Exhibit 3(a)1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
PUBLIC SERVICE COMPANY OF COLORADO
Public Service Company of Colorado, a Colorado corporation (the
"Corporation"), pursuant to Section 7-110-106 and 107 of the Colorado Business
Corporation Act (the "Act"), hereby adopts the following amended and restated
Articles of Incorporation.
I. NAME
The name of the Corporation is: Public Service Company of Colorado.
II. PURPOSES AND POWERS
The objects for which the Corporation is formed and incorporated are as
follows:
1. To manufacture, generate, produce, supply, distribute,
transmit and sell gas (natural or artificial), electricity, steam, steam heat
and other substances, forces and energies, for the purpose of light, heat,
fuel, power or for any other purpose to which the same are now or may
hereafter, in the course of new discoveries, improvements or inventions,
properly be put.
2. To construct, purchase, condemn, lease or otherwise acquire,
maintain and operate plants and works for manufacturing, generating,
producing, supplying and distributing gas, electricity, steam and other
substances, forces and energies, and to construct, purchase, condemn, lease or
otherwise acquire, maintain and operate lines of mains and other pipes and
conductors, and lines of poles, wires and other conductors and appliances, and
lands and rights of way for the purpose of conveying, supplying and
distributing gas (natural or artificial), electricity, steam and other
substances, forces and energies, through highways, streets, alleys and public
and private lands and places as the interests of the Corporation may require;
and to make excavations and constructions for the purpose of constructing,
repairing and making connections with the same.
3. To apply for, take out, purchase or otherwise acquire, use
or enjoy, and to sell, assign, license and otherwise dispose of any and all
inventions, improvements, processes, formulae, letters patent, copyrights,
trade-marks, trade names and incorporeal rights of any and every kind
whatsoever.
4. To purchase, lease, acquire by merger, consolidation, or
otherwise own, manage, control, maintain and operate the properties, rights,
franchises and immunities of any gas, electric, or steam heating company or
companies now or hereafter organized.
5. To manufacture, purchase, lease, sell, or otherwise dispose
of electric, gas, steam heating and refrigerating apparatus, appliances and
supplies of every kind and nature.
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6. To purchase or otherwise acquire, own, hold, mortgage,
pledge, sell or otherwise dispose of, bonds, debentures, notes, shares of
stock or other securities and evidences of indebtedness of any company or
companies, without limit in amount, and to issue and exchange for such bonds,
debentures, notes, stocks and other securities, its own shares of stock,
bonds, debentures, notes or other obligations, to have and exercise in respect
thereto all the rights, powers and privileges of individual owners thereof,
and to exercise all voting power thereon in furtherance of the objects and
purposes of this Corporation.
7. To purchase, condemn, lease or otherwise acquire, take,
hold, operate, or otherwise enjoy, sell, convey, lease or otherwise dispose of
any real or personal property, rights, rights of way, ditch rights, water
appropriations, easements and franchises, in furtherance of the objects and
purposes of this Corporation.
8. To purchase, lease, or otherwise acquire coal lands and to
mine, manage and operate the same for the purpose of supplying its works,
plants and others with coal; to sell, lease or otherwise dispose of the same
or any part thereof, at pleasure; and to sell or dispose of coal, coke, and
any and all of the products of its works and plants.
9. To construct, purchase, lease, acquire, operate and maintain
lines of electric railway and all equipments, buildings, plants,
constructions, machinery and appurtenances necessary therefor, and to obtain
all requisite easements by condemnation or otherwise.
10. To borrow money, without limit as to amount, and execute,
issue, negotiate and deliver its notes, bonds, debentures or other obligations
therefor, and without action of its stockholders to mortgage or pledge any or
all of its property, rights, interests and franchises, owned or to be
acquired, as security for such notes, bonds or other obligations; and to
guarantee or become surety in respect of bonds, notes or other evidences of
indebtedness or other obligations of any individual or entity.
11. To lease, sell, or otherwise dispose of any or all of its
properties, rights, interests, franchises and immunities, to any other persons
or entities, and to merge or consolidate therewith or to arrange with any
entities or persons by contract, lease or otherwise, for the operation and
maintenance of the mains, lines, wires, poles, conductors, apparatus,
appliances, works, plants or coal mines of this Corporation, or any of them.
12. To purchase, hold, pledge, sell, or otherwise dispose of its
own capital stock, provided that as to any such purchase thereof no funds may
be used therefor which would cause an impairment of the capital of the
Corporation.
13. To develop, acquire, own, operate and dispose of any and all
other lawful businesses.
14. To have and exercise any or all such incidental powers, in
addition to those hereinabove enumerated, as shall be requisite, proper or
convenient to accomplish the objects and powers aforesaid.
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III. TERM
The Corporation shall have perpetual existence.
IV. BOARD OF DIRECTORS
A. Bylaws; Officers. The Board of Directors of this Corporation
shall have power to make from time to time such prudential bylaws for the
government of the corporation as they may deem proper, and to amend, repeal
and revise the same. The Board of Directors shall also have power to designate
such officers and agents as may be necessary or expedient and to appoint and
remove the same at pleasure and to fix the salaries of such officers and
agents.
B. Number. The number of directors of the Corporation shall be fixed
by the Bylaws or, if the Bylaws fail to fix such number, then by resolution
adopted from time to time by the board of directors.
C. Conflicting Interest Transactions. As used in this paragraph,
"conflicting interest transaction" means any of the following: (i) a loan or
other assistance by the Corporation to a director of the Corporation or to an
entity in which a director of the Corporation is a director or officer or has
a financial interest; (ii) a guaranty by the Corporation of an obligation of a
director of the Corporation or of an obligation of an entity in which a
director of the Corporation is a director or officer or has a financial
interest; or (iii) a contract or transaction between the Corporation and a
director of the Corporation or between the Corporation and an entity in which
a director of the Corporation is a director or officer or has a financial
interest. No conflicting interest transaction shall be void or voidable, be
enjoined, be set aside, or give rise to an award of damages or other sanctions
in a proceeding by a shareholder or by or in the right of the Corporation,
solely because the conflicting interest transaction involves a director of the
Corporation or an entity in which a director of the Corporation is a director
or officer or has a financial interest, or solely because the director is
present at or participates in the meeting of the Corporation's board of
directors or of the committee of the board of directors which authorizes,
approves or ratifies a conflicting interest transaction, or solely because the
director's vote is counted for such purpose, if: (A) the material facts as to
the director's relationship or interest and as to the conflicting interest
transaction are disclosed or are known to the board of directors or the
committee, and the board of directors or committee in good faith authorizes,
approves or ratifies the conflicting interest transaction by the affirmative
vote of a majority of the disinterested directors, even though the
disinterested directors are less than a quorum; or (B) the material facts as
to the director's relationship or interest and as to the conflicting interest
transaction are disclosed or are known to the shareholders entitled to vote
thereon, and the conflicting interest transaction is specifically authorized,
approved or ratified in good faith by a vote of the shareholders; or (C) a
conflicting interest transaction is fair as to the Corporation of the time it
is authorized, approved or ratified by the board of directors, a committee
thereof, or the shareholders. Common or interested directors may be counted
in determining the presence of a quorum at a meeting of the board of directors
or of a committee which authorizes, approves or ratifies the conflicting
interest transaction.
D. Loans and Guaranties for the Benefit of Directors. Neither the
board of directors nor any committee thereof shall authorize a loan by the
Corporation to a director of the Corporation or to an entity in which a
director of the Corporation is a director or officer or has a financial
interest, or a
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guaranty by the Corporation of an obligation of a director of the Corporation
or of an obligation of an entity in which a director of the Corporation is a
director or officer or has a financial interest, until at least ten days after
written notice of the proposed authorization of the loan or guaranty has been
given to the shareholders who would be entitled to vote thereon if the issue
of the loan or guaranty were submitted to a vote of the shareholders. The
requirements of this Section D are in addition to, and not in substitution
for, the provisions of Section C of this Article IV.
V. LIMITATION OF LIABILITY
To the maximum extent permitted by "7-108-402 of the Act (or any
successor to such section), a director of the Corporation shall not be liable
to the Corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director. Neither the amendment, nor the repeal of this
Article, nor the adoption of any provision of the Articles of Incorporation
inconsistent with this Article, shall eliminate or reduce the protection
afforded by this Article to a director of the Corporation with respect to any
matter which occurred, or any cause of action, suit or claim which but for
this Article would have accrued or arisen, prior to such amendment, repeal or
adoption.
VI. INDEMNIFICATION
To the maximum extent permitted by law, the Corporation shall indemnify
any person who is or was a director, officer, agent, fiduciary or employee of
the Corporation against any claim, liability, loss or expense arising against
or incurred by such person as a result of circumstances, events, actions and
omissions occurring in such capacity. The Corporation further shall have the
authority to maintain insurance at the Corporation's expense providing for
such indemnification, including insurance with respect to claims, liabilities,
losses and expenses against which the Corporation would not otherwise have the
power to indemnify such persons.
VII. CAPITAL STOCK
A. Authorized Capital. The authorized capital stock of the
Corporation shall consist of the following three classes of capital stock:
1. Three million (3,000,000) shares of preferred stock with a
par value of One Hundred Dollars ($100) per share ("Cumulative Preferred
Stock");
2. Four million (4,000,000) shares of preferred stock with a
par value of Twenty-Five Dollars ($25) per share ("Cumulative Preferred Stock
($25)"); and
3. One Hundred (100) shares of common stock with a par value of
One Cent ($.01) per share ("Common Stock").
Whenever hereafter the words "Cumulative Preferred Stock" shall be used,
they shall refer to all series or kinds of Cumulative Preferred Stock.
Whenever hereafter the words "Cumulative Preferred Stock ($25)" shall be used,
they shall refer to all series or kinds of Cumulative Preferred Stock ($25).
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The two authorized classes of preferred stock -- the Cumulative Preferred
Stock and the Cumulative Preferred Stock ($25) -- are sometimes referred to
hereinafter together as the "Preferred Stock".
B. Nonassessable. All shares of capital stock of the Corporation
shall be nonassessable
C. Cumulative Voting. Cumulative voting shall not be permitted in
any case.
D. Preemptive Rights. No holder of shares of capital stock of the
Corporation, of any class, shall be entitled as a matter of right, on the
basis of preemptive rights or otherwise, to subscribe for, purchase or receive
any shares of stock, any warrants, rights or options for the purchase or
acquisition of shares of stock, or any bonds, debentures or other obligations
which shall be convertible into or exchangeable for stock or to which shall be
attached or appertain any warrants, instruments or other rights to purchase or
acquire stock, which the Corporation may determine to issue or sell from time
to time. All such additional issues of stock, rights, options, or of bonds,
debentures or other obligations convertible into or exchangeable for stock, or
to which such warrants shall be attached or appertain, may be issued and
disposed of as determined by the Board of Directors to such persons and upon
such terms as in their absolute discretion they may deem advisable.
E. Changes in Capital Stock. The Corporation reserves the right to
increase or decrease its authorized capital stock, or any class or series
thereof, or to reclassify the same and to amend, alter, change or repeal any
provision contained in these Articles of Incorporation or in any amendment
hereto, in the manner now or hereafter prescribed by law, but subject to such
conditions and limitations as are herein prescribed, and all rights conferred
upon shareholders in these Articles of Incorporation, or any amendment hereto,
are granted subject to this reservation.
F. "Outstanding". No share of stock or evidence of indebtedness
shall be deemed to be "outstanding", as that term is used in these Articles of
Incorporation, if, prior to or concurrently with the event in reference to
which a determination as to the amount thereof outstanding is to be made, the
requisite funds for the redemption thereof shall be deposited in trust for
that purpose and the requisite notice for the redemption thereof shall be
given or the depositary of such funds shall be irrevocably authorized and
directed to give or complete such notice or redemption.
G. Negation of Equitable Interests in Shares or Rights. Unless a
person is recognized as a shareholder through procedures established by the
Corporation pursuant to "7-107-204 of the Act or any similar law, the
Corporation shall be entitled to treat the registered holder of any shares of
the Corporation as the owner thereof for all purposes permitted by the Act,
including without limitation all rights deriving from such shares, and the
Corporation shall not be bound to recognize any equitable or other claim to,
or interest in, such shares or rights deriving from such shares on the part of
any other person, including without limitation, a purchaser, assignee or
pledgee of such shares or of rights deriving from such shares, unless and
until such purchaser, assignee, pledgee or other person becomes the registered
holder of such shares or is recognized as such, whether or not the Corporation
shall have either actual or constructive notice of the interest of such
purchaser, assignee, pledgee or other person. By way of example and not of
limitation, no such purchaser, assignee, pledgee or other person shall be
entitled to receive notice of any meetings of shareholders, to vote at such
meetings, to examine a list of shareholders, to be paid dividends or other
sums payable to shareholders, or to own, enjoy and exercise any
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other rights deriving from such shares, until such purchaser, assignee,
pledgee or other person has become the registered holder of such shares or is
recognized as such.
VIII. PREFERRED STOCK-GENERAL
A. Designation by Board. The Board of Directors of the Corporation,
without action by the holders of shares of stock of the Corporation of any
class, is hereby authorized, in the appropriate manner required by the Act,
subject to the specific provisions set forth in these Articles below, to fix
the distinctive designation of any series of the Corporation's authorized
Preferred Stock proposed to be issued and to fix, in respect to each such
series:
1. the annual dividend rate or rates thereof, and the date or
dates from which dividends thereon shall be cumulative;
2. the amount or amounts payable to the holders thereof on any
voluntary liquidation, dissolution or winding up of the Corporation;
3. the amount or amounts payable upon redemption thereof;
4. the provisions of the sinking funds, if any, with respect
thereto;
5. the number of shares to constitute each new series;
6. the conversion rights, if any, with respect thereto; and
7. such other provisions relating to the shares of each new
series, not inconsistent with the provisions of these Articles of
Incorporation, as the Board of Directors may by law be permitted to fix.
B. Dividends. The holders of the Preferred Stock, in preference to
the holders of any stock ranking junior to the Preferred Stock, shall be
entitled to receive cash dividends, at such rate as may be fixed by the Board
of Directors and no more, payable quarter-yearly on March first, June first,
September first and December first in each year, when and as declared by the
Board of Directors, out of any funds of the Corporation legally available
therefor. Such dividends shall be cumulative from the date provided therefor
in the instrument creating such series of Preferred Stock and shall be paid,
or declared and set apart for payment, before any dividends shall be declared
or paid on or set apart for the Common Stock or any other class of stock
ranking junior to the Preferred Stock as to dividends or assets, so that if
for any past dividend period or the current dividend period dividends on the
Preferred Stock shall not have been paid, or declared and set apart for
payment, the deficiency shall be fully paid or declared and funds set apart
for the payment thereof before any dividends shall be declared or paid on or
set apart for any class of stock ranking junior to the Preferred Stock as to
dividends or assets. No dividends shall at any time be paid on or set apart
for any share of Preferred Stock unless at the same time there shall be paid
on or set apart for all shares of Preferred Stock then outstanding dividends
in such amount that the holders of all shares of Preferred Stock shall receive
or have set apart for them a uniform percentage of the full annual dividend to
which they are respectively entitled. The term "dividend period", as used
herein, refers to each period of three consecutive calendar months ending on
the day
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next preceding each date on which dividends, if declared, shall be
payable. All shares of Cumulative Preferred Stock, regardless of designation,
shall constitute one class of stock and, excepting only as to the rates of
dividends payable thereon, the premiums payable on voluntary liquidation,
dissolution or winding up, the redemption prices thereof, the provisions of
the sinking fund, if any, conversion rights, if any, and other provisions not
inconsistent with the provisions of this Article, with respect thereto, shall
be of equal rank and confer equal rights upon the holders thereof. All shares
of Cumulative Preferred Stock bearing the same dividend rate and being
otherwise alike in all respects (except as to the date from which dividends
thereon shall be cumulative) shall constitute one series of Cumulative
Preferred Stock. All shares of Cumulative Preferred Stock ($25), regardless of
designation, shall constitute one class of stock and, excepting only as to the
rates of dividends payable thereon, the premiums payable on voluntary
liquidation, dissolution or winding up, the redemption prices thereof, the
provisions of the sinking fund, if any, conversion rights, if any, and other
provisions not inconsistent with the provisions of this Article, with respect
thereto, shall be of equal rank and confer equal rights upon the holders
thereof. All shares of Cumulative Preferred Stock ($25) bearing the same
dividend rate and being otherwise alike in all respects (except as to the date
from which dividends thereon shall be cumulative) shall constitute one series
of Cumulative Preferred Stock ($25). The Cumulative Preferred Stock and the
Cumulative Preferred Stock ($25) shall be of equal rank and, excepting only as
to matters relating to the par values thereof, the voting rights with respect
thereto and the variations between the respective series thereof, all shares
of Preferred Stock shall confer equal rights upon the holders thereof. Unless
and until full cumulative dividends as aforesaid upon the Preferred Stock of
all series then outstanding for all past dividend periods and for the current
dividend period shall have been paid or declared and set apart for payment, no
dividend whatsoever (other than a dividend payable in shares of any class of
stock ranking junior to the Preferred Stock as to dividends and assets) shall
be paid or declared on, and no distribution shall be made or ordered in
respect of, any class of stock ranking junior to the Preferred Stock as to
dividends or assets, and no money (other than the net proceeds received from
the sale of stock ranking junior to the Preferred Stock as to dividends or
assets) shall be set aside or applied to the purchase or redemption (through a
sinking fund or otherwise) of any class of stock ranking junior to the
Preferred Stock as to dividends or assets.
The term "accrued dividends" shall be deemed to mean, in respect of any
share of Preferred Stock as of any given date, the amount of dividends payable
on such share, computed, at the annual dividend rate fixed for such share,
from the date on which dividends thereon became cumulative to and including
such given date, less the aggregate amount of all dividends which have been
paid or which have been declared and set apart for payment on such share.
Accumulations of dividends shall not bear interest.
C. Liquidation. In the event of the liquidation, dissolution or
winding up, whether voluntary or involuntary, of the Corporation, the holders
of shares of Preferred Stock shall be entitled, in preference to any class of
stock ranking junior to the Preferred Stock as to dividends or assets, to be
paid in full, out of the net assets of the Corporation, the par value of their
shares plus an amount equal to the accrued dividends on such shares to the
date of distribution. In the event such liquidation, dissolution or winding up
of the Corporation is voluntary, the holders of any series of Preferred Stock
shall also be entitled to receive for each share, in preference to any class
of stock ranking junior to the Preferred Stock as to dividends or assets, such
premium or premiums as may be fixed for shares of such series by the Board of
Directors. Unless and until such payment in full is made to the holders of
shares of Preferred Stock, no distribution shall be made to any class of stock
ranking junior to the Preferred Stock as to dividends or assets. If upon any
liquidation, dissolution or winding
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up, the assets distributable among the holders of the Preferred Stock of
all series shall be insufficient to permit the payment of the full
preferential amounts to which they shall be entitled then the entire assets of
the Corporation to be distributed shall be distributed among the holders of
the Preferred Stock of all series then outstanding ratably in proportion to
the full preferential amounts to which they are respectively entitled. A
statutory consolidation or merger of the Corporation shall not be deemed to be
a liquidation, dissolution or winding up of the Corporation within the meaning
of this Section C.
D. Redemption. The Board of Directors of the Corporation shall have
the right at any time or from time to time to redeem all or any part of the
Preferred Stock or all or any part of the shares of one or more series thereof
upon and by paying the holders of the shares to be redeemed the redemption
price or prices of said shares, which shall include, in each case, an amount
equal to the accrued dividends on said shares to the date fixed for
redemption. The redemption price or prices shall be fixed by the Board of
Directors. Not less than thirty (30) nor more than sixty (60) days prior to
the date fixed for redemption of any shares of Preferred Stock, notice of the
intention of the Corporation to redeem such shares, specifying the date and
place of redemption, shall be deposited in a United States post office or mail
box at any place in the United States addressed to each holder of record of
the shares to be redeemed at his address as the same appears upon the records
of the Corporation and the time of such mailing shall be deemed to be the time
of the giving of such notice. In every case of redemption of fewer than all
the outstanding shares of any one series of Preferred Stock, the shares of
such series to be redeemed shall be chosen by lot in such manner as may be
prescribed by resolution of the Board of Directors. The Corporation may
deposit with a bank or trust company, which shall be named in the notice of
redemption and shall be located in Denver, Colorado, or in the City of New
York, New York, and which bank or trust company shall have capital, surplus
and undivided profits aggregating at least $10,000,000, the aggregate
redemption price of the shares to be redeemed, in trust for the payment
thereof on or before the redemption date to the holders of such shares, upon
surrender of the certificates for such shares. Such deposit in trust may, at
the option of the Corporation, be upon terms whereby in case the holder of any
shares of Preferred Stock called for redemption shall not, within six (6)
years after the date fixed for redemption of such shares, claim the amount on
deposit with any bank or trust company for the payment of the redemption price
of said shares, such bank or trust company shall on demand pay to or upon the
written order of the Corporation or its successor such amount and thereupon
such bank or trust company shall be released from any and all further
liability with respect to the payment of such redemption price and the holder
of said shares shall be entitled to look only to the Corporation or its
successor for the payment thereof. Upon the giving of notice of redemption and
upon the deposit of the redemption price, as aforesaid (subject, as to shares
of any series, to such conversion rights, if any, pertaining to such series as
may be fixed for the shares thereof), or, if no such deposit is made, upon the
redemption date (unless the Corporation defaults in making payment of the
redemption price as set forth in such notice), such holders shall cease to be
shareholders with respect to said shares, and from and after the making of
said deposit and the giving of said notice (subject, as to shares of any
series, to such conversion rights, if any, pertaining to such series as may be
fixed for the shares thereof), or, if no such deposit is made, after the
redemption date (the Corporation not having defaulted in making payment of the
redemption price as set forth in such notice), said shares shall no longer be
transferable on the books of the Corporation, and the said holders shall have
no interest in or claim against the Corporation with respect to said shares,
but shall be entitled only to receive the redemption price on the date fixed
for redemption as aforesaid from said bank or trust company, or from the
Corporation, without interest thereon, upon surrender of the certificates as
aforesaid.
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Nothing herein contained shall limit any legal rights of the Corporation
to purchase any shares of the Preferred Stock.
E. Voting.
1. So long as any shares of Preferred Stock of any series are
outstanding the Corporation shall not, without the affirmative vote of the
holders of at least two-thirds of the outstanding shares of Cumulative
Preferred Stock of all series, voting as one class, and the affirmative vote
of the holders of at least two-thirds of the outstanding shares of Cumulative
Preferred Stock ($25) of all series, voting as one class:
(a) Amend the provisions of these Articles of
Incorporation so as to create or authorize any stock ranking prior in
any respect to the Preferred Stock or issue any such stock; or
(b) Change, by amendment to these Articles of
Incorporation or otherwise, the terms and provisions of the Preferred
Stock so as to affect adversely the rights and preferences of the
holders thereof; provided, however, that if any such change will affect
adversely the holders of shares of either the Cumulative Preferred Stock
or the Cumulative Preferred Stock ($25) at the time outstanding, but not
both, the consent only of the holders of at least two-thirds of the
outstanding shares of the class of Preferred Stock so adversely affected
shall be required; and provided, further, that if any such change will
affect adversely the holders of one or more, but less than all, of the
series of either class of Preferred Stock at the time outstanding, the
consent only of the holders of at least two-thirds of the total number
of shares of the series so adversely affected shall be required.
No consent of the holders of Preferred Stock shall be required in
respect of any transaction enumerated in this subparagraph ( 1) if at or prior
to the time when such transaction is to take effect provision is made for the
redemption or other retirement of all shares of Preferred Stock at the time
outstanding, the consent of which would otherwise be required hereunder.
2. So long as any shares of Preferred Stock of any series are
outstanding the Corporation shall not, without the affirmative vote of at
least two-thirds of the voting power of the outstanding shares of Preferred
Stock of all series, voting for such purpose as a single class in such manner
that the holders of the Cumulative Preferred Stock shall have four (4) votes
per share and the holders of the Cumulative Preferred Stock ($25) shall have
one (1) vote per share, issue any shares of Preferred Stock or shares of any
stock ranking on a parity with the Preferred Stock, other than in exchange
for, or for the purpose of effecting the redemption or other retirement of
outstanding shares of Preferred Stock, or shares of any stock ranking on a
parity therewith, having no less than the same aggregate par value, unless
(a) The gross income (determined in accordance with
generally accepted accounting principles) of the Corporation available
for the payment of interest charges shall, for a period of twelve
consecutive calendar months within the fifteen calendar months next
preceding the issue of such shares, have been at least one and one-half
(1-1/2) times the sum of (i) the interest for one year on all funded
indebtedness and notes payable of the Corporation maturing more than
twelve
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months after, and outstanding at, the date of issue of such
shares, and (ii) an amount equal to the dividend requirement for one
year on all shares of the Preferred Stock of all series and on all other
shares of stock, if any, ranking prior to or on a parity with the
Preferred Stock, which shall be outstanding after the issue of the
shares proposed to be issued; and
(b) The capital represented by the Common Stock and the
surplus accounts of the Corporation shall be not less than the aggregate
amount payable on the involuntary dissolution, liquidation or winding up
of the Corporation, in respect of all shares of Preferred Stock and all
shares of stock, if any, ranking prior thereto, or on a parity
therewith, which shall be outstanding after the issue of the shares
proposed to be issued.
No consent of the holders of Cumulative Preferred Stock shall be
required in respect of any transaction described in this subparagraph (2) if
at or prior to the time when such transaction is to take effect provision is
made for the redemption or other retirement of all shares of Cumulative
Preferred Stock at the time outstanding, and no consent of the holders of
Cumulative Preferred Stock ($25) shall be required in respect of any
transaction described in this subparagraph (2) if at or prior to the time when
such transaction is to take effect provision is made for the redemption or
other retirement of all shares of Cumulative Preferred Stock ($25) at the time
outstanding.
3. So long as any shares of Preferred Stock of any series are
outstanding, the Corporation shall not, without the affirmative vote of more
than one-half of the voting power of the outstanding shares of Preferred Stock
of all series, voting as one class for such purpose in such manner that the
holders of the Cumulative Preferred Stock shall have four (4) votes per share
and the holders of the Cumulative Preferred Stock ($25) shall have one (1)
vote per share:
(a) Issue or assume any unsecured notes, debentures or
other securities representing unsecured indebtedness for any purpose
other than the refunding of secured or unsecured indebtedness
theretofore created or assumed by the Corporation and then outstanding
or the retiring, by redemption or otherwise, of shares of the Preferred
Stock or shares of any stock ranking prior thereto or on a parity
therewith, if immediately after such issue or assumption the total
principal amount of all unsecured notes, debentures or other securities
representing unsecured indebtedness issued or assumed by the Corporation
and then outstanding would exceed fifteen per centum (15%) of the
aggregate of (i) the total principal amount of all bonds or other
securities representing secured indebtedness issued or assumed by the
Corporation and then outstanding, and (ii) the total of the capital and
surplus of the Corporation, as then recorded on its books; or
(b) Merge or consolidate with any other corporation or
corporations or sell the property of the Corporation as or substantially
as an entirety unless such merger, consolidation or sale or the issue or
assumption of all securities to be issued or assumed in connection
therewith shall have been ordered, approved or permitted by any
regulatory authority then having jurisdiction in the premises; provided
that the provisions of this clause (b) shall not apply to any mortgage
of all or substantially all the property of the Corporation, or to a
purchase or other acquisition by the Corporation of the assets or
franchises of another corporation, or to any other transaction which does
10
not include such a merger, consolidation or sale of property, or to any
merger or consolidation with or sale to a subsidiary or subsidiaries
of the Corporation.
No consent of the holders of the Cumulative Preferred Stock shall be
required by reason of the provisions of this subparagraph (3) if, at or prior
to the issue of any such securities representing unsecured indebtedness, or
such consolidation, merger or sale, provision is made for the redemption or
other retirement of all shares of Cumulative Preferred Stock then outstanding
and no consent of the holders of the Cumulative Preferred Stock ($25) shall be
required by reason of the provisions of this subparagraph (3) if, at or prior
to the issue of any such securities representing unsecured indebtedness, or
such consolidation, merger or sale, provision is made for the redemption or
other retirement of all shares of Cumulative Preferred Stock ($25) then
outstanding.
4. No provision contained in subparagraphs 1, 2 or 3 of this
Section E is intended or shall be construed to relieve the Corporation from
compliance with any applicable statutory provision requiring the vote or
consent of a greater number of the outstanding shares of the Cumulative
Preferred Stock or the Cumulative Preferred Stock ($25).
F. Divided Arrearages. No holder of the Preferred Stock shall be
entitled to vote for the election of directors or in respect of any matter,
except as provided in subparagraph 1, 2 and 3 of paragraph E of this Article
VIII, or as hereinafter provided in this Section, or as may be required by
law. If, however, dividends payable on the outstanding Preferred Stock shall
be accumulated and unpaid in an amount equivalent to four (4) quarter-yearly
dividends, the holders of such Preferred Stock shall be entitled thereafter
and until, but only until, all such accumulated and unpaid dividends shall
have been fully paid or declared and funds set apart for the payment thereof
(a) voting for such purpose as a single class in such manner that the holders
of the Cumulative Preferred Stock shall have four (4) votes per share and the
holders of the Cumulative Preferred Stock ($25) shall have one (1) vote per
share, at each succeeding annual meeting of shareholders, to elect the
smallest number of directors necessary to constitute a majority of the Board
of Directors, the remaining directors to be elected as usual by the holders of
the Common Stock; and (b) to vote on all questions other than for the election
of directors in such manner that the holders of the Cumulative Preferred Stock
shall have twenty (20) votes per share and the holders of the Cumulative
Preferred Stock ($25) shall have five (5) votes per share; provided that if
and when profits available for dividends are in excess of such accumulated and
unpaid dividends, then the declaration and payment of such dividends shall not
be unreasonably withheld.
In consideration of the issue by the Corporation, and the purchase by
the holders thereof, of shares of the capital stock of the Corporation, each
and every present and future holder of shares of the capital stock of the
Corporation shall be conclusively deemed, by acquiring or holding such shares,
to have expressly consented to all and singular the terms and provisions of
this Section F and to have agreed that the voting rights of such holder and
the restrictions and qualifications thereof shall be as set forth in this
Section.
IX. COMMON STOCK
A. Dividends. Subject to the limitations set forth in these Articles
of Incorporation, dividends may be paid on shares of the Common Stock, out of
any funds legally available for the purpose, when and as declared by the Board
of Directors.
11
B. Liquidation. In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, after there
shall have been paid to or set apart for the holders of shares of all classes
of stock ranking prior to the Common Stock, the full preferential amounts to
which they are respectively entitled under the foregoing provisions of these
Articles of Incorporation, the remaining assets of the Corporation available
for payment and distribution to shareholders shall be distributed ratably in
accordance with their holdings to the holders of shares of the Common Stock.
C. Voting. All voting power shall vest exclusively in the holders of
shares of the Common Stock and such holders shall constitute the sole voting
group of the Corporation, except as the Act shall expressly provide to the
contrary, and except as and to the extent hereinbefore in these Articles of
Incorporation otherwise provided. Each holder of Common Stock shall, in the
election of directors and upon each other matter coming before any meeting of
shareholders, be entitled to one vote for each share of such stock standing in
the name of such holder on the books of the Corporation.
X. PREFERRED STOCK-BY SERIES
A. 4-1/4% Cumulative Preferred Stock. There is hereby established by
the Board of Directors a series of Cumulative Preferred Stock designated and
to be known as the "4-1/4% Cumulative Preferred Stock" of the Corporation.
The shares of such series shall have, in addition to the general terms and
characteristics of all the authorized shares of Cumulative Preferred Stock set
forth above, the following distinctive terms and characteristics:
1. the annual dividend rate for the shares of such series shall
be four and one-quarter percent (4.25%);
2. the premium payable to the holders of the shares of such
series, in the event of any voluntary liquidation, dissolution or winding up
of the Corporation, shall be one percent (1%) of the par value thereof;
3. the redemption price payable to the holders of the shares of
such series shall be $101 per share plus an amount equal to the accrued
dividends to the date fixed for redemption; and
4. the number of authorized shares of such series shall be One
Hundred Seventy Five Thousand (175,000).
B. 4.20% Cumulative Preferred Stock. There is hereby established by
the Board of Directors a series of Cumulative Preferred Stock which shall be
designated and known as the "4.20% Cumulative Preferred Stock" of the
Corporation. The shares of such series shall have, in addition to the general
terms and characteristics of all the authorized shares of Cumulative Preferred
Stock set forth above, the following distinctive terms and characteristics:
1. the annual dividend rate for the shares of such series shall
be four and two-tenths percent (4.20%);
12
2. the premium payable to holders of the shares of such series
in the event of any voluntary liquidation, dissolution or winding up of the
Corporation shall be one percent (1%) of the par value thereof;
3. the redemption price payable to the holders of the shares of
such series upon the redemption of all or any part of the shares of such
series shall be $101 per share plus an amount equal to accrued dividends to
the date fixed for redemption; and
4. the number of shares constituting such series shall be
100,000.
C. 4-1/2% Cumulative Preferred Stock. There is hereby established by
the Board of Directors a series of Cumulative Preferred Stock which shall be
designated and known as the "4-1/2% Cumulative Preferred Stock" of the
Corporation. The shares of such series shall have, in addition to the general
terms and characteristics of all the authorized shares of Cumulative Preferred
Stock set forth above, the following distinctive terms and characteristics:
1. the annual dividend rate for the shares of such series shall
be four and one-half percent (4-1/2%);
2. the premium payable to holders of the shares of such series
in the event of any voluntary liquidation, dissolution or winding up of the
Corporation shall be one percent (1 %) of the par value thereof;
3. the redemption price payable to the holders of the shares of
such series upon the redemption of all or any part of the shares of such
series shall be $101 per share plus an amount equal to accrued dividends to
the date fixed for redemption; and
4. the number of shares constituting such series shall be
65,000.
D. 4.64% Cumulative Preferred Stock. There is hereby established by
the Board of Directors a series of Cumulative Preferred Stock which shall be
designated and known as the "4.64% Cumulative Preferred Stock" of the
Corporation. The shares of such series shall have, in addition to the general
terms and characteristics of all the authorized shares of Cumulative Preferred
Stock set forth above, the following distinctive terms and characteristics:
1. the annual dividend rate for the shares of such series shall
be four and sixty-four hundredths percent (4.64%);
2. the premium payable to holders of the shares of such series
in the event of any voluntary liquidation, dissolution or winding up of the
Corporation shall be one percent (1%) of the par value thereof;
3. the redemption price payable to the holders of the shares of
such series upon the redemption of all or any part of the shares of such
series shall be $101 per share plus an amount equal to accrued dividends to
the date fixed for redemption; and
13
4. the number of shares constituting such series shall be
160,000.
E. 4.90% Cumulative Preferred Stock. There is hereby established by
the Board of Directors a series of Cumulative Preferred Stock which shall be
designated and known as the "4.90% Cumulative Preferred Stock" of the
Corporation. The shares of such series shall have, in addition to the general
terms and characteristics of all the authorized shares of Cumulative Preferred
Stock set forth above, the following distinctive terms and characteristics:
1. the annual dividend rate for the shares of such series shall
be four and nine-tenths percent (4.90%);
2. the premium payable to holders of the shares of such series
in the event of any voluntary liquidation, dissolution or winding up of the
Corporation shall be one percent (1%) of the par value thereof;
3. the redemption price payable to the holders of the shares of
such series upon the redemption of all or any part of the shares of such
series shall be $101 per share plus an amount equal to accrued dividends to
the date fixed for redemption; and
4. the number of shares constituting such series shall be
150,000.
F. 4.90% Cumulative Preferred Stock, 2nd Series. There is hereby
established by the Board of Directors a series of Cumulative Preferred Stock
which shall be designated and known as the "4.90% Cumulative Preferred Stock,
2nd Series" of the Corporation. The shares of such series shall have, in
addition to the general terms and characteristics of all the authorized shares
of Cumulative Preferred Stock set forth above, the following distinctive terms
and characteristics:
1. the annual dividend rate for the shares of such series shall
be four and nine-tenths percent (4.90%);
2. the premium payable to holders of the shares of such series
in the event of any voluntary liquidation, dissolution or winding up of the
Corporation shall be one percent (1 %) of the par value thereof;
3. the redemption price payable to the holders of the shares of
such series upon the redemption of all or any part of the shares of such
series shall be $101 per share plus an amount equal to accrued dividends to
the date fixed for redemption; and
4. the number of shares constituting such series shall be
150,000.
G. 7.15% Cumulative Preferred Stock. There is hereby established by
the Board of Directors a series of Cumulative Preferred Stock which shall be
designated and known as the "7.15% Cumulative Preferred Stock" of the
Corporation. The shares of such series shall have, in addition to the general
terms and characteristics of all the authorized shares of Cumulative Preferred
Stock set forth above, the following distinctive terms and characteristics:
14
1. the annual dividend rate for the shares of such series shall
be seven and fifteen-hundredths percent (7.15%);
2. the premium payable to holders of the shares of such series
in the event of any voluntary liquidation, dissolution or winding up of the
Corporation shall be one percent (1%) of the par value thereof;
3. the redemption price payable to the holders of the shares of
such series upon the redemption of all or any part of the shares of such
series shall be $100 per share plus an amount equal to accrued dividends to
the date fixed for redemption; and
4. the number of shares constituting such series shall be
250,000.
H. 7.50% Cumulative Preferred Stock. There is hereby established by
the Board of Directors a series of Cumulative Preferred Stock which shall be
designated and known as the "7.50% Cumulative Preferred Stock" of the
Corporation. The shares of such series shall have, in addition to the general
terms and characteristics of all the authorized shares of Cumulative Preferred
Stock set forth above, the following distinctive terms and characteristics:
1. The annual dividend rate of the shares of such series shall
be seven and one-half percent (7.50%) (computed on the basis of a 360-day
year, 30-day month) and such dividend shall be cumulative from the date on
which the shares of such series are originally issued.
2. The liquidation price payable to holders of the shares of
such series in the event of any voluntary liquidation, dissolution or winding
up of the Corporation shall be the following percentages of the par value
thereof if such event shall occur during the twelve-month period ending on the
last day of August of the indicated year:
Year Percentage of Par Value
1997 101.75%
1998 101.50%
1999 101.25%
2000 101.00%
2001 100.75%
2002 100.50%
2003 100.25%
and 100% of the par value thereof if such event shall occur at any time after
August 31, 2003, plus, in each case, an amount equal to accrued and unpaid
dividends to the date of such payment.
15
3. The redemption prices payable to the holders of the shares
of such series upon the redemption of all or any part of the shares of such
series shall be the following redemption prices per share if redeemed during
the twelve-month period ending on the last day of August of the indicated year:
Year Redemption Price
1997 $101.75
1998 $101.50
1999 $101.25
2000 $101.00
2001 $100.75
2002 $100.50
2003 $100.25
and $100 per share if redeemed at any time after August 31, 2003, plus, in
each case, an amount equal to accrued and unpaid dividends to the date fixed
for redemption.
4.
(a) On July 1, 1984, and on each July 1 thereafter (so
long as any shares of the 7.50% Cumulative Preferred Stock are
outstanding), the Corporation shall set aside in a sinking fund for the
purchase of shares of the 7.50% Cumulative Preferred Stock an amount
from the legally available funds of the Corporation sufficient to
purchase 12,000 of such shares (or the number of such shares then
outstanding if less than 12,000) at a purchase price equal to the total
of $100 per share plus, in each case, an amount equal to the accrued and
unpaid dividends thereon to the date of purchase. The funds so set aside
in the sinking fund pursuant to this subparagraph (a) or any of the
following subparagraphs of this paragraph 4, shall be deposited in a
separate sinking fund account.
(b) Concurrently with setting aside funds in the sinking
fund for the 7.50% Cumulative Preferred Stock, the corporation shall
offer to purchase 12,000 shares of the 7.50% Cumulative Preferred Stock
(or the number of such shares then outstanding if fewer than 12,000) at
the purchase price specified in subparagraph (a) above. No redemption of
shares of the 7.50% Cumulative Preferred Stock pursuant to paragraph 3
above nor any purchase or other acquisition [other than pursuant to this
paragraph 4] of such shares by the Corporation shall constitute a credit
against the number of shares which the Corporation is required to offer
to purchase pursuant to this paragraph 4.
(c) The annual obligation of the Corporation to set aside
funds in the sinking fund for the 7.50% Cumulative Preferred Stock and
to make the offer to purchase shares thereof as required by
subparagraphs (a) and (b) above shall be a cumulative obligation and
shall continue in
16
effect until fully satisfied, whether any failure of the Corporation to
fulfill such obligation is due to insufficiency of legally available funds
or otherwise. To the extent that the Corporation shall not have, on any
date on which the setting aside of funds in the sinking fund is required
pursuant to subparagraph (a) above, funds legally available for such
purpose in the full amount required to be set aside pursuant thereto, it
shall set aside in the sinking fund on such date such funds,if any, as are
then legally available, and as soon thereafter as any funds or any
additional funds become legally available,it shall set aside such funds in
the sinking fund in an amount not in excess of the amount necessary to
fulfill such cumulative obligation. Notwithstanding the foregoing, if at
any time the Corporation shall have outstanding any Parity Sinking Fund
Preferred Stock other than the 7.50% Cumulative Preferred Stock, shall be
obligated to set aside legally available funds in the sinking fund for the
7.50% Cumulative Preferred Stock and the sinking fund or funds for such
other Parity Sinking Fund Preferred Stock, and shall not have sufficient
funds legally available to so set aside the full amount required for all
such sinking funds, such legally available funds as the Corporation then
has shall be distributed among all such sinking funds in proportion to the
amounts which the Corporation is then obligated to set aside in each such
sinking fund. At any time following the setting aside of funds in the
sinking fund for the 7.50% Cumulative Preferred Stock pursuant to this
subparagraph (c) when the amount available in such sinking fund is
sufficient to purchase at least 2,000 shares thereof at the pricespecified
in subparagraph (a), the Corporation shall promptly offer to purchase such
number of whole shares of 7.50% Cumulative Preferred Stock as may be
purchased with such amount available at the purchase price specified in
subparagraph (a) above.
(d) Any offer to purchase shares of the 7.50% Cumulative
Preferred Stock pursuant to this paragraph 4 shall be made by mailing a
notice thereof by first class mail, postage prepaid, to each holder of
shares of the 7.50% Cumulative Preferred Stock at the address to which
such holder shall have requested that notices be sent, or if such holder
shall have made no such request, to such holder's address as the same
shall appear on the stock register of the Corporation. Such notice shall
specify the number of such shares which the Corporation is offering to
purchase hereunder and the date of purchase, which shall be 60 days
after the date of any such notice. Each holder wishing to accept such
offer shall notify the Corporation not later than 30 days prior to the
date of purchase of the number of such shares which such holder proposes
to sell in response to such offer.
(e) If the total number of shares of the 7.50% Cumulative
Preferred Stock which all holders accepting such offer propose to sell
is fewer than or equal to the total number of such shares which the
Corporation has offered to buy, the Corporation shall apply the sinking
fund so established to purchase all such shares so offered.
(f) If the total number of shares of the 7.50% Cumulative
Preferred Stock which all holders accepting such offer propose to sell
exceeds the total number of such shares which the Corporation has
offered to purchase, the number of such shares to be purchased from each
such holder shall be determined in the following manner:
(i) The number of shares of the 7.50% Cumulative
Preferred Stock to be purchased from each such holder shall be
equivalent to the lesser of (A) the total number of such shares
tendered to the Corporation by such holder, and (B) the number of
such shares
17
which bears the same proportion to the total number of
such shares to be purchased by the Corporation pursuant to such
offer as the total number of such shares held by such holder bears
to the total number of such shares held by all holders accepting
such offer;
(ii) If the total number of shares of the 7.50%
Cumulative Preferred Stock to be purchased from all such holders
determined in accordance with clause (i) above shall be fewer than
the total number of such shares which the Corporation has offered
to purchase, then the number of such shares to be purchased from
each such holder whose number of shares was determined pursuant to
subclause (B) of clause (i) above shall be redetermined and shall
be equivalent to the lesser of (A) the total number of such shares
tendered to the Corporation by such holder, and (B) the number of
such shares which bears the same proportion to a number equal to
the difference between (x) the total number of such shares to be
purchased by the Corporation pursuant to such offer and (y) the
total number of such shares to be purchased by it from all holders
whose number of shares was determined pursuant to subclause (A) of
clause (i) above, as the total number of such shares held by such
holder whose number of shares was determined pursuant to subclause
(B) of clause (i) above bears to the total number of such shares
held by all holders whose number of shares was determined pursuant
to subclause (B) of clause (i) above; and
(iii) If the total number of shares of the 7.50%
Cumulative Preferred Stock to be purchased from all such holders
in accordance with clauses (i) and (ii) above shall be fewer than
the total number of such shares which the Corporation has offered
to purchase, then the number of such shares to be purchased from
each such holder whose number of shares was determined pursuant to
subclause (B) of clause (ii) above shall be redetermined in the
same manner as provided in clause (ii), until the total number of
such shares to be purchased from all holders proposing to sell in
response to such offer shall be equivalent to the total number of
such shares which the Corporation has offered to purchase.
If the number of shares of the 7.50% Cumulative Preferred Stock to
be purchased from each holder shall be determined in accordance with
clause (i), (ii) or (iii) above, the Corporation shall notify each such
holder of the number of such shares to be purchased from such holder not
later than 15 days prior to the date of purchase, and the Corporation
shall apply the sinking fund to the purchase of such shares.
(g) On each purchase of shares of the 7.50% Cumulative
Preferred Stock pursuant to this paragraph 4, the Corporation shall pay
any transfer or other taxes to which any holder selling shares to the
Corporation may be subject, other than income taxes on any dividend or
gain received by the holder as a result of such sale.
(h) Five days after the expiration date of the 60-day
period referred to in subparagraph (d) above, the balance, if any, of
the sinking fund not expended for the purchase and retirement of shares,
after deducting any amounts required for the payment of shares purchased
but not delivered to the Corporation prior to such date, shall be
restored to the general funds of the
18
Corporation, free from the sinking fund requirement for the
then calendar year, but only if the Corporation shall have satisfied in
full its cumulative obligation under this paragraph 4.
(i) If at any time the Corporation shall not have
satisfied in full its cumulative obligation under this paragraph 4, the
Corporation will not
(i) declare, pay, or set aside any amount for the
payment of any dividends, or make any distribution, on its Common
Stock or any class of stock ranking as to dividends or other
distributions junior to shares of the 7.50% Cumulative Preferred
Stock, or
(ii) redeem, purchase or otherwise acquire, or permit
any Subsidiary to purchase or otherwise acquire, any shares of
Common Stock or any class of stock or series thereof ranking as to
dividends or other distributions junior or equal to the shares of
the 7.50% Cumulative Preferred Stock (including any other series
of Cumulative Preferred Stock), except that if the Corporation
shall set aside funds in the sinking fund or funds for any other
Parity Sinking Fund Preferred Stock in accordance with the third
sentence of subparagraph (c) above, it may redeem or purchase
shares of such other Parity Sinking Fund Preferred Stock in
partial fulfillment of its sinking fund obligations with respect
thereto.
(j) For purposes of this paragraph 4,
(i) the term "Parity Sinking Fund Preferred Stock"
shall mean any series of Preferred Stock (including the 7.50%
Cumulative Preferred Stock) or any other class or series of stock
of the Corporation ranking on a parity with the Cumulative
Preferred Stock as to the payment of dividends and the
distribution of assets, and the terms of which shall (A) obligate
the Corporation to provide a sinking fund for the redemption or
purchase of shares thereof, and (B) require the Corporation, if it
shall not have sufficient funds legally available to set aside and
deposit the full amount for all such sinking funds, to distribute
such funds as are then available among all such sinking funds in
proportion to the amounts which the Corporation is then obligated
to deposit in each such sinking fund, and to apply the funds so
distributed to the redemption or purchase of shares in partial
fulfillment of its obligation with respect to such sinking fund;
and
(ii) the term "Subsidiary" shall mean any corporation
at least the majority of the stock of which having general voting
rights is, at the time as of which any determination is being
made, owned by the Corporation either directly or through
Subsidiaries.
5. All shares of the 7.50% Cumulative Preferred Stock redeemed,
purchased (including, without limitation, pursuant to paragraph 4 above) or
otherwise acquired by the Corporation shall be canceled. Such shares shall be
restored to the status of authorized but unissued shares of Cumulative
Preferred Stock, but
19
shall not be reissued as shares of the 7.50% Cumulative Preferred
Stock.
6. The number of shares constituting such series shall be
300,000.
I. 8.40% Cumulative Preferred Stock. There is hereby established by
the Board of Directors a series of Cumulative Preferred Stock which shall be
designated and known as the "8.40% Cumulative Preferred Stock" of the
Corporation. The shares of such series shall have, in addition to the general
terms and characteristics of all the authorized shares of Cumulative Preferred
Stock set forth above, the following distinctive terms and characteristics:
1. The annual dividend rate of the shares of such series shall
be eight and four-tenths percent (8.40%) (computed on the basis of a 360 day
year, 30-day month) and such dividends shall be cumulative from the date on
which the shares of such series are originally issued.
2. The liquidation price payable to holders of the shares of
such series in the event of any voluntary liquidation, dissolution or winding
up of the Corporation shall be the following percentages of the par value
thereof if such event shall occur during the twelve-month period ending on the
last day of July of the indicated year:
Year Percentage of Par Value
1997 102.00%
1998 101.75%
1999 101.50%
2000 101.25%
2001 101.00%
2002 100.75%
2003 100.50%
2004 100.25%
and 100% of the par value thereof if such event shall occur at any time after
July 31, 2004, plus, in each case, an amount equal to accrued and unpaid
dividends to the date of such payment.
3. The redemption prices payable to the holders of the shares
of such series upon the redemption of all or any part of the shares of such
series shall be the following redemption prices per share if redeemed during
the twelve-month period ending on the last day of July of the indicated year:
Year Redemption Price
1997 $102.00
20
1998 $101.75
1999 $101.50
2000 $101.25
2001 $101.00
2002 $100.75
2003 $100.50
2004 $100.25
and $100 per share if redeemed at any time after July 31, 2004, plus, in each
case, an amount equal to accrued and unpaid dividends to the date fixed for
redemption.
4.
(a) On July 1, 1985, and on each July 1 thereafter (so
long as any shares of the 8.40% Cumulative Preferred Stock are
outstanding), the Corporation shall set aside in a sinking fund for the
purchase of shares of the 8.40% Cumulative Preferred Stock an amount
from the legally available funds of the corporation sufficient to
purchase 13,760 of such shares (or the number of such shares then
outstanding if less than 13,760) at a purchase price equal to the total
of $100 per share plus, in each case, an amount equal to the accrued and
unpaid dividends thereon to the date of purchase. The funds so set aside
in the sinking fund pursuant to this subparagraph (a) or any of the
following subparagraphs of this paragraph 4 shall be deposited in a
separate sinking fund account.
(b) Concurrently with setting aside funds in the sinking
fund for the 8.40% Cumulative Preferred Stock, the Corporation shall
offer to purchase 13,760 shares of the 8.40% Cumulative Preferred Stock
(or the number of such shares then outstanding if fewer than 13,760) at
the purchase price specified in subparagraph (a) above. No redemption of
shares of the 8.40% Cumulative Preferred Stock pursuant to paragraph 3
above nor any purchase or other acquisition (other than pursuant to this
paragraph 4) of such shares by the corporation shall constitute a credit
against the number of shares which the Corporation is required to offer
to purchase pursuant to this paragraph 4.
(c) The annual obligation of the Corporation to set aside
funds in the sinking fund for the 8.40% Cumulative Preferred Stock and
to make the offer to purchase shares thereof as required by
subparagraphs (a) and (b) above shall be a cumulative obligation and
shall continue in effect until fully satisfied, whether any failure of
the Corporation to fulfill such obligation is due to insufficiency of
legally available funds or otherwise. To the extent that the Corporation
shall not have, on any date on which the setting aside of funds in the
sinking fund is required pursuant to subparagraph (a) above, funds
legally available for such purpose in the full amount required to be set
aside pursuant thereto, it shall set aside in the sinking fund on such
date such funds, if any, as are then legally available, and as soon
thereafter as any funds or any additional funds become legally
available, it shall
21
set aside such funds in the sinking fund in an amount not in excess of the
amount necessary to fulfill such cumulative obligation. Notwithstanding the
foregoing, if at any time the Corporation shall have outstanding any Parity
Sinking Fund Preferred Stock other than the 8.40% Cumulative Preferred
Stock, shall be obligated to set aside legally available funds in the
sinking fund for the 8.40% Cumulative Preferred Stock and the sinking fund
or funds for such other Parity Sinking Fund Preferred Stock, and shall not
have sufficient funds legally available to so set aside the full amount
required for all such sinking funds, such legally available funds as the
Corporation then has shall be distributed among all such sinking funds in
proportion to the amounts which the Corporation is then obligated to set
aside in each such sinking fund. At any time following the setting aside of
funds in the sinking fund for the 8.40% Cumulative Preferred Stock pursuant
to this subparagraph (c), when the amount available in such sinking fund is
sufficient to purchase at least 2,000 shares thereof at the price specified
in subparagraph (a), the Corporation shall promptly offer to purchase such
number of whole shares of 8.40% Cumulative Preferred Stock as may be
purchased with such amount available at the purchase price specified in
subparagraph (a) above.
(d) Any offer to purchase shares of the 8.40% Cumulative
Preferred Stock pursuant to this paragraph 4 shall be made by mailing a
notice thereof by first class mail, postage prepaid, to each holder of
shares of the 8.40% Cumulative Preferred Stock at the address to which
such holder shall have requested that notices be sent, or if such holder
shall have made no such request, to such holder's address as the same
shall appear on the stock register of the Corporation. Such notice shall
specify the number of such shares which the Corporation is offering to
purchase hereunder and the date of purchase, which shall be 60 days
after the date of any such notice. Each holder wishing to accept such
offer shall notify the Corporation not later than 30 days prior to the
date of purchase of the number of such shares which such holder proposes
to sell in response to such offer.
(e) If the total number of shares of 8.40% Cumulative
Preferred Stock which all holders accepting such offer propose to sell
is fewer than or equal to the total number of such shares which the
Corporation has offered to buy, the Corporation shall apply the sinking
fund so established to purchase all such shares so offered.
(f) If the total number of shares of 8.40% Cumulative
Preferred Stock which all holders accepting such offer propose to sell
exceeds the total number of such shares which the Corporation has
offered to purchase, the number of such shares to be purchased from each
such holder shall be determined in the following manner:
(i) The number of shares of the 8.40% Cumulative
Preferred Stock to be purchased from each such holder shall be
equivalent to the lesser of (A) the total number of such shares
tendered to the Corporation by such holder, and (B) the number of
such shares which bears the same proportion to the total number of
such shares to be purchased by the Corporation pursuant to such
offer as the total number of such shares held by such holder bears
to the total number of such shares held by all holders accepting
such offer;
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(ii) If the total number of shares of the 8.40%
Cumulative Preferred Stock to be purchased from all such holders
determined in accordance with clause (i) above shall be fewer than
the total number of such shares which the Corporation has offered
to purchase, then the number of such shares to be purchased from
each such holder whose number of shares was determined pursuant to
subclause (B) of clause (i) above shall be redetermined and shall
be equivalent to the lesser of (A) the total number of such shares
tendered to the Corporation by such holder, and (B) the number of
such shares which bears the same proportion to a number equal to
the difference between (x) the total number of such shares to be
purchased by the Corporation pursuant to such offer and (y) the
total number of such shares to be purchased by it from all holders
whose number of shares was determined pursuant to subclause (A) of
clause (i) above, as the total number of such shares held by such
holder whose number of shares was determined pursuant to subclause
(B) of clause (i) above bears to the total number of such shares
held by all holders whose number of shares was determined pursuant
to subclause (B) of clause (i) above; and
(iii) If the total number of shares of the 8.40%
Cumulative Preferred Stock to be purchased from all such holders
in accordance with clauses (i) and (ii) above shall be fewer than
the total number of such shares which the Corporation has offered
to purchase, then the number of such shares to be purchased from
each such holder whose number of shares was determined pursuant to
subclause (B) of clause (ii) above shall be redetermined in the
same manner as provided in clause (ii), until the total number of
such shares to be purchased from all holders proposing to sell in
response to such offer shall be equivalent to the total number of
such shares which the Corporation has offered to purchase.
If the number of shares of the 8.40% Cumulative Preferred Stock to
be purchased from each holder shall be determined in accordance with
clause (i), (ii) or (iii) above, the Corporation shall notify each such
holder of the number of such shares to be purchased from such holder not
later than 15 days prior to the date of purchase, and the Corporation
shall apply the sinking fund to the purchase of such shares.
(g) On each purchase of shares of the 8.40% Cumulative
Preferred Stock pursuant to this paragraph 4, the Corporation shall pay
any transfer or other taxes to which any holder selling shares to the
Corporation may be subject, other than income taxes on any dividend or
gain received by the holder as a result of such sale.
(h) Five days after the expiration date of the 60-day
period referred to in subparagraph (d) above, the balance, if any, of
the sinking fund not expended for the purchase and retirement of shares,
after deducting any amounts required for the payment of shares purchased
but not delivered to the retirement of shares purchased but not
delivered to the Corporation prior to such date, shall be restored to
the general funds of the Corporation, free from the sinking fund
requirement for the then calendar year, but only if the Corporation
shall have satisfied in full its cumulative obligation under this
paragraph 4.
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(i) If at any time the Corporation shall not have
satisfied in full its cumulative obligation under this paragraph 4, the
Corporation will not
(i) declare, pay, or set aside any amount for the
payment of any dividends, or make any distribution, on its Common
Stock or any class of stock ranking as to dividends or other
distributions junior to shares of the 8.40% Cumulative Preferred
Stock, or
(ii) redeem, purchase or otherwise acquire, or permit
any Subsidiary to purchase or otherwise acquire, any shares of
Common Stock or any class of stock or series thereof ranking as to
dividends or other distributions junior or equal to the shares of
the 8.40% Cumulative Preferred Stock (including any other series
of Cumulative Preferred Stock), except that if the Corporation
shall set aside funds in the sinking fund or funds for any other
Parity Sinking Fund Preferred Stock in accordance with the third
sentence of subparagraph (c) above, it may redeem or purchase
shares of such other Parity Sinking Fund Preferred Stock in
partial fulfillment of its sinking fund obligations with respect
thereto.
(j) For purposes of this paragraph 4,
(i) the term "Parity Sinking Fund Preferred Stock"
shall mean any series of Preferred Stock (including the 8.40%
Cumulative Preferred Stock) or any other class or series of stock
of the Corporation ranking on a parity with the Cumulative
Preferred Stock as to the payment of dividends and the
distribution of assets, and the terms of which shall (A) obligate
the Corporation to provide a sinking fund for the redemption or
purchase of shares thereof, and (B) require the Corporation, if it
shall not have sufficient funds legally available to set aside and
deposit the full amount for all such sinking funds, to distribute
such funds as are then available among all such sinking funds in
proportion to the amounts which the Corporation is then obligated
to deposit in each such sinking fund, and to apply the funds so
distributed to the redemption or purchase of shares in partial
fulfillment of its obligation with respect to such sinking fund;
and
(ii) the term "Subsidiary" shall mean any corporation
at least the majority of the stock of which having general voting
rights is, at the time as of which any determination is being
made, owned by the Corporation either directly or through
Subsidiaries.
5. All shares of the 8.40% Cumulative Preferred Stock redeemed,
purchased (including, without limitation, pursuant to paragraph 4 above) or
otherwise acquired by the Corporation shall be canceled. Such shares shall be
restored to the status of authorized but unissued shares of Cumulative
Preferred Stock, but shall not be reissued as shares of the 8.40% Cumulative
Preferred Stock.
6. The number of shares constituting such series shall be
344,000.
J. 8.40% Cumulative Preferred Stock ($25). There is hereby
established by the Board of Directors a series of Cumulative Preferred Stock
($25) which shall be designated and known as the "8.40% Cumulative Preferred
Stock ($25)" of the Corporation. The shares of such series shall have, in
addition to the general terms and characteristics of all the authorized shares
of Cumulative Preferred Stock ($25) set forth above, the following distinctive
terms and characteristics:
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1. the annual dividend rate for the shares of such series shall
be eight and four-tenths percent (8.40%), and such dividends shall be
cumulative from the date on which the shares of such series are originally
issued;
2. the premium payable to holders of the shares of such series
in the event of any voluntary liquidation, dissolution or winding up of the
Corporation shall be one percent (1%) of the par value thereof;
3. the redemption price payable to the holders of the shares of
such series upon the redemption of all or any part of the shares of such
series shall be $25.25 plus an amount equal to accrued dividends to the date
fixed for redemption; and
4. the number of shares constituting such series shall be
1,400,000.
* * * * *
These amended and restated Articles of Incorporation were adopted by
unanimous written consent of the directors of the Corporation and by written
consent of the sole shareholder of the Corporation. The number of votes cast
for each amendment by each voting group entitled to vote separately on the
amendment was sufficient for approval by that voting group.
IN WITNESS WHEREOF, the Corporation has set its hand and seal effective
as of September 19, 1997.
PUBLIC SERVICE COMPANY OF COLORADO
/s/ Wayne H. Brunetti
By:
Wayne H. Brunetti, Chief Executive Officer
Attest:
/s/ Teresa S. Madden
_____________________________
Teresa S. Madden, Corporate Secretary
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