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EXHIBIT 3(i)
ARTICLES OF AMENDMENT AND RESTATEMENT
OF THE
ARTICLES OF INCORPORATION
OF
ALABAMA GAS CORPORATION
STATE OF ALABAMA )
:
COUNTY OF JEFFERSON )
TO THE HONORABLE SECRETARY OF STATE OF ALABAMA:
Pursuant to the provisions of Article 10 of Chapter 2B of Title 10 of
the Code of Alabama of 1975 (# 10-2B- 10.01, et seq.), the undersigned
corporation executes the following Articles of Amendment and Restatement of the
Articles of Incorporation:
FIRST: The name of the corporation is Alabama Gas Corporation.
SECOND: The articles of incorporation of the corporation
shall be amended and restated in their entirety to read as follows:
1. The name of the corporation is Alabama Gas Corporation.
2. The aggregate number of shares of all classes of stock which
the corporation is authorized to issue is 3,120,000 shares, of which 120,000
shares, par value of $0.01 per share, are to be preferred stock (hereinafter
called "Preferred Stock"), and 3,000,000 shares, par value of $0.01 per share,
are to be common stock (hereinafter called "Common Stock").
A. The Preferred Stock may be issued in such
one or more series as shall from time to time be created and authorized to be
issued by the board of directors as hereinafter provided. The board of
directors is hereby expressly authorized, in accordance with the requirements
of, and to the fullest extent permitted by, the Alabama Business Corporation
Act, as amended, or any successor statute thereto, to fix and determine, to the
extent not fixed by the provisions hereinafter set forth, the preferences,
limitations and relative rights of the shares of each series of Preferred Stock
before the issuance of any shares of that series. Each share of each series of
Preferred Stock shall have the same preferences, limitations and relative
rights and be identical in all respects with all the other shares of the same
series. Before the corporation shall issue any shares of Preferred Stock of
any series authorized as hereinbefore provided, articles of amendment of the
articles of incorporation of the corporation with respect to such amendment
shall be filed and recorded in accordance with the then applicable
requirements, if any, of the laws of the State of Alabama, or, if no articles
of amendment are then so required, a certificate shall be signed and
acknowledged on behalf of the corporation by its chairman of the board,
president or a vice president and its corporate seal shall be affixed thereto
and attested by its secretary or an assistant secretary and such certificate
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shall be filed and kept on file at the principal office of the corporation in
the State of Alabama and in such other place or places as the board of
directors shall designate.
B. The authority of the board of directors to
provide for the issuance of any shares of the corporation's stock shall
include, but shall not be limited to, authority to issue shares of stock of the
corporation for any purpose and in any manner (including issuance pursuant to
rights, warrants, or other options) permitted by law, for delivery as all or
part of the consideration for or in connection with the acquisition of all or
part of the stock of another corporation or of all or part of the assets of
another corporation or enterprise, irrespective of the amount by which the
issuance of such stock shall increase the number of shares outstanding (but not
in excess of the number of shares authorized).
C. The following relative rights and
preferences of the stock of the corporation are fixed as follows:
(1) Voting Rights.
(a) Common Stock. At all elections of directors of
the corporation and in respect of all other matters as to which the
vote or consent of shareholders of the corporation shall be required
to be taken, the holders of the Common Stock shall be entitled to one
(1) vote for each share held by them.
(b) Preferred Stock. The holders of each series of
the Preferred Stock shall have such voting rights as may be fixed by
resolution or by resolutions of the board of directors providing for
the issuance of such series.
(2) Liquidation, Dissolution, etc. In the event of
any voluntary or involuntary liquidation, dissolution or winding-up of the
corporation, the assets of the corporation available for distribution to the
shareholders (whether from capital or surplus) shall be distributed among those
of the respective series of the outstanding Preferred Stock, if any, as may be
entitled to any preferential amounts and among the respective holders thereof
in accordance with the relative rights and preferences, if any, fixed and
determined for each such series and the holders thereof by the amendment to the
articles of incorporation of the corporation providing for the issue of each
such series of the Preferred Stock; and after payment in full of the amounts
payable in respect of the Preferred Stock, if any, the holders of any series of
the outstanding Preferred Stock who are not entitled to preferential treatment
pursuant to resolutions of the board of directors providing for the issue
thereof and the holders of the outstanding Common Stock shall be entitled (to
the exclusion of the holders of any series of the outstanding Preferred Stock
entitled to preferential treatment pursuant to resolutions of the board of
directors providing for the issue thereof) to share ratably in all the
remaining assets of the corporation available for distribution to its
shareholders. A merger, consolidation or reorganization of the corporation
with or into one or more corporations, or a sale, lease or other transfer of
all or substantially all the assets of the corporation, that does not result in
the termination of the enterprise and distribution of the assets to
shareholders, shall not be deemed to constitute a liquidation, dissolution or
winding-up of the corporation within the meaning of this paragraph C(2) of this
Article 2, notwithstanding the fact that the corporation may cease to exist and
may surrender its corporate charter.
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(3) Dividends. Dividends on any stock of the
corporation shall be payable only to the extent distributions are permitted to
be made by the corporation to its shareholders pursuant to the Alabama Business
Corporation Act, as amended, or any successor statute thereto, and only as and
when declared by the board of directors.
D. No holder of any share or shares of any
class of stock of the corporation shall have any preemptive right to subscribe
for any shares of stock of any class of the corporation now or hereafter
authorized or for any securities convertible into or carrying any optional
rights to purchase or subscribe for any shares of stock of any class of the
corporation now or hereafter authorized, provided, however, that no provision
of the articles of incorporation shall be deemed to deny to the board of
directors the right, in its discretion, to grant to the holders of shares of
any class of stock at the time outstanding the right to purchase or subscribe
for shares of stock of any class or any other securities of the corporation now
or hereafter authorized at such prices and upon such other terms and conditions
as the board of directors, in its discretion, may fix.
3. The street address of the registered office of the
corporation is 2101 Sixth Avenue North, Birmingham, Alabama 35203, and the name
of the corporation's registered agent at such address is Dudley C. Reynolds.
4. The purpose or purposes for which the corporation
is organized are the transaction of any or all lawful business for which
corporations may be incorporated under the Alabama Business Corporation Act,
including, without limitation, the following:
(i) The construction, acquisition, maintenance and
operation of natural gas transmission, distribution, storage and
related facilities;
(ii) Engaging in the business of natural gas
distribution as a regulated public utility and in non-regulated
capacities;
(iii) The acquisition, leasing, sale and financing of
appliances, equipment and other merchandise and services at wholesale
and retail; and
(iv) The acquisition, development, leasing, sale and
financing of any and all kinds of property, real, personal and
intangible.
The corporation shall have and may exercise any and all powers which a
corporation incorporated under the Alabama Business Corporation Act, as
amended, or any successor statute thereto, may have and exercise.
5. The number of directors of the corporation shall
consist of not less than one nor more than twenty persons, the exact number of
persons within such minimum and maximum limitations being fixed from time to
time by the board of directors of the corporation pursuant to resolutions
adopted by a majority of the persons constituting the board of directors at the
time such resolutions are adopted. The board of directors shall have the power
to fill all vacancies occurring on the board of directors, including, without
limitation, any vacancies resulting from an increase in
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the number of directors within the minimum and maximum limitations on the
number of directors of the corporation set forth in this Article 5.
6. A director of the corporation shall not be liable
to the corporation or its shareholders for money damages for any action taken,
or failure to take action, as a director, except for (i) the amount of a
financial benefit received by such director to which such director is not
entitled; (ii) an intentional infliction of harm by such director on the
corporation or its shareholders; (iii) a violation of Section 10-2B-8.33 of the
Code of Alabama of 1975 or any successor provision to such section; (iv) an
intentional violation by such director of criminal law; or (v) a breach of such
director's duty of loyalty to the corporation or its shareholders. If the
Alabama Business Corporation Act, or any successor statute thereto, is
hereafter amended to authorize the further elimination or limitation of the
liability of a director of a corporation, then the liability of a director of
the corporation, in addition to the limitations on liability provided herein,
shall be limited to the fullest extent permitted by the Alabama Business
Corporation Act, as amended, or any successor statute thereto. The limitation
on liability of directors of the corporation contained herein shall apply to
liabilities arising out of acts or omissions occurring subsequent to the
adoption of this Article 6 and, except to the extent prohibited by law, to
liabilities arising out of acts or omissions occurring prior to the adoption of
this Article 6. Any repeal or modification of this Article 6 by the
shareholders of the corporation shall be prospective only and shall not
adversely affect any limitation on the liability of a director of the
corporation existing at the time of such repeal or modification.
THIRD: The foregoing amended and restated articles of
incorporation were adopted by the shareholders of the corporation, by execution
of an action by unanimous written consent of shareholders in lieu of a meeting
dated September 27, 1995, in the manner prescribed by the Alabama Business
Corporation Act.
FOURTH: The common stock of the said corporation, par
value $.01 per share, was the only voting group entitled to vote on the
amendment. There were 1,972,052 shares of such common stock outstanding, and
the holders of such shares were entitled to cast one vote per share, or an
aggregate of 1,972,052 votes. The shareholders executing the action by
unanimous written consent of shareholders in lieu of a meeting were
indisputably entitled to cast 1,972,052 votes with respect to the said
amendment.
FIFTH: The total number of undisputed votes cast for the
amendment by the holders of the common stock of the said corporation, by the
execution of an action by unanimous written consent of the shareholders in lieu
of a meeting, was 1,972,052 and the number of votes cast for the amendment was
sufficient for approval of the amendment by the holders of the common stock of
the said corporation.
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Dated this 27th day of September, 1995.
ALABAMA GAS CORPORATION
By /s/ Rex J. Lysinger
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Rex J. Lysinger
Its Chairman of the Board of Directors
This instrument prepared by:
John K. Molen, Esq.
Bradley, Arant, Rose & White
2001 Park Place, Suite 1400
Birmingham, Alabama 35203
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