Page 1 of 14
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Quarterly Report under Section 13 or 15(d)
of the Securities Exchange Act of 1934
For Quarter Ended September 30, 1995
Commission File Number 1-255-2
WEST PENN POWER COMPANY
(Exact name of registrant as specified in its charter)
Pennsylvania 13-5480882
(State of Incorporation) (I.R.S. Employer Identification No.)
800 Cabin Hill Drive, Greensburg, Pennsylvania 15601
Telephone Number - 412-837-3000
The registrant (1) has filed all reports required to be filed by Section
13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12
months and (2) has been subject to such filing requirements for the past 90
days.
At November 9, 1995, 24,361,586 shares of the Common Stock (no par value)
of the registrant were outstanding, all of which are held by Allegheny Power
System, Inc., the Company's parent.
<PAGE>
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WEST PENN POWER COMPANY AND SUBSIDIARY COMPANIES
Form 10-Q for Quarter Ended September 30, 1995
Index
Page
No.
PART I--FINANCIAL INFORMATION:
Consolidated statement of income -
Three and nine months ended September 30, 1995 and 1994 3
Consolidated balance sheet - September 30, 1995
and December 31, 1994 4
Consolidated statement of cash flows -
Nine months ended September 30, 1995 and 1994 5
Notes to consolidated financial statements 6-8
Management's discussion and analysis of financial
condition and results of operations 9-13
PART II--OTHER INFORMATION 14
<PAGE>
<TABLE>
<CAPTION>
- 3 -
WEST PENN POWER COMPANY AND SUBSIDIARIES
Consolidated Statement of Income
Three Months Ended Nine Months Ended
September 30 September 30
1995 1994 1995 1994
(Thousands of Dollars)
ELECTRIC OPERATING REVENUES:
<S> <C> <C> <C> <C>
Residential $ 100,591 $ 88,865 $ 301,065 $ 288,144
Commercial 59,702 53,423 168,398 156,326
Industrial 87,839 83,064 266,838 244,897
Nonaffiliated utilities 44,604 32,986 125,853 114,314
Other, including affiliates 16,549 15,822 55,010 55,477
Total Operating Revenues 309,285 274,160 917,164 859,158
OPERATING EXPENSES:
Operation:
Fuel 61,244 62,471 179,346 198,289
Purchased power and exchanges, net 67,633 58,567 202,566 188,734
Deferred power costs, net 2,901 (821) 12,590 (708)
Restructuring charge 6,042 - 6,042 -
Other 35,619 35,051 104,322 106,354
Maintenance 28,051 26,683 82,961 85,860
Depreciation 28,707 21,957 86,407 66,256
Taxes other than income taxes 22,896 21,649 67,340 65,696
Federal and state income taxes 15,300 13,024 48,026 40,083
Total Operating Expenses 268,393 238,581 789,600 750,564
Operating Income 40,892 35,579 127,564 108,594
OTHER INCOME AND DEDUCTIONS:
Allowance for other than borrowed funds
used during construction 939 2,205 2,121 4,866
Other income, net 3,538 3,131 9,449 9,359
Total Other Income and Deductions 4,477 5,336 11,570 14,225
Income Before Interest Charges 45,369 40,915 139,134 122,819
INTEREST CHARGES:
Interest on long-term debt 16,631 14,854 48,020 42,637
Other interest 742 645 2,216 1,690
Allowance for borrowed funds used during
construction (638) (1,329) (1,761) (2,924)
Total Interest Charges 16,735 14,170 48,475 41,403
Income Before Cumulative Effect of
Accounting Change 28,634 26,745 90,659 81,416
Cumulative Effect of Accounting Change, Net - - - 19,031
CONSOLIDATED NET INCOME $ 28,634 $ 26,745 $ 90,659 $ 100,447
See accompanying notes to consolidated financial statements.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- 4 -
WEST PENN POWER COMPANY AND SUBSIDIARIES
Consolidated Balance Sheet
September 30 December 31
1995 1994
ASSETS: (Thousands of Dollars)
Property, Plant, and Equipment:
At original cost, including $119,338,000
<S> <C> <C>
and $103,514,000 under construction $ 3,079,152 $ 3,013,777
Accumulated depreciation (1,056,421) (1,009,565)
2,022,731 2,004,212
Investments and Other Assets:
Allegheny Generating Company - common stock at equity 97,427 100,228
Other 1,247 1,474
98,674 101,702
Current Assets:
Cash and temporary cash investments 1,067 345
Accounts receivable:
Electric service, net of $8,172,000 and $8,267,000
uncollectible allowance 130,493 119,020
Affiliated and other 12,402 11,862
Notes receivable from affiliates - 1,000
Materials and supplies--at average cost:
Operating and construction 40,721 39,922
Fuel 33,413 38,205
Deferred income taxes 12,378 12,538
Prepaid taxes 19,299 11,100
Other 5,514 1,425
255,287 235,417
Deferred Charges:
Regulatory assets 363,799 364,473
Unamortized loss on reacquired debt 12,572 10,494
Other 18,112 15,560
394,483 390,527
Total Assets $ 2,771,175 $ 2,731,858
CAPITALIZATION AND LIABILITIES:
Capitalization:
Common stock $ 465,994 $465,994
Other paid-in capital 55,475 55,687
Retained earnings 448,515 433,801
969,984 955,482
Preferred stock - not subject to mandatory redemption 79,708 149,708
Long-term debt 906,707 836,426
1,956,399 1,941,616
Current Liabilities:
Short-term debt 34,581 -
Long-term debt and preferred stock
due within one year 27,000 27,000
Accounts payable 78,114 107,792
Accounts payable to affiliates 12,243 6,477
Taxes accrued:
Federal and state income 8,370 9,217
Other 12,732 20,637
Interest accrued 15,711 16,475
Other 36,178 24,028
224,929 211,626
Deferred Credits and Other Liabilities:
Unamortized investment credit 51,011 52,946
Deferred income taxes 478,504 471,515
Regulatory liabilities 36,974 39,881
Other 23,358 14,274
589,847 578,616
Total Capitalization and Liabilities $ 2,771,175 $ 2,731,858
See accompanying notes to consolidated financial statements.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
- 5 -
WEST PENN POWER COMPANY AND SUBSIDIARIES
Consolidated Statement of Cash Flows
Nine Months Ended
September 30
1995 1994
(Thousands of Dollars)
CASH FLOWS FROM OPERATIONS:
<S> <C> <C>
Consolidated net income $ 90,659 $ 100,447
Depreciation 86,407 66,256
Deferred investment credit and income taxes, net 2,147 (13,532)
Deferred power costs, net 12,590 (708)
Unconsolidated subsidiaries' dividends in excess of earnings 2,934 2,679
Allowance for other than borrowed funds used
during construction (2,121) (4,866)
Cumulative effect of accounting change before income taxes - (32,891)
Changes in certain current assets and
liabilities:
Accounts receivable, net, excluding cumulative
effect of accounting change (12,013) 23,532
Materials and supplies 3,993 (8,040)
Accounts payable (23,912) (24,598)
Taxes accrued (8,752) 7,602
Interest accrued (764) 483
Other, net (149) 15,753
151,019 132,117
CASH FLOWS FROM INVESTING:
Construction expenditures (106,654) (160,065)
Allowance for other than borrowed funds used
during construction 2,121 4,866
(104,533) (155,199)
CASH FLOWS FROM FINANCING:
Retirement of preferred stock (72,369) -
Issuance of long-term debt 143,700 80,129
Retirement of long-term debt (78,888) -
Short-term debt, net 34,581 -
Notes receivable from affiliates 1,000 18,400
Dividends on capital stock:
Preferred stock (5,332) (6,283)
Common stock (68,456) (69,321)
(45,764) 22,925
NET CHANGE IN CASH AND TEMPORARY CASH INVESTMENTS 722 (157)
Cash and Temporary Cash Investments at January 1 345 565
Cash and Temporary Cash Investments at September 30 $ 1,067 $ 408
Supplemental cash flow information:
Cash paid during the period for:
Interest (net of amount capitalized) $ 47,859 $ 39,541
Income taxes 46,343 43,669
See accompanying notes to consolidated financial statements.
</TABLE>
<PAGE>
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WEST PENN POWER COMPANY AND SUBSIDIARY COMPANIES
Notes to Consolidated Financial Statements
1. The Company's Notes to Consolidated Financial Statements in the
Allegheny Power System companies' combined Annual Report on
Form 10-K for the year ended December 31, 1994, should be read
with the accompanying financial statements and the following
notes. With the exception of the December 31, 1994
consolidated balance sheet in the aforementioned annual report
on Form 10-K, the accompanying consolidated financial
statements appearing on pages 3 through 5 and these notes to
consolidated financial statements are unaudited. In the
opinion of the Company, such consolidated financial statements
together with these notes thereto contain all adjustments
(which consist only of normal recurring adjustments) necessary
to present fairly the Company's financial position as of
September 30, 1995, the results of operations for the three and
nine months ended September 30, 1995 and 1994, and cash flows
for the nine months ended September 30, 1995 and 1994.
2. The Consolidated Statement of Income reflects the results of
past operations and is not intended as any representation as to
future results. For purposes of the Consolidated Balance Sheet
and Consolidated Statement of Cash Flows, temporary cash
investments with original maturities of three months or less,
generally in the form of commercial paper, certificates of
deposit, and repurchase agreements, are considered to be the
equivalent of cash.
3. Earnings for the 1994 periods have been restated to reflect
retroactively the effect of an accounting change adopted as of
January 1994 to record unbilled revenues.
4. As previously announced, the Allegheny Power System is
undergoing a reorganization and reengineering process
(restructuring) to simplify its management structure and to
increase efficiency. A workforce reduction will occur as
departments are subjected to the process.
The restructuring efforts completed to date, primarily for the
Bulk Power Supply Department of the affiliated Allegheny Power
Service Corporation, will result in a workforce reduction of
approximately 210 employees, who will be offered an option of
immediate resignation under a Voluntary Separation Program
(VSP) or to remain employed subject to involuntary separation
(layoff) after one year, if during that year they have not
found other employment within the System. The VSP consists of
enhanced severance benefits and other incentives. In
connection with this workforce reduction, the Company recorded,
in the third quarter of 1995, a $6.0 million restructuring
charge for the estimated liabilities incurred to date. The
restructuring charge, net of income taxes, reduced third
quarter consolidated net income by about $3.5 million.
Additional separation costs for these employees will be
recorded in 1996 depending upon those employees who elect early
separation under the VSP.
<PAGE>
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Additional restructuring costs will be incurred as the
restructuring process is completed by other departments, and
additional workforce reductions are identified. The costs
associated with any additional workforce reductions cannot be
estimated at this time. It is expected that the costs
associated with the restructuring program will be recovered
through cost savings in less than two years.
5. The Company issued $30 million of 7.75% Series MM, 30-year
first mortgage bonds in May 1995 to refund $30 million of 9%
Series EE due 2019. In June 1995, the Company issued $31.5
million of 6.15%, 20-year pollution control revenue notes to
refund $11.5 million of 6.95% Series B due 2003 and $20 million
of 7% Series B due 2008, and issued $15.4 million of 6.05%
Series G 19-year pollution control revenue notes to refund
$15.4 million of 9.375% Series E due 2014. The Company also
issued $70 million of 8% Junior Subordinated Deferrable
Interest Debentures in June 1995 to replace the following
issues of preferred stock: $10 million of $7.00 Series D, $10
million of $7.12 Series E, $10 million of $7.60 Series H, $10
million of $7.64 Series I, $10 million of $8.08 Series G, and
$20 million of $8.20 Series J.
6. Other paid-in capital decreased $212,000 in the nine months
ended September 30, 1995, as a result of preferred stock
transactions.
7. The Company owns 45% of the common stock of Allegheny
Generating Company (AGC), and affiliates of the Company own the
remainder. AGC owns an undivided 40% interest, 840 MW, in the
2,100-MW pumped-storage hydroelectric station in Bath County,
Virginia, operated by the 60% owner, Virginia Power Company, a
nonaffiliated utility. Following is a summary of income
statement information for AGC:
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30 September 30
1995 1994 1995 1994
(Thousands of Dollars)
<S> <C> <C> <C> <C>
Electric operating revenues $21,573 $22,337 $65,730 $66,637
Operation & maintenance expense 1,324 1,653 4,691 4,930
Depreciation 4,274 4,236 12,722 12,708
Taxes other than income taxes 1,221 1,399 3,768 4,267
Federal income taxes 3,410 3,498 10,135 10,419
Interest charges 4,385 4,467 13,802 13,380
Other income, net (5) (3) (14) (10)
Net income $ 6,964 $ 7,087 $20,626 $20,943
</TABLE>
The Company's share of the equity in earnings above was $3.1
million and $3.2 million for the three months ended September
30, 1995 and 1994, respectively, and $9.3 million and $9.4
million for the nine months ended September 30, 1995 and 1994,
respectively. These amounts were included in other income,
net, on the Consolidated Statement of Income.
<PAGE>
- 8 -
8. Common stock dividends per share declared and paid during the
periods for which income statements are included are as
follows:
<TABLE>
<CAPTION>
1995 1994
Number Amount Number Amount
of Shares Per Share of Shares Per Share
<S> <C> <C> <C> <C>
First Quarter 24,361,586 $.94 22,361,586 $1.12
Second Quarter 24,361,586 $.95 22,361,586 $1.11
Third Quarter 24,361,586 $.92 22,361,586 $ .87
</TABLE>
Earnings per share are not reported inasmuch as the common
stock of the Company is 100% owned by its parent, Allegheny
Power System, Inc.
<PAGE>
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WEST PENN POWER COMPANY AND SUBSIDIARY COMPANIES
Management's Discussion and Analysis of Financial Condition
and Results of Operations
COMPARISON OF THIRD QUARTER AND NINE MONTHS ENDED SEPTEMBER 30, 1995
WITH THIRD QUARTER AND NINE MONTHS ENDED SEPTEMBER 30, 1994
CONSOLIDATED NET INCOME
Consolidated net income for the third quarter of 1995
was $28.6 million, after reflecting a restructuring charge net of taxes
described below of about $3.5 million, compared with $26.7 million for the
corresponding 1994 period. For the first nine months of 1995,
consolidated net income was $90.7 million, reflecting the restructuring
charge, compared with $81.4 million for the corresponding 1994 period,
before the cumulative effect of an accounting change to record unbilled
revenues.
The restructuring charge reflects an estimate of the
liabilities incurred to date for separation costs of announced staff
reductions in connection with ongoing reorganization and reengineering
efforts (see Note 4 to Consolidated Financial Statements). The increase
in consolidated net income for the third quarter and in consolidated
income before the cumulative effect of accounting change for the first
nine months of 1995 reflects increased retail revenues resulting from
greater kilowatthour (kWh) sales to retail customers as described below
and from previously reported rate increases. The increased retail
revenues in the 1995 periods more than offset increases in depreciation,
interest, and other expenses.
SALES AND REVENUES
Retail kWh sales to residential, commercial, and
industrial customers increased 8%, 9%, and 4%, respectively, in the third
quarter. In the first nine months, retail kWh sales to commercial and
industrial customers increased 3% and 7%, respectively, and to residential
customers decreased 1%. The change in kWh sales to residential customers
was primarily due to variances in weather-related sales. Extremely hot
summer weather resulted in cooling degree days in the third quarter 69%
above normal and 53% above the moderate temperatures in the third quarter
of 1994. These increases in the third quarter were offset by milder
weather in the first six months of 1995 as compared to some of the coldest
temperatures ever recorded in much of the Company's service territory
during the first quarter of 1994. The increase in commercial sales
reflects both increased usage and growth in the number of customers. The
increase in kWh sales to industrial customers resulted primarily from
increased sales to primary metals customers. KWh sales to primary metals
customers in 1994 were impacted by a 70-day strike, ending June 9, 1994,
at one of the Company's largest industrial customers.
<PAGE>
- 10 -
The increase in revenues from retail customers resulted
from the following:
<TABLE>
<CAPTION>
Change from Prior Periods
Quarter Nine Months
(Millions of Dollars)
<S> <C> <C>
Increased kWh sales $ 9.1 $ 8.8
Fuel and energy cost adjustment clauses (1) .2 (1.8)
Rate increases (2) 12.5 37.8
Other 1.0 2.1
$22.8 $46.9
</TABLE>
(1) Changes in revenues from fuel and energy cost adjustment
clauses have little effect on net income.
(2) Reflects a base rate increase on an annual basis of about
$55.5 million in Pennsylvania effective December 31, 1994.
This increase included recovery of carrying charges on
investment, depreciation, and operating costs required to
comply with Phase I of the Clean Air Act Amendments of 1990
(CAAA), and other increasing levels of expense.
KWh sales to and revenues from nonaffiliated utilities
are comprised of the following items:
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30 September 30
1995 1994 1995 1994
KWh sales (in billions):
<S> <C> <C> <C> <C>
From Company generation .1 .1 .2 .4
From purchased power 1.5 .8 4.2 3.0
1.6 .9 4.4 3.4
Revenues (in millions):
From Company generation $ 2.3 $ 2.1 $ 5.4 $ 10.7
From sales of purchased power 42.3 30.9 120.5 103.6
$44.6 $33.0 $125.9 $114.3
</TABLE>
Sales from Company generation in the first nine months
decreased because of growth of kWh sales to retail customers which reduces
the amount available for sale, and because of decreased demand and
continuing price competition. Sales of purchased power vary depending on
the availability of eastern utilities' generating equipment, demand for
energy, and competition. Most of the aggregate benefits from sales to
nonaffiliated utilities is passed on to retail customers and has little
effect on consolidated net income.
<PAGE>
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OPERATING EXPENSES
Fuel expenses for the third quarter and the first nine
months of 1995 decreased 2% and 10%, respectively, due primarily to a 9%
decrease in average coal prices. This decrease in the third quarter was
offset by a 7% increase in kWh generated. The reduced average coal prices
are primarily the result of renegotiations of long-term fuel contracts
which reduced fuel prices effective January 1995. Fuel expenses are
primarily subject to deferred power cost accounting procedures with the
result that changes in fuel expenses have little effect on consolidated
net income.
"Purchased power and exchanges, net" represents power
purchases from and exchanges with nonaffiliated utilities, and qualified
facilities under the Public Utility Regulatory Policies Act of 1978
(PURPA), capacity charges paid to Allegheny Generating Company (AGC) and
other transactions with affiliates made pursuant to a power supply
agreement whereby each company uses the most economical generation
available in the Allegheny Power System at any given time, and is
comprised of the following items:
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30 September 30
1995 1994 1995 1994
(Millions of Dollars)
Nonaffiliated transactions:
Purchased power:
<S> <C> <C> <C> <C>
For resale to other utilities $38.5 $27.5 $107.6 $ 91.7
From PURPA generation 15.3 16.4 48.0 48.9
Other 3.2 3.8 14.7 13.9
Power exchanges, net (1.3) (1.3) (.6) (.9)
Affiliated transactions:
AGC capacity charges 9.5 10.0 28.5 29.5
Energy and spinning reserve charges 2.2 2.0 3.9 5.1
Other affiliated capacity charges .2 .2 .5 .5
$67.6 $58.6 $202.6 $188.7
</TABLE>
The amount of power purchased from nonaffiliated
utilities for use by the Company and for resale to nonaffiliated utilities
depends upon the availability of the Company's generating equipment,
transmission capacity, and fuel, and its cost of generation and the cost
of operations of nonaffiliated utilities from which such purchases are
made. The decrease in purchases from PURPA generation in the third
quarter was due to reduced hydro generation which resulted from lower than
normal river flow. The cost of power purchased for use by the Company,
including power from PURPA generation and affiliated utilities, is mostly
recovered from customers currently through the regular fuel and energy
cost recovery procedures followed by the Company's regulatory commissions
and is primarily subject to deferred power cost procedures with the result
that changes in such costs have little effect on consolidated net income.
The primary reason for the increases in purchases for resale to
nonaffiliated utilities is described under SALES AND REVENUES above.
<PAGE>
- 12 -
The decrease in other operation expense for the first
nine months of 1995, excluding the restructuring charge which is discussed
on pages 6 and 7, resulted primarily from a decrease in transmission
service charges from a nonaffiliated utility, decreased provisions for
uncollectible accounts, and environmental liabilities recorded in the
first quarter of 1994, offset in part by increased power station operating
costs, including expenses related to the Harrison scrubbers which became
available for service in November 1994 and increases in salaries and
wages.
Maintenance expenses represent costs incurred to
maintain the power stations, the transmission and distribution (T&D)
system, and general plant, and reflect routine maintenance of equipment
and rights-of-way as well as planned major repairs and unplanned
expenditures, primarily from forced outages at the power stations and
periodic storm damage on the T&D system. The Company is also
experiencing, and expects to continue to experience, increased
expenditures due to the aging of its power stations. Variations in
maintenance expense result primarily from unplanned events and planned
major projects, which vary in timing and magnitude depending upon the
length of time equipment has been in service without a major overhaul and
the amount of work found necessary when equipment is dismantled.
The increases in depreciation expense for the third
quarter and first nine months of 1995 resulted primarily from additions to
electric plant, primarily because of the Harrison scrubbers which became
available for service in November 1994, and an increase in depreciation
rates concurrent with the Pennsylvania base rate increase effective on
December 31, 1994.
Taxes other than income taxes increased $1.2 million
for the quarter and $1.6 million for the first nine months due to
increases in gross receipts taxes resulting from higher revenues from
retail customers ($1.0 million and $2.0 million), respectively, increased
West Virginia Business and Occupation taxes (B&O taxes) due to increased
generation within that state and the amended B&O tax law ($.9 million and
$2.2 million), respectively, offset by decreases in payroll taxes ($.8
million and $2.2 million), respectively. As a result of an amendment in
the B&O tax law effective June 1, 1995, which changed the basis of this
tax from generation to generating capacity, this tax is expected to
decrease effective February 1, 1996, because of a rate reduction for
scrubbed capacity.
The net increases of $2.3 million and $7.9 million in
federal and state income taxes for the third quarter and first nine months
of 1995, respectively, resulted primarily from increases in income before
income taxes.
The combined decreases of $2.0 million and $3.9 million
in allowance for funds used during construction (AFUDC) for the third
quarter and the first nine month periods, respectively, reflect decreases
in capital expenditures upon substantial completion of Phase I of the
CAAA.
Interest on long-term debt increased $1.8 million for
the quarter and $5.4 million for the first nine months due primarily to
the timing of the refinancing of the $30 million of first mortgage bonds
and $46.9 million of pollution control revenue notes, interest related to
the issuance of $70 million of Junior Subordinated Deferrable Interest
Debentures, and new security issues in 1994. Fluctuations in other
interest expense reflect changes in the level of short-term debt
maintained by the Company.
<PAGE>
- 13 -
LIQUIDITY AND CAPITAL RESOURCES
The Company's discussion on Liquidity and Capital
Resources in the Allegheny Power System companies' combined Annual Report
on Form 10-K for the year ended December 31, 1994, should be read with the
following information.
In the normal course of business, the Company is
subject to various contingencies and uncertainties relating to its
operations and construction programs, including cost recovery in the
regulatory process, laws, regulations and uncertainties related to
environmental matters, and legal actions.
As previously reported, Monongahela Power Company, an
affiliated company, has been named as a defendant along with multiple
other defendants in 2,626 pending asbestos cases involving one or more
plaintiffs, and the Company and its affiliates have been named as
defendants along with multiple other defendants in an additional 2,375
cases by one or more plaintiffs, including 2,660 new cases filed in 1995
to date. While the cumulative number of claims appears to be significant,
previous cases have been settled for an amount substantially less than the
anticipated cost of defense. Also as previously reported, the Company and
its affiliates and approximately 875 others have been identified by the
Environmental Protection Agency as potentially responsible parties in a
Superfund site subject to cleanup. The Company believes that provisions
for liabilities and insurance recoveries are such that final resolution of
these matters will not have a material effect on its financial position.
In March 1995, the Federal Energy Regulatory Commission
(FERC) published a Notice of Proposed Rulemaking (NOPR) that would mandate
sweeping changes to promote increased competition in the wholesale
electric industry. The proposals would require that utilities file
nondiscriminatory open access transmission tariffs and offer comparable
transmission services to eligible third parties. It also would allow
utilities the opportunity to recover stranded costs. The Company has
submitted comments to the FERC. The Company filed open access
transmission tariffs with the FERC that generally are consistent with this
NOPR.
<PAGE>
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WEST PENN POWER COMPANY AND SUBSIDIARY COMPANIES
Part II - Other Information to Form 10-Q
for Quarter Ended September 30, 1995
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits:
(3) (i) Charter of the Company, as amended,
including amendment dated November 2,
1995, reflecting redemption of six series
of preferred stock on July 10, 1995.
(ii) By-laws of the Company, dated September 7,
1995 as amended, reflecting a change in
the number of permitted Board of
Directors.
(27) Financial Data Schedule
(b) Reports on Form 8-K:
No reports on Form 8-K were filed on behalf of the
Company for the quarter ended September 30, 1995.
Signature
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
WEST PENN POWER COMPANY
C. V. Burkley
C. V. Burkley
Controller
(Chief Accounting Officer)
November 9, 1995
<PAGE>
RESTATED ARTICLES OF
WEST PENN POWER COMPANY
ARTICLE I
Section 1.1. The name of the Corporation is West
Penn Power Company.
Section 1.2. The location of the Corporation's
registered office is 800 Cabin Hill Drive, Greensburg,
Westmoreland County, Pennsylvania 15601.
ARTICLE II
Section 2.1. The Corporation was incorporated
March 1, 1916 under "An Act authorizing the merger and
consolidation of certain corporations", approved May 3,
1909, P. L. 408, as amended and supplemented.
Section 2.2. The Corporation accepted the Business
Corporation Law of Pennsylvania, Act of May 5, 1933, P. L.
364, as amended, on March 8, 1965.
ARTICLE III
Section 3.1. The Corporation may engage in and do
any lawful act concerning any or all lawful business for
which corporations may be incorporated under the Business
Corporation Law of the Commonwealth of Pennsylvania,
including, but not limited to, generating, purchasing,
transmitting, distributing and selling electricity;
manufacturing, processing, owning, using and dealing in
personal property of any nature whatsoever; engaging in
research and development; furnishing services; and
acquiring, owning, using and disposing of real property of
any nature whatsoever.
ARTICLE IV
The aggregate number of shares of all classes which
the Corporation shall have authority to issue is
16,500,000 divided into 1,447,077 shares of Preferred
Stock of the par value of $100 each and 15,052,923 shares
of Common Stock without par value. The shares of Preferred
Stock consist of the following series:
297,077 shares of 4 1/2% Preferred Stock;
50,000 shares of 4.20% Preferred Stock, Series B;
50,000 shares of 4.10% Preferred Stock, Series C;
100,000 shares of $7.00 Preferred Stock, Series D;
<PAGE>
100,000 shares of $7.12 Preferred Stock, Series E;
50,000 shares of $9.88 Preferred Stock, Series F;
100,000 shares of $8.08 Preferred Stock, Series G;
100,000 shares of $7.60 Preferred Stock, Series H;
100,000 shares of $7.64 Preferred Stock, Series I;
200,000 shares of $8.20 Preferred Stock, Series J; and
300,000 shares of $9.40 Preferred Stock, Series K.
ARTICLE V
The preferences, qualifications, limitations,
restrictions and the special or relative rights granted to
or imposed upon the shares of Preferred Stock a nd of
Common Stock are:
Section 5.1. The shares of the Preferred Stock may
be divided into and issued in series. Each series shall be
so designated as to distinguish the shares thereof from
the shares of all other series and classes. All shares of
the Preferred Stock shall be identical except as to the
following relative rights and preferences, in respect of
any or all of which there may be variations between
different series:
(A) the rate of dividend;
(B) the price at, and the terms and conditions on,
which shares may be redeemed;
(C) the amounts payable upon shares in the event of
voluntary or involuntary liquidation;
(D) sinking fund provisions for the redemption or
purchase of shares; and
(E) the terms and conditions on which shares may be
converted in the event the shares of any series are
issued with the privilege of conversion.
To the extent that these Restated Articles will not
have established series of the Preferred Stock and fixed
and determined the variations in the relative rights and
preferences as between such series, the Board of Directors
shall have authority, by resolution, to divide the
Preferred Stock into series and, within the limitations
set forth in this Section to fix and determine the
relative rights and preferences of any series so
established and to change redeemed or re-acquired shares
of one series of the Preferred Stock established by these
Restated Articles or theretofore established by the Board
of Directors pursuant to this Section into shares of
another series thereof.
<PAGE>
Section 5.2. The holders of the Preferred Stock of
each series, in preference to the holders of any class of
stock ranking junior to the Preferred Stock, shall be
entitled to receive, as and when declared by the Board of
Directors out of any funds legally available therefor,
cash dividends, at the rate for such series fixed in
accordance with the provisions of Section 5.14 of this
Article, and no more, payable quarterly on the fifteenth
days of January, April, July and October, respectively, in
each year, with respect to the quarterly period ending on
the day preceding each such respective payment date. Such
dividends shall be paid to shareholders of record on the
respective dates, not exceeding forty days prior to such
payment dates, fixed by the Board of Directors for such
purpose. Such dividends shall be cumulative, in the case
of shares of each particular series:
(A) if issued prior to the record date for the
first dividend on shares of such series, then from the
date of original issue of any shares of such series;
(B) if issued during the period commencing
immediately after the record date for a dividend on
shares of such series and terminating at the close of
business on the payment date for such dividend, then
from such dividend payment date; and
(C) otherwise from the quarterly dividend payment
date next preceding the date of issue of such shares.
No dividend shall be paid upon, or declared or set apart
for, any share of Preferred Stock for any quarterly
dividend period unless at the same time a like
proportionate dividend for the same quarterly dividend
period, ratably in proportion to the respective annual
dividend rates fixed therefor, shall be paid upon, or
declared and set apart for, all shares of Preferred Stock
of all series then issued and outstanding and entitled to
receive such dividend.
Section 5.3. So long as any shares of Preferred
Stock shall be outstanding, the Corporation shall not
declare any dividends or make any distributions in respect
of outstanding shares of any stock (in this Section called
"junior stock") of the Corporation ranking junior to the
Preferred Stock as to dividends or assets, other than
dividends in shares of junior stock, or purchase or
otherwise acquire for value any outstanding shares of
junior stock (each such dividend, distribution, purchase
or acquisition being in this Section called a "dividend")
in contravention of the following:
<PAGE>
(A) If and so long as the junior stock equity at
the end of the calendar month immediately preceding the
date on which a dividend on the junior stock is declared
is, or as a result of such dividend would become, less
than twenty per cent (20%) of total consolidated
capitalization, the Corporation shall not declare such
dividends in an amount which, together with all other
dividends on the junior stock paid within the year
ending with and including the date on which such
dividend is payable, exceeds fifty per cent (50%) of the
consolidated net income of the Corporation and its
subsidiaries available for dividends on the junior stock
for the twelve full calendar months immediately
preceding the calendar month in which such dividends are
declared, except in an amount not exceeding the
aggregate of dividends on the junior stock which under
the restriction set forth above in this paragraph could
have been, and have not been, declared; and
(B) If and so long as the junior stock equity at
the end of the calendar month immediately preceding the
date on which a dividend on the junior stock is declared
is, or as a result of such dividend would become, less
than twenty-five per cent (25%) but not less than twenty
per cent (20%) of total consolidated capitalization, the
Corporation shall not declare dividends on the junior
stock in an amount which, together with all other
dividends on the junior stock paid within the year
ending with and including the date on which such
dividend is payable, exceeds seventy-five per cent (75%)
of the consolidated net income of the Corporation and
its subsidiaries available for dividends on the junior
stock for the twelve full calendar months immediately
preceding the calendar month in which such dividends are
declared, except in an amount not exceeding the
aggregate of dividends on junior stock which under the
restrictions set forth in paragraph (A) of this Section
and in this paragraph could have been, and have not
been, declared.
For the purposes of this Section "junior stock
equity" shall mean the aggregate of the par value of, or
stated capital represented by, the outstanding shares of
junior stock, all earned surplus, capital or paid-in
surplus and any premiums on the junior stock then carried
on the books of the Corporation and its consolidated
subsidiaries less (i) the excess, if any, of the aggregate
amount payable on involuntary liquidation of the
Corporation upon all outstanding shares of Preferred Stock
over the sum of (x) the aggregate par value of the shares
of Preferred Stock and (y) any premiums thereon; (ii) any
amounts on the books of the Corporation and its
<PAGE>
consolidated subsidiaries known, or estimated, if not
known, to represent the excess, if any, of recorded value
over original cost of used or useful utility plant; and
(iii) any intangible items set forth on the asset side of
the consolidated balance sheet of the Corporation and its
subsidiaries in accordance with generally accepted
accounting principles, such as unamortized debt discount
and expense; provided, however, that no deduction shall be
required to be made in respect of items referred to in
clauses (ii) and (iii) of this paragraph in cases in which
such items are being amortized or are provided for, or are
being provided for, by reserves.
For the purposes of this Section "total
consolidated capitalization" shall mean the aggregate of
(i) the principal amount of all outstanding indebtedness
of the Corporation and its consolidated subsidiaries
maturing more than twelve months after the date of issue
thereof; and (ii) the par value of, or stated capital
represented by, and any premiums carried on the books of
the Corporation and its consolidated subsidiaries in
respect of, the outstanding shares (except any eliminated
in consolidation) of all classes of the capital stock of
the Corporation and its consolidated subsidiaries, earned
surplus and capital or paid-in surplus, less any amounts
required to be deducted pursuant to clauses (ii) and (iii)
of the immediately preceding paragraph of this Section in
the determination of junior stock equity.
Subject to the foregoing and to Section 5.8 of this
Article, the Board of Directors may declare, out of any
funds legally available therefor, dividends upon the then
outstanding shares of any class of stock ranking junior to
the Preferred Stock, and no holders of shares of Preferred
Stock of any series shall be entitled to share therein.
Section 5.4. In the event of any liquidation of the
Corporation, then, before any distribution or payment
shall be made to the holders of any class of stock ranking
junior to the Preferred Stock, the holders of the
Preferred Stock shall be entitled to be paid in full the
respective amounts fixed in accordance with the provisions
of Section 5.14 of this Article, together with an amount,
in the case of each share, computed at the annual dividend
rate for the series of which the particular share is a
part, from the date on which dividends on such share
became cumulative to and including the date fixed for such
distribution or payment, less the aggregate amount of all
dividends theretofore paid thereon. If such payment shall
have been made in full to the holders of the Preferred
Stock, the remaining assets and funds of the Corporation
shall be distributed among the holders of the classes of
<PAGE>
stock ranking junior to the Preferred Stock, according to
their respective rights and preferences and in each case
according to their respective shares. If, upon any
liquidation of the Corporation, the amounts so payable are
not paid in full to the holders of all outstanding shares
of Preferred Stock, the holders of all series of Preferred
Stock shall share ratably in any distribution of assets in
proportion to the full amounts to which they would
otherwise be respectively entitled. Neither the
consolidation or merger of the Corporation nor the sale or
transfer of all or a part of its assets shall be deemed a
liquidation, dissolution or winding up of the affairs of
the Corporation within the meaning of the foregoing
provisions of this Section.
Section 5.5. The Preferred Stock of any series may
be redeemed, as a whole or in part, at the option of the
Corporation, by vote of the Board of Directors, at any
time or from time to time, at the applicable redemption
price for such series fixed in accordance with the
provisions of Section 5.14 of this Article, together with
an amount (hereinafter referred to as accrued dividends to
the redemption date), in the case of each share, computed
at the annual dividend rate for the series of which the
particular share is a part, from the date on which
dividends on such share became cumulative to and including
the date of redemption, less the aggregate amount of all
dividends theretofore paid thereon. If less than all the
outstanding shares of Preferred Stock of any series are to
be redeemed, the shares to be redeemed shall be determined
by lot in such manner as the Board of Directors may
prescribe. Unless all dividends on the Preferred Stock of
all series for all past quarterly dividend periods shall
have been paid or declared and a sum sufficient for the
payment thereof set apart, the Corporation shall not
acquire any shares of Preferred Stock (except by
redemption of all outstanding shares of Preferred Stock)
without obtaining approval under the Public Utility
Holding Company Act of 1935 for such acquisition.
Notice of every redemption of Preferred Stock shall
be mailed, addressed to the holders of record of the
shares to be redeemed at their respective addresses as
they shall appear on the stock books of the Corporation
(but no failure to mail such notice or any defect therein
or in the mailing thereof shall affect the validity of the
proceedings for such redemption), and notice shall also be
published at least once in one daily newspaper printed in
the English language and published and of general
<PAGE>
circulation in the Borough of Manhattan, The City of New
York, and at least once in one daily newspaper printed in
the English language and published and of general
circulation in the City of Pittsburgh, Pennsylvania, such
publications and such mailing to be at least thirty days
and not more than sixty days prior to the date fixed for
redemption.
If notice of redemption shall have been duly
published and if, on or before the redemption date
specified in the notice, all funds necessary for the
redemption shall have been deposited in trust with a bank
or trust company of the character described in the
following paragraph and designated in the notice of
redemption, for the pro rata benefit of the holders of the
shares so called for redemption, so as to be and continue
to be available therefor, then, from and after the date of
redemption so designated, notwithstanding that any
certificate for shares of Preferred Stock so called for
redemption shall not have been surrendered for
cancellation, the shares represented thereby shall no
longer be deemed outstanding, the dividends thereon shall
cease to accumulate, and all rights with respect to the
shares of Preferred Stock so called for redemption shall
forthwith on the redemption date cease and terminate,
except only the right of the holders thereof to receive
the redemption price of the shares so redeemed, including
accrued dividends to the redemption date, but without
interest.
The Corporation may also, at any time prior to the
redemption date specified in the notice of redemption,
deposit in trust, for the account of the holders of the
Preferred Stock to be redeemed, with a bank or trust
company in good standing, organized under the laws of the
United States of America or of the State of New York or
the Commonwealth of Pennsylvania, doing business in the
Borough of Manhattan, The City of New York or in the City
of Pittsburgh, Pennsylvania, having capital, surplus and
undivided profits aggregating at least Two Million Dollars
($2,000,000), designated in the notice of redemption, all
funds necessary for the redemption, and deliver
irrevocable written instructions authorizing such bank or
trust company, on behalf and at the expense of the
Corporation, to cause notice of redemption to be duly
mailed and publication of notice to be made as herein
provided promptly upon receipt of such irrevocable
instructions. Thereupon, notwithstanding that any
certificate for shares of Preferred Stock so called for
redemption shall not have been surrendered for
cancellation, all shares of Preferred Stock with respect
to which the deposit shall have been made shall no longer
be deemed to be outstanding, and all rights with respect
to such shares of Preferred Stock shall forthwith, upon
such deposit in trust accompanied by irrevocable
<PAGE>
instructions as provided above, cease and terminate except
only the right of the holders thereof to receive from such
bank or trust company, at any time after the time of the
deposit, the redemption price, including accrued dividends
to the redemption date, but without interest, of the
shares so to be redeemed, and the right to exercise, on or
before the date fixed for redemption, privileges of
conversion or exchange, if any, not theretofore expiring.
Any moneys deposited by the Corporation pursuant to
this Section which shall not be required for the
redemption because of the exercise of any such right of
conversion or exchange subsequent to the date of the
deposit shall be repaid to the Corporation forthwith. Any
other moneys deposited by the Corporation pursuant to this
Section and unclaimed at the end of six years from the
date fixed for redemption shall be repaid to the
Corporation upon its request expressed in a resolution of
its Board of Directors, after which repayment the holders
of the shares so called for redemption shall look only to
the Corporation for the payment thereof.
Section 5.6. Except as may be mandatorily required
by law regardless of limitations contained in these
Restated Articles, at all meetings of the shareholders,
every registered holder of Common Stock shall be entitled
to vote and shall have one vote for each share standing in
his name on the books of the Corporation on any record
date fixed for such purpose or, if no such date be fixed,
on the date of such meeting, and the holders of Preferred
Stock shall have no right to vote except as provided
hereinafter in this Article. Each present and future
shareholder of the Corporation by becoming such thereby
waives, to the full extent permitted by law, any right to
vote for the election of Directors other than as provided
in this Section.
If, at any time, dividends on any of the
outstanding shares of Preferred Stock shall be in default
in an amount equivalent to four or more full quarterly
dividends, the Preferred Stock, voting separately as a
class, shall be entitled to elect the smallest number of
Directors necessary to constitute a majority of the full
Board, which right may be exercised until all arrears in
payment of quarterly dividends on the Preferred Stock
shall have been paid or deposited in trust for payment on
or before the next succeeding dividend payment date. When
all such arrears have been so paid or deposited in trust
(and such arrears shall be so paid or deposited in trust
as soon as lawful and reasonably practicable out of any
assets of the Corporation available therefor), the
Preferred Stock shall be divested of such voting power,
<PAGE>
but subject always to the same provisions for the vesting
of such voting power in the Preferred Stock in the case of
any future such default or defaults. So long as the
Preferred Stock shall have the right so to elect a
majority of the Directors, the holders of the Common
Stock, voting separately as a class, shall be entitled to
vote for and elect the remaining Directors, and their
right to vote for Directors shall be limited accordingly.
The foregoing right of the Preferred Stock to elect
a majority of the Directors of the Corporation may be
exercised at any annual meeting of shareholders or, within
the limitations hereinafter provided, at a special meeting
of shareholders held for such purpose. If the date upon
which such right of the holders of the Preferred Stock
shall become vested shall be less than forty-five days or
more than ninety days preceding the date of the next
ensuing annual meeting of shareholders as fixed by the
By-Laws of the Corporation, the President of the
Corporation shall call a special meeting of the holders of
the Preferred Stock and Common Stock to be held not less
than forty-five days and not more than ninety days after
the date upon which such right of the holders of the
Preferred Stock shall have become vested for the purpose
of electing a new Board of Directors, of which a majority
shall be elected by a vote of the Preferred Stock and the
remainder shall be elected by a vote of the Common Stock,
to serve until the next meeting or until their successors
shall be elected and shall qualify. Notice of such
meeting shall be mailed to each shareholder not less than
ten days prior to the date of such meeting. The term of
office of all Directors of the Corporation shall terminate
at the time of any such meeting held for the purpose of
electing a new Board of Directors, notwithstanding that
the term for which such Directors had been elected shall
not then have expired. In the event that at any meeting
at which holders of the Preferred Stock shall be entitled
to elect a majority of the Board of Directors, a quorum of
the holders of such stock shall not be present in person
or by proxy, the holders of the Common Stock, if a quorum
thereof be present, may temporarily elect the Directors
whom the holders of the Preferred Stock are entitled but
fail to elect, such Directors to be designated as having
been so elected and their term of office to expire at such
time thereafter as their successors shall be elected by
the holders of the Preferred Stock as herein provided.
Whenever the Preferred Stock shall be entitled to
elect a majority of the Board of Directors, any holder of
such stock shall have the right, during regular business
hours, in person or by a duly authorized representative,
to examine and to make transcripts of the stock records of
<PAGE>
the Corporation for the Preferred Stock for the purpose of
communicating with other holders of such stock with
respect to the exercise of such right of election.
Whenever the Preferred Stock shall be divested of
such voting power, the President of the Corporation shall,
within ten days after delivery to the Corporation at its
principal office of a request to such effect signed by any
holder of Common Stock, call a special meeting of the
holders of the Common Stock to be held within forty days
after the delivery of such request for the purpose of
electing a new Board of Directors to serve until the next
annual meeting or until their respective successors shall
be elected and shall qualify. If, at any such special
meeting, any Director shall not be reelected, his term of
office shall terminate upon the election and qualification
of his successor, notwithstanding that the term for which
such Director was originally elected shall not then have
expired.
At any annual or special meeting of shareholders
held for the purpose of electing Directors when the
holders of the Preferred Stock shall be entitled to elect
a majority of the Board of Directors, the presence in
person or by proxy of the holders of thirty-five per cent
(35%) of the outstanding shares of the Preferred Stock
shall be required to constitute a quorum for the election
by such class of a majority of the Board of Directors, and
the presence in person or by proxy of the holders of a
majority of the outstanding shares of Common Stock shall
be required to constitute a quorum for the election by
such class of the remaining Directors or for the election
temporarily by such class of a majority of the Board of
Directors as herein provided; provided, however, that the
majority of the holders of either such class of stock who
are present in person or by proxy shall have power to
adjourn such meeting for the election of Directors by such
class from time to time without notice other than
announcement at the meeting. No delay or failure by the
holders of either such class of stock to elect the members
of the Board of Directors which such holders are entitled
to elect shall invalidate the election of the remaining
members of the Board of Directors by the holders of the
other such class of stock. At any such election of
Directors by the holders of shares of Preferred Stock,
each such holder shall have one vote for each share of
such stock standing in his name on the books of the
Corporation on any record date fixed for such purpose or,
if no such date be fixed, on the date on which the
election is held.
<PAGE>
If, during any interval between annual meetings of
shareholders for the election of Directors and while the
Preferred Stock shall be entitled to elect a majority of
the Directors, the number of Directors in office who have
been elected by the holders of the Preferred Stock or
Common Stock, as the case may be, shall, by reason of
resignation, death or removal, be less than the total
number of Directors subject to election by the holders of
shares of such class, (a) the vacancy or vacancies shall,
if permitted by law, be filled by a majority vote of the
remaining Directors then in office who were elected by
such class or succeeded to a Director so elected, although
such a majority be less than a quorum, and (b) if not so
filled within forty days after the creation thereof, the
President of the Corporation shall call a special meeting
of the holders of shares of such class and such vacancy or
vacancies shall be filled at such special meeting.
Any Director may be removed from office by vote of
the holders of a majority of the shares of the class of
stock by which his successor would be elected. A special
meeting of the holders of shares of such class may be
called by a majority vote of the Board of Directors for
the purpose of removing a Director in accordance with the
provisions of this Section. The President of the
Corporation shall, in any event, within ten days after
delivery to the Corporation at its principal office of a
request to such effect signed by the holders of at least
five per cent (5%) of the outstanding shares of such
class, call a special meeting for such purpose to he held
within forty days after the delivery of such request.
Except as may be mandatorily required by law
regardless of limitations contained in these Restated
Articles, holders of Preferred Stock shall not be entitled
to receive notice of any meeting of shareholders at which
they are not entitled to vote or consent.
In all elections of Directors each shareholder
shall have the right to cast one vote for each share of
stock owned by him and entitled to a vote and he may cast
the same in person or by proxy for as many persons as
there are Directors to be elected by the class of stock
held by him, or he may cumulate such votes and give one
candidate as many votes as the number of Directors to be
elected by the class of stock held by him multiplied by
the number of his shares of stock shall equal, or he may
distribute them on the same principle among as many
candidates and in such manner as he shall desire.
Section 5.7 So long as any shares of Preferred
Stock are outstanding, the consent of the holders of at
<PAGE>
least two-thirds of the Preferred Stock at the time
outstanding, given in person or by proxy, either in
writing or by vote at any meeting called for the purpose
shall be necessary for effecting or validating any one or
more of the following:
(A) Any amendment, alteration or repeal of any of
the provisions of these Restated Articles, which affects
adversely the powers, preferences or rights of the
holders of the Preferred Stock; provided, however, that
if such amendment, alteration or repeal affects
adversely the powers, preferences or rights of one or
more but not all series of Preferred Stock at the time
outstanding, only the consent of the holders of at least
two-thirds of the total number of outstanding shares of
all series so affected shall be required; and provided,
further, that the amendment of the provisions of these
Restated Articles so as to increase or decrease the
authorized amount of the Preferred Stock or so as to
authorize or create, or so as to increase or decrease
the authorized amount of, any new class of stock ranking
on a parity as to dividends or assets with, or any class
of stock ranking junior to, the Preferred Stock or any
security convertible into any such stock or into
Preferred Stock shall not be deemed to affect adversely
the powers, preferences or rights of the holders of the
Preferred Stock or any series thereof, and the right is
hereby reserved to make any such amendment upon the vote
prescribed in Section 5.9 of this Article; or
(B) The authorization or creation, or the increase
in the authorized amount, of any stock of any class,
ranking prior as to dividends or assets to the Preferred
Stock or the issue of any shares of any such prior
ranking stock more than twelve months after the date as
of which the Corporation was empowered to create or
authorize such prior ranking stock;
provided, however, that no such consent of the holders of
the Preferred Stock shall be required if, at or prior to
the time when such amendment, alteration or repeal is to
take effect, or when the issuance of any such prior stock
is to be made, provision is made for the redemption of all
shares of Preferred Stock at the time outstanding or, in
the case of any such amendment, alteration or repeal as to
which the consent of less than all series of the Preferred
Stock would otherwise be required, for the redemption of
all shares of the series of Preferred Stock the consent of
which would otherwise be required.
Section 5.8. So long as any shares of Preferred
Stock are outstanding, the consent of the holders of at
<PAGE>
least a majority of the Preferred Stock at the time
outstanding, given in person or by proxy, either in
writing or by vote at any meeting called for the purpose,
shall be necessary for effecting or validating any one or
more of the following:
(A) The issue of any unsecured notes, debentures,
or other securities representing unsecured indebtedness,
or the assumption of any such unsecured securities, for
a purpose other than the refunding or renewing of
outstanding unsecured securities theretofore issued or
assumed by the Corporation resulting in equal or longer
maturities or the redemption or other retirement of all
outstanding shares of Preferred Stock, if, immediately
after such issuance or assumption, (i) 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 thereby exceed twenty per cent (20%)
of the aggregate of (x) the total principal amount of
all bonds or other securities representing secured
indebtedness issued or assumed by the Corporation and
then outstanding and (y) the capital stock, premiums
thereon and surplus of the Corporation as then stated on
the books of account of the Corporation, or (ii) the
total principal amount of all unsecured notes,
debentures or other securities representing unsecured
indebtedness issued or assumed by the Corporation and
then outstanding having maturities of less than ten
years would thereby exceed ten per cent (10%) of such
aggregate. Payment due upon the maturity of unsecured
debt having an original single maturity of ten years or
more or the payment due upon the final maturity of any
unsecured serial debt which had original maturities of
ten years or more shall not be regarded for purposes of
clause (ii) of this paragraph as unsecured debt of a
maturity of less than ten years until such payment is
required to be made within three years;
(B) The issue of any additional shares or the
reissue of any reacquired shares of Preferred Stock or
any shares of stock of any class ranking on a parity as
to dividends or assets with the Preferred Stock for any
purpose other than to refinance an equal par amount of
stated value of Preferred Stock or of any class of
outstanding stock ranking prior to or on a parity as to
dividends or assets with the Preferred Stock, unless the
consolidated gross income of the Corporation and its
subsidiaries (after all taxes including taxes based on
income) for twelve consecutive calendar months within a
period of fifteen calendar months immediately preceding
the calendar month of such issuance is equal to at least
<PAGE>
one and one-half times the aggregate of the annual
interest charges on indebtedness of the Corporation and
its consolidated subsidiaries (excluding interest
charges on indebtedness to be retired by the application
of the proceeds from the issuance of such shares) and
the annual dividend requirements on all Preferred Stock
(including dividend requirements on any class of stock
ranking prior to or on a parity with the shares to be
issued, as to dividends or assets), which will be
outstanding immediately after the issuance of such
shares. If, during the period as of which consolidated
gross income is to be determined for the purpose set
forth in this paragraph, the amount, if any, required to
be expended by the Corporation and its consolidated
subsidiaries for property additions pursuant to a
renewal and replacement fund or similar fund established
under any then existing general indenture or mortgage or
deed of trust of the Corporation shall exceed the amount
deducted in the determination of such consolidated gross
income on account of depreciation and amortization of
electric plant acquisition adjustments, such excess
shall also be deducted in determining such consolidated
gross income;
(C) The issue of any additional shares or the
reissue of any reacquired shares of Preferred Stock or
of any shares of stock of any class ranking on a parity
with the Preferred Stock, as to dividends or assets, for
any purpose other than to refinance an equal par amount
or stated value of Preferred Stock or of any class of
outstanding stock ranking prior to or on a parity as to
dividends or assets with the Preferred Stock unless the
aggregate of the junior stock equity (as defined in
Section 5.3 of this Article), shall be not less than the
aggregate amount payable upon involuntary liquidation of
the Corporation to the holders of all shares of the
Preferred Stock and of any shares of stock of any class
ranking prior thereto or on a parity as to dividends and
assets with the Preferred Stock to be outstanding
immediately after such proposed issue, excluding from
such computation all indebtedness and stock to be
retired through such proposed issue. If for the
purposes of meeting the foregoing requirement, it shall
have been necessary to take into consideration any of
the consolidated earned surplus of the Corporation and
its subsidiaries, the Corporation shall not thereafter
pay any dividends on or make any distributions in
respect of, or purchase or otherwise acquire for value,
shares of stock of the Corporation of any class ranking
junior to the Preferred Stock which would result in
reducing said junior stock equity to an amount less than
the amount payable on involuntary liquidation of the
<PAGE>
Corporation with respect to all shares of the Preferred
Stock and all shares ranking prior to or on a parity
with the Preferred Stock as to dividends or assets at
the time outstanding; or
(D) The sale or other disposition of all or
substantially all of the assets of the Corporation or
the consolidation or merger of the Corporation;
provided, however, that except as may be mandatorily
required by law regardless of limitations contained in
these Restated Articles, no such consent shall be
required with respect to (i) a sale or other disposition
of all or substantially all of the assets of the
Corporation or a consolidation or merger of the
Corporation if such sale, other disposition,
consolidation or merger, or the issuance or assumption
of all securities to be issued or assumed in connection
therewith, shall have been ordered or approved under the
Public Utility Holding Company Act of 1935 or (ii) a
sale or other disposition of all or substantially all of
the assets of the Corporation to a subsidiary of the
Corporation or a consolidation or merger of the
Corporation with a subsidiary of the Corporation if none
of the powers, preferences or rights of the holders of
the Preferred Stock will be adversely affected thereby,
and if none of the property or business of the
Corporation will thereby become subject to the lien of
any mortgage, deed of trust or other encumbrance, and if
the company resulting from or surviving such sale, other
disposition, consolidation or merger will be authorized
to carry on the business then being conducted by the
Corporation and will have authorized or outstanding,
after such sale, other disposition, consolidation or
merger, no stock of any class or other securities
ranging prior to or on a parity with the Preferred
Stock, or securities convertible into any such stock or
securities, except the same number of shares of stock
and the same amount of other securities with the same
powers, preferences and rights as the stock and
securities of the Corporation authorized and outstanding
immediately preceding such sale, other disposition,
consolidation or merger, and if each holder of Preferred
Stock at the time of such sale, other disposition,
consolidation or merger will receive the same number of
shares, with the same powers, preferences and rights, of
the resulting or surviving company as he held of the
Preferred Stock;
provided, however, that no such consent of the holders of
the Preferred Stock shall be required if, at or prior to
the time when the issuance of any such securities
representing unsecured indebtedness or when the issuance
<PAGE>
of any such prior or parity stock or any such additional
shares of Preferred Stock is to be made, or when such
sale, other disposition, consolidation or merger is to
take effect, as the case may be, provision is made for the
redemption of all shares of Preferred Stock at the time
outstanding.
Section 5.9. The Corporation reserves the right,
subject only to any requisite vote or consent of the
holders of any other class of stock specifically required
by the provisions of these Restated Articles, to amend or
change any and all provisions of these Restated Articles
(including a change in the preferences given to any one or
more classes of stock by these Restated Articles or an
increase or decrease in the amount of the authorized stock
of such class or classes or an increase or decrease in the
par value thereof) by the vote in favor thereof, given in
person or by proxy at any meeting called for the purpose,
of the holders of a majority of the outstanding shares of
Common Stock. The holders of the Preferred Stock shall
have no right to vote or consent with respect to any such
amendment except as specifically provided in Sections 5.7
and 5.8 of this Article.
Section 5.10. Except as otherwise provided in
paragraph (A) of Section 5.7 of this Article, whenever
shares of two or more series of the Preferred Stock are
outstanding, no particular series of the Preferred Stock
shall be entitled to vote or consent as a separate series
on any matter, and all shares of Preferred Stock of all
series shall be deemed to constitute but one class for any
purpose for which a vote or consent of the shareholders by
classes may now or hereafter be required.
Section 5.11. No holder of any shares of Preferred
Stock of any series shall be entitled as such, as a matter
of right, to purchase or subscribe for any shares of stock
of the Corporation of any class, whether now or hereafter
authorized or whether issued for cash, property or
services or as a dividend or otherwise, or any securities
convertible into shares of stock of the Corporation.
Section 5.12. Any shares of Preferred Stock which
are redeemed or retired, except shares retired through
conversion or through the operation of any sinking fund
or redemption or purchase account, shall thereafter have
the status of authorized but unissued shares of Preferred
Stock of the Corporation and may thereafter be
reclassified and reissued by the Board of Directors in the
same manner as any other authorized and unissued shares of
Preferred Stock.
<PAGE>
Section 5.13. Subject to the limitations set forth
in this Article 5.13, all or any of the shares of stock of
the Corporation of any class and securities convertible
into stock of any class may be issued by the Corporation,
acting through its Board of Directors, without action by
the shareholders, from time to time, for such
consideration, or by way of dividend, in such manner and
upon such terms as may be determined and deemed advisable
from time to time by the Board of Directors. Such
consideration, in the case of shares having a par value,
shall not be less than the par value thereof and, in the
case of securities convertible into shares of stock having
a par value, shall not be less than the par value of the
shares into which such securities are convertible, except
as otherwise permitted by law. Such consideration may
consist of money, labor done, or money or property
actually received. For the purpose of determining whether
shares, or securities convertible into shares, have been
fully paid for, in order to fix the extent of the
outstanding obligation of the holders thereof to the
Corporation with respect thereto, the value placed by the
Incorporators or the Board of Directors, as the case may
be, upon the consideration, other than cash, shall be
conclusive. All shares of stock so issued, for which the
consideration determined by the Incorporators or Board of
Directors has been received by the Corporation, shall be
deemed fully paid stock and shall not be liable to any
further calls or assessments thereon.
Section 5.14. The series are established and
designated and the relative rights and preferences of
shares of Preferred Stock are as set forth in this Section
to the extent not set forth elsewhere in these Restated
Articles.
(A) The relative rights and preferences of the
4 1/2% Preferred Stock to the extent not set forth
elsewhere in these Restated Articles are:
(1) The annual rate of dividends payable on
shares of such series shall be four and one-half
per cent (4 1/2%) per annum on the par value
thereof;
(2) The redemption price for shares of such
series shall be $110 per share; and
(3) The amount payable on shares of such
series in the event of any voluntary liquidation of
the Corporation shall be $110 per share and the
amount payable upon any involuntary liquidation of
the Corporation shall be $100 per share.
<PAGE>
(B) The relative rights and preferences of the
4.20% Preferred Stock, Series B, to the extent not set
forth elsewhere in these Restated Articles are:
(1) The annual rate of dividends payable on
shares of such series shall be four and twenty
hundredths per cent (4.20%) per annum of the par
value thereof;
(2) The redemption price for shares of such
series shall be $102.205 per share; and
(3) The amount payable on shares of such
series, in the event of any voluntary liquidation
of the Corporation shall be $102.205 per share and
the amount payable upon any involuntary liquidation
of the Corporation shall be $100 per share.
(C) The relative rights and preferences of the
4.lO% Preferred Stock, Series C, to the extent not set
forth elsewhere in these Restated Articles are:
(1) The annual rate of dividends payable on
shares of such series shall be four and ten
hundredths per cent (4.10%) per annum of the par
value thereof;
(2) The redemption price for shares of such series
shall be $103.50 per share; and
(3) The amount payable on shares of such series in
the event of any voluntary liquidation of the
Corporation shall be $103.50 per share and the
amount payable on shares of such series in the
event of any involuntary liquidation of the
<PAGE>
Corporation shall be $100 per share.
(D) The relative rights and preferences of the
$7.00 Preferred Stock, Series D, to the extent not set
forth elsewhere in these Restated Articles are:
(1) The annual rate of dividends payable on
shares of such series shall be $7.00;
(2) The redemption price for shares of such
series shall be $103.94 per share; and
(3) The amount payable on shares of such
series in the event of any voluntary liquidation of
the Corporation shall be $103.94 per share and the
amount payable on shares of such series in the
event of any involuntary liquidation of the
Corporation shall be $100 per share.
(E) The relative rights and preferences of the
$7.12 Preferred Stock, Series E, to the extent not set
forth elsewhere in these Restated Articles are:
(1) The annual rate of dividends payable on
shares of such series shall be $7.12;
(2) The redemption price for shares of such
series shall be $105.27 per share if redeemed on or
before July 1, 1983; and $103.49 per share if
<PAGE>
redeemed after July 1, 1933; and
(3) The amount payable on shares of such
series in the event of any voluntary liquidation of
the Corporation shall be an amount per share equal
to the then current redemption price thereof, and
the amount payable on shares of such series in the
event of any involuntary liquidation of the affairs
of the Corporation shall be $100 per share.
(F) The relative rights and preferences of the
$9.88 Preferred Stock, Series F, to the extent not set
forth elsewhere in these Restated Articles are:
(1) The annual rate of dividends payable on
shares of such series shall be $9.88;
(2) The redemption price for shares of such
series shall be $106.80 per share if redeemed on or
before June 1, 1985; and $104.33 per share if
redeemed after June 1, 1985; and
(3) The amount payable on shares of such
series in the event of any voluntary liquidation of
the Corporation shall be an amount per share equal
to the then current redemption price thereof, and
the amount payable on shares of such series in the
event of any involuntary liquidation of the affairs
of the Corporation shall be $100 per share.
<PAGE>
(G) The relative rights and preferences of the
$8.08 Preferred Stock, Series G, to the extent not set
forth elsewhere in these Restated Articles are:
(1) The annual rate of dividends payable on
shares of such series shall be $8.08;
(2) The redemption price for shares of such
series shall be $105.29 per share if redeemed on or
before July 1, 1986; and $103.27 per share if
redeemed after July 1, 1986; and
(3) The amount payable on shares of such
series in the event of any voluntary liquidation of
the Corporation shall be an amount per share equal
to the then current redemption price thereof, and
the amount payable on shares of such series in the
event of any involuntary liquidation of the affairs
of the Corporation shall be $100 per share.
(H) The relative rights and preferences of the
$7.60 Preferred Stock, Series H, to the extent not set
forth elsewhere in these Restated Articles are:
(1) The annual rate of dividends payable on
shares of such series shall be $7.60;
(2) The redemption price for shares of such
series shall be $105.13 per share if redeemed on or
before June 1, 1987; and $103.23 per share if
redeemed after June 1, 1987; and
(3) The amount payable on shares of such
series in the event of any voluntary liquidation
of the Corporation shall be an amount per share
equal to the then current redemption price thereof,
and the amount payable on shares of such series in
the event of any involuntary liquidation of the
Corporation shall be $100 per share.
(I) The relative rights and preferences of the
$7.64 Preferred Stock, Series I, to the extent not set
forth elsewhere in these Restated Articles are:
(1) The annual rate of dividends payable on
shares of such series shall be $7.64;
(2) The redemption price for shares of such
series shall be $106.98 per share if redeemed on or
before November 1, 1983; $105.07 per share if
redeemed thereafter and on or before November 1,
1988; and $103.16 per share if redeemed after
November 1, 1988; and
(3) The amount payable on shares of such
series in the event of any voluntary liquidation of
the Corporation shall be an amount per share equal
to the then current redemption price thereof, and
the amount payable on shares of such series in the
event of any involuntary liquidation of the
Corporation shall be $100 per share.
(J) The relative rights and preferences of the
$8.20 Preferred Stock, Series J, to the extent not set
forth elsewhere in these Restated Articles are:
(1) The annual rate of dividends payable on
shares of such series shall be $8.20;
(2) The redemption price for shares of such
series shall be $107.40 per share if redeemed on or
before December 1, 1986; $105.35 per share if
redeemed thereafter and on or before December 1,
1991; and $103.30 per share if redeemed after
December 1, 1991; and
(3) The amount payable on shares of such
series in the event of any voluntary liquidation of
the Corporation shall be an amount per share equal
to the then current redemption price thereof, and
the amount payable on shares of such series in the
event of any involuntary liquidation of the
Corporation shall be $100 per share.
(K) The relative rights and preferences of the
$9.40 Preferred Stock, Series K, to the extent not set
forth elsewhere in these Restated Articles are:
(1) The annual rate of dividends payable on
shares of such series shall be $9.40 per share;
(2) Before July 1, 1985, no shares of such
series may be redeemed, directly or indirectly,
with or in anticipation of (i) moneys borrowed at
an interest cost to the Corporation of less than
9.45%, a year or (ii) the proceeds of preferred
stock sold by the Corporation at a price per share
(exclusive of accrued dividends) the division of
which into the annual dollar dividend rate per
share of such stock produces a quotient of less
than 9.45%. Otherwise the shares of such series
may be redeemed, as a whole or in part, by the
Corporation at any time or from time to time;
(3) The redemption price for shares of such
series, other than shares redeemed pursuant to
subparagraph (4) of this paragraph shall be
$109.40 per share if redeemed on or before July 1,
1985; $107.05 per share if redeemed thereafter and
on or before July 1, 1990; $104.70 per share if
redeemed thereafter and on or before July 1, 1995;
and $102.35 per share if redeemed after July 1,
1995;
<PAGE>
(4) Shares of such series shall be entitled to
the benefits of a sinking fund as follows.
(a) So long as any shares of such series
are outstanding, the Corporation shall, as a
sinking fund for the retirement of shares of
such series, redeem, out of funds legally
available therefor, 9,000 shares of such
series on July 1 in each year commencing with
1986, in each case at $100.00 per share.
together in each case with accrued dividends
to the redemption date. The Corporation shall
have the option also on July 1 in each year,
commencing with 1986, to redeem up to an
additional 9,000 shares of such series in each
case at $100.00 per share, together in each
case with accrued dividends to the redemption
date; the right to redeem such additional
shares in each year shall be noncumulative;
(b) All redemptions pursuant to this
subparagraph shall be made in accordance with
Section 5.5 of these Restated Articles.
Shares of such series theretofore redeemed or
otherwise acquired by the Corporation which
have not been previously credited against the
mandatory sinking fund requirement set forth
in this subparagraph may, at the election of
the Corporation, be credited against, and
shall to the extent thereof relieve the
Corporation from, the mandatory sinking fund
requirement set forth in this subparagraph;
(c) If the Corporation should for any
reason fail to meet the mandatory sinking fund
requirement set forth in this subparagraph,
the mandatory sinking fund requirement for the
next year shall be increased by the amount of
the deficiency, and, so long as any shares of
such series shall remain outstanding, in no
event shall any dividends, whether in cash or
property, be paid or declared, or any
distribution made, on any junior stock nor
shall any shares of any junior stock be
purchased, redeemed or otherwise acquired for
value by the Corporation or any subsidiary of
the Corporation unless the Corporation shall
have redeemed, pursuant to this subparagraph,
the number of shares of such series required
to have been theretofore redeemed pursuant to
subparagraph (4)(a) hereof (after adjustment
for any credit pursuant to subparagraph (4)(b)
<PAGE>
hereof but without reference to any
provisions of subparagraph (4)(a) hereof which
limits the requirement to make such
redemption), but a deficiency in meeting the
sinking fund requirements shall have no other
consequences. The provisions of this
subparagraph (4)(c) shall not, however, apply
to any dividend or distribution payable or
made in any junior stock, or to any
acquisition of shares of any junior stock in
exchange for shares of any other junior stock;
and
(6) The amount payable on shares of such
series in the event of any voluntary liquidation
of the Corporation shall be an amount per share
equal to the then current redemption price thereof
set forth in subparagraph (3) of this paragraph,
and the amount payable on shares of such series in
the event of any involuntary liquidation of the
Corporation shall be $100 per share.
ARTICLE VI
Section 6.1. The term of existence of the
Corporation is perpetual.
ARTICLE VII
Section 7.1. Henceforth, these Restated Articles
shall not include any prior documents.
Filed in Secretary of State's Office, Harrisburg,
Pennsylvania, on June 20, 1983.
Filed in Secretary of State's Office, Charleston, WVa, on
July 27, 1983.
<PAGE>
COMMONWEALTH OF PENNSYLVANIA
Department of State
Corporation Bureau
Articles of Amendment
In compliance with the requirements of Article
VIII of the Business Corporation Law approved the
5th day of May 1933, P.L. 364, as amended, the
applicant desiring to amend its Articles hereby
certifies, under its corporate seal that:
1. The name of the corporation is:
WEST PENN POWER COMPANY
2. The location of its registered office is: 800
Cabin Hill Drive, Greensburg, Westmoreland
County, Pennsylvania
3. The corporation was formed under "An Act
authorizing the merger and consolidation of
certain corporations", approved May 3, 1909,
P.L. 408, and the supplements thereto.
4. Its date of incorporation is March 1, 1916.
5. The amendment was adopted by a consent in
writing signed and filed as specified in
Section 513 of the Pennsylvania Business
Corporation Law.
6. At the time of the action of the shareholders:
(a) The total number of shares
outstanding was as follows: 14,611,586 shares
of Common Stock, 297,077 shares of 4-1/2%
Preferred Stock, 50,000 shares of 4.20%
Preferred Stock, Series B, 50,000 shares of
4.10% Preferred Stock, Series C, 100,000
shares of $7.00 Preferred Stock, Series D,
100,000 shares of $7.12 Preferred Stock,
<PAGE>
Series E, 50,000 shares of $9.88 Preferred
Stock, Series F, 100,000 shares of $8.08
Preferred Stock, Series G, 100,000 shares of
$7.60 Preferred Stock, Series H, 100,000
shares of $7.64 Preferred Stock, Series I,
200,000 shares of $8.20 Preferred Stock,
Series J and 300,000 shares of $9.40
Preferred Stock, Series K.
(b) The number of shares entitled to vote
on the amendment was 14,611,586 shares of
Common Stock.
7. The number of shares voted for the amendment
is 14,611,586, and the number of shares voted
against the amendment is none.
8. The amendment adopted by the shareholders, set
forth in full, follows:
RESOLVED, that Article FOURTH of the charter
of West Penn Power Company, a Pennsylvania
corporation, is hereby amended in its entirety to
read as follows:
"ARTICLE IV
The aggregate number of shares of all classes
which the Corporation shall have authority to issue
is 16,500,000 divided into 1,447,077 shares of
Preferred Stock of the par value of $100 each and
15,052,923 shares of Common Stock without par
value. The shares of Preferred Stock consist of
the following series:
297,077 shares of 4-1/2% Preferred Stock;
50,000 shares of 4.20% Preferred Stock, Series B;
50,000 shares of 4.10% Preferred Stock, Series C;
100,000 shares of $7.00 Preferred Stock, Series D;
100,000 shares of $7.12 Preferred Stock, Series E;
100,000 shares of $8.08 Preferred Stock, Series G;
100,000 shares of $7.60 Preferred Stock, Series H;
100,000 shares of $7.64 Preferred Stock, Series I;
200,000 shares of $8.20 Preferred Stock, Series J."
RESOLVED, that Article V, Section 5.14 of the
charter of West Penn Power Company, a Pennsylvania
corporation, is hereby amended to delete subsection
(F) in its entirety from such Section and to
delete subsection (K) in its entirety from such
Section.
<PAGE>
IN TESTIMONY WHEREOF, the applicant has caused
these Articles of Amendment to be signed by its
President and its corporate seal duly attested by
its Secretary, to be hereunto affixed this 1st day
of August, 1986.
WEST PENN POWER COMPANY
/s/ F. A. Morgal
President
Attest
/s/ K. D. Mowl
(CORPORATE SEAL)
Approved and filed in the Department of State on this
6th day of August A. D. 1986.
/s/ Robert A Gleason Jr.
Secretary of the Commonwealth
<PAGE>
Commonwealth of Pennsylvania
August 8, 1986
To All to Whom These Presents Shall Come: Greeting:
IN RE: "WEST PENN POWER COMPANY"
I, ROBERT A. GLEASON, JR., Secretary of the
Commonwealth of the Commonwealth of Pennsylvania do hereby
certify that the foregoing and annexed is a true and
correct photocopy of ARTICLES OF AMENDMENT which appear of
record in this Department.
IN Testimony WHEREOF, I have
hereunto set my hand and caused the
seal of the Secretary's Office to be
affixed, the day and year above
written.
[ SEAL ]
Robert A. Gleason, Jr.
Secretary of the Commonwealth
<PAGE>
Microfilm Number 90191463 Filed with the Department
of State April 25, 1990
Entity Number 385559-017 /s/ Christopher A. Lewis
Secretary of the Commonwealth
ARTICLES OF AMENDMENT-DOMESTIC BUSINESS CORPORATION
DSCB:15-1915 (Rev 89)
In compliance with the requirements of 15 Pa.C.S.
section 1915 (relating to articles of amendment), the
undersigned business corporation, desiring to amend its
Articles, hereby states that:
1. The name of the corporation is:
West Penn Power Company
2. The (a) address of this corporation's current
registered office in this Commonwealth or (b) commercial
registered office provider and the county of venue is (the
Department is hereby authorized to correct the following
address to conform to the records of the Department):
(a) 800 Cabin Hill Drive Greensburg PA
15601 Westmoreland County
(b) -----------------
For a corporation represented by a commercial registered
office provider, the county in (b) shall be deemed the
county in which the corporation is located for venue and
official publication purposes.
3. The statute by or under which it was incorporated is:
Act of May 3, 1909, P.L. 408
4. The original date of its incorporation is: March 1,
1916
5. (Check, and if appropriate complete, one of the
following):
X The amendment shall be effective upon filing these
Articles of Amendment in the Department of State.
The amendment shall be effective on:
6. (Check one of the following):
X The amendment was adopted by the shareholders
pursuant to 15 Pa.C.S. section 1914(a) and (b).
<PAGE>
The amendment was adopted by the board of directors
pursuant to 15 Pa.C.S. section 1914 (c).
7. (Check, and if appropriate complete, one of the
following):
The amendment adopted by the corporation, set forth
in full, is as follows:
X The amendment adopted by the corporation as set
forth in full in Exhibit A, attached hereto and
made a part hereof.
90191464
SCB:15-1915 (Rev 89)-2
(Check if the amendment restates the Articles):
The restated Articles of Incorporation supersede
the original Articles and all amendments hereto.
IN TESTIMONY WHEREOF, the undersigned corporation has
caused these Articles of Amendment to be signed by a duly
authorized officer thereof this 20th day of April, 1990.
West Penn Power Company
(Name of Corporation)
BY: /s/ K. D. Mowl
(Signature) K. D. Mowl
TITLE: Secretary & Treasurer
<PAGE>
90191465
Consent of Shareholders
Pursuant to Section 1766 of the Pennsylvania
Business Corporation Law, the undersigned, Allegheny Power
System, Inc., a Maryland corporation, being the holder of
all of the outstanding shares of Common Stock of West Penn
Power Company, a Pennsylvania corporation, and the only
shareholder who would be entitled to vote at a meeting of
the shareholders of said Company held for the purpose of
adopting the amendment contained in the following
resolutions, hereby gives its affirmative vote, and
consents in writing, to said amendment and the adoption of
said resolutions:
RESOLVED, that Article IV of the charter of West
Penn Power Company, a Pennsylvania corporation, is
hereby amended in its entirety to read as follows:
ARTICLE IV
The aggregate number of shares of all classes which
the Corporation shall have authority to issue is
20,000,000 divided into 1,447,077 shares of Preferred
Stock of the par value of $100 each and 18,552,923 shares
of Common Stock without par value. The shares of Preferred
Stock consist of the following series:
297,077 shares of 4 l/2% Preferred Stock;
50,000 shares of 4.20% Preferred Stock, Series B;
50,000 shares of 4.10% Preferred Stock, Series C;
100,000 shares of $7.00 Preferred Stock, Series D;
100,000 shares of $7.12 Preferred Stock, Series E;
100,000 shares of $8.08 Preferred Stock, Series G;
100,000 shares of $7.60 Preferred Stock, Series H;
100,000 shares of $7.64 Preferred Stock, Series I;
200,000 shares of $8.20 Preferred Stock, Series J;
(350,000 shares authorized but not issued.)
Dated: March 19, 1990
ATTEST: Allegheny Power System, Inc.
[ SEAL ]
/s/ Eileen M. Beck /s/ Stan Garnett
Secretary Vice President
<PAGE>
Microfilm Number 9214-455 Filed with the Department
Entity Number 385559 of State on Jan. 31, 1992
/s/ Barbara K. Mitchell
Acting Secretary of the Commonwealth
ARTICLES OF AMENDMENT-DOMESTIC BUSINESS CORPORATION
DSCB:15-1915 (Rev 89)
In compliance with the requirements of 15 Pa.C.S.
section 1915 (relating to articles of amendment), the
undersigned business corporation, desiring to amend its
Articles, hereby states that:
1. The name of the corporation is:
West Penn Power Company
2. The (a) address of this corporation's current
registered office in this Commonwealth or (b) commercial
registered office provider and the county of venue is (the
Department is hereby authorized to correct the following
address to conform to the records of the Department):
(a) 800 Cabin Hill Drive Greensburq PA
15601 Westmoreland County
(b) -----------------------
For a corporation represented by a commercial registered
office provider, the county in (b) shall be deemed the
county in which the corporation is located for venue and
official publication purposes.
3. The statute by or under which it was incorporated is:
Act of May 3, 1909, P.L. 408
4. The original date of its incorporation is: March 1,
1916
5. (Check, and if appropriate complete, one of the
following):
X The amendment shall be effective upon filing these
Articles of Amendment in the Department of State.
The amendment shall be effective on:
6. (Check one of the following):
X The amendment was adopted by the shareholders
pursuant to 15 Pa.C.S. section 1914(a) and (b).
<PAGE>
The amendment was adopted by the board of directors
pursuant to 15 Pa.C.S. section 1914 (c).
7. (Check, and if appropriate complete, one of the
following):
The amendment adopted by the corporation, set forth
in full, is as follows:
X The amendment adopted by the corporation as set
forth in full in Exhibit A, attached hereto and
made a part hereof.
DSCB:l5-l9l5 (Rev 89)-2
8. (Check if the amendment restates the Articles):
The restated Articles of Incorporation supersede the
original Articles and all amendments thereto.
IN TESTIMONY WHEREOF, the undersigned corporation has
caused these Articles of Amendment to be signed by a duly
authorized officer thereof this 29th day of January, 1992.
West Penn Power Company
BY: /s/ K. D. Mowl
Title: Secretary/Treasurer
<PAGE>
9214-456 EXHIBIT A
to Articles of Amendment
dated 1-29-92
Consent of Shareholders
Pursuant to Section 1766 of the Pennsylvania
Business Corporation Law of 1988, the undersigned,
Allegheny Power System, Inc., a Maryland corporation
being the holder of all of the outstanding shares of
Common Stock of West Penn Power Company, a Pennsylvania
corporation, and the only shareholder who would be
entitled to vote at a meeting of the shareholders of said
Company held for the purpose of adopting the amendment
contained in the following resolutions, hereby gives its
affirmative vote, and consents in writing, to said
amendment and the adoption of said resolutions:
RESOLVED, that Article IV of the charter of West
Penn Power Company, a Pennsylvania corporation, is
hereby amended in its entirety to read as follows:
ARTICLE IV
The aggregate number of shares of all classes which
the Corporation shall have authority to issue is
30,000,000 divided into l,447,077 shares of Preferred
Stock of the par value of $100 each and 28,552,923 shares
of Common Stock without par value. The shares of
Preferred Stock consist of the following:
297,077 shares of 4 1/2% Preferred Stock
50,000 shares of 4.20% Preferred Stock, Series B;
50,000 shares of 4.10% Preferred Stock, Series C;
100,000 shares of $7.00 Preferred Stock, Series D;
100,000 shares of $7.12 Preferred Stock, Series E;
100,000 shares of $8.08 Preferred Stock, Series G;
100,000 shares of $7.60 Preferred Stock, Series H;
100,000 shares of $7.64 Preferred Stock, Series I;
200,000 shares of $8.20 Preferred Stock, Series J;
350,000 shares authorized but not issued.
Dated: 1/15/92
ATTEST: Allegheny Power System, Inc.
[ SEAL ]
/s/ Eileen M. Beck By: /s/ Stan Garnett
Secretary Vice President
<PAGE>
Microfilm Number 9274-1080 Filed with the
Department of State
on October 1, 1992
Entity Number 385559 /s/ Barbara K. Mitchell
Secretary of the Commonwealth
ARTICLES OF AMENDMENT-DOMESTIC BUSINESS CORPORATION
DSCB:15-1915 (Rev 90)
In compliance with the requirements of 15 Pa.C.S.
section 1915 (relating to articles of amendment), the
undersigned business corporation, desiring to amend its
Articles, hereby states that:
1. The name of the corporation is:
West Penn Power Company
2. The (a) address of this corporation's current
registered office in this Commonwealth or (b) name of its
commercial registered office provider and the county of
venue is (the Department is hereby authorized to correct
the following information to conform to the records of
the Department):
(a) 800 Cabin Hill Drive Greensburg PA 15601
Number and Street City State Zip
Westmoreland County
(b) c/o:___________________________________
Name of Commercial Registered Office Provider County
For a corporation represented by a commercial registered
office provider, the county in (b) shall be deemed the
county in which the corporation is located for venue and
official publication purposes.
3. The statute by or under which it was incorporated is
Act of May 3 1909, P.L. 408
4. The date of its incorporation is March 1, 1916
5. (Check, and if appropriate complete, one of the
following):
X The amendment shall be effective upon filing these
Articles of Amendment in the Department of State.
<PAGE>
The amendment shall be effective on:
6. (Check one of the following):
X The amendment was adopted by the shareholders (or
members) pursuant to 15 Pa.C.S. section 1914(a) and
(b).
The amendment was adopted by the board of directors
pursuant to 15 Pa.C.S. section 1914(c).
(Check, and if appropriate complete, one of the
following):
The amendment adopted by the corporation, set forth
in full, is as follows:
X The amendment adopted by the corporation is set
forth in full in Exhibit A attached hereto and made
a part hereof.
DSCB:15-1915 (Rev 90)-2 9274-1081
8. (Check if the amendment restates the Articles):
The restated Articles of Incorporation supersede
the original Articles and all amendments thereto.
IN TESTIMONY WHEREOF, the undersigned corporation has
caused these Articles of Amendment to be signed by a duly
authorized officer thereof this 1st day of October,1992
West Penn Power Company
BY: /s/ K. D. Mowl
TITLE: Secretary and Treasurer
920CT-lPM.12 27
PA Dept. of State
<PAGE>
9274-1082 EXHIBIT A
to Articles of
Amendment dated
10-1-92
Consent of Shareholder
Pursuant to Section 1766 of the Pennsylvania
Business Corporation Law of 1988, the undersigned,
Allegheny Power System, Inc., a Maryland corporation,
being the holder of all of the outstanding shares of
Common Stock of West Penn Power Company, a Pennsylvania
corporation, and the only shareholder entitled to vote at
a meeting of the shareholders of West Penn Power Company
held for the purpose of adopting the amendment contained
in the following resolution, hereby votes in the
affirmative, and consents in writing, to said amendment
and the adoption of the following resolution:
RESOLVED, that Article IV of the charter of West
Penn Power Company, a Pennsylvania corporation, is
hereby amended in its entirety to read as follows:
ARTICLE IV
The aggregate number of shares of all classes which
the Corporation shall have authority to issue is
32,000,000 divided into 3,097,077 shares of Preferred
Stock of the par value of $100 each and 28,902,923 shares
of Common Stock without par value. The shares of
Preferred Stock consist of the following:
297,077 shares of 4 1/2% Preferred Stock
50,000 shares of 4.20% Preferred Stock, Series B;
50,000 shares of 4.10% Preferred Stock, Series C;
100,000 shares of $7.00 Preferred Stock, Series D;
100,000 shares of $7.12 Preferred Stock, Series E;
100,000 shares of $8.08 Preferred Stock, Series G;
100,000 shares of $7.60 Preferred Stock, Series H;
100,000 shares of $7.64 Preferred Stock, Series I;
200,000 shares of $8.20 Preferred Stock, Series J;
2,000,000 shares authorized but not issued.
3,097,077
Dated: October 1, 1992
ATTEST: Allegheny Power System, Inc.
[ SEAL ]
/s/ Eileen M. Beck By: /s/ Nancy H. Gormley
Secretary Vice President
<PAGE>
Microfilm Number Filed with the Department of
State Nov 10, 1992
Entity Number /s/ Barbara K. Mitchell
Secretary of the Commonwealth
ARTICLES OF AMENDMENT-DOMESTIC BUSINESS CORPORATION
DSCB:15-1915 (Rev 90)
In compliance with the requirements of 15 Pa.C.S.
section 1915 (relating to articles of amendment), the
undersigned business corporation, desiring to amend its
Articles, hereby states that:
l. The name of the corporation is:
West Penn Power Company
2. The (a) address of this corporation's current
registered office in this Commonwealth or (b) name of its
commercial registered office provider and the county of
venue is (the Department is hereby authorized to correct
the following information to conform to the records of the
Department):
(a) 800 Cabin Hill Drive Greensburg PA 15601
Westmoreland County
(b) c/o: _______
For a corporation represented by a commercial registered
office provider, the county in (b) shall be deemed the
county in which the corporation is located for venue and
official publication purposes.
3. The statute by or under which it was incorporated is:
Act of May 3, 1909 P.L. 408
4. The date of its incorporation is: March 1, 1916
5. (Check, and if appropriate complete, one of the
following):
X The amendment shall be effective upon filing these
Articles of Amendment in the Department of State.
The amendment shall be effective on: _________
<PAGE>
6. (Check one of the following):
X The amendment was adopted by the shareholders (or
members) pursuant to 15 Pa.C.S. section 1914(a) and
(b).
The amendment was adopted by the board of directors
pursuant to 15 Pa.C.S. section 1914(c).
7. (Check, and if appropriate complete, one of the
following):
The amendment adopted by the corporation, set forth
in full, is as follows:
X The amendment adopted by the corporation is set
forth in full in Exhibit A attached hereto and made
a part hereof.
8. Check if the amendment restates the Articles):
The restated Articles of Incorporation supersede
the original Articles and all amendments thereto.
IN TESTIMONY WHEREOF, the undersigned corporation has
caused these Articles of Amendment to be signed by a duly
authorized officer thereof this 10th day of November,
1992.
West Penn Power Company
BY: /s/ K. D. Mowl
TITLE: Secretary and Treasurer
<PAGE>
Exhibit A
To Article of Amendment
Consent of Shareholder
Pursuant to Section 1766 of the Pennsylvania Business
Corporation Law of 1988, the undersigned, Allegheny Power
System, Inc., a Maryland corporation, being the holder of
all of the outstanding shares of Common Stock of West Penn
Power Company, a Pennsylvania corporation, and the only
shareholder entitled to vote at a meeting of the
shareholders of West Penn Power Company held for the
purpose of adopting the amendment contained in the
following resolution, hereby votes in the affirmative, and
consents in writing, to said amendment and the adoption of
the following resolution:
RESOLVED, that Article V of the Restated Articles
of Incorporation, as amended, of West Penn Power
Company, a Pennsylvania corporation, is hereby amended
by adding, to the end thereof, the following:
References herein to the terms "rate," "rate of
dividend," "annual dividend rate" or "annual dividend
rates" shall be deemed to include (a) a dividend rate
which is subject to adjustment from time to time,
including any adjustment based on facts ascertainable
outside these Restated Articles and/or (b) a dividend rate
determined from time to time by computing the amount per
share of each quarterly dividend (including a computation
based on a number of days other than the number of days in
the relevant quarterly dividend period), multiplying such
amount by 4, and dividing such amount by the par value per
share of the relevant series of Preferred Stock.
Dated: November 6, 1992
ATTEST: Allegheny Power System, Inc.
/s/ Eileen M. Beck By: /s/ Nancy H. Gormley
Secretary Vice President
<PAGE>
Microfilm Number Filed with the Department
of State Nov. 10, 1992
Entity Number
/s/ Brenda K. Mitchell
Secretary of the Commonwealth
ARTICLES OF AMENDMENT-DOMESTIC BUSINESS Corporation
DSCB:15-1915 (Rev 90)
In compliance with the requirements of 15 Pa.C.S.
section 1915 (relating to articles of amendment), the
undersigned business corporation, desiring to amend its
Articles, hereby states that:
1. The name of the corporation is:
West Penn Power Company
2. The (a) address of this corporation's current
registered office in this Commonwealth or (b) name of its
commercial registered office provider and the county of
venue is (the Department is hereby authorized to correct
the following information to conform to the records of the
Department):
(a) 800 Cabin Hill Drive Greensburg PA 15601
Westmoreland County
(b) c/o:________________
For a corporation represented by a commercial registered
office provider, the county in (b) shall be deemed the
county in which the corporation is located for venue and
official publication purposes.
3. The statue by or under which it was incorporated is:
Act of May 3, 1909 P.L. 408.
4. The date of its incorporation is: March 1, 1916
5. (Check, and if appropriate complete, one of the
following):
X The amendment shall be effective upon filing these
Articles of Amendment in the Department of State.
The amendment shall be effective on: ______________
<PAGE>
6. (Check one of the following):
The amendment was adopted by the shareholders (or
members) pursuant to 15 Pa.C.S. section 1914(a) and
(b).
X The amendment was adopted by the board of directors
pursuant to 15 Pa C.S. section 1914(c)
7. (Check, and if appropriate complete, one of the
following):
The amendment adopted by the corporation, set forth
in full, is as follows:
X The amendment adopted by the corporation is set
forth in full in Exhibit A attached hereto and made
a part hereof.
DSCB:15-1915 (Rev 90)-2
8. (Check if the amendment restates the Articles):
The restated Articles of Incorporation supersede
the original Articles and all amendments thereto.
IN TESTIMONY WHEREOF, the undersigned corporation
has caused these Articles of Amendment to be signed by a
duly authorized officer thereof this 10th day of November,
1992.
West Penn Power Company
BY: /s/ K. D. Mowl
TITLE: Secretary and Treasurer
<PAGE>
Exhibit A
To Article of Amendment
STATEMENT OPERATING AS AN AMENDMENT TO
THE RESTATED ARTICLES OF INCORPORATION
OF WEST PENN POWER COMPANY
Klaus Bergman, Chief Executive Officer, and Kenneth
D. Mowl, Secretary, of West Penn Power Company, a
Pennsylvania corporation, do hereby certify that:
(1) The name of the Corporation is West Penn Power
Company.
(2) The resolution establishing and designating the
series and fixing and determining the relative rights
and preferences of the Market Auction Preferred Stock of
the Corporation is as follows:
RESOLVED, that the following is a statement
establishing and designating the series and fixing and
determining the relative rights and preferences of the
Market Auction Preferred Stock ("MAPS"), to the extent
not set forth elsewhere in the Restated Articles of
Incorporation of the Corporation, as amended:
(A) 400,000 shares of Preferred Stock of the par
value of $100 in 400 units ("Units") consisting of 1,000
shares each are hereby designated as MAPS. The MAPS
shall be issuable only in Units.
(B) Certain Definitions. The following terms shall
have the following meanings, unless the context
otherwise requires:
(i) "90-day 'AA' Composite Commercial Paper Rate," on
any date, means (i) the interest equivalent of the rate
on commercial paper placed on behalf of issuers whose
corporate bonds are rated "Aa" by Moody's or "AA" by S&P
or "AA" by Fitch or the equivalent of any or all of such
ratings by such agencies or another rating agency, as
such rate is made available on a discount basis or
otherwise by the Federal Reserve Bank of New York for
the Business Day immediately preceding such date, or
(ii) in the event that the Federal Reserve Bank of New
York does not make available such a rate, then the
arithmetic average of the interest equivalent of the
rate on commercial paper placed on behalf of such
issuers, as quoted on a discount basis or otherwise by
the Commercial Paper Dealers to the Trust Company for
the close of business on the Business Day immediately
<PAGE>
preceding such date. If any Commercial Paper Dealer
does not quote a rate required to determine the 90-day
"AA" Composite Commercial Paper Rate, the 90-day "AA"
Composite Commercial Paper Rate shall be determined on
the basis of the quotation or quotations furnished by
the remaining Commercial Paper Dealer or Commercial
Paper Dealers and any Substitute Commercial Paper Dealer
or Substitute Commercial Paper Dealers selected by the
Corporation to provide such rate or rates not being
supplied by any Commercial Paper Dealer or Commercial
Paper Dealers, as the case may be, or, if the
Corporation does not select any such Substitute
Commercial Paper Dealer or Substitute Commercial Paper
Dealers, by the remaining Commercial Paper Dealer or
Commercial Paper Dealers. For the purpose of this
definition, any arithmetic average shall be rounded to
the nearest one-thousandth (.001) of one percent, and
"interest equivalent" means the yield, on a 360-day
basis, required on an interest bearing security in order
for the yield thereon to be equivalent to the yield, on
a 360-day basis, of a discount-basis security.
(ii) "Affiliate" shall mean any Person known to the
Trust Company to be controlled by, in control of, or
under common control with the Corporation.
(iii) "Agent Member" shall mean the member of the
Securities Depository that will act on behalf of a
Bidder and is identified as such in such Bidder's Master
Purchaser's Letter.
(iv) "Applicable Rate" means the rate per annum at
which dividends on the MAPS are payable as determined in
accordance with paragraph (C) below.
(v) "Auction" shall mean the periodic operation of
the procedures set forth herein.
(vi) "Auction Procedures" shall mean the procedures
described in paragraph (C)(v) below.
(vii) "Auction Date" shall mean the Business Day
next preceding a Dividend Payment Date.
(viii) "Available Units" shall have the meaning
specified in paragraph (C)(v)(c)(i)(A) below.
(ix) "Bid" shall have the meaning specified in
paragraph (C)(v)(a)(i) below.
(x) "Bidder" shall have the meaning specified in
paragraph (C)(v)(a)(i) below.
<PAGE>
(xi) "Board of Directors" shall mean the Board of
Directors of the Corporation, or any duly authorized
committee of the Board of Directors or any duly
authorized Person(s) acting on behalf thereof.
(xii) "Broker-Dealer" shall mean any broker-dealer,
or other entity permitted by law to perform the
functions required of a Broker-Dealer in the Auction
Procedures, that has been selected by the Corporation
and has entered into a Broker-Dealer Agreement with the
Trust Company that remains effective.
(xiii) "Broker-Dealer Agreement" shall mean an
agreement between the Trust Company and a Broker-Dealer
pursuant to which such Broker-Dealer agrees to follow
the procedures specified in the Auction Procedures.
(xiv) "Business Day" means a day on which the New
York Stock Exchange, Inc. is open for trading and that
is not a day on which banking institutions in The City
of New York are authorized or required by law or
executive order to close.
(xv) "Commercial Paper Dealers" means Morgan
Stanley & Co. Incorporated and Goldman, Sachs & Co.
(xvi) "Corporation" means West Penn Power Company,
a Pennsylvania corporation, or its successors.
(xvii) "Default" has the meaning set forth in
paragraph (C)(iv)(a) below.
(xviii) "Default Rate" has the meaning set forth in
paragraph (C)(iv)(a) below.
(xix) "Dividend Payment Date" means January 15,
April 15, July 15 and October 15.
(xx) "Dividend Period" has the meaning set forth in
paragraph (C)(iii) below.
(xxi) "Existing Holder," when used with respect to
Units, shall mean a Person who has signed a Master
Purchaser's Letter and is listed as the beneficial owner
of such Units in the records of the Trust Company.
(xxii) "Fitch" means Fitch Investors Service, Inc.
or its successor.
<PAGE>
(xxiii) "Hold Order" shall have the meaning
specified in paragraph (C)(v)(a)(i) below.
(xxiv) "MAPS" shall mean the Market Auction
Preferred Stock, $100 par value, of the Corporation.
(xxv) "Master Purchaser's Letter" shall mean a
letter addressed to the Corporation, the Trust Company,
a Broker-Dealer, an Agent Member and other Persons in
which a Person agrees, among other things, to offer to
purchase, purchase, offer to sell and/or sell the Units
as set forth in the Auction Procedures.
(xxvi) "Maximum Applicable Rate" on any date means
a per annum rate equal to the Rate Multiple multiplied
by the 90-day "AA" Composite Commercial Paper Rate in
effect on such date.
(xxvii) "Moody's" means Moody's Investors Service,
Inc. or its successor.
(xxviii) "Order" shall have the meaning specified
in paragraph (C)(v)(a)(i) below.
(xxix) "Outstanding" shall mean, as of any date,
Units consisting of shares of MAPS theretofore issued by
the Corporation except, without duplication, (A) any
shares of MAPS theretofore canceled or delivered to the
Trust Company for cancellation, or redeemed by the
Corporation or as to which a notice of redemption shall
have been given by the Corporation, (B) any shares of
MAPS as to which the Corporation or any Affiliate
thereof shall be an Existing Holder and (C) any shares
of MAPS represented by any certificate in lieu of which
a new certificate has been executed and delivered by the
Corporation.
(xxx) "Person" shall mean and include an
individual, a partnership, a corporation, a trust, an
unincorporated association, a joint venture or other
entity or a government or any agency or political
subdivision thereof.
(xxxi) "Potential Holder" shall mean any Person,
including any Existing Holder, (A) who shall have
executed a Master Purchaser's Letter and (B) who may be
interested in acquiring Units (or, in the case of an
Existing Holder, additional Units).
<PAGE>
(xxxii) "Rate Multiple," when used with respect to
MAPS on any date, means the percentage, determined as
set forth below, based on the prevailing rating of the
MAPS in effect at the close of business on the Business
Day preceding such date:
Prevailing Rate Rate Multiple
Moody's S&P Fitch
"aa3" or Above AA- or Above AA- or Above 150%
"a3" to "a1" A- to A+ A- to A+ 200%
"baa3" to "baa1" BBB- to BBB- to 225%
BBB+ BBB+
Below "baa3" Below BBB- Below BBB- 275%
For purposes of the foregoing, the "prevailing rating" of
the MAPS will be based upon the lower of the three ratings
provided by Moody's, S&P and Fitch or a substitute rating
agency or agencies.
(xxxiii) "S&P" means Standard & Poor's Corporation
or its successor.
(xxxiv) "Securities Depository" shall mean The
Depository Trust Company and its successors and assigns
or any other securities depository selected by the
Corporation which agrees to follow the procedures
required to be followed by such securities depository in
connection with shares of MAPS.
(xxxv) "Sell Order" shall have the meaning
specified in paragraph (C)(v)(a)(i) below.
(xxxvi) "Submission Deadline" shall mean 12:30
P.M., New York City time, on any Auction Date or such
other time on any Auction Date by which Broker-Dealers
are required to submit Orders to the Trust Company as
specified by the Trust Company from time to time.
(xxxvii) "Submitted Bid" shall have the meaning
specified in paragraph (C)(v)(c)(i) below.
(xxxviii) "Submitted Hold Order" shall have the
meaning specified in paragraph (C)(v)(c)(i) below.
(xxxix) "Submitted Order" shall have the meaning
specified in paragraph (C)(v)(c)(i) below.
<PAGE>
(xl) "Submitted Sell Order" shall have the meaning
specified in paragraph(C)(v)(c)(i) below.
(xli) "Substitute Commercial Paper Dealer" means
any commercial paper dealer, the principal office of
which is located in New York City, that is a nationally
recognized leading dealer in the domestic commercial
paper market, provided that no such dealer may be a
Commercial Paper Dealer or any affiliate of a Commercial
Paper Dealer or of the Corporation.
(xlii) "Sufficient Clearing Bids" shall have the
meaning specified in paragraph (C)(V)(c)(i)(B) below.
(xliii) "Trust Company" shall mean Chemical Bank
and its successors and assigns or any other bank, trust
company or other entity selected by the Corporation
which agrees to follow the Auction Procedures for the
purposes of determining the Applicable Rate for the
MAPS.
(xliv) "Units" means units of 1,000 shares of MAPS.
(xlv) "Winning Bid Rate" shall have the meaning
specified in paragraph (C)(v)(c)(i)(c) below.
(C) Dividends
(i) Annual Rate
The annual rate of dividends per share of MAPS
shall be equal to an amount calculated by multiplying
the quarterly dividend per share of MAPS, as determined
in accordance with paragraph (ii) below, by four (4) and
dividing such amount by the par value of the MAPS.
(ii) Quarterly Dividend
The quarterly dividend per share shall be computed
by multiplying the Applicable Rate for such Dividend
Period by a fraction, the numerator of which shall be
the number of days actually elapsed from the Business
Day on which dividends were to be paid for the
preceding Dividend Period to the Business Day on which
dividends are to be paid for such Dividend Period
(calculated by counting the first day thereof but
excluding the last day thereof) and the denominator of
which shall be 360, and multiplying the amount so
obtained by $100.
<PAGE>
(iii) Applicable Rate
The Applicable Rate per share for the initial
Dividend Period, commencing the date of original issue
and ending January 14, 1993, shall be determined by the
Preferred Stock Committee established by the Board on
October 1, 1992. Thereafter, the Applicable Rate will
be reset for each succeeding Dividend Period in
accordance with the provisions herein. After the
initial Dividend Period, each successive Dividend Period
will commence on the Dividend Payment Date in respect of
the preceding Dividend Period and will end on the day
prior to the next Dividend Payment Date.
(iv) Adjustments to Applicable Rate
(a) In the event of the failure by the Corporation
to pay to the Trust Company by 12:00 noon, New York City
time, (i) on any Dividend Payment Date (or if not a
Business Day, then on the next Business Day), the full
amount of any dividend (whether or not earned or
declared) to be paid on such Dividend Payment Date on
any share of MAPS or (ii) on any redemption date (or, if
not a Business Day, then on the next Business Day), the
full redemption price to be paid on such redemption date
for any share of MAPS after a notice of redemption has
been given (each of clause (i) and (ii) a "Default"),
and any such Default shall not have been cured within
three Business Days thereafter, then (a) until such time
as the full amount due shall have been paid to the
Trust Company, Auctions will be suspended and (b) the
Applicable Rate for each Dividend Period commencing on
or after any such Dividend Payment Date (or redemption
date, as the case may be) shall be equal to the Default
Rate for such Dividend Period. The foregoing shall
continue until there shall occur a Dividend Payment Date
on which the full amount of any dividends (whether or
not earned or declared) payable on each Dividend Payment
Date prior to and including such Dividend Payment Date,
and the full amount of any redemption price then due
shall have been paid to the Trust Company, and
thereupon Auctions shall resume on the terms stated
herein for Dividend Periods commencing with such
Dividend Payment Date. With respect to any such
Default, the "Default Rate," subject to the provisions
described in the next succeeding paragraph, will be the
higher of 275% of the 90-day "AA" Composite Commercial
Paper Rate, determined as of the Business Day next
preceding the date of such Default, and (i) if the
Corporation has failed timely to pay dividends, the
Applicable Rate in effect for the Dividend Period in
respect of which such failure occurred, or (ii) if the
<PAGE>
Corporation has failed timely to pay the redemption
price of shares of MAPS called for redemption, the
Applicable Rate in effect on the Dividend Payment Date
on which the applicable redemption date occurred. If an
Auction is not held on an Auction Date for any reason
(other than because of the discontinuation of Auctions
due to a Default described above), the Applicable Rate
therefor shall be the Maximum Applicable Rate determined
as of such Auction Date.
(b) Any Default referred to in the preceding
paragraph with respect to the shares of MAPS shall be
deemed to be cured if, as of 12:00 noon, New York City
time, on the third Business Day next succeeding any such
Default, the Corporation shall have paid to the Trust
Company (i) in the case of a failure to pay dividends,
dividends at a rate that will result in a dividend equal
to the full amount of the dividends (whether or not
earned or declared) originally required to be paid for
the Dividend Period with respect to which such failure
occurred, plus an amount equal to the product of (a)
275% of the 90-day "AA" Composite Commercial Paper Rate
on the date of occurrence of such failure, (b) a
fraction, the numerator of which shall be the number of
days during which such failure exists and is not cured
in accordance with this sentence (including the day such
failure occurs and excluding the day such failure is
cured) and the denominator of which shall be 360, and
(c) the full amount of the dividends (whether or not
earned or declared) originally required to be paid for
the Dividend Period as to which such failure occurred,
or (ii) in the case of a failure to pay the redemption
price, the full amount of aggregate redemption price for
the shares of MAPS that have been called for redemption,
plus accumulated and unpaid dividends from the date of
redemption to the date of such cure, plus a premium in
an amount equal to the product of (a) 275% of the 90 day
"AA" Composite Commercial Paper Rate on the Business Day
on which the Corporation was required to pay the
aggregate redemption price to the Trust Company, (b) a
fraction, the numerator of which shall be the number of
days during which such failure exists and is not cured
in accordance with this sentence (including the day such
failure occurs and excluding the day such failure is
cured) and the denominator of which shall be 360, and
(c) $100,000 per Unit ($100 per share) of MAPS called
for redemption.
(v) Auction
After the initial Dividend Period, an Auction to
determine the Applicable Rate of MAPS for a given
<PAGE>
Dividend Period will be held on the Business Day
immediately preceding the first day of such Dividend
Period (the "Auction Date").
(a) Orders by Existing Holders and Potential Holders
(i) On each Auction Date:
(A) each Existing Holder may submit to a
Broker-Dealer, telephonically or otherwise, information
as to:
(1) the number of Outstanding Units, if any,
held by such Existing Holder that such Existing
Holder desires to continue to hold without regard
to the Applicable Rate for the next succeeding
Dividend Period; and/or
(2) the number of Outstanding Units, if any,
held by such Existing Holder that such Existing
Holder desires to offer to sell, provided that the
Applicable Rate for the next succeeding Dividend
Period shall be less than the rate per annum
specified by such Existing Holder, and/or
(3) the number of Outstanding Units, if any,
held by such Existing Holder that such Existing
Holder offers to sell without regard to the
Applicable Rate for the next succeeding Dividend
Period; and
(B) each Broker-Dealer, using a list of Potential
Holders that shall be maintained by such Broker-Dealer
in good faith for the purpose of conducting a
competitive Auction, shall contact, telephonically or
otherwise, Potential Holders, including Persons that are
not Existing Holders, on such list to determine the
number of Outstanding Units, if any, that each such
Potential Holder offers to purchase, provided that the
Applicable Rate for the next succeeding Dividend Period
shall not be less than the rate per annum specified by
such Potential Holder.
For the purposes hereof, the communication to a
Broker-Dealer of information referred to in clause (A) or
(B) of this paragraph (a)(i) is hereinafter referred to as
an "Order" and each Existing Holder and each Potential
Holder placing an Order is hereinafter referred to as a
"Bidder"; an Order containing the information referred to
in clause (A)(1) of this paragraph (a)(i) is hereinafter
referred to as a "Hold Order"; an Order containing the
information referred to in clause (A)(2) or (B) of this
<PAGE>
paragraph (a)(i) is hereinafter referred to as a "Bid";
and an Order containing the information referred to in
clause (A)(3) of this paragraph (a)(i) is hereinafter
referred to as a "Sell Order."
(ii) (A) A Bid by an Existing Holder shall
constitute an irrevocable offer to sell:
(1) the number of Outstanding Units specified
in such Bid if the Applicable Rate determined on
such Auction Date shall be less than the rate
specified therein; or
(2) the number of Outstanding Units specified
in such Bid or a lesser number of Outstanding Units
if the Applicable Rate determined on such Auction
Date shall be equal to the rate specified therein;
or
(3) the number of Outstanding Units specified
in such Bid or a lesser number of Outstanding Units
if the rate specified therein shall be higher than
the Maximum Applicable Rate and Sufficient Clearing
Bids do not exist.
(B) A Sell Order by an Existing Holder shall
constitute an irrevocable offer to sell:
(1) the number of Outstanding Units specified
in such Sell Order, or
(2) such number or a lesser number of
Outstanding Units if Sufficient Clearing Bids have
not been made.
(C) A Bid by a Potential Holder shall constitute an
irrevocable offer to purchase:
(1) the number of Outstanding Units specified
in such Bid if the Applicable Rate determined on
such Auction Date shall be higher than the rate
specified therein; or
(2) such number or a lesser number of
Outstanding Units if the Applicable Rate determined
on such Auction Date shall be equal to the rate
specified therein.
(b)Submission of Orders by Broker-Dealers to Trust Company
(i) Each Broker-Dealer shall submit in writing to
the Trust Company prior to the Submission Deadline on
<PAGE>
each Auction Date all Orders obtained by such
Broker-Dealer and specifying with respect to each Order:
(A) the name of the Bidder placing such Order,
(B) the aggregate number of Outstanding Units
that are the subject of such Order,
(C) to the extent that such Bidder is an
Existing Holder,
(1) the number of Outstanding Units, if
any, subject to any Hold Order placed by such
Existing Holder;
(2) the number of Outstanding Units, if
any, subject to any Bid placed by such
Existing Holder and the rate specified in such
Bid; and
(3) the number of Outstanding Units, if
any, subject to any Sell Order placed by such
Existing Holder, and
(D) to the extent such Bidder is a Potential
Holder, the rate specified in such Potential
Holder's Bid.
(ii) If any rate specified in any Bid contains more
than three figures to the right of the decimal point,
the Trust Company shall round such rate up to the next
highest one-thousandth (.001) of 1%.
(iii) If an Order or Orders covering all of the
Outstanding Units held by an Existing Holder is not
submitted to the Trust Company prior to the Submission
Deadline, the Trust Company shall deem a Hold Order to
have been submitted on behalf of such Existing Holder
covering the number of Outstanding Units held by such
Existing Holder and not subject to Orders submitted to
the Trust Company.
(iv) If one or more orders covering in the
aggregate more than the number of Outstanding Units held
by an Existing Holder are submitted to the Trust
Company, such Orders shall be considered valid as
follows and in the following order of priority:
(A) any Hold Order submitted on behalf of such
Existing Holder shall be considered valid up to and
including the number of Outstanding Units held by
such Existing Holder, provided that if more than
<PAGE>
one Hold Order is submitted on behalf of such
Existing Holder and the number of Outstanding Units
subject to such Hold Orders exceeds the number of
Outstanding Units held by such Existing Holder, the
number of Units subject to such Hold Orders shall
be reduced pro rata so that such Hold Orders shall
cover the number of Outstanding Units held by such
Existing Holder,
(B) (1) any Bid shall be considered valid up
to and including the excess of the number of
Outstanding Units held by such Existing Holder
over the number of Outstanding Units of such
Existing Holder that are subject to Hold Orders
referred to in paragraph (b)(iv)(A);
(2) subject to clause (1) above, if more
than one Bid with the same rate is submitted on
behalf of such Existing Holder and the number of
Outstanding Units subject to such Bids is greater
than such excess, the number of Outstanding Units
subject to such Bids shall be reduced pro rata so
that such Bid shall cover the number of Outstanding
Units equal to such excess; and
(3) subject to clause (1) above, if more
than one Bid with different rates is submitted on
behalf of such Existing Holder, such Bids shall be
considered valid in the ascending order of their
respective rates and in any such event the number,
if any, of Outstanding Units subject to Bids not
valid under this clause (B) shall be treated as the
subject of a Bid by a Potential Holder, and
(C) any Sell Order shall be considered valid
up to and including the excess of the number of
Outstanding Units held by such Existing Holder over
the number of Outstanding Units of such Existing
Holder that are subject to Hold Orders and Bids.
(v) If more than one Bid is submitted on behalf of
any Potential Holder, each Bid submitted shall be
treated as a separate Bid with the rate and number of
Units therein specified.
(vi) Any Order that specifies a number of Units
other than in whole Units will be invalid and will not
be considered as a Submitted Order for purposes of an
Auction.
<PAGE>
(c) Determination of Sufficient Clearing Bids, Winning
Bid Rate and Applicable Rate
(i) Not earlier than the Submission Deadline on
each Auction Date, the Trust Company shall assemble all
Orders submitted or deemed submitted to it by the
Broker-Dealers (each such Order as submitted or deemed
submitted by a Broker-Dealer being hereinafter referred
to individually as a "Submitted Hold Order," a
"Submitted Bid" or a "Submitted Sell Order," as the case
may be, or as a "Submitted Order") and shall determine:
(A) the excess of the total number of
Outstanding Units over the number of Outstanding
Units that are the subject of Submitted Hold
Orders (such excess being hereinafter referred to
as the "Available Units");
(B) from the Submitted Orders, whether the
number of Outstanding Units that are the subject of
Submitted Bids by Potential Holders specifying one
or more rates equal to or lower than the Maximum
Applicable Rate exceeds or is equal to the sum of:
(x) the number of Outstanding Units that
are the subject of Submitted Bids by Existing
Holders specifying one or more rates higher
than the Maximum Applicable Rate; and
(y) the number of Outstanding Units that
are subject to Submitted Sell Orders
(if such excess or such equality exists (other than
because the number of Outstanding Units in clauses
(x) and (y) above are each zero because all of the
Outstanding Units are the subject of Submitted Hold
Orders), such Submitted Bids by Potential Holders
being hereinafter referred to collectively as
"Sufficient Clearing Bids"); and
(C) if Sufficient Clearing Bids exist, the
lowest rate specified in the Submitted Bids (the
"Winning Bid Rate"), which if:
(1) each Submitted Bid from Existing
Holders specifying the Winning Bid Rate and
all other Submitted Bids from Existing Holders
specifying lower rates were rejected, thus
entitling such Existing Holders to continue to
hold the Units that are the subject of such
Submitted Bids; and
<PAGE>
(2) each Submitted Bid from Potential
Holders specifying the Winning Bid Rate and
all other Submitted Bids from Potential
Holders specifying lower rates were accepted,
thus requiring the Potential Holders to
purchase the Units that are the subject of
such Submitted Bids,
would result in the number of Units subject to all
Submitted Bids specifying the Winning Bid Rate or a
lower rate being at least equal to the Available Units.
(ii) Promptly after the Trust Company has made
the determinations pursuant to paragraph (c)(i)
above, the Trust Company shall advise the
Corporation of the results of such determinations
and the Maximum Applicable Rate, and the Applicable
Rate for the next succeeding Dividend Period shall
be as follows:
(A) if Sufficient Clearing Bids exist,
the Applicable Rate for the next succeeding
Dividend Period shall be equal to the Winning
Bid Rate so determined;
(B) if Sufficient Clearing Bids do not
exist (other than because all of the
Outstanding Units are the subject of Submitted
Hold Orders), the Applicable Rate for such
next succeeding Dividend Period will be the
Maximum Applicable Rate on the Auction Date;
and
(C) if all of the Outstanding Units are
the subject of Submitted Hold Orders, the
Applicable Rate for the next succeeding
Dividend Period shall be equal to 59% of the
90-day "AA" Composite Commercial Paper Rate in
effect on such Auction Date.
(D) Redemption Shares of MAPS may be redeemed, in
whole or in part but only in whole Units, on any Dividend
Payment Date at a redemption price of $100 per share
($100,000 per Unit). In the event that less than all of
the outstanding MAPS are to be redeemed, the number of
MAPS (in whole Units) to be redeemed shall be determined
by the Corporation and communicated to the Trust Company.
The Trust Company shall give notice to the Securities
Depository, whose nominee is the record holder of all
shares of MAPS, and the Securities Depository will
determine by lot under its usual participant operating
procedures the number of MAPS constituting whole Units, if
<PAGE>
any, to be redeemed from the account of the Agent Member
of each Existing Holder.
(E) Liquidation The amount payable on shares of
MAPS in the event of any liquidation of the Corporation
shall be $100 per share.
(3) The aggregate number of MAPS established
and designated by
(i) such resolution -- 400,000 shares;
(ii) all prior statements, if any, filed
under section 1522 of the Pennsylvania Business
Corporation Law or corresponding provisions of prior
law -- none;
(iii) any other provisions of this
Corporation's Restated Articles of Incorporation, as
amended -- none.
(4) At a meeting of the Board of Directors of the
Corporation duly called and held on November 5, 1992,
pursuant to authority granted to said Board in Section 1
of Article FIFTH of the Restated Articles of
Incorporation of the Corporation, as amended, the
resolution set forth in (2) above was adopted.
IN WITNESS WHEREOF, Klaus Bergman, Chief Executive
Officer, and Kenneth D. Mowl Secretary, of West Penn
Power Company, acting for and on behalf of the
Corporation, have hereunto subscribed their names and
caused the seal of the Corporation to be affixed this
9th day of November, 1992.
WEST PENN POWER COMPANY
By: /s/ Klaus Bergman
Chief Executive Officer
By: /s/ K. D. Mowl
Secretary
<PAGE>
Microfilm Number Filed with the Department of
State on November 2, 1995
Entity Number
Secretary of the Commonwealth
ARTICLES OF AMENDMENT-DOMESTIC BUSINESS CORPORATION
DSCB:15-1915 (REV 90)
In compliance with the requirements of 15 Pa.C.S. section 1915
(relating to articles of amendment), the undersigned business
corporation, desiring to amend its Articles, hereby states that:
1. The name of the corporation is:
West Penn Power Company
2. The (a) address of this corporation's current registered office
in this commonwealth or (b) name of its commercial register office
provider and the county of venue is (the Department is hereby
authorized to correct the following information to conform to the
records of the Department):
(a) 800 Cabin Hill Drive Greensburg PA 15601
Westmoreland County
(b) c/o:
For a corporation represented by a commercial registered office
provider, the county in (b) shall be deemed the county in which the
corporation is located for venue and official publication purposes.
3. The statute by or under which it was incorporated is:
Act of May 3, 1909, P.L. 408
4. The date of its incorporation is: March 1, 1916
5. (Check, and if appropriate complete, one of the following):
X The amendment shall be effective upon filing these Articles
of Amendment in the Department of State.
The amendment shall be effective on:
6. (Check on of the following):
The amendment was adopted by the shareholders (or members)
pursuant to 15 Pa C.S. section 1914(a) and (b).
X The amendment was adopted by the board of directors pursuant
to 15 Pa.C.S. section 1914(c).
7. (Check, and if appropriate complete, one of the following):
<PAGE>
The amendment adopted by the corporation, set forth in full,
is as follows:
X The amendment adopted by the corporation is set forth in full
in Exhibit A attached hereto and made a part here.
8. (Check if the amendment restates the Articles)
The restated Articles of Incorporation supersede the original
Articles and all amendments thereto.
IN TESTIMONY WHEREOF, the undersigned corporation has caused these
Articles of Amendment to be signed by a duly authorized officer
thereof this 2nd day of November 1995.
West Penn Power Company
/s/ K. D. Mowl
TITLE: Secretary and Treasurer
<PAGE>
Exhibit A
The amendment was adopted by the authority of the actions of
the Board of Directors taken at the May 11, 1995 meeting and is set
forth in full, is as follows:
RESOLVED, that the officers of the Company are hereby
authorized to amend the Articles of Incorporation of the Corporation
and make the necessary filing of such amendments with the
Commonwealth of Pennsylvania, Department of State, to reduce the
number of designated shares of cumulative preferred stock of the
Company by the number represented by the redemption of the redeemed
preferred stocks.
Accordingly, West Penn Power Company does hereby present the
following amendments to the Charter of the Corporation under
authority granted by the resolution adopted by the Board of Directors
at said May 11, 1995 meeting:
"ARTICLE IV of the Charter of West Penn Power Company, a
Pennsylvania corporation, is hereby amended in its entirety to read
as follows:
ARTICLE IV
The aggregate number of shares of all classes which the
Corporation shall have authority to issue is 32,000,000 divided into
3,097,077 shares of Preferred Stock of the par value of $100 each and
28,902,923 shares of Common Stock without par value.
The shares of Preferred Stock consist of the following:
297,077 shares of 4-1/2% Preferred Stock;
50,000 shares of 4.20% Preferred Stock, Series B;
50,000 shares of 4.10% Preferred Stock, Series C;
400,000 shares of MAPS;
2,300,000 shares authorized but not issued."
"ARTICLE V
That Article V, Section 5.14 of the charter of West Penn Power
is hereby amended to delete subsection (D), (E), (G), (H), (I), and
(J) in their entirety from said Section."
BY-LAWS
of
WEST PENN POWER COMPANY
ARTICLE 1.
DEFINITIONS, ETC.
Section 1.1. For all purposes of these By-laws, unless the context
otherwise requires:
(a) "Charter" shall mean the Articles of Agreement of Merger and
Consolidation forming a corporation by the name of West Penn Power
Company, filed February 21, 1916, in the office of the Secretary of the
Commonwealth of Pennsylvania, as from time to time amended by all
amendments thereto, and all other charter documents of said Corporation.
(b) "Board" shall mean the Board of Directors of the Corporation.
(c) Whenever reference is made to stockholders present at a meeting,
the reference shall include every stockholder present in person or by
proxy appointed by instrument in writing and subscribed by such
stockholder or by his attorney thereunto authorized; and, whenever
reference is made to action by any stockholder at or in connection with
any meeting, the reference shall include action in person or by such
proxy. No instrument appointing a proxy that is dated more than 2 months
prior to the meeting at which it is offered shall confer the right to vote
thereat.
(d) "Share Register" shall mean a book or list giving the names of all
stockholders of the Corporation in alphabetical order and showing their
respective addresses, the number and classes of shares held by each, the
number and date of certificates issued for the shares, and the number and
date of cancellation of every certificate surrendered for cancellation.
(e) All references to Articles and Sections are to Articles and
Sections of these By-laws; and the words "herein," "hereof," "hereby" and
"hereunder" and other equivalent words, refer to these By-laws and not to
any particular Article, Section or subdivision.
Section 1.2. Except as otherwise expressly provided in the Charter, any
action which might be taken at a meeting of stockholders, the Board, or
any committee, may be taken without a meeting if a consent in writing
setting forth the action so taken is signed by all persons who would be
entitled to vote at a meeting held for such purpose and is filed with the
Secretary of the Corporation.
ARTICLE 2.
MEETINGS OF STOCKHOLDERS.
Section 2.1. Annual Meeting. The annual meeting of stockholders for
the election of directors and for the transaction of such other business
as may properly come before said meeting shall be held on the third
Wednesday in April in each year, but if that be a legal holiday, then at
the same hour on the next succeeding day not a holiday.
Every director shall, subject to the provisions of Sections 3.9 and
3.10, hold office until his successor has been elected and qualified.
Section 2.2. Special Meetings. A special meeting of stockholders may
be called at any time by the Chairman of the Board, if there be one, or by
the President or by a majority of the directors, and shall be called at
the written request, stating the purpose of the meeting, of stockholders
holding of record at least a majority in number of the issued and
outstanding shares of stock of the Corporation entitled to vote at such
meeting.
Section 2.3. Place of Meetings. Meetings of stockholders shall be held
at such place, within or without Pennsylvania, as may be fixed by the
Board.
Section 2.4. Notice of Meetings. Written notice of every meeting of
the stockholders shall be given by, or at the direction of, the person
authorized to call the meeting, to each stockholder of record entitled to
vote at the meeting, at least ten days prior to the day named for the
meeting, unless a greater period of notice is required by the Pennsylvania
Business Corporation Law in a particular case. When a meeting is
adjourned, it shall not be necessary to give any notice of the adjourned
meeting or of the business to be transacted at an adjourned meeting, other
than by announcement at the meeting at which such adjournment is taken.
Section 2.5. Quorum. Unless otherwise provided in the Charter, at each
meeting of stockholders the presence, in person or by proxy, of
stockholders entitled to cast at least a majority of the votes which all
stockholders are entitled to cast on the particular matter shall
constitute a quorum for the purpose of considering such matter. The
stockholders present at a duly organized meeting can continue to do
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum. If a meeting cannot be
organized because a quorum has not attended, those present may, except as
otherwise provided in the Pennsylvania Business Corporation Law, adjourn
the meeting to such time and place as they may determine, but in the case
of any meeting called for the election of directors, those who attend the
second of such adjourned meetings, although less than a quorum as fixed in
this section or in the articles, shall nevertheless constitute a quorum
for the purpose of electing directors.
Section 2.6. Organization. At each meeting of stockholders, the
Chairman of the Board, or, in his absence, the President, or, in his
absence, a Vice President designated by the Chairman of the Board, or, in
the absence of such designation, a chairman chosen by the stockholders
present and entitled to cast a majority of the votes thereat, shall
preside. The Secretary of the Corporation or, in his absence, an
Assistant Secretary, or, if none is present, some other person designated
by the chairman of the meeting, shall act as Secretary of the meeting.
Section 2.7. Voting. Except as otherwise provided in the Pennsylvania
Business Corporation Law or in the Charter, at any meeting of stockholders
every stockholder present shall be entitled to 1 vote for each share of
stock entitled to vote thereat standing in his name on the books of the
Corporation;
(a) at the record time fixed as provided in Section 8.3, or
(b) if no such record time shall have been fixed, at the time of such
meeting.
Before each meeting of stockholders, the Secretary shall cause to be
prepared a complete list of the holders of each class of stock entitled to
vote thereat, arranged in alphabetical order with their respective
addresses as they appear on the Share Register and the respective numbers
of voting shares held by them.
In each election for directors, every stockholder entitled to vote shall
have the right, in person or by proxy, to multiply the number of votes to
which he may be entitled by the total number of directors to be elected in
the same election by the holders of the class or classes of shares of
which his shares are a part, and he may cast the whole number of such
votes for one candidate or he may distribute them among any two or more
candidates. The candidates receiving the highest number of votes from
each class or group of classes entitled to elect directors separately up
to the number of directors to be elected in the same election by such
class or group of classes shall be elected.
Voting need not be by ballot except upon demand made by a stockholder at
the meeting before the voting begins.
Shares of its own stock belonging to the Corporation shall not be voted
directly or indirectly.
Except as otherwise provided by statute, or by the Charter, or by this
Section or Section 3.10, all matters which shall properly come before any
meeting of stockholders shall be decided by the affirmative vote of
stockholders present and entitled to cast a majority of the votes thereat,
a quorum being present. A stock vote upon any question shall be taken upon
a demand therefor by any stockholder present and entitled to vote.
In advance of any meeting of stockholders, the Board may appoint judges
of election, who need not be stockholders, to act at such meeting or any
adjournment thereof. If judges of election be not so appointed, the
chairman of any such meeting may, and on the request of any stockholder or
his proxy shall, make such appointment at the meeting. The number of
judges shall be one or three. If appointed at a meeting on the request of
one or more stockholders or proxies, the majority of shares present and
entitled to vote shall determine whether one or three judges are to be
appointed. No person who is a candidate for office shall act as a judge.
In case any person appointed as judge fails to appear or fails or refuses
to act, the vacancy may be filled by appointment made by the Board in
advance of the convening of the meeting, or at the meeting by the person
or officer acting as chairman. The judges of election shall determine the
number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, the authenticity,
validity, and effect of proxies, receive votes or ballots, hear and
determine all challenges and questions in any way arising in connection
with the right to vote, count and tabulate all votes, determine the
result, and do such acts as may be proper to conduct the election or vote
with fairness to all stockholders. The judges of election shall perform
their duties impartially, in good faith, to the best of their ability, and
as expeditiously as is practical. If there be three judges of election,
the decision, act or certificate of a majority shall be effective in all
respects as the decision, act or certificate of all. On request of the
chairman of the meeting, or of any stockholder or his proxy, the judges
shall make a report in writing of any challenge or question or matter
determined by them, and execute a certificate of any fact found by them.
Every election of directors shall be conducted by ballot by the Judges
and, after the election, they shall file with the secretary of the meeting
a certificate of the results thereof. The judges of election, at the
request of the chairman of the meeting, shall act as tellers of any other
vote by ballot and shall certify the result thereof.
ARTICLE 3.
BOARD OF DIRECTORS.
Section 3.1. General Powers. The business and property of the
Corporation, except as otherwise expressly provided by law or by the
Charter, shall be managed by the Board.
Section 3.2. Number, Election and Term of Office. A Board of Directors
shall be elected at the annual meeting of stockholders, and each director
shall hold office until the next annual meeting of stockholders and until
his successor shall have been elected and qualified, or until his death,
resignation, disqualification or removal. The number of directors shall
be not more than fifteen, but, except as otherwise provided by the Charter
provisions relating to the Corporation's Preferred Stock, the number of
directors may from time to time be increased to any number not exceeding
fifteen, or may be decreased to not less than three, by the affirmative
vote of a majority of the whole Board without a vote of the stockholders.
Section 3.3. Meetings. The Board shall hold its first regular meeting,
as soon as practicable after the meeting of the stockholders at which such
Board shall have been elected, for the purpose of organization and the
election of officers, and for the transaction of such other business as
may be required by law or by these By-laws or designated by the Board. In
case such meeting is not held within 30 days after such meeting of
stockholders, it may be called by any director by giving notice in the
manner set forth in Section 3.5.
The Board by resolution may provide for other regular meetings and may
fix the time and place of such meetings.
Special meetings shall be held whenever called by the Chairman of the
Board or by the President or by a majority of the directors.
Section 3.4. Place of Meeting. Meetings of the Board may be held at
such place within Pennsylvania, or elsewhere, as a majority of the
directors may from time to time appoint, or as may be designated in the
notice calling the meeting.
Section 3.5. Notice of Meetings. Except as provided in Section 3.3,
notice need not be given of the first regular meeting of the Board.
Notice need not be given of any other regular meeting of the Board if the
time and place of such meeting are specified in a resolution of the Board
prior to the meeting and if notice of the adoption of such resolution is
given, in the manner herein provided for giving notice of meetings, to
each director who was absent from the meeting at which the resolution was
adopted. Notice need not be given of any adjourned meeting other than by
announcement at the meeting at which the adjournment is taken. Except as
otherwise required by law, notice of each other meeting of the Board shall
be given to each director in writing at least 2 days, or given personally
or by telephone at least 24 hours, before the time for the meeting.
Notice of a meeting of the Board need not state the purpose thereof,
except as otherwise expressly provided by statute or by Section 11.1.
Section 3.6. Quorum and Manner of Acting. Except as otherwise provided
in Section 3.l0, at each meeting of the Board one-third of the total
number of directors, but no less than two directors, shall constitute a
quorum for the transaction of business, and except as otherwise provided
by statute or in the Charter or in Section 3.l0, 4.l, 4.5, 4.6, 5.3, or
ll.l, the acts of a majority of the directors present and voting at any
such meeting at which a quorum is present shall be the acts of the Board.
Whether or not there is a quorum at a meeting, a majority of the directors
who are present may adjourn the meeting from time to time to a day
certain. Any action required or permitted to be taken at a meeting of the
Board may be taken without a meeting if the action is taken by the whole
Board and evidenced by one or more written consents describing the action
taken, signed by all directors on the Board, and filed with the minutes or
corporate records of Board proceedings.
Members of the Board may participate in a regular or special meeting of
the Board by means of conference telephone or similar communications
equipment by which all persons participating can simultaneously hear each
other. Participation in a meeting by these communications means
constitutes presence in person at the meeting.
Section 3.7. Organization. At each meeting of the Board, the Chairman
of the Board, if there be one, or, in his absence, the President, or, in
his absence, a chairman (who shall be a Vice President, if any is present)
chosen by a majority of the directors present, shall preside. The
Secretary of the Corporation, or, in his absence, an Assistant Secretary,
or, if none is present, some other person designated by the chairman of
the meeting, shall act as secretary of the meeting.
Section 3.8. Resignations. Any director may resign at any time by
given written notice to the Chairman of the Board or to the Secretary of
the Corporation or to the Board. A resignation shall take effect at the
time it specifies and, unless it otherwise specifies, acceptance shall not
be necessary to make it effective.
Section 3.9. Removal of Directors. Except as otherwise provided by law
or in the Charter provisions relating to the Corporation's Preferred
Stock, any director may be removed, either with or without cause, at any
time, by the affirmative vote of the holders of a majority in number of
the issued and outstanding shares of stock of the Corporation having
voting power for the election of directors, at a special meeting of the
stockholders called for that purpose.
Section 3.10. Vacancies. Except as otherwise provided by the Charter
provisions relating to the Corporation's Preferred Stock, any vacancy in
the Board arising at any time from any cause, including the failure of the
stockholders to elect a full Board or an increase in the number of
directors, may be filled by the vote of a majority of the directors
remaining in office, whether or not they constitute a quorum, or any such
vacancy may be filled by the stockholders entitled to vote upon an
election of directors at the next annual meeting held, or at the meeting
of stockholders at which such vacancy was created, or at a meeting of
stockholders called for the purpose of filling such vacancy. The
directors so appointed or elected shall, subject to Sections 3.8 and 3.9
and the Charter provisions relating to the Corporation's Preferred Stock,
hold office until the next annual election and until their successors have
been duly elected and qualified.
Section 3.11. Remuneration. Directors shall be entitled to receive
such remuneration as may be fixed from time to time by resolutions of the
Board, in the form of payment of a fixed sum per month or of fees for
attendance at meetings of the Board and committees thereof, or both.
Directors shall also be entitled to be reimbursed for expenses incurred in
attending any meeting or otherwise in connection with their attention to
the affairs of the Corporation. Nothing herein shall preclude any
director from serving in any other capacity or receiving compensation for
such service.
Section 3.12. Personal Liability of Directors.
(a) Directors shall not be personally liable for monetary damages as
such for any action taken or any failure to take any action,
unless:
(1) the director has breached or failed to perform the duties of his
office pursuant to Section 8363 of the Pennsylvania Directors'
Liability Act, Act 145 of 1986; and
(2) the breach or failure to perform constitutes self-dealing, willful
misconduct or recklessness.
(b) The provisions of this section shall not apply to:
(1) the responsibility or liability of a director pursuant to any
criminal statute; or
(2) the liability of a director for the payment of taxes pursuant to
local, State or Federal law.
ARTICLE 4.
EXECUTIVE AND OTHER COMMITTEES.
Section 4.1. General Powers and Membership. The Board, by resolution
adopted by a majority of the whole Board, may elect from its members, an
Executive Committee and one or more other committees, each consisting of
not less than 3 and not more than 7 members. Unless otherwise expressly
provided by statute or by the Charter or by resolution of the Board, the
Executive Committee shall have all the powers of the Board (except the
power to appoint or remove a member of the Executive Committee or other
committee, the power to fill vacancies in the Board, the power to remove
an officer appointed by the Board and the power to amend or repleal these
By-laws) when the Board is not in session, and each other committee shall
have such powers as the Board shall confer. In so far as the rights of
third parties shall not be affected thereby, all action by any committee
shall be subject to revision and alteration by the Board.
Section 4.2. Organization. Unless otherwise provided by resolution of
the Board, a chairman chosen by each committee shall preside, and the
Secretary of the Corporation shall act as secretary, at all meetings of
each committee thereof. In the absence of the Secretary, the chairman of
the meeting shall designate an Assistant Secretary, or, if none is
present, some other person, to act as secretary of the meeting.
Section 4.3. Meetings. Each committee may determine the time and
place, and the method of calling, its meetings and the conduct of its
proceedings.
Section 4.4. Quorum and Manner of Acting. A majority of the members at
any meeting of a committee shall constitute a quorum for the transaction
of business, and the act of a majority of the members present at any such
meeting at which a quorum is present shall be the act of such committee.
The members of each committee shall act only as a committee, and the
individual members shall have no power as such.
Any action required or permitted to be taken at a meeting of the members
of the Executive or any other committee may be taken without a meeting if
the action is taken by the whole committee and is evidenced by one or more
written consents describing the action taken, signed by all members of the
committee, and filed with the minutes or corporate records of committee
proceedings.
Members of any committee may participate in a regular or special meeting
of such committee by means of conference telephone or similar
communications equipment by which all persons participating can
simultaneously hear each other. Participation in a meeting by these
communications means constitutes presence in person at the meeting.
Section 4.5. Removal. Any member of any committee may be removed,
either with or without cause, at any time, by resolution adopted by a
majority of the whole Board.
Section 4.6. Vacancies. Any vacancy in any committee shall be filled
in the manner prescribed for the regular election of the members of that
committee.
ARTICLE 5.
OFFICERS.
Section 5.1. Election, Term of Office and Qualifications. The Board
shall elect annually from its membership a Chairman of the Board. It
shall also elect annually a President, a Comptroller, a Secretary and a
Treasurer, and, may elect one or more Vice Presidents (including an
Executive Vice President) and any other officers whose appointment shall
not be delegated as provided in Section 5.2. Each officer shall, subject
to Sections 5.3 and 5.4, hold office until the next annual election and
until his successor is chosen and qualified. One person may hold any 2
offices except those of President and Secretary. No person may hold more
than 2 offices. No instrument shall be signed by the same individual in
more than one capacity. The executive officers of the Corporation shall
be Chairman of the Board, the President, the Vice Presidents, the
Comptroller, the Secretary and the Treasurer.
Section 5.2. Other Officers. The Board may authorize any executive
officer or committee to appoint such other officers or agents as the Board
or the appointing officer or committee may deem advisable, including one
or more Assistant Treasurers and one or more Assistant Secretaries, each
of whom shall hold office for such period, have such powers and perform
such duties as are provided herein or as the Board or his appointing
officer or committee may from time to time determine. Any such officer,
if required by the Board or by his appointing officer or committee, shall
give bond for the faithful discharge of his duty in such sum and with such
surety as the Board or his appointing officer or committee shall require.
Section 5.3. Removal. Any officer may be removed, either with or
without cause, at any time, by resolution adopted by a majority of the
whole Board or by the officer or committee by whom he shall have been
appointed, or by any officer or committee upon whom the power of removal
has been conferred by resolution adopted by a majority of the whole Board.
Section 5.4. Resignation. Any officer may resign at any time by giving
written notice to Chairman of the Board or to the Secretary or to the
Board. A resignation shall take effect at the time it specifies and,
unless it otherwise specifies, its acceptance shall not be necessary to
make it effective.
Section 5.5. Vacancies. A vacancy in any office may be filled in the
manner prescribed for regular election or appointment to that office.
Section 5.6. Chairman of the Board. The Chairman of the Board shall be
the chief executive officer of the Corporation and shall have general
supervision of the business of the Corporation and over its officers,
subject, however, to the control of the Board. He may execute, in the
name of the Corporation, deeds, mortgages, bonds, contracts and other
instruments authorized by the Board; and, in general, shall have all
powers and duties incident to the office and such others as from time to
time may be given him by the Board or by any committee thereunto
authorized.
He shall, unless otherwise directed by the Board or by any committee
thereunto authorized, attend in person or by substitute or proxy appointed
by him, and act and vote in behalf of the Corporation, at all meetings of
the stockholders of any corporation in which the Corporation holds stock.
Section 5.7. President and Vice Presidents. At the request of the
Chairman of the Board, or in his absence or disability, the President or
any Vice President may perform all the duties of the Chairman of the
Board, and, when so acting, shall have all the powers of the Chairman of
the Board. He may sign and execute, in the name of the Corporation,
deeds, mortgages, bonds, contracts or other instruments authorized by the
Board; may, unless otherwise directed by the Board or any committee
thereunto authorized, attend in person or by substitute or proxy appointed
by him, and act and vote in behalf of the Corporation, at all meetings of
the stockholders of any corporation in which the Corporation holds stock;
and shall have such other powers and duties as from time to time may be
assigned to him by the Chairman of the Board or by the Board or by any
committee thereunto authorized.
Section 5.8. Controller. The Controller shall have general charge,
supervision and control of the accounts of the Corporation. He shall
supervise and direct the preparation of the construction and operating
budgets of the Corporation; shall cause to be maintained internal control
procedures adequate to safeguard the assets of the Corporation; shall
supervise the preparation of all official reports made to State or other
governmental authorities; shall, as and when required, furnish to the
Board of Directors, or the Executive Committee thereof, or such executive
officer as either may designate, full and complete statements of account
showing the financial position of the Corporation; shall measure
performance against approved operating plans, and report and interpret
results of operations to all levels of management; and shall have such
other duties as may be assigned to him by the Board or by any committee
hereunto authorized, as may be incident to his office.
Section 5.9. Secretary. The Secretary shall keep the minutes of all
meetings of the stockholders and of the Board in books to be kept for the
purpose; see that all notices are duly given in accordance with these
By-laws or as required by law; have charge of the seal of the Corporation;
and, in general, have all powers and duties incident to the office of
Secretary and such others as from time to time may be given him by the
Board or the Chairman of the Board or any committee thereunto authorized.
Section 5.10. Assistant Secretaries. In the absence or disability of
the Secretary, any Assistant Secretary may perform all the duties of the
Secretary and, when so acting, shall have all the powers of the Secretary.
Each Assistant Secretary shall perform such other duties as from time to
time may be given him by the Chairman of the Board or the Secretary or by
the Board or by any committee thereunto authorized.
Section 5.11. Treasurer. The Treasurer, if required by the Board,
shall give a bond for the faithful discharge of his duty, in such sum and
with such surety as the Board shall require. The Treasurer shall have
charge and custody of, and be responsible for, all funds and securities of
the Corporation and shall deposit or cause to be deposited all such funds
and securities in the name of the Corporation in such depositaries as
shall be selected by the Board, or any committee, officer, or agent
authorized by the Board to make such selection; may receive, and give
receipt for, moneys paid to the Corporation and, subject to the direction
of the Board, or of any committee thereunto authorized, or of the Chairman
of the Board, pay out and supervise the disbursement of moneys of the
Corporation; and in general, shall have all powers and duties incident to
the office of Treasurer and such others as from time to time may be given
him by the Chairman of the Board or by the Board or by any committee
thereunto authorized.
Section 5.12. Assistant Treasurers. Each Assistant Treasurer, if
required by the Board, shall give bond for the faithful discharge of his
duty, in such sum and with such surety as the Board shall require. In the
absence or disability of the Treasurer, any Assistant Treasurer may
perform all the duties of the Treasurer, and, when so acting, shall have
all the powers of the Treasurer. Each Assistant Treasurer shall perform
such other duties as from time to time may be given him by the Chairman of
the Board or Treasurer or by the Board or by any committee thereunto
authorized.
Section 5.13. Salaries. The compensation of each officer shall be
fixed from time to time by the Board or the Executive Committee. No
officer shall be precluded from receiving such compensation by reason of
the fact that he is also a director of the Corporation.
ARTICLE 6.
INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 6.1. The Corporation shall indemnify any person who was or is
a party or is threatened with being made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, including all appeals (other than an
action, suit or proceeding by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer or employee of
the Corporation, or is or was serving at the request of the Corporation as
a director, officer or employee of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, decrees, fines, penalties and amounts paid in settlement
actually and reasonably incurred by him in connection with such action,
suit or proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Corporation,
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not of itself create a
presumption that the person did not act in good faith or in a manner which
he reasonably believed to be in or not opposed to the best interests of
the Corporation or, with respect to any criminal action, suit or
proceeding, that he had reasonable cause to believe that his conduct was
unlawful.
Section 6.2. The Corporation shall indemnify any person who was or is
a party or is threatened with being made a party to any threatened,
pending or completed action, suit or proceeding, including all appeals, by
or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer or employee of
the Corporation, or is or was serving at the request of the Corporation as
a director, officer or employee of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees, judgments, decrees, fines, penalties and amounts paid in settlement)
actually and reasonably incurred by him in connection with the defense or
settlement of such action, suit or proceeding. However, indemnification
under this Section shall be made only if the person to be indemnified
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation; and no such
indemnification shall be made in respect of any claim, issue or matter as
to which such person shall have been finally adjudged to be liable for
negligence or misconduct in the performance of his duty to the Corporation
unless, and only to the extent that, the court or body in or before which
such action, suit or proceeding was finally determined, or any court of
competent jurisdiction, shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnify for such
expenses or other amounts paid as such court or body shall deem proper.
Section 6.3. Without limiting the right of any director, officer or
employee of the Corporation to indemnification under any other Section
hereof, if such person has been substantially and finally successful on
the merits or otherwise in defense of any action, suit or proceeding
referred to in Sections 6.1. and 6.2. or in defense of any claim, issue,
or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
Section 6.4. Any indemnification under Sections 6.1. and 6.2. (unless
ordered by a court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of the
director, officer or employee is proper in the circumstances because he
has met the applicable standard of conduct set forth in Sections 6.1. and
6.2. Such determination shall be made (1) by the Board of Directors by a
majority vote of a quorum consisting of directors who are or were not
parties to or threatened with such action, suit or proceeding, or (2) if
such a quorum is not obtainable, or even if obtainable, if a majority of
a quorum of disinterested directors so directs, by independent legal
counsel (compensated by the Corporation) in a written opinion, or (3) if
there be no disinterested directors, or if a majority of the disinterested
directors, whether or not a quorum, so directs, by the holders of a
majority of the shares entitled to vote in the election of directors
without reference to default or contingency which would permit the holders
of one or more classes of shares to vote for the election of one or more
directors.
Section 6.4.1. Indemnification may be granted for any action taken or
for any failure to take any action giving rise to the claim for
indemnification, and may be made whether or not the Corporation would have
the power to indemnify the person under any other provision except as
provided by this Section, and whether or not the indemnified liability
arises or arose from any threatened, pending, or completed action by or in
the right of the Corporation. However, such indemnification shall not be
made in any case where the act or failure to act giving rise to the claim
for indemnification is finally determined by a court to have constituted
willful misconduct or recklessness.
Section 6.5. Expenses of each person indemnified hereunder incurred in
defending a civil, criminal, administrative or investigative action, suit,
or proceeding (including all appeals) or threat thereof, may be paid by
the Corporation in advance of the final disposition of such action, suit
or proceeding as authorized by the Board of Directors, whether a
disinterested quorum exists or not, upon receipt of an undertaking by or
on behalf of the director, officer or employee to repay such expenses
unless it shall ultimately be determined that he is entitled to be
indemnified by the Corporation.
Section 6.6. The indemnification provided by this Article shall not be
deemed exclusive of or in any way to limit any other rights to which any
person indemnified may be or may become entitled as a matter of law, by
the articles, regulations, agreements, insurance, vote of shareholders or
otherwise, with respect to action in his official capacity and with
respect to action in another capacity while holding such office and shall
continue as to a person who has ceased to be a director, officer, or
employee and shall inure to the benefit of the heirs, executors,
administrators and other legal representatives of such person.
Section 6.7. Sections 6.1. through 6.6. of this Article shall also
apply to such other agents of the Corporation as are designated for such
purpose at any time by the Board of Directors.
Section 6.8. If any part of this Article shall be found, in any action,
suit or proceeding, to be invalid or ineffective, the validity and the
effect of the remaining parts shall not be effected.
Section 6.9. The provisions of this Article shall be applicable to
claims, actions, suits or proceedings made or commenced after the adoption
hereof, whether arising from acts or omissions to act occurring before or
after the adoption hereof.
ARTICLE 7.
CHECKS, DRAFTS, ETC.
Section 7.1. Checks, Drafts, etc. All checks, drafts or other orders
for the payment of money, notes, acceptances, or other evidences of
indebtedness issued in the name of the Corporation, shall be signed by
such officer or officers, agent or agents of the Corporation, and in such
manner as shall be determined from time to time by resolution of the
Board. Unless otherwise provided by resolution of the Board, endorsements
for deposit to the credit of the Corporation in any of its duly authorized
depositaries may be made, without countersignature, by the Chairman of the
Board or the President or any Vice President or the Treasurer, or by any
other officer or agent of the Corporation to whom such power shall have
been delegated by the Board, or may be made by hand-stamped impression in
the name of the Corporation.
ARTICLE 8.
SHARES AND THEIR TRANSFER: BOOKS.
Section 8.1. Certificates of Stock. The stock of the Corporation shall
be represented by certificates signed by the Chairman of the Board or the
President or a Vice President and the Treasurer or an Assistant Treasurer
and sealed with the corporate seal, which may be a facsimile, engraved or
printed, but where such certificate is signed by a transfer agent or a
registrar, the signature of any corporate officer upon such certificate
may be a facsimile, engraved or printed. In case any officer who has
signed, or whose facsimile signature has been placed upon any share
certificate shall have ceased to be such officer because of death,
resignation, or otherwise, before the certificate is issued, it may be
issued by the Corporation with the same effect as if the officer had not
ceased to be such at the date of its issue.
Section 8.2. Transfer of Shares. Transfers of shares of the stock of
the Corporation shall be made on the books of the Corporation by the
holder of record, or by his attorney thereunto duly authorized, upon
surrender of the certificates for such shares, but no share shall be
transferred until all previous calls thereon shall have been fully paid.
A person in whose name shares of stock stand on the books of the
Corporation shall be deemed the owner thereof by the Corporation.
Section 8.3. Determination of Stockholders of Record. The Board may
fix a time, not more than forty days prior to the date of any meeting of
stockholders, or the date fixed for the payment of any dividend or
distribution, or the date for the allotment of rights, or the date when
any change or conversion or exchange of shares will be made or go into
effect, as a record date for the determination of the stockholders
entitled to notice of, or to vote at, any such meeting, or entitled to
receive payment of any such dividend or distribution, or to receive any
such allotment of rights, or to exercise the rights in respect to any such
change, conversion, or exchange of shares. In such case, only such
stockholders as shall be stockholders of record on the date so fixed shall
be entitled to notice of, or to vote at, such meeting, or to receive
payment of such dividend, or to receive such allotment of rights, or to
exercise such rights, as the case may be, notwithstanding any transfer of
any shares on the books of the Corporation after any record date fixed, as
aforesaid. The Board may close the books of the Corporation against
transfers of shares during the whole or any part of such period, and in
such case written or printed notice thereof shall be mailed at least ten
days before the closing thereof to each stockholder of record at the
address appearing on the records of the Corporation or supplied by him to
the Corporation for the purpose of notice. While the stock transfer books
of the Corporation are closed, no transfer of shares shall be made
thereon.
Section 8.4. Lost and Destroyed Certificates. The holder of record of
any certificate of stock who shall claim that such certificate is lost or
destroyed may make an affidavit or affirmation of that fact in such manner
as the Board may require and give a bond, if required by the Board, in
such form and sum and with such surety as the Board shall require, to
indemnify the Corporation against any claim that may be made against it on
account of such certificate, whereupon one or more new certificates may be
issued of the same tenor and for the same aggregate number of shares as
the one alleged to be lost or destroyed. The Board may delegate authority
to administer the provisions of this Section.
Section 8.5. Regulations. The Board may appoint one or more transfer
agents and registrars for stock of the Corporation of any class and may
require stock certificates to be countersigned or registered by one or
more of such Transfer Agents or Registrars.
Section 8.6. Books and Records. The Corporation shall keep at its
registered office an original or duplicate record of the proceedings of
the stockholders and of the directors, and the original or copy of its
By-laws, including all amendments or alterations thereto, to date,
certified by the Secretary of the Corporation, and shall keep at its
registered office, or at the office of a transfer agent or registrar in
Pennsylvania an original or a duplicate Share Register. The Corporation
shall keep at its principal place of business appropriate, complete and
accurate books or records of account.
Section 8.7. Financial Report to Stockholders. The Board may, but
shall not be required to, cause to be sent to the stockholders, within one
hundred twenty days after the close of its fiscal year, financial
statements which shall include a balance sheet as of the close of such
year, together with statements of income and surplus for such year,
prepared so as to present fairly its financial condition and the results
of its operations. Such financial statements need not be examined by
independent certified public accountants.
ARTICLE 9.
NOTICE.
Section 9.1. Whenever written notice is required to be given to any
person, it may be given to such person, either personally or by sending a
copy thereof through the mail, or by telegram, charges prepaid, to his
address appearing on the books of the Corporation, or supplied by him to
the Corporation for the purpose of notice. If the notice is sent by mail
or by telegraph, it shall be deemed to have been given to the person
entitled thereto when deposited in the United States mail or with a
telegraph office for transmission to such person. Such notice shall
specify the place, day and hour of the meeting and, in the case of a
special meeting, the general nature of the business to be transacted. A
waiver of any such notice in writing, signed by the person or persons
entitled to such notice, whether before or after the time stated therein,
shall be deemed equivalent to the giving of such notice. Except in the
case of a special meeting, neither the business to be transacted at nor
the purpose of the meeting need be specified in the waiver of notice of
such meeting. Attendance of a person, either in person or by proxy at any
meeting shall constitute a waiver of notice of such meeting, except where
a person attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting was not lawfully called or
convened.
ARTICLE 10.
MISCELLANEOUS.
Section 10.1. Fiscal Year. The fiscal year of the Corporation shall be
the calendar year.
Section 10.2. Seal. The seal of the Corporation shall be a device
containing the name of the Corporation, the year of its organization and
the word "Pennsylvania." The corporate seal may be used by causing it, or
a facsimile of it, to be impressed or affixed or in any manner reproduced.
Section 10.3 Section 910 of the Pennsylvania Business Corporation Law,
entitled "Right of Shareholders to Receive Payment for Shares Following a
Control Transaction", shall not be applicable to the Corporation.
Section 10.4 Section 911 of the Pennsylvania Business Corporation Law,
entitled "Requirements Relating to Certain Business Combinations", shall
not be applicable to the Corporation.
ARTICLE 11.
AMENDMENTS.
Section 11.1. The authority to alter, amend and repeal these By-laws
and to make other by-laws is hereby expressly vested in the Board, subject
to the power of the stockholders to change any action taken by the Board
pursuant thereto. Exercise of such authority shall be by a majority of
the members of the Board at any meeting the notice or waiver of notice of
which mentions the proposed action as one of the purposes of such meeting.
Dated: September 7, 1995
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79,708
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