARY 28, 1995)
ARTICLE ONE: The name of the corporation (hereinafter referred to as
the "Company") is:
COMMONWEALTH EDISON COMPANY
ARTICLE TWO: The duration of the Company is perpetual.
ARTICLE THREE: The purposes for which the Company is organized are:
To manufacture, generate, produce, purchase or otherwise acquire, exchange,
distribute and sell electricity and gas for lighting, power, heating, fuel and
any and all other purposes; to purchase or otherwise acquire, distribute and
sell water for any and all purposes; to produce, distribute and sell steam or
hot water for heating or other purposes; to purchase, sell and otherwise dispose
of and deal in apparatus, appliances, commodities, goods, wares and merchandise
necessary or convenient for such purposes or any of them; to acquire, construct,
install, own, manage, maintain and operate plants, buildings, structures, works,
mains, pipes, wires, conduits, conductors, apparatus and any and all other
property necessary or convenient for or incidental to such purposes or any of
them; and to acquire, own, use, convey, and otherwise dispose of and deal in
real property or any interest therein.
ARTICLE FOUR: The Shares which the Company shall have authority to
issue shall consist of:
(a) 850,000 shares of Prior Preferred Stock of the par value of $100
per share (the "Prior Preferred Stock");
(b) 99,864 shares of $1.425 Convertible Preferred Stock without par
value (the "Convertible Preferred Stock");
(c) 23,423,205 shares of Preference Stock without par value (the
"Preference Stock"); and
(d) 250,000,000 shares of Common Stock of the par value of $12.50 per
share (the "Common Stock").
The term "subordinate stock," when hereinafter used with reference to
stock junior to the Prior Preferred Stock, means the Convertible Preferred
Stock, the Preferred Stock, the Common Stock and stock of any other class, which
may hereafter be authorized, ranking junior to the Prior Preferred Stock with
respect to the payment of dividends or the distribution of assets; when
hereinafter used with reference to stock junior to the Convertible Preferred
Stock, means the Preference Stock, the Common Stock and stock of any class,
which may hereafter be authorized, ranking junior to the Convertible Preferred
Stock with respect to the payment of dividends or the distribution of
assets; and, when hereinafter used with reference to stock junior to the
Preference Stock, means the Common Stock and stock of any other class, which may
hereafter be authorized, ranking junior to the Preference Stock with respect to
the payment of dividends or the distribution of assets.
The preferences, qualifications, limitations, restrictions, and the
special and relative rights in respect of the shares of each class are as
follows:
DIVISION I
Provisions Relating to Prior Preferred Stock
(a) Issue of Prior Preferred Stock in Series. Authority is hereby
expressly vested in the Board of Directors to divide, and to provide for the
issue from time to time of, the Prior Preferred Stock in series and to fix and
determine as to each such series:
(1) the designation of, and the number of shares to be issuable
in, such series; provided, however, that if the Board of Directors, at any
time after the initial issue of shares of any series issued with the
privilege of conversion into shares of the Common Stock, shall provide for
the issue of additional shares of such series, such additional shares shall
not be offered by the Company at a price per share less than that at which
the shares of such series initially issued shall have been offered;
(2) the dividend rate per annum for the shares of such series,
expressed either as a dollar amount per share or as a percentage of the par
value thereof;
(3) the price or prices at which, and the terms and conditions
on which, such shares may be redeemed;
(4) the amount payable upon each of such shares in the event of
voluntary dissolution, liquidation or winding up of the Company;
(5) the amount payable upon each of such shares in the event of
involuntary dissolution, liquidation or winding up of the Company;
(6) sinking fund provisions, if any, for the redemption or
purchase of such shares (the terms "sinking fund," as used herein,
including any analogous fund, however designated); and
(7) if such shares are to be issued with the privilege of
conversion into shares of the Common Stock, the
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terms and conditions on which such shares may be so converted.
In all other respects shares of the Prior Preferred Stock of all series shall be
identical.
So long as any shares of any series of the Prior Preferred Stock shall
be outstanding, the resolution of the Board of Directors establishing such
series shall not be amended so as to affect any of the preferences or other
rights of the holders of the shares of such series without the affirmative vote
or the written consent of the holders of at least two-thirds of the shares of
such series outstanding at the time or as of a record date fixed by the Board of
Directors, but such resolution may be so amended with such vote or consent.
(b) Dividends. Holders of the Prior Preferred Stock of each series
shall be entitled to receive cash dividends, out of funds legally available
therefor, when and as declared by the Board of Directors, at such rate per annum
as shall have been fixed by the Board of Directors for the shares of such
series. Dividends on the Prior Preferred Stock of all series shall be payable
quarterly on the first day of each of the months of February, May, August and
November in each year, each such quarterly payment to be in respect of the
quarterly period ending with the next preceding the date of such payment, except
in the case of the first dividend payable on shares of any series issued between
quarterly dividend payment dates, in which case such dividend shall be for the
period beginning with the date of issue of such shares or with the next
preceding quarterly dividend payment date for the Prior Preferred Stock, as
determined by the Board of Directors, and ending with the day next preceding
either, as determined by the Board of Directors, the first or the second
quarterly dividend payment date for the Prior Preferred Stock succeeding the
date of issue of such shares. Dividends on the Prior Preferred Stock of each
series shall be cumulative with respect to each share from the beginning date of
the period for which the first dividend thereon was payable. Accumulations of
dividends shall not bear interest. Whenever there shall be paid on the shares
of any series of the Prior Preferred Stock the full amount or any part of the
dividends payable thereon, there shall also be paid at the same time on the
shares of each other series, if any, then outstanding the full amount or a like
proportionate part, as the case may be, of the dividends payable thereon.
No funds shall be paid into or set aside for any sinking fund created
for any series of the Prior Preferred Stock or for any subordinate stock or
stock of any class ranking on a parity with the Prior Preferred Stock with
respect to the payment of dividends or the distribution of assets, unless all
dividends on the Prior Preferred Stock for all past quarterly dividend periods,
and (subject to the limitation hereinafter stated) for the current quarterly
dividend period, shall have been paid or
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shall have been declared and funds sufficient for such payment set aside by the
Company, separate and apart from its other funds.
No dividend shall be paid or other distribution made on any
subordinate stock, other than a dividend or distribution solely of shares of
subordinate stock, and no subordinate stock shall be purchased or otherwise
acquired by the Company for a consideration, unless (1) all dividends on the
Prior Preferred Stock for all past quarterly dividend periods, and (subject to
the limitation hereinafter stated) for the current quarterly dividend period,
shall have been paid or shall have been declared and funds sufficient for such
payment set aside by the Company, separate and apart from its other funds, and
(2) all funds then and theretofore required to be paid into or set aside for any
sinking fund or funds created for one or more series of the Prior Preferred
Stock shall have been so paid or set aside.
If the date of any payment or setting aside of funds, referred to in
the second preceding paragraph, or the date of payment of any dividend or making
of any other distribution or any purchase or other acquisition, referred to in
the next preceding paragraph, shall be a quarterly dividend payment date, the
references in such paragraphs to "the current quarterly dividend period" shall
be inapplicable for all of the purposes thereof.
(c) Redemption of Prior Preferred Stock. Subject to the limitations
stated in subdivision (d) hereof and except as may be otherwise provided by the
Board of Directors in respect of the shares of a particular series, shares of
any one or more series of the Prior Preferred Stock may be called for redemption
and redeemed, at the option of the Company, in whole at any time or in part from
time to time, upon the notice hereinafter provided for, by the payment therefor
in cash of the then applicable optional redemption price or prices fixed by the
Board of Directors for the shares which are to be redeemed.
If at any time less than all shares of any series of the Prior
Preferred Stock shall be called for redemption, the shares so called shall be
selected by lot in such manner, or pro rata, all as may be determined by the
Board of Directors.
Notice of any proposed redemption shall be given by the Company by
mail, or caused by the Company to be so given, not more than 60 nor less than 30
days prior to the redemption date, to the holders of record of the shares to be
redeemed at their respective addresses then appearing on the records of the
Company.
If notice of redemption shall have been duly given as hereinabove
provided and if, on or before the redemption date, the funds necessary for such
redemption shall have been set aside
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by the Company, separate and apart from its other funds, then, on and after the
redemption date, all shares for the redemption of which such funds shall have
been so set aside shall, whether or not the certificates for such shares shall
have been surrendered for cancellation, be deemed to be no longer outstanding
for any purpose and all rights with respect to such shares shall cease and
terminate on the redemption date, except only the right of the holders of the
certificates for such shares to receive, out of the funds so set aside, the
amount payable upon the redemption thereof, without interest.
At any time before the redemption date the Company may deposit in
trust the funds necessary for such redemption with a bank or trust company, to
be designated in the notice of such redemption, doing business in the City of
Chicago, State of Illinois, or in the Borough of Manhattan, The City of New
York, State of New York, and having capital, surplus and undivided profits
aggregating at least $5,000,000. In the event such deposit is made so that the
deposited funds shall be forthwith available to the holders of the shares to be
redeemed upon surrender of the certificates evidencing such shares, then, upon
the giving of the notice of such redemption, as hereinabove provided, or upon
the earlier delivery to such bank or trust company of irrevocable authorization
and direction so to give such notice, all shares with respect to the redemption
of which such deposit shall have been made and the giving of such notice
effected or authorization therefor given shall, whether or not the certificates
for such shares shall have been surrendered for cancellation, be deemed to be no
longer outstanding for any purpose and all rights with respect to such shares
shall thereupon cease and terminate, except only the right of the holders of the
certificates for such shares (1) to receive, out of the funds so deposited in
trust, from and after the time of such deposit, the amount payable upon the
redemption thereof, without interest, or (2) to exercise any privilege of
conversion which shall not theretofore have terminated. Any funds so deposited,
which shall not be required for the payment of the redemption price of such
shares by reason of the exercise of any right of conversion subsequent to the
date such deposit, shall be paid over to the Company forthwith. At the
expiration of six years after the redemption date, any such funds then remaining
on deposit with such bank or trust company shall be paid over to the Company,
free of trust, and thereafter the holders of the certificates for such shares
shall have no claims against such bank or trust company, but only claims as
unsecured creditors against the Company for amounts equal to their pro rata
portions of the funds so paid over, without interest. Any interest on or other
accretions to funds deposited with such bank or trust company shall belong to
the Company.
The provisions of this subdivision (c) with respect to the method and
effect of redemption shall be applicable to the redemption of shares pursuant to
any sinking fund created for any
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series of the Prior Preferred Stock as well as to the optional redemption of
shares, except to the extent, if any, that the terms of such sinking fund, as
fixed and determined by the Board of Directors, shall expressly otherwise
provide.
(d) Limitations on Redemption and Purchase of Prior Preferred Stock.
If and so long as the Company shall be in default in the payment of any
quarterly dividend on shares of any series of the Prior Preferred Stock, or
shall be in default in the payment of funds into or the setting aside of funds
for any sinking fund created for any series of the Prior Preferred Stock, the
Company shall not (other than by the use of unapplied funds, if any, paid into
or set aside for a sinking fund or funds prior to such default):
(1) redeem any shares of the Prior Preferred Stock unless all
shares thereof are redeemed; or
(2) purchase or otherwise acquire for a consideration any shares
of the Prior Preferred Stock, except pursuant to offers of sale made by
holders of the Prior Preferred Stock in response to an invitation for
tenders given simultaneously by the Company by mail to the holders of
record of all shares of the Prior Preferred Stock then outstanding at their
respective addresses then appearing on the records of the Company.
(e) Status of Prior Preferred Stock Redeemed or Purchased. All
shares of the Prior Preferred Stock which shall be redeemed pursuant to any
sinking fund created for any series of the Prior Preferred Stock, all shares of
the Prior Preferred Stock which shall be purchased pursuant to any such sinking
fund or applied in lieu of the payment of funds into or the setting aside of
funds for any such sinking fund, and all shares of the Prior Preferred Stock of
any series, issued with the privilege of conversion into shares of the Common
Stock, which shall be so converted, shall be retired and cancelled and shall not
be reissued. Shares of the Prior Preferred Stock otherwise redeemed, purchased
or acquired by the Company shall have the status of authorized and unissued
shares or shall be retired and cancelled as may be determined by the Board of
Directors.
(f) Liquidation Preferences. In the event of dissolution,
liquidation or winding up of the Company, whether voluntary or involuntary,
holders of the Prior Preferred Stock of each series shall be entitled to receive
out of the assets of the Company, before any payment or distribution shall be
made to the holders of any subordinate stock, such amount per share as shall
have been fixed by the Board of Directors as the voluntary liquidation price or
the involuntary liquidation price, as the case may be, for the shares of such
series. If upon any such dissolution, liquidation or winding up the assets of
the Company available for payment to stockholders are not sufficient to make
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payment in full to holders of the Prior Preferred Stock, payment shall be made
to such holders ratably in accordance with the numbers of shares held by them
respectively, and, in case there shall be outstanding more than one series of
the Prior Preferred Stock, ratably in accordance with the respective
distributive amounts to which such holders shall be entitled.
Neither a consolidation or merger of the Company with or into any
other corporation, nor a merger of any other corporation into the Company, nor
the redemption or purchase by the Company of all or a part of the outstanding
shares of any class or classes of its stock, nor a sale or transfer of the
property and business of the Company as or substantially as an entirety, shall
be considered a dissolution, liquidation or winding up of the Company within the
meaning of the foregoing provisions.
(g) Restrictions on Certain Corporate Action. So long as any shares
of the Prior Preferred Stock shall be outstanding the Company shall not, without
the affirmative vote or the written consent of the holders of at least two-
thirds of the shares of the Prior Preferred Stock outstanding at the time or as
of a record date fixed by the Board of Directors:
(1) create or authorize any stock of any class ranking prior to
or on a parity with the Prior Preferred Stock with respect to the payment
of dividends or the distribution of assets; or
(2) amend the Articles of Incorporation of the Company so as to
affect any of the preferences or other rights of the holders of the Prior
Preferred Stock; provided, however, that if any such amendment would affect
any of the preferences or other rights of the holders of one or more, but
less than all, of the series of the Prior Preferred Stock then outstanding,
the affirmative vote or the written consent of, and only of, the holders of
at least two-thirds of the shares of each series so affected shall be
required.
So long as any shares of the Prior Preferred Stock shall be
outstanding the Company shall not, without the affirmative vote or the written
consent of the holders of a majority of the shares of the Prior Preferred Stock
outstanding at the time or as of a record date fixed by the Board of Directors:
(1) issue any shares of the Prior Preferred Stock, which may
hereafter be authorized, in addition to the 850,000 shares thereof now
authorized, or any shares of stock of any other class, which may hereafter
be authorized, ranking prior to or on a parity with the Prior Preferred
Stock with respect to the payment of dividends or the distribution of
assets (other than for the purpose of effecting the retirement, by
redemption, exchange or otherwise, of
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outstanding shares ranking at least on a parity with, and representing an
aggregate amount of stated capital at least equal to the aggregate amount
of the stated capital to be represented by, the shares proposed to be
issued), if the aggregate amount of the stated capital represented by all
Prior Preferred Stock and all prior and parity stock to be outstanding
after the proposed issue, after giving effect to the retirement of any
Prior Preferred Stock of any prior or parity stock to be retired in
connection with such issue, would exceed 75% of the sum of (i) the
aggregate amount of the stated capital represented by all subordinate stock
then outstanding and (ii) the amount of the consolidated retained earnings
of the Company and its consolidated subsidiaries, if any, as of the end of
the preceding fiscal year (the term "stated capital," as used in this
paragraph (1), including any related paid-in surplus); or
(2) consolidate with or merge into any other corporation, under
applicable statutory procedure, or make any sale or transfer of the
property and business of the Company as or substantially as an entirety;
provided, however, that this restriction shall not apply to (i) a
consolidation of the Company with or its merger into any corporation 50% or
more of the voting securities of which are owned by the Company directly,
or indirectly through one or more other corporations, or the sale or
transfer of the property and business of the Company as or substantially as
an entirety to a corporation 50% or more of the voting securities of which
are so owned by the Company, or (ii) any consolidation of the Company with
or its merger into any other corporation or any sale or transfer of the
property and business of the Company as or substantially as an entirety,
which may be required by order or regulation of any commission or other
governmental agency having jurisdiction in the premises. The term "sale or
transfer," as used in this paragraph (2), includes a lease or exchange but
does not include a mortgage or pledge.
(h) Preemptive Rights. Holders of the Prior Preferred Stock shall
have no preemptive rights.
DIVISION II
Provisions Relating to Convertible Preferred Stock
(a) Dividends. Subject to the preferential rights of the holders of
the Prior Preferred Stock with respect to the payment of dividends, holders of
the Convertible Preferred Stock shall be entitled to receive cash dividends, out
of funds legally available therefor, when and as declared by the Board of
Directors, at the rate of $1.425 per share per annum, payable quarterly on the
first day of each of the months of February, May,
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August and November of each year, each such quarterly payment to be in respect
of the quarterly period ending with the day next preceding the date of such
payment, except that the first dividend on shares of the Convertible Preferred
Stock shall be for the period beginning either with the date of issue of such
shares or with a specified date subsequent to the date of issue and ending with
the day next preceding either the first or the second succeeding quarterly
dividend payment date, all as determined by the Board of Directors. Dividends
on the Convertible Preferred Stock shall be cumulative with respect to each
share from the beginning date of the period for which the first dividend thereon
was payable. Accumulations of dividends shall not bear interest.
No dividend shall be paid or other distribution made on any
subordinate stock, other than a dividend or distribution solely of shares of
subordinate stock, and no subordinate stock shall be purchased or otherwise
acquired by the Company for a consideration, unless all dividends on the
Convertible Preferred Stock for all past quarterly dividend periods, and
(subject to the limitation hereinafter stated) for the current quarterly
dividend period, shall have been paid or shall have been declared and funds
sufficient for such payment set aside by the Company, separate and apart from
its other funds.
If the date of payment of any dividend or making of any other
distribution or any purchase or other acquisition, referred to in the preceding
paragraph, shall be a quarterly dividend payment date, the reference in such
paragraph to "the current quarterly dividend period" shall be inapplicable for
all of the purposes thereof.
(b) Redemption of Convertible Preferred Stock. Subject to the
limitation stated in subdivision (c) hereof, shares of the Convertible Preferred
Stock may be called for redemption and redeemed, at the option of the Company,
in whole at any time or in part from time to time on or after December 9, 1971,
by the payment therefor in cash of the redemption price of $42 per share, plus
an amount equal to the accrued and unpaid dividends, if any, thereon to the
redemption date, each redemption to be effected upon notice the same as that
provided in subdivision (c) of Division I in respect of the redemption of shares
of the Prior Preferred Stock. All other provisions of said subdivision (c) with
respect to the method and effect of redemption of shares of the Prior Preferred
Stock shall be applicable to the redemption of shares of the Convertible
Preferred Stock in the same manner and with the same force and effect as though
such provisions were set forth in full in this subdivision (b).
(c) Limitation on Redemption and Purchase of Convertible Preferred
Stock. If and so long as the Company shall be in default in the payment of any
quarterly dividend on shares of the Convertible Preferred Stock, the Company
shall not:
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(1) redeem any shares of the Convertible Preferred Stock unless
all shares thereof are redeemed; or
(2) purchase or otherwise acquire for a consideration any shares
of the Convertible Preferred Stock except pursuant to offers of sale made
by the holders of the Convertible Preferred Stock in response to an
invitation for tenders given simultaneously by the Company by mail to the
holders of record of all shares of the Convertible Preferred Stock then
outstanding at their respective addresses then appearing on the records of
the Company.
(d) Status of Convertible Preferred Stock Converted, Redeemed or
Purchased. All shares of the Convertible Preferred Stock which shall be
converted into shares of the Common Stock, or which shall be redeemed or
purchased, shall be retired and cancelled and shall not be reissued.
(e) Restrictions on Certain Corporate Action. So long as any shares
of the Convertible Preferred Stock shall be outstanding the Company shall not,
without the affirmative vote or the written consent of the holders of at least
two-thirds of the shares of the Convertible Preferred Stock outstanding at the
time or as of a record date fixed by the Board of Directors:
(1) create or authorize any stock of any class, other than the
Prior Preferred Stock, ranking prior to or on a parity with the Convertible
Preferred Stock with respect to the payment of dividends or the
distribution of assets; or
(2) amend the Articles of Incorporation of the Company so as to
affect any of the preferences or other rights of the holders of the
Convertible Preferred Stock.
So long as any shares of the Convertible Preferred Stock shall be
outstanding the Company shall not, without the affirmative vote or the written
consent of the holders of a majority of the shares of the Convertible Preferred
Stock outstanding at the time or as of a record date fixed by the Board of
Directors, consolidate with or merge into any other corporation, under
applicable statutory procedure, or make any sale or transfer of the property and
business of the Company as or substantially as an entirety; provided, however,
that this restriction shall not apply to any consolidation, merger, or sale or
transfer of the character specified in clauses (i) and (ii) of the second
paragraph (2) of subdivision (g) of Division I. The term "sale or transfer," as
above used, includes a lease or exchange but does not include a mortgage or
pledge.
(f) Liquidation Preferences. In the event of dissolution,
liquidation or winding up of the Company, holders of the Convertible Preferred
Stock shall be entitled to receive out of
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the assets of the Company the amount of $42 per share in the case of voluntary
dissolution, liquidation or winding up, and the amount of $31.80 per share in
the case of involuntary dissolution, liquidation or winding up, in each case
plus an amount equal to the accrued and unpaid dividends, if any, thereon to the
date fixed for payment; provided, however, that no such payment to holders of
the Convertible Preferred Stock shall be made until payment in full shall have
been made to the holders of the Prior Preferred Stock, or funds or other assets
sufficient for such payment shall have been set aside by the Company, separate
and apart from its other assets, in accordance with the provisions of
subdivision (f) of Division I. If upon any such dissolution, liquidation or
winding up the assets of the Company available for payment to stockholders are
not sufficient to make payment in full to holders of the Convertible Preferred
Stock as above provided, payment shall be made to such holders ratably in
accordance with the numbers of shares held by them respectively.
(g) Conversion Provisions. (1) The shares of the Convertible
Preferred Stock shall be convertible at the option of the respective holders
thereof, at any time or from time to time, into fully paid and nonassessable
shares of the Common Stock of the Company, calculated to the nearest (or if
there shall be no nearest, then to the next higher) 1/100th of a share, at the
conversion price of $53 per share of Common Stock, taking the shares of the
Convertible Preferred Stock at $31.80 per share, that is, at the rate of 6/10ths
of a share of Common Stock for each share of Convertible Preferred Stock;
provided, however, that:
(i) as provided in paragraphs (2) and (3) of this subdivision (g),
such conversion price shall be subject to adjustment or change in certain
cases;
(ii) as provided in paragraphs (4) and (5) of this subdivision (g),
shares or other securities or property, other than shares of the Common
Stock, may in certain cases become issuable upon conversion of shares of
the Convertible Preferred Stock;
(iii) whenever the Company shall call for redemption any shares of
the the Convertible Preferred Stock, the conversion rights of the holders
thereof shall terminate at the close of business on the tenth day prior to
the redemption date (except that if the funds necessary for such redemption
shall not be set aside or deposited on or before the redemption date, as
provided by subdivision (b) of this Division II, such conversion rights
shall be reinstated on the redemption date); and
(iv) in case of any dissolution, liquidation or winding up of the
Company, whether voluntary or involuntary, or in case the Company shall be
required, by order or regula-
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tion of any commission or other governmental agency having jurisdiction in
the premises, to consolidate with or merge into another corporation, and
such order or regulation shall not permit the provisions of paragraph (5)
of this subdivision (g) to become effective, then and in any such case the
conversion rights of the holders of shares of the Convertible Preferred
Stock shall terminate on such date as shall be fixed by the Board of
Directors, but not earlier than the close of business on the thirtieth day
following the mailing by the Company to the holders of record of the
shares of the Convertible Preferred Stock of the statement required by
paragraph (8) of this subdivision (g) to be so mailed.
(2) In case the Company shall at any time or from time to time issue
any shares of the Common Stock in addition to the 41,735,174 shares thereof
outstanding at the close of business on January 21, 1966 (other than additional
shares issued upon conversion of shares of the Convertible Preferred Stock and
additional shares which may be issued by the Company pursuant to its existing
employe stock purchase plan or other plan or plans hereafter adopted providing
for the purchase of stock of the Company by employes) and such additional shares
shall be so issued without consideration or for a consideration per share less
than the per share conversion price of the Common Stock in effect immediately
prior to the time of such issue, then upon such issue such conversion price
shall (until a further adjustment thereof shall be required by the provisions of
this paragraph (2)) be reduced to a price, calculated to the nearest (or if
there shall be no nearest, then to the next lower) cent, determined by dividing:
(i) an amount equal to the sum of (x) the number of shares of the
Common Stock outstanding (determined as hereinafter provided) immediately
prior to such issue multiplied by the per share conversion price of the
Common Stock then effective, and (y) the consideration (determined as
hereinafter provided) received by the Company upon such issue; by
(ii) the total number of shares of the Common Stock outstanding
(determined as hereinafter provided) immediately after such issue;
provided, however, that if such conversion price would, by the application of
the foregoing formula, be reduced by an amount less than 50 cents, no adjustment
of such conversion price shall be made, but in that event the adjustment which,
except for this provision, would be required to be made shall be carried forward
and made at the time of and together with the next subsequent adjustment which,
together with any adjustment or adjustments so carried forward, shall amount to
a reduction of such conversion price by 50 cents or more.
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The term "employes", as hereinabove used in this paragraph (2), means
employes (including officers) of the Company or of any corporation, designated
by the Board of Directors, 50% or more of the voting securities of which are
owned by the Company directly, or indirectly through one or more other
corporations.
In determining, for the purposes of this paragraph (2), the number of
shares of the Common Stock outstanding at any particular time, there shall be
included, without limiting the generally accepted meaning of the term
"outstanding" (i) any shares issued on conversion of shares of the Convertible
Preferred Stock, (ii) any shares issuable in respect of scrip certificates
evidencing fractional interests in shares of the Common Stock, (iii) any shares
which, pursuant to subparagraph (A) of this paragraph (2), shall be deemed to
have been issued but which shall not actually have been issued, and (iv) any
shares owned or held by the Company.
In determining, for the purposes of this paragraph (2), what constitutes
the issue of additional shares of the Common Stock by the Company and the
consideration received therefor, the following provisions shall be applicable:
(A) In case the Company shall issue any shares (other than shares of
the Convertible Preferred Stock) convertible into shares of the Common
Stock or any obligations so convertible, all shares of the Common Stock
into which such convertible shares or obligations shall be initially
convertible shall, on the earliest date on which such convertible shares or
obligations shall by their terms be convertible, be deemed to be additional
shares of the Common Stock issued as of such date, and the Company shall be
deemed to have received, as of such date, for such shares of the Common
Stock so deemed to have been issued an aggregate consideration equal to the
sum of (i) the consideration received by the Company for such convertible
shares of obligations, and (ii) such additional consideration, if any, as
would be receivable by the Company for or upon issuance of such shares of
the Common Stock so deemed to have been issued if issued on the earliest
date on which such convertible shares or obligations shall by their terms
be convertible.
(B) In case the Company shall issue any rights to subscribe for or
purchase, or any options to purchase, shares of the Common Stock, and if
any of such rights or options shall be exercised and shares of the Common
Stock shall be issued upon such exercise, the Company shall be deemed to
have received for such shares of the Common Stock so issued an aggregate
consideration equal to the sum of (i) the consideration received by the
Company for such shares upon the issuance thereof, and
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(ii) such additional consideration, if any, as shall have been received by
the Company for such rights or options; provided, however, that if such
rights or options shall be exercisable over a stated period of time, a
recomputation of the conversion price by reason of the exercise thereof
need not be made upon each such exercise but may be made at such time or
times as shall be determined by the Board of Directors, subject only to the
condition that if the period of time during which such rights or options
shall be exercisable shall not exceed 30 days, such recomputation shall be
made within 10 days following the expiration of such period, and that if
such period shall exceed 30 days, such recomputation shall be made at least
once in the month next succeeding each month, within such period, during
which any such exercise shall occur.
(C) In case the Company shall issue or sell, for cash, any additional
shares of the Common Stock or any shares (other than shares of the
Convertible Preferred Stock) convertible into shares of the Common Stock or
any obligations so convertible, or any rights to subscribe for or purchase,
or any options to purchase, shares of the Common Stock, the consideration
received by the Company therefor shall be deemed to be the amount of cash
received therefor, plus the amount of any discount (below the public or
other offering price) at which such issue or sale shall have been made by
the Company, and before deducting the amount of any commissions or other
expenses paid or incurred by the Company for any underwriting of, or
otherwise in connection with, such issue or sale. In case the Company shall
issue or sell, for a consideration other than cash, any such additional
shares of the Common Stock or any such convertible shares or obligations or
any such rights or options, the consideration received by the Company
therefor shall be deemed to be the fair value of such consideration as
determined by the Board of Directors.
(D) In case any shares of the Common Stock shall be issued by the
Company as a dividend on the then outstanding Common Stock or other
subordinate stock, the shares so issued shall be deemed to have been issued
without consideration.
(E) In case any shares of the Common Stock shall, in lieu of a cash
dividend, be issued by the Company as a dividend on the Convertible
Preferred Stock or on shares of stock of any class ranking prior to or on a
parity with the Convertible Preferred Stock with respect to the payment of
dividends and the distribution of assets, the Company shall be deemed to
have received
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for the shares so issued a consideration equal to the amount of cash
otherwise payable as such dividend.
(3) In case the shares of the Common Stock at any time outstanding
shall be subdivided, by reclassification or otherwise, into a greater number of
shares, the per share conversion price of the Common Stock then effective shall
be reduced proportionately. In case the shares of the Common Stock at any time
outstanding shall be combined, by reclassification or otherwise, into a lesser
number of shares, the per share conversion price of the Common Stock then
effective shall be increased proportionately.
(4) In case of any reclassification of the Common Stock or any capital
reorganization of the Company involving a change in the Common Stock, other than
a reclassification or reorganization involving merely a subdivision or
combination of outstanding shares of the Common Stock, the shares of the
Convertible Preferred Stock shall thereafter be convertible into the number and
class of shares or other securities or property of the Company to which the
shares of the Common Stock otherwise issuable upon conversion of the shares of
the Convertible Preferred Stock would have been entitled upon such
reclassification or reorganization if outstanding at the time thereof; and in
any such case appropriate adjustment, as determined by the Board of Directors,
shall be made in the application of the provisions of this subdivision (g) with
respect to the conversion rights thereafter of the holders of the shares of the
Convertible Preferred Stock, to the end that such provisions shall thereafter be
applicable, as nearly as reasonably may be, in relation to any shares or other
securities or property thereafter issuable or deliverable upon the conversion of
shares of the Convertible Preferred Stock.
(5) Subject to the limitation hereinafter stated in this paragraph
(5), in case of any consolidation of the Company with or its merger into another
corporation, the shares of the Convertible Preferred Stock (or any shares issued
in exchange therefor upon such consolidation or merger) shall thereafter be
convertible into the number and class of shares or other securities or property
of the corporation resulting from such consolidation or merger to which the
shares of the Common Stock otherwise issuable upon conversion of the shares of
the Convertible Preferred Stock would have been entitled upon such consolidation
or merger if outstanding at the time thereof; and in any such case appropriate
adjustment shall be made in the application of the provisions of this
subdivision (g) with respect to the conversion rights thereafter of the holders
of the shares of the Convertible Preferred Stock, to the end that such
provisions shall thereafter be applicable, as nearly as reasonably may be, in
relation to any shares or other securities or property thereafter issuable or
deliverable upon the conversion of shares of the Convertible Preferred Stock (or
any shares issued in exchange
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therefor upon such consolidation or merger); and appropriate provision, as
determined by the Board of Directors, shall be made as a part of the terms of
any such consolidation or merger whereby the conversion rights of the holders of
the shares of the Convertible Preferred Stock shall be protected and preserved
in accordance with the provisions of this paragraph (5).
In the case of any such consolidation or merger which may be required by
order or regulation of any commission or other governmental agency having
jurisdiction in the premises, the provisions of this paragraph (5) shall be
effective only if permitted by such order or regulation.
(6) No payment or adjustment with respect to dividends on shares of
the Convertible Preferred Stock or on the Common Stock shall be made in
connection with any conversion.
(7) Whenever the per share conversion price of the Common Stock shall
be adjusted or changed as provided in paragraph (2) or (3) of this subdivision
(g), the Company shall promptly file with each Transfer Agent for the shares of
the Convertible Preferred Stock and, as soon as practicable after such
adjustment or change and in no event later than 10 full business days
thereafter, shall mail to the holders of record of such shares at their
respective addresses then appearing on the records of the Company a statement
signed by an officer of the Company, stating the adjusted or changed conversion
price determined as provided in said paragraph (2) or (3), as the case may be,
and setting forth in reasonable detail the facts requiring such adjustment or
change. Each Transfer Agent for the shares of the Convertible Preferred Stock
shall be fully protected in relying on such statement and shall be under no duty
to examine into the accuracy thereof. If any questions shall at any time arise
with respect to an adjusted or changed conversion price, such question shall be
determined by a firm of independent certified public accountants selected by the
Company and acceptable to the Transfer Agents for the shares of the Convertible
Preferred Stock, and such determination shall be binding upon the Company and
the holders of such shares.
(8) In case:
(i) the Company shall propose to pay any dividend on the Common
Stock payable in shares of the Common Stock or to make any other
distribution, other than cash dividends, to the holders of the Common
Stock; or
(ii) the Company shall propose to offer for subscription to the
holders of the Common Stock any additional shares of any class or any
other rights or options; or
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(iii) the Company shall propose to effect any reclassification of
the Common Stock or any capital reorganization involving a change in
the Common Stock, other than a reclassification or reorganization
involving merely a subdivision or combination of outstanding shares of
the Common Stock; or
(iv) the Company shall propose to consolidate with or merge into
another corporation, or to sell or transfer its property and business
as or substantially as an entirety, or shall propose to dissolve,
liquidate or wind up;
then, in each such case, the Company shall file with each Transfer Agent for the
shares of the Convertible Preferred Stock and shall mail to the holders of
record of such shares at their respective addresses then appearing on the
records of the Company a statement, signed by an officer of the Company, with
respect to the proposed action, such statement to be so filed and mailed at
least 10 days, if subparagraph (i) or (ii) of this paragraph (8) shall be
applicable, and at least 40 days, if subparagraph (iii) or (iv) of this
paragraph (8) shall be applicable, prior to the date of the taking of such
action or the record date for holders of the Common Stock for the purposes
thereof, whichever is earlier. If such statement relates to any proposed action
referred to in subparagraph (iii) or (iv) of this paragraph (8), it shall set
forth such facts with respect thereto as shall reasonably be necessary to inform
each Transfer Agent for the shares of the Convertible Preferred Stock and the
holders of such shares as to the effect of such action upon the conversion
rights of such holders.
(9) In order to effect the conversion of shares of the Convertible
Preferred Stock the holder of the certificate or certificates therefor shall
surrender such certificate or certificates to the Company or to any Transfer
Agent for the shares of the Convertible Preferred Stock, with request for
conversion. If the shares of the Common Stock issuable upon such conversion are
to be issued in a name other than that in which the shares of the Convertible
Preferred Stock to be converted are registered, such certificate or certificates
shall be duly endorsed for transfer or accompanied by a duly executed stock
transfer power, and shall be accompanied by necessary stock transfer stamps, if
any, or equivalent funds.
Upon such surrender of such certificate or certificates, the Company shall
issue and deliver or cause to be issued and delivered to the person entitled
thereto a certificate or certificates for the number of full shares of the
Common Stock issuable upon such conversion, together with, if the shares of the
Convertible Preferred Stock represented by the certificate or certificates
therefor surrendered for conversion are not evenly convertible, cash or a scrip
certificate as provided in paragraph (10) of this
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subdivision (g). The Company shall pay all original issue taxes, if any,
payable upon the issue of such shares of the Common Stock and upon the issue of
any scrip certificates issued in respect of fractions of a share.
Such conversion shall be deemed to have been effected on the date of the
surrender of such certificate or certificates for shares of the Convertible
Preferred Stock, and the person in whose name the certificate or certificates
for the shares of the Common Stock issuable upon such conversion are to be
issued shall be deemed to be the holder of record of such shares as of such
date.
(10) The Company shall not be required to issue a fraction of a share
of the Common Stock upon any conversion of shares of the Convertible Preferred
Stock but in lieu thereof may, at its option, make payment in cash in the amount
obtained by multiplying such fraction by the per share conversion price of the
Common Stock then effective, or issue and deliver a scrip certificate in respect
of such fraction, or may make payment in cash of a portion of such amount and
issue and deliver a scrip certificate in respect of the remaining portion of
such fraction. Such scrip certificate, if issued, shall be in bearer form and,
when surrendered, within a specified time fixed by the Board of Directors, with
other scrip certificates evidencing in the aggregate rights to receive one or
more full shares of the Common Stock, shall be exchangeable for a certificate
representing such full share or shares. Such scrip certificate shall not entitle
the bearer thereof to exercise any voting rights, to receive dividends, to
participate in any distribution of assets of the Company, or to exercise any
other rights as a stockholder of the Company. Such scrip certificate shall
otherwise be in such form and shall contain such provisions as shall be
determined by the Board of Directors consistently with the provisions of
applicable law.
(11) The Company shall at all times have authorized but unissued, or
in its treasury, a number of shares of the Common Stock sufficient for the
conversion of all shares of the Convertible Preferred Stock from time to time
outstanding.
(h) Preemptive Rights. Holders of the Convertible Preferred Stock
shall have no preemptive rights.
DIVISION III
Provisions Relating to Preference Stock
(a) Issue of Preference Stock in Series. Authority is hereby expressly
vested in the Board of Directors to divide, and to provide for the issue from
time to time of, the Preference Stock in series and to fix and determine as to
each such series:
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(1) the designation of, and the number of shares to be issuable in,
such series; provided, however, that if the Board of Directors, at any time
after the initial issue of shares of any series issued with the privilege
of conversion into shares of the Common Stock, shall provide for the issue
of additional shares of such series, such additional shares shall not be
offered by the Company at a price per share less than that at which the
shares of such series initially issued shall have been offered;
(2) the dividend rate per annum for the shares of such series;
(3) the price or prices at which, and the terms and conditions on
which, such shares may be redeemed;
(4) the amount payable upon each of such shares in the event of
voluntary dissolution, liquidation or winding up of the Company;
(5) the amount payable upon each of such shares in the event of
involuntary dissolution, liquidation or winding up of the Company;
(6) sinking fund provisions, if any, for the redemption or purchase of
such shares (the term "sinking fund," as used herein, including any
analogous fund, however designated); and
(7) if such shares are to be issued with the privilege of conversion
into shares of the Common Stock, the terms and conditions on which such
shares may be so converted.
In all other respects the shares of Preference Stock of all series shall be
identical.
So long as any shares of any series of the Preference Stock
established by resolution of the Board of Directors shall be outstanding, such
resolution shall not be amended so as to affect any of the preferences or other
rights of the holders of the shares of such series without the affirmative vote
or the written consent of the holders of at least two-thirds of the shares of
such series outstanding at the time or as of a record date fixed by the Board of
Directors, but such resolution may be so amended with such vote or consent.
(b) Dividends. Subject to the preferential rights of the holders of
the Prior Preferred Stock and the Convertible Preferred Stock with respect to
the payment of dividends, as set forth in subdivision (b) of Division I and
subdivision (a) of Division II, respectively, holders of the Preference Stock of
each series shall be entitled to receive cash dividends, out of funds legally
available therefor, when and as declared by the
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Board of Directors, at such rate per annum as shall have been fixed by the Board
of Directors for the shares of such series, Dividends on the Preference Stock of
all series shall be payable quarterly on the first day of each of the months of
February, May, August and November in each year, each such quarterly payment to
be in respect of the quarterly period ending with the day next preceding the
date of such payment, except in the case of the first dividend payable on shares
of any series issued between quarterly dividend payment dates, in which case
such dividend shall be for the period beginning with the date of issue of such
shares or the next preceding quarterly dividend payment date for the Preference
Stock, as determined by the Board of Directors, and ending with the day next
preceding either, as determined by the Board of Directors, the first or the
second quarterly dividend payment date for the Preference Stock succeeding the
date of issue of such shares. Dividends on the Preference Stock of each series
shall be cumulative with respect to each share from the beginning date of the
period for which the first dividend thereon was payable. Accumulations of
dividends shall not bear interest. Whenever there shall be paid on the shares
of any series of the Preference Stock the full amount or any part of the
dividends payable thereon, there shall also be paid at the same time on the
shares of each other series, if any, then outstanding the full amount or a like
proportionate part, as the case may be, of the dividends payable thereon.
No funds shall be paid into or set aside for any sinking fund created
for any series of the Preference Stock or for any subordinate stock or stock of
any class ranking on a parity with the Preference Stock with respect to the
payment of dividends or the distribution of assets, unless all dividends on the
Preference Stock for all past quarterly dividend periods, and (subject to the
limitation hereinafter stated) for the current quarterly dividend period, shall
have been paid or shall have been declared and funds sufficient for such payment
set aside by the Company, separate and apart from its other funds.
No dividend shall be paid or other distribution made on any
subordinate stock, other than a dividend or distribution solely of shares of
subordinate stock, and no subordinate stock shall be purchased or otherwise
acquired by the Company for a consideration, unless (1) all dividends on the
Preference Stock for all past quarterly dividend periods, and (subject to the
limitation hereinafter stated) for the current quarterly dividend period, shall
have been paid or shall have been declared and funds sufficient for such payment
set aside by the Company, separate and apart from its other funds, and (2) all
funds then and theretofore required to be paid into or set aside for any sinking
fund or funds created for one or more series of the Preference Stock shall have
been so paid or set aside.
If the date of any payment or setting aside of funds, referred to in
the second preceding paragraph, or the date of
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payment of any dividend or making of any other distribution or any purchase or
other acquisition, referred to in the next preceding paragraph, shall be a
quarterly dividend payment date, the references in such paragraphs to "the
current quarterly dividend period" shall be inapplicable for all of the purposes
thereof.
(c) Redemption of Preference Stock. Subject to the limitations stated
in subdivision (d) of this Division III, and except as may be otherwise provided
by the Board of Directors in respect of the shares of a particular series
established by resolution of the Board of Directors, shares of any one or more
series of the Preference Stock may be called for redemption and redeemed, at the
option of the Company, in whole at any time or in part from time to time, by the
payment therefor in cash of the then applicable optional redemption price fixed
by the Board of Directors for the shares of such series, each redemption to be
effected upon notice the same as that provided in subdivision (c) of Division I
in respect of the redemption of shares of the Prior Preferred Stock. All other
provisions of said subdivision (c) with respect to the method and effect of
redemption of shares of the Prior Preferred Stock shall be applicable to the
redemption of shares of the Preference Stock in the same manner and with the
same force and effect as though such provisions were set forth in full in this
subdivision (c).
(d) Limitations on Redemption and Purchase of Preference Stock. If
and so long as the Company shall be in default in the payment of any quarterly
dividend on shares of any series of the Preference Stock, or shall be in default
in the payment of funds into or the setting aside of funds for any sinking fund
created for any series of the Preference Stock, the Company shall not (other
than by the use of unapplied funds, if any, paid into or set aside for a sinking
fund or funds prior to such default):
(1) redeem any shares of the Preference Stock unless all shares
thereof are redeemed; or
(2) purchase or otherwise acquire for a consideration any shares of
the Preference Stock, except pursuant to offers of sale made by holders of
the Preference Stock in response to an invitation for tenders given
simultaneously by the Company by mail to the holders of record of all
shares of the Preference Stock then outstanding at their respective
addresses then appearing on the records of the Company.
(e) Status of Preference Stock Redeemed or Purchased. All shares of
the Preference Stock which shall be redeemed pursuant to any sinking fund
created for any series of the Preference Stock, all shares of the Preference
Stock which shall be purchased pursuant to any such sinking fund or applied in
lieu of the payment of funds into or the setting aside of funds for
-21-
any such sinking fund, and all shares of the Preference Stock of any series,
issued with the privilege of conversion into shares of the Common Stock, which
shall be so converted, shall be retired and cancelled and shall not be reissued.
Shares of the Preference Stock otherwise redeemed, purchased or acquired by the
Company shall have the status of authorized and unissued shares or shall be
retired and cancelled as may be determined by the Board of Directors.
(f) Liquidation Preferences. In the event of dissolution, liquidation
or winding up of the Company, whether voluntary or involuntary, holders of the
Preference Stock of each series shall be entitled to receive out of the assets
of the Company, before any payment or distribution shall be made to the holders
of any subordinate stock, such amount per share as shall have been fixed by the
Board of Directors as the voluntary liquidation price or the involuntary
liquidation price, as the case may be, for the shares of such series; provided,
however, that no such payment to holders of the Preference Stock shall be made
until payment in full shall have been made to the holders of the Prior Preferred
Stock and the Convertible Preferred Stock, or funds or other assets sufficient
for such payment shall have been set aside by the Company, separate and apart
from its other assets, in accordance with the provisions of subdivision (f) of
Division I and subdivision (f) of Division II. If upon any such dissolution,
liquidation or winding up the assets of the Company available for payment to
stockholders are not sufficient to make payment in full to holders of the
Preference Stock as above provided, payment shall be made to such holders
ratably in accordance with the numbers of shares held by them respectively, and,
in case there shall then be outstanding more than one series of the Preference
Stock, ratably in accordance with the respective distributive amounts to which
such holders shall be entitled.
(g) Restrictions on Certain Corporation Action. So long as any shares
of the Preference Stock shall be outstanding the Company shall not, without the
affirmative vote or the written consent of the holders of at least two-thirds of
the shares of the Preference Stock outstanding at the time or as of a record
date fixed by the Board of Directors:
(1) create or authorize any stock of any class, other than the Prior
Preferred Stock, ranking prior to or on a parity with the Preference Stock
with respect to the payment of dividends or the distribution of assets; or
(2) amend the Articles of Incorporation of the Company so as to affect
any of the preferences or other rights of the holders of the Preference
Stock; provided, however, that if any such amendment would affect any of
the preferences or other rights of the holders of one or more, but less
than all, of the series of the Preference Stock then outstanding,
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the affirmative vote or the written consent of, and only of, the holders of
at least two-thirds of the shares of each series so affected shall be
required.
So long as any shares of the Preference Stock shall be outstanding the
Company shall not, without the affirmative vote or the written consent of the
holders of a majority of the shares of the Preference Stock outstanding at the
time or as of a record date fixed by the Board of Directors, consolidate with or
merge into any other corporation, under applicable statutory procedure, or make
any sale or transfer of the property and business of the Company as or
substantially as an entirety; provided, however, that this restriction shall not
apply to any consolidation, merger, or sale or transfer of the character
specified in clauses (i) and (ii) of the second paragraph (2) of subdivision (g)
of Division I. The term "sale or transfer," as above used, includes a lease or
exchange but does not include a mortgage or pledge.
(h) Preemptive Rights. Holders of the Preference Stock shall have no
preemptive rights.
DIVISION IV
Provisions Relating to Common Stock
(a) Dividends. Subject to the preferential rights of the holders of the
Prior Preferred Stock, the Convertible Preferred Stock and the Preference Stock
with respect to the payment of dividends, as set forth in subdivision (b) of
Division I, subdivision (a) of Division II and subdivision (b) of Division III,
respectively, holders of the Common Stock shall be entitled to receive
dividends, out of funds legally available therefor, when and as declared by the
Board of Directors.
(b) Liquidation Preferences. In the event of dissolution, liquidation or
winding up of the Company, whether voluntary or involuntary, holders of the
Common Stock shall be entitled to receive, ratably in accordance with the
numbers of shares held by them respectively, the assets of the Company,
available for payment to stockholders, remaining after payment in full shall
have been made to holders of the Prior Preferred Stock, the Convertible
Preferred Stock and the Preference Stock in accordance with the provisions of
subdivision (f) of Division I, subdivision (f) of Division II and subdivision
(f) of Division III.
(c) Preemptive Rights. Holders of the Common Stock shall have no
preemptive rights.
ARTICLE FIVE: In order to assure continuity of efficient management, the
Board of Directors (hereinafter called the "Board") is hereby authorized to
establish a Deferred Compensation Plan (hereinafter called the "Plan") for
selected key
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executive and managerial employes of the Company and its wholly-owned
subsidiaries.
The Board shall have complete authority to act upon and determine all
matters related to the establishment, conduct, utilization, terms and conditions
of the Plan, within the following limitations:
(1) Administration. The Board shall provide for the regular administration
of the Plan by a Compensation Committee to be composed of not less than five
Directors chosen by the Board from its members who are not officers of the
Company, and shall empower the Committee to award "current compensation units,"
wholly or partly in lieu of salary increases, to key executive and managerial
employes of the Company and its wholly-owned subsidiaries selected from time to
time by the Committee and to award "retirement compensation units" to qualifying
holders of current compensation units or their spouses as herein provided. The
number of active officers and employes to whom current compensation units may be
so awarded in any one calendar year shall be limited to such number fixed by the
Board of Directors annually, but shall be so limited that the Plan shall remain
primarily for the purpose of providing deferred compensation for a select group
of management employes within the meaning of the Employee Retirement Income
Security Act of 1974.
(2) Current Compensation Units. Each current compensation unit shall
entitle the holder to payments following the award and during the continued
employment of the holder by the Company or a wholly-owned subsidiary of the
Company equal to and made on the payment dates of the cash dividends he would
have received if on the day of the award one share of the Company's Common Stock
had been issued to him.
(3) Award of Current Compensation Units. The total number of current
compensation units awarded in any calendar year shall be limited so that the
compensation payable thereon would not exceed one-tenth of one per cent of
consolidated net income on the Common Stock of the Company for the preceding
calendar year. To compute this limitation, the "compensation payable thereon"
shall be deemed to be the amount which would have been paid in the preceding
calendar year either (a) on an equivalent number of units awarded on the record
date for the first cash dividend on the Common Stock paid in that year, or (b)
at a rate per unit equal to five per cent of the book value per share of the
Common Stock at the end of that year, whichever results in the lower number of
available units. No current compensation units shall be awarded in any calendar
year if total payments during the preceding calendar year on current and
retirement compensation units had reduced consolidated net income on the Common
Stock of the Company for such year by as much as two per cent. As herein used,
the term "consolidated net income on the Common Stock of the Company" shall
mean, for any calendar year, such net income
-24-
(after all Federal income and excess profits tax provisions) of the Company and
its subsidiary companies consolidated, or of the Company alone if there be no
consolidated subsidiary Company, as shown in the Annual Report to the
Stockholders of the Company for such year.
(4) Retirement Compensation Units. Each retirement compensation unit shall
entitle the holder to payments following the award and continuing for life equal
to and made on the payment dates of the cash dividends he would have received if
on the day of the award one share of the Company's Common Stock had been issued
to him; provided, however, that payments per retirement compensation unit in any
calendar year shall not in any event be (a) less than the average amount of the
payments per current compensation unit during the five calendar years preceding
the termination of employment which gave rise to the award of such retirement
compensation unit, or (b) more than such average amount (or the amount of the
payments per current compensation unit in the calendar year preceding such
termination, if greater), increased at the compound annual rate of two per cent
to the end of the calendar year of payment.
The foregoing proviso shall not apply to any retirement compensation unit
based upon a current compensation unit awarded prior to April 26, 1973, unless
an election for such application was made before January 1, 1974. The
Compensation Committee shall determine the means of applying the maximum and
minimum limits of such proviso.
(5) Award of Retirement Compensation Units. Upon the termination, by death
or otherwise, of the employment of a holder of current compensation units, he
(or, in the case of death, his surviving spouse) shall be awarded that number of
retirement compensation units equal to the number of current compensation units
held by him immediately prior to such termination, subject to paragraph (7).
(6) Effect of Stock Dividends, Etc. For the purpose of computing payments
hereunder, fractional shares, as well as full shares, resulting from stock
dividends, stock splits or other changes in the Company's Common Stock shall be
treated as though actually issued.
(7) Effect of Resignation. If any holder of current compensation units
should at any time resign from employ of the Company and all of its wholly-owned
subsidiaries his payments shall thereupon be discontinued and all rights to
receive retirement compensation units under the plan will terminate.
(8) Noncompetition Agreement. If any holder of current or retirement
compensation units should at any time engage in competitive business, his
payments shall thereupon be discontinued.
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(9) Death Benefits. Upon the death of any holder of retirement
compensation units, leaving a spouse surviving, payments on account of such
units shall continue to be made to the spouse for life, but only if (i) such
units had originated from the deceased's employment by the Company or a wholly-
owned subsidiary of the Company and (ii) the surviving spouse was married to
such holder when his period of service with the Company and all of its wholly-
owned subsidiaries terminated.
(10) Amendment and Termination. The Board shall have the right to modify
or discontinue the Plan at any time, and to establish a trust fund to ensure the
payment of benefits thereunder, provided that the rights of persons entitled to
payments on account of compensation units previously awarded shall in nowise be
thereby impaired.
(11) Effective Date and Transition Rules with Respect to Retirement Units.
The Plan, as amended, shall be effective May 3, 1983. Compensation units held
immediately prior to July 1, 1979 shall be deemed to be current compensation
units if originally issued with respect to employment which has not terminated
on such date and to be retirement compensation units if originally issued with
respect to employment which has terminated on or prior to such date.
ARTICLE SIX: The number of directors of the Company shall be as fixed by
the By-Laws of the Company.
ARTICLE SEVEN: (a) A director of the Company shall not be personally
liable to the company or its shareholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Company or its shareholders, (ii) for acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (iii) under Section 8.65 of the Business Corporation Act of
the State of Illinois, or (iv) for any transaction from which the director
derived an improper personal benefit. If the Business Corporation Act of the
State of Illinois is amended to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a
director of the Company shall be eliminated or limited to the full extent
permitted by the Business Corporation Act of the State of Illinois, as so
amended. Any repeal or modification of this paragraph (a) by the shareholders
of the Company shall not adversely affect any right or protection of a director
of the Company existing at the time of such repeal or modification.
(b) Each person who is or was or had agreed to become a director or
officer of the Company, and each person who is or was serving or who had agreed
to serve at the request of the Board or an officer of the Company as an employe
or agent of the Company or as a director, officer, employe, or agent, trustee or
fiduciary of another corporation, partnership, joint venture,
-26-
trust or other enterprise (including the heirs, executors, administrators or
estate of such person), shall be indemnified by the Company to the full extent
permitted by the Business Corporation Act of the State of Illinois or any other
applicable laws as presently or hereafter in effect. Without limiting the
generality of the foregoing, the Company may enter into one or more agreements
with any person which provide for indemnification greater or different than that
provided in this paragraph (b). Any repeal or modification of this paragraph
(b) shall not adversely affect any right or protection existing hereunder or
under any such agreement immediately prior to such repeal or modification.
____________________
PURSUANT TO AUTHORITY EXPRESSLY VESTED IN THE BOARD OF DIRECTORS BY
SUBDIVISION(A) OF DIVISION 3 OF ARTICLE FOUR, THE BOARD OF DIRECTORS HAS BY
RESOLUTION PROVIDED FOR THE ISSUANCE OF THE FOLLOWING OUTSTANDING SERIES OF
PREFERENCE STOCK:
$1.90 CUMULATIVE PREFERENCE STOCK
THE BOARD OF DIRECTORS OF THE COMPANY ADOPTED THE FOLLOWING RESOLUTION,
EFFECTIVE APRIL 14, 1971:
RESOLVED, that pursuant to authority expressly vested in the Board of
Directors by the Company's Articles of Incorporation, as amended, there be and
there hereby is established a series of the Preference Stock, without par value,
of the Company, the designation of such series, the number of shares to be
issuable therein, and certain of the terms and provisions thereof to be as
follows:
I. Designation of Series and Number of Shares to Be Issuable Therein.
The series of the Preference Stock established hereby shall be designated
$1.90 Cumulative Preference Stock (hereinafter called the "$1.90 Series"),
in which 4,249,549 shares shall be issuable.
II. Dividends. Dividends shall be payable on the shares of the $1.90
Series at the rate of $1.90 per share per annum, and no more. The first
dividend payable on shares, if any, of the $1.90 Series issued prior to
August 1, 1971, shall accrue from the initial date of issue of any of such
shares, and the first dividend payable on shares, if any, of the $1.90
Series, issued between quarterly dividend payment dates and subsequent to
August 1, 1971, shall accrue from the quarterly dividend payment date next
preceding the date of issue of such shares.
III. Redemption. Prior to May 1, 1976, none of the shares of the
$1.90 Series may be redeemed through refunding, directly or indirectly, by
or in anticipation of the
-27-
incurring of any debt or the issuance of any shares of the Preference Stock
or of any other stock ranking prior to or on a parity with the Preference
Stock with respect to the payment of dividends or the distribution of
assets, if such debt has an interest cost to the Company, or such shares
have a dividend cost to the Company, less than the dividend cost to the
Company of the shares of the $1.90 Series. The term "interest cost to the
Company", with respect to any debt, means the yield to stated maturity of
such debt at the net price to the Company therefor, determined by reference
to a standard table of bond yields, using straight-line interpolation if
necessary, and the term "dividend cost to the Company", with respect to any
shares, means the percentage yield of such shares obtained by dividing the
annual dividend rate per share by the net price to the Company per share
(in either case "net price to the Company" is to be determined after
allowing for all discounts, commissions, finder's or negotiator's fees,
standby or commitment charges and any other compensation received or
receivable directly from the Company by underwriters, investment bankers or
other financing agents, or purchasers). Subject to the foregoing, the
shares of the $1.90 Series may be called for redemption and redeemed, at
the option of the Company, in whole at any time or in part from time to
time, at the redemption prices hereinafter set forth and upon the notice
and in the manner prescribed in the applicable provisions of the Company's
Articles of Incorporation, as amended,
The per share redemption prices of the shares of the $1.90 Series
shall be $27.50 if redeemed on or before April 30, 1976, $26.00 if redeemed
on or after May 1, 1976 but before May 1, 1981, and $25.25 if redeemed on
or after May 1, 1981, in each case plus the amount of accrued and unpaid
dividends, if any, thereon to the redemption date.
IV. Liquidation Prices. The amount payable on each share of the
$1.90 Series in the event of voluntary dissolution, liquidation or winding
up of the Company shall be an amount equal to the optional redemption price
thereof applicable at the date fixed for payment, and no more. The amount
payable on each share of the $1.90 Series in the event of involuntary
dissolution, liquidation or winding up of the Company shall be $25 plus the
amount of accrued and unpaid dividends, if any, thereon to the date fixed
for payment, and no more.
$2.00 CUMULATIVE PREFERENCE STOCK
THE BOARD OF DIRECTORS OF THE COMPANY ADOPTED THE FOLLOWING RESOLUTION,
EFFECTIVE NOVEMBER 16, 1971:
RESOLVED, that pursuant to authority expressly vested in the Board of
Directors by the Company's Articles of Incorporation, as
-28-
amended, there be and there hereby is established a series of the Preference
Stock, without par value, of the Company, the designation of such series, the
number of shares to be issuable therein, and certain of the terms and provisions
thereof to be as follows:
I. Designation of Series and Number of Shares to Be Issuable Therein.
The series of Preference Stock established hereby shall be designated $2.00
Cumulative Preference Stock (hereinafter called the "$2.00 Series"), in
which 2,000,000 shares initially shall be issuable.
II. Dividends. Dividends shall be payable on the shares of the $2.00
Series at the rate of $2.00 per share per annum, and no more. The first
dividend payable on shares, if any, of the $2.00 Series issued on or prior
to February 1, 1972, shall accrue from the date of issue of the first
issued shares of the $2.00 Series and the first dividend payable on shares,
if any, of the $2.00 Series, issued between quarterly dividend payment
dates and subsequent to February 1, 1972, shall accrue from the quarterly
dividend payment date next preceding the date of issue of such shares.
III. Redemption. Prior to December 1, 1976, none of the shares of
the $2.00 Series may be redeemed through refunding, directly or indirectly,
by or in anticipation of the incurring of any debt or the issuance of any
shares of the Preference Stock or of any other stock ranking prior to or on
a parity with the Preference Stock with respect to the payment of dividends
or the distribution of assets, if such debt has an interest cost to the
Company, or such shares have a dividend cost to the Company, less than the
highest dividend cost to the Company of shares of the $2.00 Series issued
prior to the date shares thereof are called for redemption. The term
"interest cost to the Company," with respect to any debt, means the yield
to stated maturity of such debt at the net price to the Company therefor,
determined by reference to a standard table of bond yields, using straight-
line interpolation if necessary, and the term "dividend cost to the
Company," with respect to any shares, means the percentage yield of such
shares obtained by dividing the annual dividend rate per share by the net
price to the Company per share (in either case "net price to the Company"
is to be determined after allowing for all discounts, commissions, finder's
or negotiator's fees, standby or commitment charges and any other
compensation received or receivable directly from the Company by
underwriters, investment bankers or other financing agents, or purchasers).
Subject to the foregoing, the shares of the $2.00 Series may be called for
redemption and redeemed, at the option of the Company, in whole at any time
or in part from time to time, at the redemption prices hereinafter set
forth and upon the notice and in the manner prescribed in the applicable
provi-
-29-
sions of the Company's Articles of Incorporation, as amended.
The per share redemption prices of the shares of the $2.00 Series
shall be $28.36 if redeemed on or before November 30, 1976, $26.81 if
redeemed on or after December 1, 1976 but before December 1, 1981, and
$26.04 if redeemed on or after December 1, 1981, in each case plus the
amount of accrued and unpaid dividends, if any, thereon to the redemption
date.
IV. Liquidation Prices. The amount payable on each share of the
$2.00 Series in the event of voluntary dissolution, liquidation or winding
up of the Company shall be an amount equal to the optional redemption price
thereof applicable at the date fixed for payment, and no more. The amount
payable on each share of the $2.00 Series in the event of involuntary
dissolution, liquidation or winding up of the Company shall be $25.00 plus
the amount of accrued and unpaid dividends, if any, thereon to the date
fixed for payment, and no more.
V. Amendment of Resolution. The Board of Directors may, from time to
time, amend this resolution to (i) increase the number of shares of
Preference Stock issuable in the $2.00 Series, (ii) substitute later dates
for any or all of the respective dates specified in Division III, (iii)
increase any or all of the redemption prices specified in Division III, and
(iv) increase the amount payable on each share of the $2.00 Series in the
event of the involuntary dissolution, liquidation or winding up of the
Company.
$1.96 CUMULATIVE PREFERENCE STOCK
THE BOARD OF DIRECTORS OF THE COMPANY ADOPTED THE FOLLOWING RESOLUTION,
EFFECTIVE NOVEMBER 13, 1972:
RESOLVED, that pursuant to authority expressly vested in the Board of
Directors by the Company's Articles of Incorporation, as amended, there be and
there hereby is established a series of the Preference Stock, without par value,
of the Company, the designation of such series, the number of shares to be
issuable therein, and certain of the terms and provisions thereof to be as
follows:
I. Designation of Series and Number of Shares to Be Issuable Therein.
The series of Preference Stock established hereby shall be designated $1.96
Cumulative Preference Stock (hereinafter called the "$1.96 Series"), in
which 2,000,000 shares shall be issuable.
II. Dividends. Dividends shall be payable on the shares of the $1.96
Series at the rate of $1.96 per share per annum, and no more. The first
dividend payable on
-30-
shares, if any, of the $1.96 Series issued on or prior to February 1, 1973,
shall accrue from the date of issue of the first issued shares of the $1.96
Series and the first dividend payable on shares, if any, of the $1.96
Series issued between quarterly dividend payment dates and subsequent to
February 1, 1973, shall accrue from the quarterly dividend payment date
next preceding the date of issue of such shares.
III. Redemption. Prior to December 1, 1977, none of the shares of
the $1.96 Series may be redeemed. On or after December 1, 1977, the shares
of the $1.96 Series may be called for redemption and redeemed, at the
option of the Company, in whole at any time or in part from time to time,
at the redemption prices hereinafter set forth and upon the notice and in
the manner prescribed in the applicable provisions of the Company's
Articles of Incorporation, as amended.
The per share redemption prices of the shares of the $1.96 Series
shall be $27.65 if redeemed on or after December 1, 1977 but before
December 1, 1982, and $27.00 if redeemed on or after December 1, 1982, in
each case plus the amount of accrued and unpaid dividends, if any, thereon
to the redemption date.
IV. Liquidation Prices. The amount payable on each share of the
$1.96 Series in the event of voluntary dissolution, liquidation or winding
up of the Company shall be $27.65 prior to December 1, 1982 and $27.11 on
or after December 1, 1982, in each case plus the amount of accrued and
unpaid dividends, if any, thereon to the date fixed for payment, and no
more. The amount payable on each share of the $1.96 Series in the event of
involuntary dissolution, liquidation or winding up of the Company shall be
$25.00 plus the amount of accrued and unpaid dividends, if any, thereon to
the date fixed for payment, and no more.
V. Amendment of Resolution. The Board of Directors may, from time to
time, amend this resolution to (i) increase the number of shares of
Preference Stock issuable in the $1.96 Series, (ii) substitute later dates
for any or all of the dates specified in Divisions III and IV, and (iii)
increase any or all of the prices specified in Divisions III and IV.
$7.24 CUMULATIVE PREFERENCE STOCK
THE BOARD OF DIRECTORS OF THE COMPANY ADOPTED THE FOLLOWING RESOLUTION,
EFFECTIVE FEBRUARY 13, 1973:
RESOLVED, that pursuant to authority expressly vested in the Board of
Directors by the Company's Articles of Incorporation, as
-31-
amended, there be and there hereby is established a series of the Preference
Stock, without par value, of the Company, the designation of such series, the
number of shares to be issuable therein, and certain of the terms and provisions
thereof to be as follows:
I. Designation of Series and Number of Shares to Be Issuable Therein.
The series of Preference Stock established hereby shall be designated $7.24
Cumulative Preference Stock (hereinafter called the "$7.24 Series"), in
which 750,000 shares shall be issuable.
II. Dividends. Dividends shall be payable on the shares of the $7.24
Series at the rate of $7.24 per share per annum, and no more. The first
dividend payable on shares, if any, of the $7.24 Series issued on or prior
to May 1, 1973, shall accrue from the date of issue of the first issued
shares of the $7.24 Series and the first dividend payable on shares, if
any, of the $7.24 Series, issued between quarterly dividend payment dates
and subsequent to May 1, 1973, shall accrue from the quarterly dividend
payment date next preceding the date of issue of such shares.
III. Redemption. Prior to March 1, 1978, none of the shares of the
$7.24 Series may be redeemed. On or after March 1, 1978, the shares of the
$7.24 Series may be called for redemption and redeemed, at the option of
the Company, in whole at any time or in part from time to time, at the
redemption prices hereinafter set forth and upon the notice and in the
manner prescribed in the applicable provisions of the Company's Articles of
Incorporation, as amended.
The per share redemption prices of the shares of the $7.24 Series
shall be $103.00 if redeemed on or after March 1, 1978 but before March 1,
1983, and $101.00 if redeemed on or after March 1, 1983, in each case plus
the amount of accrued and unpaid dividends, if any, thereon to the
redemption date.
IV. Liquidation Prices. The amount payable on each share of the
$7.24 Series in the event of voluntary dissolution, liquidation or winding
up of the Company shall be $103.00 prior to March 1, 1983, and $101.00 on
or after March 1, 1983, in each case plus the amount of accrued and unpaid
dividends, if any, thereon to the date fixed for payment, and no more. The
amount payable on each share of the $7.24 Series in the event of
involuntary dissolution, liquidation or winding up of the Company shall be
$99.12 plus the amount of accrued and unpaid dividends, if any, thereon to
the date fixed for payment, and no more.
V. Amendment of Resolution. The Board of Directors may, from time to
time, amend this resolution to (i) increase the number of shares of
Preference Stock issuable in
-32-
the $7.24 Series, (ii) substitute later dates for any or all of the dates
specified in Divisions III and IV, and (iii) increase any or all of the
prices specified in Divisions III and IV.
$8.40 CUMULATIVE PREFERENCE STOCK
THE BOARD OF DIRECTORS OF THE COMPANY ADOPTED THE FOLLOWING RESOLUTION,
EFFECTIVE JANUARY 24, 1974:
RESOLVED, that pursuant to authority expressly vested in the Board of
Directors by the Company's Articles of Incorporation, as amended, there be and
there hereby is established a series of the Preference Stock, without par value,
of the Company, the designation of such series, the number of shares to be
issuable therein, and certain of the terms and provisions thereof to be as
follows:
I. Designation of Series and Number of Shares to Be Issuable Therein.
The series of Preference Stock established hereby shall be designated $8.40
Cumulative Preference Stock (hereinafter called the "$8.40 Series"), in
which 750,000 shares shall be issuable.
II. Dividends. Dividends shall be payable on the shares of the $8.40
Series at the rate of $8.40 per share per annum, and no more. The first
dividend payable on shares, if any, of the $8.40 Series issued on or prior
to May 1, 1974, shall accrue from the date of issue of the first issued
shares of the $8.40 Series and the first dividend payable on shares, if
any, of the $8.40 Series, issued between quarterly dividend payment dates
and subsequent to May 1, 1974, shall accrue from the quarterly dividend
payment date next preceding the date of issue of such shares.
III. Redemption. Prior to February 1, 1979, none of the shares of
the $8.40 Series may be redeemed. On or after February 1, 1979, the shares
of the $8.40 Series may be called for redemption and redeemed, at the
option of the Company, in whole at any time or in part from time to time,
at the redemption prices hereinafter set forth and upon the notice and in
the manner prescribed in the applicable provisions of the Company's
Articles of Incorporation, as amended.
The per share redemption prices of the shares of the $8.40 Series
shall be $103.00 if redeemed on or after February 1, 1979 but before
February 1, 1984, and $101.00 if redeemed on or after February 1, 1984, in
each case plus the amount of accrued and unpaid dividends, if any, thereon
to the redemption date.
-33-
IV. Liquidation Prices. The amount payable on each share of the
$8.40 Series in the event of voluntary dissolution, liquidation or winding
up of the Company shall be $103.00 prior to February 1, 1984, and $101.00
on or after February 1, 1984, in each case plus the amount of accrued and
unpaid dividends, if any, thereon to the date fixed for payment, and no
more. The amount payable on each share of the $8.40 Series in the event of
involuntary dissolution, liquidation or winding up of the Company shall be
$98.90 plus the amount of accrued and unpaid dividends, if any, thereon to
the date fixed for payment, and no more.
V. Amendment of Resolution. The Board of Directors may, from time to
time, amend this resolution to (i) increase the number of shares of
Preference Stock issuable in the $8.40 Series, (ii) substitute later dates
for any or all of the dates specified in Divisions III and IV, and (iii)
increase any or all of the prices specified in Divisions III and IV.
$8.38 CUMULATIVE PREFERENCE STOCK
THE BOARD OF DIRECTORS OF THE COMPANY ADOPTED THE FOLLOWING RESOLUTION,
EFFECTIVE MARCH 23, 1977:
RESOLVED, that pursuant to authority expressly vested in the Board of
Directors by the Company's Articles of Incorporation, as amended, there be and
there hereby is established a series of the Preference Stock, without par value,
of the Company, the designation of such series, the number of shares to be
issuable therein, and certain of the terms and provisions thereof to be as
follows:
I. Designation of Series and Number of Shares to Be Issuable Therein.
The series of Preference Stock established hereby shall be designated $8.38
Cumulative Preference Stock (hereinafter called the "$8.38 Series"), in
which 750,000 shares shall be issuable.
II. Dividends. Dividends shall be payable on the shares of the $8.38
Series at the rate of $8.38 per share per annum, and no more. The first
dividend payable on shares, if any, of the $8.38 Series issued on or prior
to August 1, 1977, shall accrue from the date of issue of the first issued
shares of the $8.38 Series. The first dividend payment date for the shares
of the $8.38 Series shall be August 1, 1977.
III. Optional Redemption. Prior to April 1, 1982, none of the shares
of the $8.38 Series may be redeemed. On or after April 1, 1982, shares of
the $8.38 Series may be called for redemption and redeemed, at the option
of the Company, in whole at any time or in part from time to time,
-34-
at the redemption prices hereinafter set forth and upon the notice and in
the manner prescribed in the applicable provisions of the Company's
Articles of Incorporation, as amended.
Such per share optional redemption prices of the shares of the $8.38
Series shall be $102.15 from April 1, 1982 through March 31, 1987, and
$100.16 on and after April 1, 1987, in each case plus the amount of accrued
and unpaid dividends, if any, thereon to the redemption date.
IV. Liquidation Prices. The amount payable on each share of the
$8.38 Series in the event of voluntary dissolution, liquidation or winding
up of the Company shall be $102.15 through March 31, 1987, and $100.16 on
and after April 1, 1987, plus the amount of accrued and unpaid dividends,
if any, thereon to the date fixed for payment, and no more. The amount
payable on each share of the $8.38 Series in the event of involuntary
dissolution, liquidation or winding up of the Company shall be $98.09, plus
the amount of accrued and unpaid dividends, if any, thereon to the date
fixed for payment, and no more.
$8.20 CUMULATIVE PREFERENCE STOCK
THE BOARD OF DIRECTORS OF THE COMPANY ADOPTED THE FOLLOWING RESOLUTION,
EFFECTIVE SEPTEMBER 21, 1977:
RESOLVED, that pursuant to authority expressly vested in the Board of
Directors by the Company's Articles of Incorporation, as amended, there be and
there hereby is established a series of the Preference Stock, without par value,
of the Company, the designation of such series, the number of shares to be
issuable therein, and certain of the terms and provisions thereof to be as
follows:
I. Designation of Series and Number of Shares to Be Issuable Therein.
The series of Preference Stock established hereby shall be designated $8.20
Cumulative Preference Stock (hereinafter called the "$8.20 Series"), in
which 750,000 shares shall be issuable.
II. Dividends. Dividends shall be payable on the shares of the $8.20
Series at the rate of $8.20 per share per annum, and no more. The first
dividend payable on shares of the $8.20 Series issued on or prior to
November 1, 1977, shall accrue from the first date of issue of any such
shares and such dividend shall be payable on November 1, 1977.
III. Sinking Fund. At or before the opening of business on November
1, 1982, and at or before the opening of business on each November 1
thereafter through November 1, 2001, the Company shall set aside, separate
and apart from
-35-
its other funds, as a sinking fund payment for the retirement of 35,715
shares of the $8.20 Series, the sum of $3,571,500, and at or before the
opening of business on November 1, 2002, the Company shall so set aside as
a sinking fund payment for the retirement of 35,700 shares of the $8.20
Series the sum of $3,570,000, plus, in each case, a sum equal to the amount
of accrued and unpaid dividends, if any, on the shares to be retired to the
redemption date (each such November 1 being referred to in this Section III
as a "sinking fund payment date"). The requirement in respect of sinking
fund payments shall be cumulative, so that if the Company shall fail to set
aside in full the amount of any sinking fund payment, the amount of the
deficiency shall be added to the next succeeding sinking fund payment or
payments until such deficiency shall be made good.
The Company shall apply all cash set aside by it pursuant to this
Section III and held by it on any sinking fund payment date to the
redemption on such date of outstanding shares of the $8.20 Series at the
sinking fund redemption price ($100 per share, plus an amount equal to
accrued and unpaid dividends, if any, on such shares to the redemption
date), such redemption to be effected upon the notice and in the manner
prescribed in the applicable provisions of the Company's Articles of
Incorporation, as amended.
The Company shall not be entitled to take credit for the satisfaction
of all or any part of any sinking fund payment by the application of any
previously issued shares of the $8.20 Series acquired by the Company or
redeemed by it otherwise than pursuant to this Section III.
Notwithstanding any of the other provisions of this Section III, if
any November 1, referred to above, shall be a Saturday, a Sunday or a legal
holiday for banking institutions in the State of Illinois, the term
"sinking fund payment date", as used in this Section III, shall be
construed to mean the next succeeding day which is not a Saturday, a Sunday
or such a legal holiday.
IV. Optional Redemption. Prior to November 1, 1987, none of the
shares of the $8.20 Series may be redeemed except through sinking fund
payments provided for in Section III above. On or after November 1, 1987,
shares of the $8.20 Series may be called for redemption and redeemed,at the
option of the Company, in whole at any time or in part from time to time,
at the redemption prices hereinafter set forth and upon the notice and in
the manner prescribed in the applicable provisions of the Company's
Articles of Incorporation, as amended.
-36-
Such per share optional redemption prices of the shares of the $8.20
Series shall be $105 from November 1, 1987 through October 31, 1992, $103
from November 1, 1992 through October 31, 1997, and $101 on and after
November 1, 1997, in each case plus the amount of accrued and unpaid
dividends, if any, on the shares to be redeemed to the redemption date.
All shares of the $8.20 Series redeemed pursuant to this Section IV or
otherwise acquired shall be retired and cancelled and shall not be
reissued.
V. Pro Rata Redemption. In case of the redemption at any time of
less than all the outstanding shares of the $8.20 Series, pursuant to
Section III or Section IV hereof, the particular shares of the $8.20 Series
to be redeemed shall be selected by the Company from such outstanding
shares as nearly as practicable pro rata according to the respective
numbers of such outstanding shares then held of record by the holders of
shares of the $8.20 Series.
VI. Liquidation Prices. The amount payable on each share of the
$8.20 Series in the event of voluntary dissolution, liquidation or winding
up of the Company shall be $108.20 through October 31, 1987, $105 from
November 1, 1987 through October 31, 1992, $103 from November 1, 1992
through October 31, 1997, and $101 on and after November 1, 1997, in each
case plus the amount of accrued and unpaid dividends, if any, thereon to
the date fixed for payment, and no more. The amount payable on each share
of the $8.20 Series in the event of involuntary dissolution, liquidation or
winding up of the Company shall be $100, plus the amount of accrued and
unpaid dividends, if any, thereon to the date fixed for payment, and no
more.
$8.40 CUMULATIVE PREFERENCE STOCK, SERIES B
THE BOARD OF DIRECTORS OF THE COMPANY ADOPTED THE FOLLOWING RESOLUTION,
EFFECTIVE APRIL 19, 1978:
RESOLVED, that pursuant to authority expressly vested in the Board of
Directors by the Company's Articles of Incorporation, as amended, there be and
there hereby is established a series of the Preference Stock, without par value,
of the Company, the designation of such series, the number of shares to be
issuable therein, and certain of the terms and provisions thereof to be as
follows:
I. Designation of Series and Number of Shares to Be Issuable Therein.
The series of Preference Stock established hereby shall be designated $8.40
Cumulative Preference Stock, Series B, (hereinafter called the $8.40 Series
B"), in which 750,000 shares shall be issuable.
-37-
II. Dividends. Dividends shall be payable on the shares of the $8.40
Series B at the rate of $8.40 per share per annum, and no more. The first
dividend payable on shares, if any, of the $8.40 Series B, issued on or
prior to August 1, 1978, shall accrue from the date of issue of the first
issued shares of the $8.40 Series B.
III. Sinking Fund. (a) At or before the opening of business on May
1 in each year commencing May 1, 1983 (each such May 1 being referred to in
this Section III as a "sinking fund payment date"), the Company shall set
aside, separate and apart from its other funds, as a mandatory sinking fund
payment for the retirement of 30,000 shares of the $8.40 Series B, the sum
of $3,000,000 ($100 per share), plus a sum equal to the amount of accrued
and unpaid dividends, if any, on such shares to the redemption date. The
requirement in respect of mandatory sinking fund payments shall be
cumulative, so that if the Company shall fail to set aside in full the
amount of any mandatory sinking fund payment, the amount of the deficiency
shall be added to the next succeeding mandatory sinking fund payment or
payments until such deficiency shall be made good.
(b) In addition to the mandatory sinking fund payments provided for
by subsection (a) above, the Company shall have the right, on any sinking
fund payment date, to set aside, separate and apart from its other funds,
as an optional sinking fund payment for the retirement of shares of the
$8.40 Series B, at the sinking fund redemption price, a sum not in excess
of $3,000,000, exclusive of accrued and unpaid dividends. The right of the
Company to make optional sinking fund payments shall not be cumulative.
(c) In satisfaction of all or any part of any mandatory sinking fund
payment, the Company may elect to take credit, at the sinking fund
redemption price, for any previously issued shares of the $8.40 Series B
acquired or redeemed by the Company (otherwise than through the application
of mandatory sinking fund payments), which have not theretofore been used
for the purpose of any such credit.
(d) The Company shall apply all cash set aside by it pursuant to
subsections (a) and (b) above and held by it on any sinking fund payment
date to the redemption on such date of outstanding shares of the $8.40
Series B at the sinking fund redemption price ($100 per share, plus an
amount equal to accrued and unpaid dividends, if any, on such shares to the
redemption date), such redemption to be effected upon the notice and in the
manner prescribed in the applicable provisions of the Company's Articles of
Incorporation, as amended.
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(e) Notwithstanding any of the other provisions of this Section III,
if any May 1, referred to in subsection (a) above, shall be a Saturday, a
Sunday or a legal holiday for banking institutions in the State of
Illinois, the term "sinking fund payment date", as used in this Section
III, shall be construed to mean the next succeeding day which is not a
Saturday, a Sunday or such a legal holiday.
IV. Optional Redemption. Prior to May 1, 1983, none of the shares of
the $8.40 Series B may be redeemed. On or after May 1, 1983, shares of the
$8.40 Series B may be called for redemption and redeemed, at the option of
the Company in whole at any time or in part from time to time, at the
redemption prices hereinafter set forth and upon the notice and in the
manner prescribed in the applicable provisions of the Company's Articles of
Incorporation, as amended.
Such per share optional redemption prices of the shares of the $8.40
Series B shall be $103 from May 1, 1983 through April 30, 1988, and on and
after May 1, 1988, $101 per share, in each case plus the amount of accrued
and unpaid dividends, if any, thereon to the redemption date.
V. Liquidation Prices. The amount payable on each share of the $8.40
Series B in the event of voluntary dissolution, liquidation or winding up
of the Company shall be $103 through April 30, 1988, and on and after May
1, 1988, $101, plus the amount of accrued and unpaid dividends, if any,
thereon to the date fixed for payment, and no more. The amount payable on
each share of the $8.40 Series B in the event of involuntary dissolution,
liquidation or winding up of the Company shall be $99.326, plus the amount
of accrued and unpaid dividends, if any, thereon to the date fixed for
payment, and no more.
$8.85 CUMULATIVE PREFERENCE STOCK
THE BOARD OF DIRECTORS OF THE COMPANY ADOPTED THE FOLLOWING RESOLUTION,
EFFECTIVE JULY 21, 1978:
RESOLVED, that pursuant to authority expressly vested in the Board of
Directors by the Company's Articles of Incorporation, as amended, there be and
there hereby is established a series of the Preference Stock, without par value,
of the Company, the designation of such series, the number of shares to be
issuable therein, and certain of the terms and provisions thereof to be as
follows:
I. Designation of Series and Number of Shares to Be Issuable Therein.
The series of Preference Stock established hereby shall be designated $8.85
Cumulative Prefer-
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ence Stock (hereinafter called the "$8.85 Series"), in which 750,000 shares
shall be issuable.
II. Dividends. Dividends shall be payable on the shares of the $8.85
Series at the rate of $8.85 per share per annum, and no more. The first
dividend payable on shares of the $8.85 Series issued on or prior to
November 1, 1978, shall accrue from the first date of issue of any such
shares and such dividend shall be payable on November 1, 1978.
III. Sinking Fund. At or before the opening of business on August 1,
1984, and at or before the opening of business on each August 1 thereafter
through August 1, 2003, the Company shall set aside, separate and apart
from its other funds, as a sinking fund payment for the retirement of
37,500 shares of the $8.85 Series, the sum of $3,750,000, plus in each
case, a sum equal to the amount of accrued and unpaid dividends, if any, on
the shares to be retired to the redemption date (each such August 1 being
referred to in this Section III as a "sinking fund payment date"). The
requirement in respect of sinking fund payments shall be cumulative, so
that if the Company shall fail to set aside in full the amount of any
sinking fund payment, the amount of the deficiency shall be added to the
next succeeding sinking fund payment or payments until such deficiency
shall be made good.
The Company shall apply all cash set aside by it pursuant to this
Section III and held by it on any sinking fund payment date to the
redemption on such date of outstanding shares of the $8.85 Series at the
sinking fund redemption price ($100 per share, plus an amount equal to
accrued and unpaid dividends, if any, on such shares to the redemption
date), such redemption to be effected upon the notice and in the manner
prescribed in the applicable provisions of the Company's Articles of
Incorporation, as amended.
The Company shall not be entitled to take credit for the satisfaction
of all or any part of any sinking fund payment by the application of any
previously issued shares of the $8.85 Series acquired by the Company or
redeemed by it otherwise than pursuant to this Section III.
Notwithstanding any of the other provisions of this Section III, if
any August 1, referred to above, shall be a Saturday, a Sunday or a legal
holiday for banking institutions in the State of Illinois, the term
"sinking fund payment date", as used in this Section III, shall be
construed to mean the next succeeding date which is not a Saturday, a
Sunday or such a legal holiday.
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IV. Optional Redemption. Prior to August 1, 1988, none of the shares
of the $8.85 Series may be redeemed except through sinking fund payments
provided for in Section III above. On or after August 1, 1988, shares of
the $8.85 Series may be called for redemption and redeemed, at the option
of the Company, in whole at any time or in part from time to time, at the
redemption prices hereinafter set forth and upon the notice and in the
manner prescribed in the applicable provisions of the Company's Articles of
Incorporation, as amended.
Such per share optional redemption prices of the shares of the $8.85
Series shall be $105 from August 1, 1988 through July 31, 1993, $103 from
August 1, 1993 through July 31, 1998, and $101 on and after August 1, 1998,
in each case plus the amount of accrued and unpaid dividends, if any, on
the shares to be redeemed to the redemption date.
All shares of the $8.85 Series redeemed pursuant to this Section IV or
otherwise acquired shall be retired and cancelled and shall not be
reissued.
V. Pro Rata Redemption. In case of the redemption at any time or
less than all the outstanding shares of the $8.85 Series, pursuant to
Section III or Section IV hereof, the particular shares of the $8.85 Series
to be redeemed shall be selected by the Company from such outstanding
shares as nearly as practicable pro rata according to the respective
numbers of such outstanding shares then held of record by the holders of
shares of the $8.85 Series.
VI. Liquidation Prices. The amount payable on each share of the
$8.85 Series in the event of voluntary dissolution, liquidation or winding
up of the Company shall be $108.85 through July 31, 1988, $105 from August
1, 1988 through July 31, 1993, $103 from August 1, 1993 through July 31,
1998, and $101 on and after August 1, 1998, in each case plus the amount of
accrued and unpaid dividends, if any, thereon to the date fixed for
payment, and no more. The amount payable on each share of the $8.85 Series
in the event of involuntary dissolution, liquidation or winding up of the
Company shall be $100, plus the amount of accrued and unpaid dividends, if
any, thereon to the date fixed for payment and no more.
$9.25 CUMULATIVE PREFERENCE STOCK
THE BOARD OF DIRECTORS OF THE COMPANY ADOPTED THE FOLLOWING RESOLUTION,
EFFECTIVE MARCH 29, 1979:
RESOLVED, that pursuant to authority expressly vested in the Board of
Directors by the Company's Articles of Incorporation, as
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amended, there be and there hereby is established a series of the Preference
Stock, without par value, of the Company, the designation of such series, the
number of shares to be issuable therein, and certain of the terms and provisions
thereof to be as follows:
I. Designation of Series and Number of Shares to Be Issuable Therein.
The series of Preference Stock established hereby shall be designated $9.25
Cumulative Preference Stock (hereinafter called the "$9.25 Series"), in
which 1,500,000 shares shall be issuable.
II. Dividends. Dividends shall be payable on the shares of the $9.25
Series at the rate of $9.25 per share per annum, and no more. The first
dividend payable on shares of the $9.25 Series issued on or prior to May 1,
1979, shall accrue from the first date of issue of any such shares and such
dividend shall be payable on August 1, 1979.
III. Sinking Fund. At or before the opening of business on August 1,
1985, and at or before the opening of business on each August 1 thereafter
through August 1, 2004, the Company shall set aside, separate and apart
from its other funds, as a sinking fund payment for the retirement of
75,000 shares of the $9.25 Series, the sum of $7,500,000, plus, in each
case, a sum equal to the amount of accrued and unpaid dividends, if any, on
the shares to be retired to the redemption date (each such August 1 being
referred to in this Section III as a "sinking fund payment date"). The
requirement in respect of sinking fund payments shall be cumulative, so
that if the Company shall fail to set aside in full the amount of any
sinking fund payment, the amount of the deficiency shall be added to the
next succeeding sinking fund payment or payments until such deficiency
shall be made good.
The Company shall apply all cash set aside by it pursuant to this
Section III and held by it on any sinking fund payment date to the
redemption on such date of outstanding shares of the $9.25 Series at the
sinking fund redemption price ($100 per share, plus an amount equal to
accrued and unpaid dividends, if any, on such shares to the redemption
date), such redemption to be effected upon the notice and in the manner
prescribed in the applicable provisions of the Company's Articles of
Incorporation, as amended.
The Company shall not be entitled to take credit for the satisfaction
of all or any part of any sinking fund payment by the application of any
previously issued shares of the $9.25 Series acquired by the Company or
redeemed by it otherwise than pursuant to this Section III.
Notwithstanding any of the other provisions of this Section III, if
any August 1, referred to above, shall be a
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Saturday, a Sunday or a legal holiday for banking institutions in the State
of Illinois, the term "sinking fund payment date", as used in this Section
III, shall be construed to mean the next succeeding date which is not a
Saturday, a Sunday or such a legal holiday.
IV. Optional Redemption. Prior to August 1, 1989, none of the shares
of the $9.25 Series may be redeemed except through sinking fund payments
provided for in Section III above. On or after August 1, 1989, shares of
the $9.25 Series may be called for redemption and redeemed, at the option
of the Company, in whole at any time or in part from time to time, at the
redemption prices hereinafter set forth and upon the notice and in the
manner prescribed in the applicable provisions of the Company's Articles of
Incorporation, as amended.
Such per share optional redemption prices of the shares of the $9.25
Series shall be $105 from August 1, 1989 through July 31, 1994, $103 from
August 1, 1994 through July 31, 1999, and $101 on and after August 1, 1999,
in each case plus the amount of accrued and unpaid dividends, if any, on
the shares to be redeemed to the redemption date.
All shares of the $9.25 Series redeemed pursuant to this Section IV or
otherwise acquired shall be retired and cancelled and shall not be
reissued.
V. Pro Rata Redemption. In case of the redemption at any time or
less than all the outstanding shares of the $9.25 Series, pursuant to
Section III or Section IV hereof, the particular shares of the $9.25 Series
to be redeemed shall be selected by the Company from such outstanding
shares as nearly as practicable pro rata according to the respective
numbers of such outstanding shares then held of record by the holders of
shares of the $9.25 Series.
VI. Liquidation Prices. The amount payable on each share of the
$9.25 Series in the event of voluntary dissolution, liquidation or winding
up of the Company shall be $109.25 through July 31, 1989, $105 from August
1, 1989 through July 31, 1994, $103 from August 1, 1994 through July 31,
1999, and $101 on and after August 1, 1999, in each case plus the amount of
accrued and unpaid dividends, if any, thereon to the date fixed for
payment, and no more. The amount payable on each share of the $9.25 Series
in the event of involuntary dissolution, liquidation or winding up of the
Company shall be $100, plus the amount of accrued and unpaid dividends, if
any, thereon to the date fixed for payment and no more.
$9.00 CUMULATIVE PREFERENCE STOCK
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THE BOARD OF DIRECTORS OF THE COMPANY ADOPTED THE FOLLOWING RESOLUTION,
EFFECTIVE JULY 25, 1990:
RESOLVED, that, pursuant to authority expressly vested in the Board of
Directors by the Company's Restated Articles of Incorporation, as amended, there
be, and there hereby is, established a series of the Preference Stock, without
par value, of the Company, the designation of such series, the number of shares
to be issuable therein, and certain of the terms and provisions thereof to be as
follows:
I. Designation of Series and Number of Shares to Be Issuable Therein.
The series of Preference Stock established hereby shall be designated $9.00
Cumulative Preference Stock (hereinafter called the "$9.00 Series"), in
which 650,000 shares shall be issuable.
II. Dividends. Dividends shall be payable on the shares of the $9.00
Series at the rate of $9.00 per share per annum, and no more. The first
dividend payable on shares, if any, of the $9.00 Series issued on or prior
to November 1, 1990, shall accrue from the date of issue of the first
issued shares of the $9.00 Series. The first dividend payment date for the
shares of the $9.00 Series shall be November 1, 1990.
III. Sinking Fund. (a) At or before the opening of business on
August 1, 1996, and at or before the opening of business on each August 1
thereafter through August 1, 2000, the Company shall set aside, separate
and apart from its other funds, as a sinking fund payment for the
retirement of 130,000 shares of the $9.00 Series, the sum of $13,000,000
plus, in each case, a sum equal to the amount of accrued and unpaid
dividends, if any, on the shares to be retired to the redemption date (each
such August 1 being referred to in this Section III as a "Sinking fund
payment date"). The requirement in respect of sinking fund payments shall
be cumulative, so that if the Company shall fail to set aside in full the
amount of any sinking fund payment, the amount of the deficiency shall be
added to the next succeeding sinking fund payment or payments until such
deficiency shall be made good.
(b) In addition to the mandatory sinking fund payments provided for
by subsection (a) above, the Company shall have the right, on any sinking
fund payment date, to set aside, separate and apart from its other funds,
as an optional sinking fund payment for the retirement of shares of the
$9.00 Series, at the sinking fund redemption price, a sum not in excess of
$13,000,000, exclusive of accrued and
-44-
unpaid dividends. The right of the Company to make optional sinking fund
payments shall not be cumulative.
(c) In satisfaction of all or any part of any mandatory sinking fund
payment, the Company may elect to take credit, at the sinking fund
redemption price, for any previously issued shares of the $9.00 Series
acquired or redeemed by the Company (otherwise than through the application
of mandatory sinking fund payments), which have not theretofore been used
for the purpose of any such credit.
(d) The Company shall apply all cash set aside by it pursuant to this
Section III and held by it on any sinking fund payment date to the
redemption on such date of outstanding shares of the $9.00 Series at the
sinking fund redemption price ($100 per share, plus an amount equal to
accrued and unpaid dividends, if any, on such shares to the redemption
date), such redemption to be effected upon the notice and in the manner
prescribed in the applicable provisions of the Company's Restatement
Articles of Incorporation, as amended.
(e) Notwithstanding any of the provisions of this Section III, if any
August 1, referred to above, shall be a Saturday, a Sunday or a legal
holiday for banking institutions in the State of Illinois, the term
"sinking fund payment date" as used in this Section III, shall be construed
to mean the next succeeding date which is not a Saturday, a Sunday or such
a legal holiday.
IV. Liquidation Prices. The amount payable on each share of the
$9.00 Series in the event of voluntary dissolution, liquidation or winding
up the Company shall be $109.00 through July 31, 1991, $108.00 from August
1, 1991 through July 31, 1992, $107.00 from August 1, 1992 through July 31,
1993, $106.00 from August 1, 1993 through July 31, 1994, $105.00 from
August 1, 1994 through July 31, 1995, $104.00 from August 1, 1995 through
July 31, 1996, $103.00 from August 1, 1996 through July 31, 1997, $102.00
from August 1, 1997 through July 31, 1998, $101.00 from August 1, 1998
through July 31, 1999, and $100.00 on and after August 1, 1999, in each
case plus the amount of accrued and unpaid dividends, if any, thereon to
the date fixed for payment, and no more. The amount payable on each share
of the $9.00 Series in the event of involuntary dissolution, liquidation or
winding up of the Company shall be $99.125, plus the amount of accrued and
unpaid dividends, if any, thereon to the date fixed for payment, and no
more.
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$6.875 CUMULATIVE PREFERENCE STOCK
THE BOARD OF DIRECTORS OF THE COMPANY ADOPTED THE FOLLOWING
RESOLUTION, EFFECTIVE MAY 21, 1993:
RESOLVED, that, pursuant to authority expressly vested in the Board of
Directors by the Company's Restated Articles of Incorporation, as amended, there
be, and there hereby is, established a series of the Preference Stock, without
par value, of the Company, the designation of such series, the number of shares
to be issuable therein, and certain of the terms and provisions thereof to be as
follows:
I. Designation of Series and Number of Shares to Be Issuable Therein.
The series of Preference Stock established hereby shall be designated
$6.875 Cumulative Preference Stock (hereinafter called the "$6.875
Series"), in which 700,000 shares shall be issuable.
II. Dividends. Dividends shall be payable on the shares of the
$6.875 Series at the rate of $6.875 per share per annum, and no more. The
first dividend payable on shares, if any, of the $6.875 Series issued on or
prior to August 1, 1993, shall accrue from the date of issue of the first
issued shares of the $6.875 Series. The first dividend payment date for
the shares of the $6.875 Series shall be August 1, 1993.
III. Sinking Fund. (a) At or before the opening of business on May
1, 2000, the Company shall set aside, separate and apart from its other
funds, as a sinking fund payment for the retirement of all the outstanding
700,000 shares of the $6.875 Series, the sum of $70,000,000 plus a sum
equal to the amount of accrued and unpaid dividends, if any, on the shares
to be retired on the redemption date (such May 1 being referred to in this
Section III as the "sinking fund payment date").
(b) In satisfaction of all or any part of the mandatory sinking fund
payment, the Company shall take credit, at the sinking fund redemption
price, for any previously issued shares of the $6.875 Series acquired by
the Company prior to May 1, 2000.
(c) The Company shall apply all cash set aside by it pursuant to this
Section III and held by it on the sinking fund payment date to the
redemption on such date of all of the outstanding shares of the $6.875
Series at the sinking fund redemption price ($100 per share, plus an amount
equal to accrued and unpaid dividends, if any, on such shares to the
redemption date), such redemption to be effected upon the notice and in the
manner prescribed in the applicable
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provisions of the Company's Restated Articles of Incorporation, as amended.
(d) Notwithstanding any of the other provisions of this Section III,
if the May 1 referred to above shall be a legal holiday for banking
institutions in the State of Illinois, the term "sinking fund payment date"
as used in this Section III, shall be construed to mean the next succeeding
date which is not a legal holiday and which is not a Saturday or a Sunday.
IV. Liquidation Prices. The amount payable on each share of the
$6.875 Series in the event of voluntary dissolution, liquidation or winding
up of the Company shall be $106.875 through April 30, 1994, $105.75 from
May 1, 1994 through April 30, 1995, $104.625 from May 1, 1995 through April
30, 1996, $103.50 from May 1, 1996 through April 30, 1997, $102.375 from
May 1, 1997 through April 30, 1998, $101.25 from May 1, 1998 through April
30, 1999, and $100 on and after May 1, 1999, in each cash plus accrued and
unpaid dividends, if any, thereon to the date fixed for payment, and no
more. The amount payable on each share of the $6.875 Series in the event
of the involuntary dissolution, liquidation or winding up of the Company
shall be $99.25, plus the amount of accrued and unpaid dividends, if any,
thereon to the date fixed for payment, and no more.
$2.425 CUMULATIVE REFERENCE STOCK
THE BOARD OF DIRECTORS OF THE COMPANY ADOPTED THE FOLLOWING
RESOLUTION, EFFECTIVE JULY 1, 1994:
RESOLVED, that, pursuant to authority expressly vested in the Board of
Directors by the Company's Restated Articles of Incorporation, as amended, there
be, and there hereby is, established a series of the Preference Stock, without
par value, of the Company, the designation of such series, the number of shares
to be issuable therein, and certain of the terms and provisions thereof to be as
follows:
I. Designation of Series and Number of Shares to Be Issuable Therein.
The series of Preference Stock established hereby shall be designated
$2.425 Cumulative Preference Stock (hereinafter called the "$2.425
Series"), in which 3,000,000 shares shall be issuable.
II. Dividends. Dividends shall be payable on the shares of the
$2.425 Series at the rate of $2.425 per share per annum, and no more. The
first dividend payable on shares, if any, of the $2.425 Series issued on or
prior to August 1, 1994, shall accrue from the date of issue of the first
issued shares of the $2.425 Series. The first divi-
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dend payment date for the shares of the $2.425 Series shall be August 1,
1994.
III. Redemption. The $2.425 Series will not be redeemable prior to
August 1, 1999. On and after that date, shares of the $2.425 Series may be
called for redemption and redeemed, at the option of the Company, in whole
at any time or in part from time to time, at a redemption price of $25 per
share, plus accrued and unpaid dividends to the date of redemption, and
upon the notice and in the manner prescribed in the applicable provisions
of the Company's Articles of Incorporation, as amended.
IV. Liquidation Prices. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the holders of the
$2.425 Series at the time outstanding will be entitled to receive out of
assets of the Company available for distribution to shareholders, before
any distribution of assets is made to holders of Common Stock or any other
class of stock ranking junior to the $2.425 Series upon liquidation,
liquidating distributions in the amount of $25 per share, plus accrued and
unpaid dividends, if any, thereon to the date fixed for payment and no
more.
____________________
ADDITIONAL INFORMATION PURSUANT TO SECTION 10.30
OF THE BUSINESS CORPORATION ACT OF 1983
Commonwealth Edison Company was formed by the consolidation of Chicago
Edison Company and Commonwealth Electric Company, pursuant to Articles of
Consolidation effective September 17, 1907. The following companies were
subsequently merged into Commonwealth Edison Company: Cosmopolitan Electric
Company, pursuant to An Agreement of Consolidation effective October 17, 1913;
Public Service Company of Northern Illinois, pursuant to Articles of Merger
effective March 17, 1953; Central Illinois Electric and Gas Co., pursuant to
Articles of Merger effective December 9, 1966; and CECo Merging Corporation,
pursuant to Articles of Merger effective September 1, 1994.
The address of the Company's registered office on the date hereof is One
First National Plaza, Chicago, Illinois, 60690. The Company's registered agent
on the date hereof is David A. Scholz.
The number of shares of each class issued on the date hereof is a follows:
(a) Prior Preferred Stock of the par value of $100 per share: none;
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(b) $1.425 Convertible Preferred Stock without par value: 99,864 shares;
(c) Preference Stock without par value: 16,612,754 shares; and
(d) Common Stock of the par value of $12.50 per share: 214,191,595
shares.
The amount of paid in capital on the date hereof is $5,702,199,758.70.
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