SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended JUNE 30, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 0-368
OTTER TAIL POWER COMPANY
(Exact name of registrant as specified in its charter)
Minnesota 41-0462685
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
215 South Cascade Street, Box 496, Fergus Falls, Minnesota 56538-0496
(Address of principal executive offices) (Zip Code)
218-739-8200
(Registrant's telephone number, including area code)
(Former name, former address and former fiscal year, if changed since last
report.)
Indicate by check mark whether 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 (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. YES X NO
Indicate the number of shares outstanding of each of the issuer's classes of
Common Stock, as of the latest practicable date:
July 30, 1999 - 11,924,123 Common Shares ($5 par value)
OTTER TAIL POWER COMPANY
------------------------
INDEX
-----
Part I. FINANCIAL INFORMATION Page No.
Item 1. Financial Statements
Consolidated Balance Sheets - June 30, 1999 (Unaudited)
and December 31, 1998 2 & 3
Consolidated Statements of Income - Three and Six Months
Ended June 30, 1999 and 1998 (Unaudited) 4
Consolidated Statements of Cash Flows - Six Months
Ended June 30, 1999 and 1998 (Unaudited) 5
Notes to Consolidated Financial Statements (Unaudited) 6-8
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 9-16
Item 3. Quantitative and Qualitative Disclosures about
Market Risk 16
Part II. OTHER INFORMATION
Item 2. Changes in Securities 16
Item 3. Legal Proceedings 16
Item 4. Submission of Matters to a Vote of Security Holders 16-17
Item 6. Exhibits and Reports on Form 8-K 17
SIGNATURES 17
PART I. FINANCIAL INFORMATION
------------------------------
ITEM 1. FINANCIAL STATEMENTS
--------------------
<TABLE>
OTTER TAIL POWER COMPANY
CONSOLIDATED BALANCE SHEETS
-ASSETS-
JUNE 30, DECEMBER 31,
1999 1998
----------- ------------
(Unaudited)
(Thousands of dollars)
<S> <C> <C>
PLANT:
Electric plant in service $ 768,818 $ 770,887
Subsidiary companies 92,562 89,094
---------- ----------
TOTAL 861,380 859,981
Less accumulated depreciation and amortization 379,627 370,290
---------- ----------
481,753 489,691
Construction work in progress 15,973 10,495
---------- ----------
NET PLANT 497,726 500,186
INVESTMENTS 25,360 20,612
---------- ----------
INTANGIBLES -- net 20,421 21,176
---------- ----------
OTHER ASSETS 5,456 3,968
---------- ----------
Current assets:
Cash and cash equivalents 14,651 3,919
Accounts receivable:
Trade - net 40,650 41,249
Other 3,566 6,845
Materials and supplies:
Fuel 2,897 3,418
Inventory, materials and operating supplies 27,511 23,138
Deferred income taxes 3,026 2,730
Accrued utility revenues 7,264 11,179
Other 6,487 6,310
---------- ----------
TOTAL CURRENT ASSETS 106,052 98,788
---------- ----------
DEFERRED DEBITS:
Unamortized debt expense and reacquisition premiums 3,494 3,737
Regulatory assets 3,518 3,774
Other 1,415 3,371
---------- ----------
TOTAL DEFERRED DEBITS 8,427 10,882
---------- ----------
TOTAL $ 663,442 $ 655,612
========== ==========
See accompanying notes to consolidated financial statements
-2-
</TABLE>
<TABLE>
OTTER TAIL POWER COMPANY
CONSOLIDATED BALANCE SHEETS
-LIABILITIES-
JUNE 30, DECEMBER 31,
1999 1998
---------- -----------
(Unaudited)
(Thousands of dollars)
<S> <C> <C>
CAPITALIZATION
Common shares, par value $5 per share - authorized
50,000,000 shares; outstanding 1999 -- 11,924,123
and 1998 -- 11,879,504 shares $ 59,621 $ 59,398
Premium on common shares 41,406 39,919
Retained earnings 128,893 125,462
Accumulated other comprehensive income 610 297
---------- ----------
TOTAL 230,530 225,076
Cumulative preferred shares - authorized 1,500,000
shares without par value; outstanding 1999
and 1998, 388,311 shares
Subject to mandatory redemption 18,000 18,000
Other 15,500 20,831
Cumulative preference shares - authorized 1,000,000
shares without par value; outstanding - none - -
Long-term debt 181,326 181,046
---------- ----------
TOTAL CAPITALIZATION 445,356 444,953
---------- ----------
CURRENT LIABILITIES
Short-term debt - 824
Sinking fund requirements and current maturities 15,062 5,794
Accounts payable 30,055 32,411
Accrued salaries and wages 3,506 3,946
Federal and state income taxes accrued 6,624 2,192
Other taxes accrued 8,696 11,119
Interest accrued 3,099 3,120
Other 3,818 3,826
---------- ----------
TOTAL CURRENT LIABILITIES 70,860 63,232
---------- ----------
NONCURRENT LIABILITIES 24,695 22,842
---------- ----------
DEFERRED CREDITS
Accumulated deferred income taxes 89,813 90,964
Accumulated deferred investment tax credit 16,899 17,481
Regulatory liabilities 11,312 11,692
Other 4,507 4,448
---------- ----------
TOTAL DEFERRED CREDITS 122,531 124,585
---------- ----------
TOTAL $ 663,442 $ 655,612
========== ==========
See accompanying notes to consolidated financial statements
-3-
</TABLE>
<TABLE>
OTTER TAIL POWER COMPANY
CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
1999 1998 1999 1998
-------------- ------------- ------------- -------------
(in thousands, except share and per share amounts)
<S> <C> <C> <C> <C>
OPERATING REVENUES
Electric $ 55,232 $ 53,078 $ 117,951 $ 109,624
Manufacturing 25,305 24,674 43,900 42,805
Health services 16,049 17,773 33,564 33,072
Other business operations 14,972 11,421 27,482 18,354
------------- ------------- ------------- -------------
Total operating revenues 111,558 106,946 222,897 203,855
OPERATING EXPENSES
Production fuel 9,487 9,311 19,251 18,179
Purchased power 11,473 8,730 23,365 16,987
Other electric operation and maintenance expenses 17,042 17,318 34,793 36,288
Special charges - - - 9,522
Cost of goods sold 41,864 38,799 78,576 67,405
Other nonelectric expenses 8,769 8,980 17,193 16,747
Depreciation and amortization 6,269 6,353 12,509 12,841
Property taxes 2,803 2,770 5,658 5,643
------------- ------------- ------------- -------------
Total operating expenses 97,707 92,261 191,345 183,612
OPERATING INCOME
Electric 8,986 9,455 24,022 14,523
Manufacturing 2,222 2,858 3,196 4,123
Health services 1,357 1,672 3,263 3,799
Other business operations 1,286 700 1,071 (2,202)
------------- ------------- ------------- -------------
Total operating income 13,851 14,685 31,552 20,243
OTHER INCOME AND DEDUCTIONS - NET 1,070 1,265 1,412 1,707
INTEREST CHARGES 3,728 4,098 7,347 8,047
------------- ------------- ------------- -------------
INCOME BEFORE INCOME TAXES 11,193 11,852 25,617 13,903
INCOME TAXES 4,047 3,837 9,222 3,949
------------- ------------- ------------- -------------
Income before cumulative effect of change in accounting principle 7,146 8,015 16,395 9,954
Cumulative effect of change in accounting principle - net-of-tax - - - 3,819
------------- ------------- ------------- -------------
NET INCOME 7,146 8,015 16,395 13,773
Preferred dividend requirements 589 589 1,179 1,179
------------- ------------- ------------- -------------
EARNINGS AVAILABLE FOR COMMON SHARES $ 6,557 $ 7,426 $ 15,216 $ 12,594
============= ============= ============= =============
Basic and diluted earnings per average common share:
Before cumulative effect of change in accounting principle $ 0.55 $ 0.63 $1.28 $ 0.75
Cumulative effect of change in accounting principle - - - 0.32
------------- ------------- ------------- -------------
Basic and diluted earnings per average common share - net $ 0.55 $ 0.63 $ 1.28 $ 1.07
============= ============= ============= =============
Average number of common shares outstanding 11,922,596 11,777,247 11,906,252 11,758,856
Dividends per common share $0.495 $0.480 $0.990 $0.960
See accompanying notes to consolidated financial statements
-4-
</TABLE>
<TABLE>
OTTER TAIL POWER COMPANY
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
SIX MONTHS ENDED
JUNE 30
1999 1998
---------- ---------
(Thousands of dollars)
<S> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 16,395 $ 13,773
Adjustments to reconcile net income to net cash
Provided by operating activities:
Depreciation and amortization 17,719 17,802
Deferred investment tax credit - net (582) (588)
Deferred income taxes (1,762) (6,285)
Change in deferred debits and other assets 536 (367)
Change in noncurrent liabilities and deferred credits 1,911 865
Allowance for equity (other) funds used during constructio (29) (61)
(Gains)/Losses from investments and disposal of noncurrent 36 315
Voluntary early retirement program charges - 6,305
Cumulative effect of change in accounting principle - (3,819)
Asset impairment losses - 3,217
Cash provided by (used for) current assets & current liabilities:
Change in receivables, materials and supplies 50 (3,012)
Change in other current assets 3,715 (1,809)
Change in payables and other current liabilities (5,225) (6,324)
Change in interest and income taxes payable 4,411 (1,954)
---------- ---------
NET CASH PROVIDED BY OPERATING ACTIVITIES 37,175 18,058
CASH FLOWS FROM INVESTING ACTIVITIES:
Gross capital expenditures (14,400) (11,026)
Proceeds from disposal of noncurrent assets 314 1,359
Purchase of businesses, net of cash acquired - (1,354)
Change in other investments (4,438) (1,372)
---------- ---------
NET CASH USED IN INVESTING ACTIVITIES (18,524) (12,393)
CASH FLOWS FROM FINANCING ACTIVITIES:
Change in short-term debt - net (824) 2,200
Proceeds from issuance of common stock 1,710 2,756
Proceeds from issuance of long-term debt 6,576 5,722
Payments for debt and common stock issuance expense - (81)
Payments for retirement of long-term debt (2,416) (5,135)
Dividends paid (12,965) (12,462)
---------- ---------
NET CASH USED IN FINANCING ACTIVITIES (7,919) (7,000)
NET CHANGE IN CASH AND CASH EQUIVALENTS 10,732 (1,335)
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR 3,919 5,301
---------- ---------
CASH AND CASH EQUIVALENTS AT JUNE 30 $ 14,651 $ 3,966
========== =========
SUPPLEMENTAL CASH FLOW INFORMATION
Cash paid for interest and income taxes:
Interest (net of amount capitalized) $ 6,867 $ 7,695
Income taxes $ 7,153 $ 12,566
See accompanying notes to consolidated financial statements
-5-
</TABLE>
OTTER TAIL POWER COMPANY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
------------------------------------------
(Unaudited)
The Company, in its opinion, has included all adjustments (including normal
recurring accruals) necessary for a fair presentation of the results of
operations for the periods. The financial statements for 1999 are subject to
adjustment at the end of the year when they will be audited by independent
accountants. The financial statements and notes thereto should be read in
conjunction with the financial statements and notes for the years ended
December 31, 1998, 1997, and 1996 included in the Company's 1998 Annual
Report to the Securities and Exchange Commission on Form 10-K. Certain
prior year amounts have been reclassified to conform to 1999 presentation.
Because of seasonal and other factors, the earnings for the three-month and
six-month periods ended June 30, 1999, should not be taken as an indication
of earnings for all or any part of the balance of the year.
Common shares and earnings per share
- ------------------------------------
On February 23, 1999, the Company granted options that would allow the
purchase of 219,000 shares of common stock to eligible employees under the
Company's 1999 Stock Incentive Plan (the "Plan") approved by shareholders on
April 12, 1999. A total of 1,300,000 shares of the Company's common stock
are available for granting of awards under the Plan. The exercise price of
the stock options is equal to the fair market value per share at the date of
the grant. The options vest over a four-year period at the rate of 25% per
year and will expire ten years after the date of the grant. The Company
accounts for the Plan under Accounting Principles Board Opinion No. 25,
which does not require recording of compensation expense. The effects of the
common stock options on the computation of diluted earnings per share were
immaterial for the quarter and six-months ended June 30, 1999.
On April 12, 1999 the shareholders approved the Company's 1999 Employee
Stock Purchase Plan ("Purchase Plan"). The Purchase Plan allows eligible
employees to purchase the Company's common stock at 85% of the lower market
price at either the beginning or the end of each six-month purchase period.
A total of 200,000 shares of the Company's common stock are available for
purchase by employees under the Purchase Plan.
The Company issued 7,102 common shares in the second quarter of 1999 and
44,619 common shares for the six months ended June 30, 1999 under its
Automatic Dividend Reinvestment and Share Purchase Plan. Starting in June
1999, the Company began purchasing the common shares needed for this plan
from the open market instead of issuing new shares. During 1998, the
Company issued 42,319 and 76,839 common shares for the three and six-month
periods ending June 30, respectively, under the Automatic Dividend
Reinvestment and Share Purchase Plan.
Comprehensive Income
- --------------------
Elements of comprehensive income for the three-month period ended June 30,
1999, include net income of $7,146,000 and other comprehensive income of
$222,000 (net of $157,000 in deferred taxes) related to the recognition of
$379,000 in unrealized gains on "available-for-sale" securities held by a
Company subsidiary. Comprehensive income for the six-month period ended
June 30, 1999, includes net income of $16,395,000 and other comprehensive
income of $313,000 (net of $191,000 in deferred taxes) related to the
recognition of $504,000 in unrealized gains on "available-for-sale"
securities held by a Company subsidiary.
Elements of comprehensive income for the three-month period ended June 30,
1998, include net income of $8,015,000 along with a reduction in accumulated
other comprehensive income of $33,000 (net of $23,000 in deferred taxes)
related to a $56,000 reduction in the market value of securities held as
"available-for-sale".
Comprehensive income for the six-month period ended June 30, 1998, includes
net income of $13,773,000 and other comprehensive income of $116,000 (net of
$81,000 in deferred taxes) related to the recognition of an additional
$197,000 in unrealized gains on "available-for-sale" securities held by a
Company subsidiary.
Rate Matters
- ------------
As previously disclosed, due to the ongoing review of demand-side management
programs and related incentives by the Minnesota Public Utilities Commission
("MPUC"), the Company has chosen not to record any 1999 conservation program
incentives until approved by the MPUC. On June 24, 1999, the MPUC approved
the Company's request for recovery of 1998 Conservation Improvement Program
("CIP") financial incentives totaling $1.8 million (which had been accrued for
in 1998) along with a 1.5% CIP surcharge effective July 1, 1999 through
June 30, 2000. The conservation-related costs being recovered through the
surcharge and in base rates include CIP expenditures, carrying costs on CIP
expenditures until they are recovered through rates, lost margins on avoided
kilowatt-hour sales, and bonus incentives related to energy savings.
On May 26, 1999, the Company reached a settlement with the staff of the
North Dakota Public Service Commission ("NDPSC") following an audit of the
Company's electric operations in North Dakota. The NDPSC's decision on this
settlement is expected in the third quarter. The effect of this settlement
on the Company for 1999 is estimated to be $441,000 after taxes or $0.037
per share. In addition, the Company would be allowed to retain all
1999 earnings from North Dakota regulated electric operations up to a 12.5%
return on equity and refund to North Dakota customers any earnings over the
12.5% return. The Company would also file a proposal for a
performance-based ratemaking plan by year-end.
Segment Information
- -------------------
The Company's business operations, which are based mainly in Minnesota,
North Dakota and South Dakota, are broken down into four segments based upon
products and services. Electric operations include the electric utility
only. Manufacturing operations includes production of agricultural
equipment, plastic pipe, automobile and truck frame-straightening equipment
and accessories, and fabricated metal parts. Health services operations
consists of businesses involved in the sale, service, rental, refurbishing
and operations of medical imaging equipment and the sale of related supplies
and accessories to various medical institutions located primarily in the
Midwestern United States. Other business operations consists of businesses
diversified in such areas as electrical and telephone construction
contracting, entertainment, energy services, natural gas marketing, and
telecommunications. The Company evaluates the performance of its business
segments and allocates resources to them based on earnings contribution and
return on investment. Substantially all sales and long-lived assets of the
Company are within the United States.
Operating Income
----------------
Three months ended Six months ended
June 30, June 30,
------------------ ----------------
(in thousands) 1999 1998 1999 1998
- --------------------------------------------------------------------------
Electric $ 8,986 $ 9,455 $24,022 $14,523
Manufacturing 2,222 2,858 3,196 4,123
Health Services 1,357 1,672 3,263 3,799
Other Business Operations 1,286 700 1,071 (2,202)
------- ------- ------- --------
Total $13,851 $14,685 $31,552 $20,243
------- ------- ------- --------
Identifiable Assets
-------------------
As of As of
June 30, December 31,
(in thousands) 1999 1998
- -----------------------------------------------------------------
Electric $ 523,985 $ 525,226
Manufacturing 51,894 41,579
Health Services 31,042 36,241
Other Business Operations 56,521 52,566
-------- ----------
Total $ 663,442 $ 655,612
---------- ----------
Special charges
- ---------------
In the first quarter of 1998, the Company recorded special charges that
reflected three items: (1) a voluntary early retirement offer was accepted
by 55 of the 67 eligible employees resulting in a one-time noncash charge of
$6,305,000 ($3,783,000 net-of-tax or $0.32 per share); (2) an impairment
loss of $2,500,000 ($1,500,000 net-of-tax or $0.13 per share) was recorded
on the write-down of Quadrant's Co. waste incineration plant to an
undepreciated carrying value of $0 under the requirements of SFAS 121; and
(3) as a result of an unfavorable court decision related to the construction
of a rail spur intended to serve Big Stone Plant, the Company wrote off
$717,000 ($430,000 net-of-tax or $0.04 per share) in project related costs.
Cumulative effect of change in accounting principle
- ---------------------------------------------------
In the first quarter of 1998, the Company changed its method of revenue
recognition from sales of electricity in Minnesota and South Dakota from
meter-reading dates to energy-delivery dates, resulting in the recognition
of $6,364,000 ($3,819,000 net-of-tax or $0.32 per share) in unbilled
revenue.
Forward Looking Information - Safe Harbor Statement Under the Private
Securities Litigation Reform Act of 1995
- ----------------------------------------
In connection with the "safe harbor" provisions of the Private Securities
Litigation Reform Act of 1995 (the "Act"), the Company has filed cautionary
statements identifying important factors that could cause the Company's
actual results to differ materially from those discussed in forward-looking
statements made by or on behalf of the Company. When used in this Form 10-Q
and in future filings by the Company with the Securities and Exchange
Commission, in the Company's press releases and in oral statements, words
such as "may", "will", "expect", "anticipate", "continue", "estimate",
"project", "believes" or similar expressions are intended to identify
forward-looking statements within the meaning of the Act. Factors that
might cause such differences include, but are not limited to, governmental
and regulatory action, the competitive environment, economic factors,
weather conditions, the Company's ability to identify and address all year
2000 issues and other factors discussed under "Factors affecting future
earnings" on pages 22-25 of the Company's 1998 Annual Report to
Shareholders, which is incorporated by reference in the Company's Form 10-K
for the fiscal year ended December 31, 1998. These factors are in addition
to any other cautionary statements, written or oral, which may be made or
referred to in connection with any such forward-looking statement or
contained in any subsequent filings by the Company with the Securities and
Exchange Commission.
Item 2. Management's Discussion and Analysis of Condition and
Results of Operations
- ---------------------
MATERIAL CHANGES IN FINANCIAL POSITION
- --------------------------------------
Cash provided by operating activities of $37.2 million as shown on the
Consolidated Statement of Cash Flows for the six months ended June 30, 1999
allowed the Company to pay dividends, finance its capital expenditures and
contribute to the increase in cash and cash equivalents. At June 30, 1999,
the Company and its subsidiaries had $31.2 million available in unused lines
of credit, which could be used to supplement cash needs. Cash paid for
income taxes as shown on the Consolidated Statement of Cash Flows under
supplemental cash flow information decreased significantly for the six
months ended June 30, 1999, as compared to the same period in 1998, due to a
change in the method of calculating estimated income tax payments.
The Company estimates that funds internally generated, combined with funds
on hand, will be sufficient to meet all sinking fund payments for First
Mortgage Bonds in the next five years and to provide for its estimated
1999-2003 consolidated capital expenditures. During the third quarter of
1999, the Company's $9.00 exchangeable cumulative preferred shares will be
either exchanged for common stock purchased on the open market or redeemed
for cash at a total aggregate cost of $5.3 million using funds on hand.
Additional short-term or long-term financing will be required in the period
1999-2003 in connection with the maturity of First Mortgage Bonds and other
long-term debt and in the event the Company decides to refund or retire
early any of its presently outstanding debt or cumulative preferred shares
or for other corporate purposes.
The $2.5 million decrease in net plant is due to the normal increase in
accumulated depreciation offset by an increase in transmission and
distribution construction projects in the electric utility and expansion of
plant within the manufacturing segment. Investments increased $4.7 million
as a result of increased investment at the Company's subsidiaries. The
decrease in other accounts receivable of $3.3 million is mainly due to the
timing of payments from the joint owners for the operation of Big Stone
Plant and Coyote Station where the Company serves as operating agent. The
$4.4 million increase in inventory, materials and operating supplies
reflects increases at the Company's health services and manufacturing
companies due to increased sales and work in progress. The $3.9 million
decrease in accrued utility revenues reflects the reduction in unbilled
revenues due to the seasonal change in weather. Other deferred debits
decreased $1.9 million primarily as a result of timing differences in the
recording of the costs of conservation programs compared to the recovery of
these costs.
The combined increase in common shares, par value and premium on common
shares of $1.7 million is due to the issuance of 44,619 shares of common
stock under the Company's Automatic Dividend Reinvestment and Share Purchase
Plan. The decrease in other cumulative preferred shares and part of the
increase in sinking fund requirements and current maturities relates to the
exchange or redemption of the Company's $9.00 exchangeable cumulative
preferred shares that will take place during the third quarter. The remaining
increase of $3.9 million in sinking fund requirements and current maturities
reflects a normal seasonal increase in credit line usage at the Company's
manufacturing and construction subsidiaries. The increase in federal and
state income taxes accrued of $4.4 million is related to the timing and
amount of estimated tax payments due to a change in the method of determining
estimated tax payments. The $2.4 million decrease in other taxes accrued is
the result of the timing of property tax payments due in the second quarter,
most of which are paid to the State of Minnesota.
MATERIAL CHANGES IN RESULTS OF OPERATIONS
- -----------------------------------------
Comparison of the Quarters Ended June 30, 1999 and 1998
-------------------------------------------------------
Electric Operations
-------------------
Three months ended
June 30,
------------------ Percentage
(in thousands) 1999 1998 Change
- --------------------------------------------------------------------------
Operating revenues $55,232 $53,078 4.1
Production fuel 9,487 9,311 1.9
Purchased power 11,473 8,730 31.4
Other operation and maintenance expenses 17,042 17,318 (1.6)
Depreciation and amortization 5,442 5,504 (1.1)
Property taxes 2,802 2,760 1.5
------- ------- -------
Operating income $ 8,986 $ 9,455 (5.0)
------- ------- -------
The increase in electric operating revenues for the quarter is due to a $3.2
million (33%) increase in revenues from power pool sales offset by decreases
of $155,000 (0.4%) in retail revenue and $913,000 (34%) in other electric
revenue. Power pool sales were up significantly due to increased demand in
the pool combined with a high level of availability from the Company's
generating plants. The slight decrease in retail revenue is the result of an
overall 2.1% decrease in retail kwh sales offset by a 1.7% increase in
revenue per kwh sold. Increases in sales to residential and commercial
customers were offset by decreased sales to industrial customers. Decreases
in electrical contract work done for other utilities combined with the
Company's decision not to record 1999 conservation program incentives until
approved by the MPUC are the primary reasons for the decrease in other
electric revenue.
During the second quarter production fuel expenses increased due to a 4.4%
increase in kwh generated offset by a slight reduction in fuel costs per kwh
generated. The increase in purchased power expense is commensurate with the
increase in power pool sales. The decrease in other electric operation and
maintenance expenses is due to a reduction in materials and supplies
expenses partially offset by increased labor expenses.
Manufacturing Operations
------------------------
Three months ended
June 30,
--------------------- Percentage
(in thousands) 1999 1998 change
- ---------------------------------------------------------------
Operating revenues $25,305 $24,674 2.6
Cost of goods sold 19,664 18,313 7.4
Operating expenses 3,419 3,503 (2.4)
------- ------- -------
Operating income $ 2,222 $ 2,858 (22.3)
------- ------- -------
Four of the Company's seven manufacturing subsidiaries had increased sales
for the quarter. The reason for the decline in operating income for the
manufacturing segment is primarily due to lower gross margins on new product
lines at one of the manufacturing subsidiaries.
Health Services Operations
--------------------------
Three months ended
June 30,
------------------ Percentage
(in thousands) 1999 1998 change
- ---------------------------------------------------------------
Operating revenues $16,049 $17,773 (9.7)
Cost of goods sold 12,725 14,211 (10.5)
Operating expenses 1,967 1,890 4.1
------- ------- -------
Operating income $ 1,357 $ 1,672 (18.8)
------- ------- -------
The decrease in operating revenues for the quarter is due to decreases in
sales volumes and a decrease in the average fee per imaging scan. The
decrease in cost of goods sold reflects the decrease in sales volumes.
Other Business Operations
-------------------------
Three months ended
June 30,
------------------ Percentage
(in thousands) 1999 1998 change
- ----------------------------------------------------------------
Operating revenues $14,972 $11,421 31.1
Cost of goods sold 9,475 6,275 51.0
Operating expenses 4,211 4,446 (5.3)
------- ------- --------
Operating income $ 1,286 $ 700 83.7
------- ------- --------
Higher volumes of contracted work at the Company's construction subsidiaries
is the primary reason for the increases in operating revenues, cost of goods
sold and operating income during the second quarter. The other subsidiaries
within this segment also recorded increases in operating income.
Other Income and Deductions - net
---------------------------------
The $195,000 (15.4%) reduction for the quarter in other income and
deductions is due to decreases in demand-side management incentives offset
by increased interest income due to the increase in short-term investments.
Interest Charges and Income Taxes
---------------------------------
Interest charges decreased $370,000 (9.0%) during the second quarter due to
the payment of interest during 1998 on the settlement of the 1996 Federal
income tax audit combined with a reduction in outstanding debt and lower
interest rates during 1999. Even though income before income taxes
decreased, income taxes increased $210,000 (5.5%) due to minor adjustments
made for book and tax timing differences.
Comparison of the Six Months Ended June 30, 1999 and 1998
---------------------------------------------------------
Electric Operations
-------------------
Six months ended
June 30,
-------------------- Percentage
(in thousands) 1999 1998 Change
- --------------------------------------------------------------------------
Operating revenues $117,951 $109,624 7.6
Production fuel 19,251 18,179 5.9
Purchased power 23,365 16,987 37.5
Other operation and maintenance expenses 34,793 36,288 (4.1)
Special charges - 7,022 -
Depreciation and amortization 10,864 11,005 (1.3)
Property taxes 5,656 5,620 0.6
-------- -------- ------
Operating income $ 24,022 $ 14,523 65.4
-------- -------- ------
The increase year-to-date in electric operating revenues is due to a $8.9
million (64%) increase in revenues from power pool sales combined with a
$664,000 (0.7%) increase in retail revenue offset by a $1.3 million (27%)
decrease in other electric revenue. The increase in power pool sales is
related to an increase in energy available for sale, increased demand in the
power pool and increased power marketing sales efforts. The increase in
retail revenue is the result of an increase in cost-of-energy revenues and
an increase in the conservation improvement surcharge revenues offset by a
2.6% decrease in retail kwh sales. The recovery of fuel and purchased power
costs through the cost-of-energy adjustment mechanism in retail rates lags
two to four months behind the incurrance of those costs which gave rise to
the increase in cost-of-energy revenues. Decreases in electrical contract
work done for other utilities combined with the Company's decision not to
record 1999 conservation program incentives until approved by the MPUC are
the primary reasons for the decrease in other electric revenue.
Production fuel expenses for the six months increased as a direct result of
an 8.5% increase in kwh generated offset by a slight decrease in the fuel
costs per kwh generated. Purchased power expense increased as a result of
a 64% increase in power pool sales, partially offset by a 10% decrease in
kwh purchased for system use. The reduction in purchased power for system
use was due to greater plant availability during the first quarter of 1999
coincidental with a reduction in demand for retail sales.
The decrease in other electric operation and maintenance expenses year-to-
date is primarily related to a reduction in expense due to the early
retirement program in 1998 and a reduction in material and supplies expenses
due to less contracted work for other utilities during 1999.
The special charges recorded under electric operations in the first quarter
of 1998, represent two items: (1) a noncash charge of $6,305,000 associated
with a voluntary early retirement program offered by the Company and, (2)
the write-off of $717,000 in accumulated costs related to a rail spur
project at Big Stone Plant. (See "Special charges" in notes to consolidated
financial statements on page 8 for further information including the net-of-
tax and earnings per share impact of these charges.) Excluding the special
charges, this business segment would have shown an increase of $2.5 million
(11.5%) in operating income for the six months ended June 30.
Manufacturing Operations
------------------------
Six months ended
June 30,
--------------------- Percentage
(in thousands) 1999 1998 change
- --------------------------------------------------------------
Operating revenues $43,900 $42,805 2.6
Cost of goods sold 34,138 32,356 5.5
Operating expenses 6,566 6,326 3.8
------- ------- ------
Operating income $ 3,196 $ 4,123 (22.5)
------- ------- ------
Four of the Company's seven manufacturing subsidiaries had increased sales
year-to-date. The reason for the decline in operating income for the
manufacturing segment is primarily due to lower gross margins on new product
lines at one of the manufacturing subsidiaries.
Health Services Operations
--------------------------
Six months ended
June 30,
--------------------- Percentage
(in thousands) 1999 1998 change
- ------------------------------------------------------------
Operating revenues $33,564 $33,072 1.5
Cost of goods sold 26,261 25,468 3.1
Operating expenses 4,040 3,805 6.2
------- ------- ------
Operating income $ 3,263 $ 3,799 (14.1)
------- ------- ------
The increase in operating revenues for the six months reflects overall
increases in sales volumes and an increase in the number of medical imaging
scans performed offset by a decrease in the average fee per scan. Cost of
goods sold and operating expenses increased as a result of the increased
sale volumes combined with increases in the costs of repair and maintenance
on equipment used to serve customers. These increased operating costs offset
the increase in revenues and resulted in a $536,000 decrease in health
services operating income.
Other Business Operations
-------------------------
Six months ended
June 30,
--------------------- Percentage
(in thousands) 1999 1998 change
- ----------------------------------------------------------------------
Operating revenues $27,482 $18,354 49.7
Cost of goods sold 18,177 9,581 89.7
Special charges - 2,500 -
Operating expenses 8,234 8,475 (2.8)
------- -------- -----
Operating income (loss) $ 1,071 $(2,202) -
------- -------- -----
There are two primary reasons for the increases in operating revenues and
cost of goods sold: (1) larger volume of work contracted at the Company's
construction subsidiaries and (2) the PAM Natural Gas acquisition that
occurred on May 1, 1998. The special charges recorded during the first
quarter of 1998 represent an impairment loss associated with the Quadrant
Co. waste incineration plant. (See "Special charges" in notes to
consolidated financial statements on page 8 for further information
including the net-of-tax and earnings per share impact of these charges.)
Excluding the Quadrant Co. impairment loss, this business segment would have
shown an increase of $773,000 (259%) in operating income for the six months
ended June 30.
Other Income and Deductions - net
---------------------------------
The $295,000 (17%) reduction in other income and deductions year-to-date is
due to decreases in demand-side management incentives offset by increased
interest income and reduced donation expenses.
Interest Charges and Income Taxes
---------------------------------
The $700,000 (8.7%) decrease in interest charges is due to a reduction in
outstanding debt and lower average interest rates during 1999 combined with
the payment of interest during 1998 on the settlement of the 1996 Federal
income tax audit. The $5.3 million (134%) increase in income taxes is
primarily due to the increase in income before taxes.
Year 2000 Readiness Disclosure
- ------------------------------
Many computer software systems, as well as certain hardware and equipment
containing date-sensitive data, were structured to utilize a two-digit year
field meaning that they may not be able to properly recognized dates in the
year 2000. The Company recognizes that the year 2000 occurrence puts all of
its electronic systems on all platforms at risk. Application systems,
information technology systems and technology that includes embedded systems
are being reviewed, in order, from highly critical to less critical. These
systems include the Company's financial software, customer-information
system, energy-management system, power plant control systems, manufacturing
processes and diagnostic medical imaging equipment. In order to address the
year 2000 issue from a total business perspective, the Company is working
with its major vendors, customers, banks, regulatory and government
agencies, and utility alliances.
In order to improve business information systems, the Company's operating
businesses began replacing major financial computer systems in 1996. The
electric utility has replaced its major in-house developed financial
computer systems with financial applications from Oracle Corporation, while
at the same time, replacing the hardware on which these applications reside.
Because of the recent implementation, these systems should require minimal
remediation efforts. The costs of replacing these major financial computer
systems are not included in the cost estimates discussed below.
The Company's plan to resolve the year 2000 issues involves three phases:
inventory, assessment and remediation/testing. The inventory phase was
completed in December 1998 for the electric utility and as of June 30, 1999
is 99% complete for the other companies. The assessment phase was completed
in February 1999 for the electric utility and is 98% complete for the other
companies as of June 30, 1999. The remediation and testing phase was
completed in June 1999 for the electric utility and is 85% complete for the
other companies as of June 30, 1999. The other companies are on schedule to
complete the inventory, assessment and remediation/ testing phases by
October 31, 1999. The electric utility will continue to refine its
contingency plans for January 1, 2000.
In addition, the Company's operating businesses are communicating with
critical external parties in order to determine the extent of vulnerability
to such parties' failure to resolve their own year 2000 issues. The
subsidiary companies have completed 85% of their third party assessments and
expect to have the remaining work completed by September 30, 1999. The
Company is developing plans to alter business relationships in the event
certain third parties fail to become year 2000 compliant. There can be no
guarantee that the third parties of business importance to the Company will
successfully reprogram or replace and test all of their own computer
hardware, software, and process control systems in a timely manner. While
the failure of a single third party to achieve year 2000 readiness should not
have a material adverse effect on the Company's financial results or
operations, the failure of several key third parties could have such an
effect.
The electric utility industry is unique in its dependence upon a complex
network of interrelated systems of the power pool grid in order to support
and maintain reliable, efficient operations. The Company's year 2000
readiness effort is linked to the readiness efforts of other utilities, as
well as those of major customers whose loads support the integrity of the
power pool grid. The Company is coordinating its year 2000 effort with that
of the Mid-Continent Area Power Pool and with plans established by the North
America Electric Reliability Council ("NERC") under the direction of the
U. S. Department of Energy. The Company successfully participated in the
April 9, 1999 NERC drill to simulate loss of multiple voice and data
communications systems. The Company also plans to participate in the
September 1999 NERC drill. The goal of this drill is to simulate as
realistically as is practical the implementation of administrative,
operating, communications and contingency response plans for the year 2000
transition. While the Company is supporting these cooperative efforts, it
cannot guarantee the successful implementation of solutions of third
parties. A failure of a system within the power pool grid could have a
material impact on the Company and its customers.
The costs of the Company's year 2000 readiness effort are being funded with
cash flows from operations. These costs are not expected to be substantially
different from the normal, ongoing costs that are incurred for systems
development, implementation and maintenance due in part to the use of
internal resources and the deferral of other projects. Total expenditures
related to the Company's year 2000 readiness effort is expected to range
from $975,000 to $1,350,000 for 1997 to 2000. Expenditures incurred through
June 30, 1999, most of which have occurred at the electric utility, are
estimated at $625,000. The Company does not track year 2000 costs in a
separate account.
The Company's medical subsidiary owns diagnostic imaging equipment which has
computer software that is vulnerable to year 2000 issues. While the medical
subsidiary will negotiate to have its vendors pay the costs to solve the
year 2000 issues, there can be no assurances the vendors will absorb the
costs. In the event the vendors do not pay all or some portion of the costs,
the medical subsidiary would have to absorb the majority of the costs.
These costs are included in the estimates shown above.
As part of its normal business practice, the electric utility maintains
emergency backup and recovery procedures to be followed in the event of
failure of a business-critical system. These procedures were expanded to
include specific procedures for potential year 2000 issues. The business
critical processes contingency plans were approved in April of 1999. The
Company's electrical system contingency plan, which was completed and
approved in June 1999, used templates provided by the NERC. This plan
includes meeting with large customers to determine their operating plans
during critical dates. The Company also has plans to provide for additional
staffing at critical locations to respond to any year 2000 situations that
might arise. Contact is ongoing with neighboring utilities to coordinate
contingency plans, operating plans, and the year 2000 backup communications
drill.
At this time, the Company believes its worst case scenario is that key
customers could experience significant reductions in their power needs due
to their own year 2000 issues. Although the Company does not believe that
this scenario is likely to occur, the Company expects that such a scenario
would not have a material adverse affect on the Company's consolidated
financial position. The Company believes a more probable worst case scenario
is a temporary disruption of service to its electric customers, including
the effect of cascading disruptions caused by other entities whose
electrical systems are connected to the Company's. The Company has assessed
the risk of this scenario, and believes that contingency plans would mitigate
the long-term effect of such a scenario. In the event that a temporary
disruption in service does occur, the Company does not expect that it would
have a material adverse effect on its consolidated financial position.
While the Company believes it will be able to resolve its year 2000 issues
in a timely manner, if it is unable to complete the required changes to
existing critical systems, or if those with whom the Company conducts
business are unsuccessful in implementing timely solutions, the year 2000
issue could have a material adverse effect upon the Company's consolidated
results of operations.
The costs of the project and the completion dates are based on management's
best estimates, which were derived from assumptions of future events
including the availability of resources, third party modification plans, and
other factors. There can be no guarantee that these estimates will be
achieved and actual results could vary due to uncertainties.
The forward looking statements contained in this section under the heading
"Year 2000 Readiness Disclosure" should be read in conjunction with the
Company's disclosure above under the heading "Forward Looking Information-
Safe Harbor Statement Under the Private Securities Litigation Reform Act of
1995."
Item 3. Quantitative and Qualitative Disclosures About Market Risk
----------------------------------------------------------
The Company does not have material market risk exposure related to foreign
currency exchange rate risk, commodity price risk or interest rate risk.
PART II. OTHER INFORMATION
--------------------------
Item 2. Changes in Securities
---------------------
During May 1999, the Company sold 6,490 shares of common stock,
acquired in the open market, as part of the final payment in
connection with the acquisition of PAM Natural Gas, Inc. to some of
the former owners. The sale of such shares did not involve a public
offering and therefore was exempt from registration pursuant to
section 4(2) of the Securities Act of 1933, as amended.
Item 3. Legal Proceedings
-----------------
During June 1999, Quadrant and the Company reached a settlement with
the Minnesota Pollution Control Agency (MPCA) regarding the 1998
claimed violations of emission limits, operational requirements and
reporting requirements applicable to Quadrant under Minnesota law.
Under the settlement, Quadrant admitted no wrongdoing and agreed to
pay $80,000 in fines to the MPCA and $70,000 to the City of Perham,
Minnesota. These payments were fully covered by reserves previously
established by Quadrant. In addition, Quadrant agreed to transfer all
of its assets to the City of Perham and agreed not to operate or
manage a waste incinerator facility in the future.
Item 4. Submission of Matters to a Vote of Security Holders
---------------------------------------------------
The annual meeting of Shareholders of the Company was held on April 12,
1999, for the purpose of electing three nominees to the Board of
Directors with terms expiring in 2002, approving the appointment of
auditors, voting on an Amendment to the Articles of Incorporation to
increase the authorized number of Common Shares to 50,000,000 shares,
and voting on proposals to approve two new stock-based benefit plans,
the 1999 Employee Stock Purchase Plan and the 1999 Stock Incentive
Plan. Proxies for the meeting were solicited pursuant to Section
14(a) of the Securities Exchange Act of 1934, as amended, and there
was no solicitation in opposition to management's solicitations. All
nominees for directors as listed in the proxy statement were elected.
The voting results were as follows:
Shares Shares Voted
Election of Directors Voted For Withheld Authority
- --------------------- --------- ------------------
Dennis R. Emmen 10,011,911 120,548
Kenneth L. Nelson 10,012,057 120,402
Nathan I. Partain 10,000,801 131,658
Shares Shares Shares
Voted For Voted Against Voted Abstain
--------- ------------- -------------
Increase in Shares Authorized 8,930,964 1,012,678 188,817
- -----------------------------
1999 Employee Stock Purchase Plan 8,295,700 334,225 1,502,534
- ---------------------------------
1999 Stock Incentive Plan 7,160,525 1,355,491 1,616,443
- -------------------------
Approval of Auditors
- --------------------
Deloitte & Touche LLP 9,891,945 81,127 159,387
Item 6. Exhibits and Reports on Form 8-K.
--------------------------------
a) Exhibits:
3 Restated Articles of Incorporation, as amended.
27 Financial Data Schedule
b) Reports on Form 8-K.
No reports on Form 8-K were filed during the fiscal quarter ended
June 30, 1999.
SIGNATURES
----------
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.
OTTER TAIL POWER COMPANY
By: John Erickson
---------------------
John Erickson
Vice President, Finance
(Chief Financial Officer/Authorized Officer)
Dated: August 13, 1999
---------------
RESTATED
ARTICLES OF INCORPORATION
OF
OTTER TAIL POWER COMPANY
(restated as of October 17, 1988)
ARTICLE I.
The name of the corporation shall be Otter Tail Power
Company.
ARTICLE II.
The purposes of the corporation shall be as follows:
(a) To generate, produce, buy or in any manner acquire, and
to sell, dispose of, and distribute electricity for light, heat
and power and other purposes, and to carry on the business of
furnishing, supplying, manufacturing, and selling light, heat,
power, gas, water, and steam, and any and all business incidental
thereto; and to build, construct, develop, improve, buy, acquire
by condemnation or otherwise, hold, own, lease, maintain and
operate plants, facilities, systems, and works for the
manufacture, generation, production, accumulation, transmission,
and distribution of electricity, gas, water, and steam, and to
exercise rights of condemnation and eminent domain in connection
with the doing of any of its purposes as herein set forth so far
as may be permissible by law.
(b) To produce, mine, buy, sell, store, market, deal in,
and prospect for, coal, oil and minerals of all kinds and the
products and by-products thereof.
(c) To manufacture, buy, sell, trade, and deal in goods,
wares, merchandise, property, and commodities of any and every
class and description.
(d) To purchase, acquire, and lease, and to sell, lease,
and dispose of water, water rights, and power privileges for
power, light, heat, mining, milling, irrigation, agricultural,
domestic or any other use or purpose.
(e) To acquire, hold, mortgage, pledge, or dispose of the
shares, bonds, securities, and other evidences of indebtedness of
any domestic or foreign corporation.
(f) To endorse or guarantee the promissory notes, checks,
drafts, evidences of indebtedness or obligations of whatsoever
nature of any corporation, domestic or foreign, of which the
corporation shall own or control, directly or indirectly a
majority of the stock then entitled to elect directors, or a
majority thereof.
(g) To do or perform any and all lawful business necessary,
essential or expedient to the proper conduct of any of the
purposes aforesaid.
ARTICLE III.
The period of duration of the corporation shall be perpetual.
ARTICLE IV.
The location and post-office address of the registered
office of the corporation in Minnesota is 215 Cascade Street
South, Fergus Falls, Minnesota 56537.
ARTICLE V.
The total authorized number of shares of the corporation is
17,500,000, divided into three classes; namely, 1,500,000
Cumulative Preferred Shares without par value (the "Cumulative
Preferred Shares"); 1,000,000 Cumulative Preference Shares
without par value (the "Cumulative Preference Shares"); and
15,000,000 Common Shares of the par value of $5 per share (the
"Common Shares"). No fractional shares of any class or series
shall be issued by the corporation.
ARTICLE VI.
The designations, relative rights, voting power, preferences
and restrictions of the Cumulative Preferred Shares, the
Cumulative Preference Shares and the Common Shares, respectively,
shall be as set forth in Division I through Division VI,
inclusive, of this Article VI.
The term "subordinate shares," when hereinafter in this
Article VI used with reference to shares junior to the Cumulative
Preferred Shares, means the Cumulative Preference Shares, the
Common Shares and shares of any other class, which may hereafter
be authorized, ranking junior to the Cumulative Preferred Shares
with respect to the payment of dividends or the distribution of
assets; and when hereinafter used with reference to shares junior
to the Cumulative Preference Shares, means the Common Shares and
shares of any other class, which may hereafter be authorized,
ranking junior to the Cumulative Preference Shares with respect
to the payment of dividends or the distribution of assets.
DIVISION I
Provisions Relating to Cumulative Preferred Shares
A. Issue in Series. The Cumulative Preferred Shares may
be issued from time to time in one or more series, each of which
series shall have such designation and such relative rights,
voting power, preferences and restrictions as are hereinafter
provided and, to the extent hereinafter permitted, as are
determined and stated by the Board of Directors in the resolution
or resolutions authorizing the creation of shares of such series.
All Cumulative Preferred Shares shall be of equal rank and
shall be identical, except in respect of their relative voting
power (determined as hereinafter provided in Division IV) and the
particulars that may be determined by the Board of Directors as
hereinafter provided; and each share of each series shall be
identical in all respects with the other shares of such series,
except as to the dates from which dividends thereon shall be
cumulative. Cumulative Preferred Shares shall be issued only as
fully paid and nonassessable shares.
Subject to the provisions of the last paragraph of this
Subdivision A, authority is hereby expressly granted to the Board
of Directors to authorize the issuance of Cumulative Preferred
Shares in one or more series, and to determine and state, by the
resolution or resolutions authorizing the creation of each
series: (i) the designation of the series and the number of
shares which shall constitute such series, which number may be
altered from time to time by like action of the Board of
Directors in respect of shares then unallotted; (ii) the annual
rate of dividends payable on shares of such series; (iii) the
price or prices per share at which the shares of such series
shall be redeemable; (iv) the amount payable on shares of such
series in the event of any dissolution, liquidation or winding up
of the affairs of the corporation, which amount may differ in the
case of a voluntary or involuntary dissolution, liquidation or
winding up of such affairs; (v) the conversion rights, if any,
with respect to the conversion of shares of such series into
Common Shares of the corporation; and (vi) the sinking or
purchase fund provisions, if any, for the mandatory redemption or
purchase of shares of such series.
In the case of each series of Cumulative Preferred Shares
created after April 1, 1977, the amount (in addition to accrued
and unpaid dividends, if any) which the holders of shares of such
series shall be entitled to receive in the event of any
dissolution, liquidation or winding up of the affairs of the
corporation which shall be involuntary shall be equal to the
gross consideration received by the corporation upon the issuance
thereof (without regard to any premium received or any
underwriting discount or commission, private placement fee or
other expense incurred by the corporation in connection with the
issuance thereof).
B. Dividends. Before any dividends on any subordinate
shares shall be paid or declared and set apart for payment, the
holders of the Cumulative Preferred Shares of each series shall
be entitled to receive, when and as declared by the Board of
Directors, out of any funds legally available for such purpose,
cash dividends at the annual rate for such series theretofore
fixed by the Board of Directors as hereinbefore provided, and no
more, payable quarterly on such dates as may be fixed in the
resolution or resolutions adopted by the Board of Directors
authorizing the creation of such series. Such dividends shall be
paid to shareholders of record on the respective dates, not
exceeding twenty (20) 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:
(1) if issued prior to the record date for the first
dividend on shares of such series, then from and including
the date fixed for such purpose by the Board of Directors in
the resolution or resolutions creating such series;
(2) 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 the payment date for
such dividend, then from and including such last mentioned
dividend payment date;
(3) otherwise from and including the quarterly
dividend payment date next preceding the date of issue of
such shares.
No dividend shall be paid, or declared and set apart for
payment, upon any Cumulative Preferred Shares of any series for
any quarterly dividend period unless at the same time a like
proportionate dividend for the same or comparable quarterly
period, ratable in proportion to the respective annual dividend
rates fixed therefor, shall be paid, or declared and set apart
for payment, upon all Cumulative Preferred Shares of all series
then issued and outstanding.
In no event shall any dividend be paid or declared, nor
shall any distribution be made, on any subordinate shares, nor
shall any subordinate shares be purchased, redeemed or otherwise
acquired by the corporation for value, nor shall any moneys be
paid to or set aside or made available for a purchase fund or
sinking fund for the purchase or redemption of any subordinate
shares, unless (i) all dividends on the Cumulative Preferred
Shares of all series for all past quarterly dividend periods and
for the then current quarterly dividend period shall have been
paid or declared and a sum sufficient for the payment thereof set
apart for payment; and (ii) the corporation shall not be in
default or deficient under any requirement of a sinking or
purchase fund established with respect to outstanding Cumulative
Preferred Shares of any series for any period then elapsed.
Subject to the provisions of this Article VI, and not
otherwise, dividends may be declared by the Board of Directors
and paid from time to time, out of any funds legally available
therefor, upon the then outstanding subordinate shares, and the
holders of the Cumulative Preferred Shares shall not be entitled
to participate in any such dividends.
C. Redemption of Cumulative Preferred Shares. Subject to
the limitations stated in Subdivision D of this Division I, the
Cumulative Preferred Shares of any or all series may be redeemed,
as a whole at any time or in part from time to time, at the
option of the corporation by resolution of the Board of
Directors, at the applicable redemption price for the shares of
such series as determined by the Board of Directors in the
resolution or resolutions authorizing the creation of such
series, 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 and including the date
on which dividends on such shares become cumulative to and
including the date of redemption, less the aggregate amount of
all dividends which have theretofore been paid thereon or which
have been declared thereon and for which moneys for payment have
been set apart and remain available for payment. To the extent
that Cumulative Preferred Shares of any series are redeemed
through the operation of a sinking or purchase fund provided for
in the resolution or resolutions of the Board of Directors
creating such series, such shares shall be redeemed by resolution
of the Board of Directors at the time and at the applicable
redemption price specified for redemption of shares of such
series pursuant to such sinking or purchase fund by the
resolution or resolutions creating such series. If less than all
the outstanding Cumulative Preferred Shares 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.
Notice of every redemption of Cumulative Preferred Shares
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, not less than thirty (30)
days and not more than sixty (60) days prior to the date fixed
for redemption.
If notice of redemption shall have been duly given as
aforesaid, 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 in good
standing and doing business at any place within the United
States, having capital, surplus and undivided profits aggregating
at least $1,000,000 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 such deposit,
notwithstanding that any certificate for Cumulative Preferred
Shares 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 from and after the date fixed for redemption, and all
rights with respect to the Cumulative Preferred Shares so called
for redemption shall forthwith on the date of such deposit 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.
Any funds deposited by the corporation pursuant to this paragraph
and unclaimed at the end of six (6) years after 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.
All Cumulative Preferred Shares converted, redeemed or
purchased voluntarily or pursuant to any sinking fund or purchase
fund for the mandatory redemption or purchase of shares shall be
retired and cancelled and shall have the status of authorized but
unissued Cumulative Preferred Shares of the corporation and may
be reissued in the same manner as authorized but unissued
Cumulative Preferred Shares undesignated as to series.
D. Limitations on Purchase and Redemption of Cumulative
Preferred Shares. No Cumulative Preferred Shares of any series
shall be purchased, redeemed or otherwise acquired by the
corporation for value, nor shall any moneys be paid to or set
aside or made available for a purchase fund or sinking fund for
the purchase or redemption of Cumulative Preferred Shares of any
series, unless all dividends on the Cumulative Preferred Shares
of all series for all past quarterly dividend periods and for the
current quarterly period shall have been paid or declared and a
sum sufficient for the payment thereof set apart for payment,
except in the event all of the Cumulative Preferred Shares shall
be called for redemption.
E. Liquidation Preferences. In the event of any
dissolution, liquidation or winding up of the affairs of the
corporation, before any distribution or payment shall be made to
the holders of any subordinate shares, the holders of the shares
of each series of Cumulative Preferred Shares shall be entitled
to be paid in full the respective amounts fixed by the Board of
Directors in the resolution or resolutions authorizing the issue
of such series, together with a sum, 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 shares became cumulative to and including the date fixed for
such distribution or payment, less the aggregate amount of all
dividends which have theretofore been paid thereon or which have
been declared thereon and for which moneys have been set apart
and remain available for payment. If such distribution or
payment shall have been made to the holders of the Cumulative
Preferred Shares, or moneys made available for such payment in
full, the remaining assets and funds of the corporation shall be
distributed among the holders of the classes of subordinate
shares, according to their respective rights and preferences and
in each case according to their respective shares. If the assets
available are not sufficient to pay in full the amounts so
payable to the holders of all outstanding Cumulative Preferred
Shares, the holders of all series of such shares shall share
ratably in any distribution of assets in proportion to the full
amounts to which they would otherwise be respectively entitled.
The consolidation or merger of the corporation into or with any
other corporation or corporations pursuant to the statutes of the
State of Minnesota providing for consolidation or merger shall
not be deemed a liquidation, dissolution or winding up of the
affairs of the corporation within the meaning of any of the
provisions of this Subdivision E.
F. Voting and Restrictions on Certain Corporate Action.
The holders of the Cumulative Preferred Shares shall not be
entitled to vote at any meetings of the shareholders of the
corporation, except as required by law or as hereinafter
otherwise provided in this Subdivision F and in Division IV:
(1) So long as any Cumulative Preferred Shares of any
series are outstanding, the corporation shall not without
the consent (given by vote at a special meeting of
shareholders called for the purpose) of the holders of at
least two-thirds (2/3) of the aggregate voting power
(determined as hereinafter provided in Division IV) vested
in the Cumulative Preferred Shares of all series then
outstanding:
(a) Create, authorize or issue any shares of any
class ranking prior to, or any securities of any kind
or class convertible into shares of any class ranking
prior to, the Cumulative Preferred Shares as to
dividends or assets; or
(b) Amend the Articles of Incorporation so as to
affect adversely any of the preferences or other rights
of the holders of the Cumulative Preferred Shares,
provided, however, that if any such amendment would
affect adversely the holders of one or more, but not
all, of the series of Cumulative Preferred Shares at
the time outstanding, consent only of the holders of at
least two-thirds (2/3) of the aggregate voting power
(determined as hereinafter provided in Division IV)
vested in the shares of each series so adversely
affected shall be required.
(2) So long as any Cumulative Preferred Shares of any
series are outstanding, the corporation shall not without
the consent (given by vote at a special meeting of
shareholders called for the purpose) of the holders (i) of
at least a majority of the aggregate voting power
(determined as hereinafter provided in Division IV) vested
in the Cumulative Preferred Shares of all series then
outstanding, or (ii) in case of the negative vote at such
meeting of the holders of more than one-fourth (1/4) of the
aggregate voting power (determined as hereinafter provided
in Division IV) vested in the Cumulative Preferred Shares of
all series then outstanding, of at least two-thirds (2/3) of
aggregate voting power (determined as hereinafter provided
in Division IV) vested in the Cumulative Preferred Shares of
all series then outstanding:
(a) Increase the authorized number of Cumulative
Preferred Shares, or create, authorize or issue any
shares of any class ranking on a parity with the
Cumulative Preferred Shares as to dividends or assets,
or any securities of any kind or class convertible into
Cumulative Preferred Shares or shares of any class on a
parity with the Cumulative Preferred Shares; or
(b) Issue any Cumulative Preferred Shares of any
series if as a result thereof more than 60,000
Cumulative Preferred Shares of all series will then be
outstanding, unless:
(i) The corporation's "Adjusted Income
Available for Interest," as hereinafter defined,
shall be at least equal to one-and-one-half (1-
1/2) times the corporation's "Adjusted Interest
and Preferred Charges," as hereinafter defined;
and
(ii) The corporation's "Adjusted Income
Available for Preferred Dividends," as hereinafter
defined, shall be at least equal to two-and-one-
half (2-1/2) times the corporation's "Adjusted
Preferred Charges," as hereinafter defined; and
(iii) The corporation's "Common Share
Equity," as hereinafter defined, shall equal at
least one-fourth (1/4) of the corporation's "Total
Capitalization," as hereinafter defined; or
(c) Declare, pay or set apart for payment any
dividend on any subordinate shares, or purchase, redeem
or otherwise acquire for value any subordinate shares,
or pay or set aside or make available any moneys for a
purchase fund or sinking fund for the purchase or
redemption of any such subordinate shares, unless after
giving effect to the payment of such dividend or such
purchase, redemption or other acquisition of such
payment or setting aside of moneys in a purchase fund
or sinking fund,
(i) The "Common Share Equity," as
hereinafter defined, shall equal at least one-
fourth (1/4) of the "Total Capitalization," as
hereinafter defined; and
(ii) The earned surplus of the corporation
shall be not less than $831,398.
(d) Consolidate or merge into or with any other
corporation or corporations pursuant to the statutes of
the State of Minnesota providing for consolidation or
merger, unless, immediately after such consolidation or
merger shall become effective:
(i) The Cumulative Preferred Shares of the
corporation outstanding immediately prior to such
consolidation or merger shall remain outstanding
or be constituted as shares of the corporation
resulting from such consolidation or merger in the
same number and with the same relative rights,
voting power, preferences and restrictions as
theretofore, the authorized number thereof shall
not be increased, there shall be no shares of the
resulting corporation outstanding or authorized
ranking prior to or on a parity with the
Cumulative Preferred Shares, except shares of the
corporation outstanding or authorized immediately
prior to such consolidation or merger, and the
indebtedness for borrowed money of the resulting
corporation immediately after such consolidation
or merger shall be no greater than the
indebtedness for borrowed money of the corporation
immediately preceding such consolidation or
merger; or
(ii) (aa) The "Adjusted Income Available
for Interest," as hereinafter defined, of the
resulting corporation shall be at least equal to
one-and-one-half (1-1/2) times its "Adjusted
Interest and Preferred Charges," as hereinafter
defined; and
(bb) The "Adjusted Income Available
for Preferred Dividends," as hereinafter defined,
of the resulting corporation shall be at least
equal to two-and-one-half (2-1/2) times its
"Adjusted Preferred Charges," as hereinafter
defined; and
(cc) The "Common Share Equity," as
hereinafter defined, of the resulting corporation
shall equal at least one-fourth (1/4) of its
"Total Capitalization," as hereinafter defined.
(e) Sell, lease or exchange all or
substantially all of its property and assets, unless,
after the completion of such transaction, the fair
value of the assets of the corporation shall at least
equal the preference on voluntary liquidation of all
Cumulative Preferred Shares of all series then
outstanding and of all shares then outstanding of a
class on parity with the Cumulative Preferred Shares,
after first deducting an amount equal to all then
existing indebtedness of the corporation and an amount
equal to the preference on voluntary liquidation of all
shares ranking prior to the Cumulative Preferred
Shares.
(3) For the purposes of the foregoing provisions of
this Subdivision F:
(a) The term "Adjusted Income Available for
Interest" shall mean the gross income of the
corporation for a period of twelve (12) consecutive
calendar months selected by the corporation out of the
fifteen (15) calendar months immediately preceding the
proposed issuance of additional Cumulative Preferred
Shares, or the proposed consolidation or merger,
determined in accordance with such system of accounts
as may be prescribed by governmental authorities having
jurisdiction in the premises or, in the absence
thereof, in accordance with generally accepted
accounting practice, available for the payment of
interest, but after deduction of taxes of all kinds
(including taxes based on income) including for a like
period such gross income (similarly computed and with
similar deductions and eliminating any duplication of
income) of any property which was or will have been an
operating unit or a part of an operating unit preceding
its acquisition by the corporation and which has been
acquired within the past twelve (12) months immediately
preceding or is to be acquired by the corporation
substantially contemporaneously with the proposed
issuance of additional Cumulative Preferred Shares, or
the proposed consolidation or merger.
(b) The term "Adjusted Interest and Preferred
Charges" is hereby defined as the sum of (i) the
interest charges for one year upon all interest bearing
indebtedness of the corporation outstanding at the time
of issuance of such Cumulative Preferred Shares or of
the proposed consolidation or merger, including that,
if any, proposed to be issued or assumed substantially
contemporaneously, or to which property theretofore
acquired or to be acquired substantially
contemporaneously is or will be subject (adjusted for
all amortization of debt discount and expense, or of
premium on debt, as the case may be), and (ii) the
dividend requirements for one year on all outstanding
Cumulative Preferred Shares, and on all other shares of
a class ranking prior to or on a parity with the
Cumulative Preferred Shares as to dividends or assets,
outstanding at the time of issuance of such additional
Cumulative Preferred Shares, or of such consolidation
or merger, including all such shares proposed to be
issued, or all such shares of the resulting
corporation, as the case may be.
(c) The term "Adjusted Income Available for
Preferred Dividends" is hereby defined as the "Adjusted
Income Available for Interest" for the aforesaid twelve
(12) months' period, less the interest charges for one
year and the dividend requirements for one year on any
shares ranking prior to the Cumulative Preferred
Shares, included in determining the "Adjusted Interest
and Preferred Charges."
(d) The term "Adjusted Preferred Charges" is
hereby defined as the "Adjusted Interest and Preferred
Charges" for one year determined at the time of
issuance of such Cumulative Preferred Shares or of the
proposed consolidation or merger, less the interest
charges for one year and the dividend requirements for
one year on any shares ranking prior to the Cumulative
Preferred Shares, included in determining the "Adjusted
Interest and Preferred Charges."
(e) The term "Common Share Equity" is hereby
defined as the sum of (i) the stated capital of the
corporation applicable to its Common Shares and to all
other subordinate shares (including shares, if any,
proposed to be issued substantially contemporaneously
or any additional such shares of the resulting
corporation, as the case may be), (ii) capital surplus
to the extent of premium on Common Shares and on all
other subordinate shares (including premium, if any, on
shares proposed to be issued substantially
contemporaneously or any additional such shares of the
resulting corporation, as the case may be),
(iii) contributions in aid of construction, and
(iv) earned surplus, all determined in accordance with
such system of accounts as may be prescribed by
governmental authorities having jurisdiction in the
premises or, in the absence thereof, in accordance with
generally accepted accounting practice.
(f) The term "Total Capitalization" is hereby
defined as the sum of (i) the Common Share Equity,
(ii) the involuntary liquidation preference of all
Cumulative Preferred Shares and all other shares prior
to or on a parity with the Cumulative Preferred Shares
to be outstanding after the proposed event, and
(iii) the principal amount of all interest bearing debt
(including debt to which property theretofore acquired
or to be acquired substantially contemporaneously is or
will be subject) to be outstanding after the proposed
event, excluding, however, all indebtedness maturing by
its terms within one year from the time of creation
thereof unless the corporation, without the consent of
the lender, has the right to extend the maturity of
such indebtedness for a period or periods which, with
the original period of such indebtedness, aggregates
one year or more.
DIVISION II
Provisions Relating to Cumulative Preference Shares
A. Issue in Series. The Cumulative Preference Shares may
be issued from time to time in one or more series, each of which
series shall have such designation and such relative rights,
voting power, preferences and restrictions as are hereinafter
provided and, to the extent hereinafter permitted, as are
determined and stated by the Board of Directors in the resolution
or resolutions authorizing the creation of shares of such series.
All Cumulative Preference Shares shall be of equal rank and
shall be identical, except in respect of their relative voting
power (determined as hereinafter provided in Division IV) and the
particulars that may be determined by the Board of Directors as
hereinafter provided; and each share of each series shall be
identical in all respects with the other shares of such series,
except as to the dates from which dividends thereon shall be
cumulative. Cumulative Preference Shares shall be issued only as
fully paid and nonassessable shares.
Subject to the provisions of the last paragraph of this
Subdivision A, authority is hereby expressly granted to the Board
of Directors to authorize the issuance of Cumulative Preference
Shares in one or more series, and to determine and state, by the
resolution or resolutions authorizing the creation of each
series: (i) the designation of the series and the number of
shares which shall constitute such series, which number may be
altered from time to time by like action of the Board of
Directors in respect of shares then unallotted; (ii) the annual
rate of dividends payable on shares of such series; (iii) the
price or prices per share at which the shares of such series
shall be redeemable; (iv) the amount payable on shares of such
series in the event of any dissolution, liquidation or winding up
of the affairs of the corporation, which amount may differ in the
case of a voluntary or involuntary dissolution, liquidation or
winding up of such affairs, provided that the amount in the case
of an involuntary dissolution, liquidation or winding up of such
affairs shall be determined as provided in the following
paragraph; (v) the conversion rights, if any, with respect to the
conversion of shares of such series into Common Shares of the
corporation; and (vi) the sinking or purchase fund provisions, if
any, for the mandatory redemption or purchase of shares of such
series.
The amount (in addition to accrued and unpaid dividends, if
any) which the holders of Cumulative Preference Shares of each
series shall be entitled to receive in the event of any
dissolution, liquidation or winding up of the affairs of the
corporation which shall be involuntary shall be equal to the
gross consideration received by the corporation upon the issuance
thereof (without regard to any premium received or any
underwriting discount or commission, private placement fee or
other expense incurred by the corporation in connection with the
issuance thereof).
B. Dividends. Subject to the preferential rights of the
holders of Cumulative Preferred Shares with respect to payment of
dividends as set forth in Subdivision B of Division I, the
holders of the Cumulative Preference Shares of each series shall
be entitled to receive, when and as declared by the Board of
Directors, out of any funds legally available for such purpose,
cash dividends at the annual rate for such series theretofore
fixed by the Board of Directors as hereinbefore provided, and no
more, payable quarterly on such dates as may be fixed in the
resolution or resolutions adopted by the Board of Directors
authorizing the creation of such series. Such dividends shall be
paid to shareholders of record on the respective dates, not
exceeding twenty (20) days prior to such payment dates, fixed by
the Board of Directors for such purpose. Such dividends shall be
cumulative from and including the date or dates fixed for such
purpose by the Board of Directors in the resolution or
resolutions authorizing the creation of such series.
No dividend shall be paid, or declared and set apart for
payment, upon any Cumulative Preference Shares of any series for
any quarterly dividend period unless at the same time a like
proportionate dividend for the same or comparable quarterly
period, ratable in proportion to the respective annual dividend
rates fixed therefor, shall be paid, or declared and set apart
for payment, upon all Cumulative Preference Shares of all series
then issued and outstanding.
In no event shall any dividend be paid or declared, nor
shall any distribution be made, on any subordinate shares, other
than a dividend or distribution payable solely in subordinate
shares, nor shall any subordinate shares be purchased, redeemed
or otherwise acquired by the corporation for value, nor shall any
moneys be paid to or set aside or made available for a purchase
fund or sinking fund for the purchase or redemption of any
subordinate shares, unless (i) all dividends on the Cumulative
Preference Shares of all series for all past quarterly dividend
periods and for the then current quarterly dividend period shall
have been paid or declared and a sum sufficient for the payment
thereof set apart for payment; and (ii) the corporation shall not
be in default or deficient under any requirement of a sinking or
purchase fund established with respect to outstanding Cumulative
Preference Shares of any series for any period then elapsed.
Subject to the provisions of this Article VI, and not
otherwise, dividends may be declared by the Board of Directors
and paid from time to time, out of any funds legally available
therefor, upon the then outstanding subordinate shares, and the
holders of the Cumulative Preference Shares shall not be entitled
to participate in any such dividends.
C. Redemption of Cumulative Preference Shares. Subject to
the limitations stated in Subdivision B of Division I and in
Subdivision D of this Division II, the Cumulative Preference
Shares of any or all series may be redeemed, as a whole at any
time or in part from time to time, at the option of the
corporation by resolution of the Board of Directors, at the
applicable redemption price for the shares of such series as
determined by the Board of Directors in the resolution or
resolutions authorizing the creation of such series, 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 and including the date on which dividends on such
share became cumulative to and including the date of redemption,
less the aggregate amount of all dividends which have theretofore
been paid thereon or which have been declared thereon and for
which moneys for payment have been set apart and remain available
for payment. Each such redemption shall be effected upon the
same notice as provided in Subdivision C of Division I in respect
of the redemption of Cumulative Preferred Shares, and all other
provisions of said Subdivision C with respect to the method and
effect of redemption of Cumulative Preferred Shares shall be
applicable to the redemption of Cumulative Preference Shares in
the same manner and with the same force and effect as though such
provisions were set forth in full in this Subdivision C.
All Cumulative Preference Shares converted, redeemed or
purchased voluntarily or pursuant to any sinking fund or purchase
fund for the mandatory redemption or purchase of shares shall be
retired and cancelled and shall have the status of authorized but
unissued Cumulative Preference Shares of the corporation and may
be reissued in the same manner as authorized but unissued
Cumulative Preference Shares undesignated as to series.
D. Limitation on Purchase and Redemption of Cumulative
Preference Shares. No Cumulative Preference Shares of any series
shall be purchased, redeemed or otherwise acquired by the
corporation for value, nor shall any moneys be paid to or set
aside or made available for a purchase fund or sinking fund for
the purchase or redemption of Cumulative Preference Shares of any
series, unless all dividends on the Cumulative Preference Shares
of all series for all past quarterly dividend periods and for the
current quarterly period shall have been paid or declared and a
sum sufficient for the payment thereof set apart for payment,
except in event all of the Cumulative Preference Shares shall be
called for redemption.
E. Liquidation Preferences. In the event of any
dissolution, liquidation or winding up of the affairs of the
corporation, before any distribution or payment shall be made to
the holders of any class of subordinate shares, the holders of
the shares of each series of Cumulative Preference Shares shall
be entitled to be paid in full the respective amounts fixed by
the Board of Directors in the resolution or resolutions
authorizing the creation of such series 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 and
including the date on which dividends on such share became
cumulative to and including the date fixed for such payment, less
the aggregate amount of all dividends which have theretofore been
paid thereon or which have been declared thereon and for which
moneys have been set apart and remain available for payment;
provided, however, that no such payment to the holders of
Cumulative Preference Shares shall be made until payment in full
shall have been made to the holders of Cumulative Preferred
Shares, or moneys made available for such payment in full, in
accordance with the provisions of Subdivision E of Division I.
If such payment shall have been made to the holders of the
Cumulative Preference Shares, or moneys made available for such
payment in full, the remaining assets and funds of the
corporation shall be distributed among the holders of the classes
of subordinate shares according to their respective rights and
preferences and in each case according to their respective
shares. If the assets available are not sufficient to pay in
full the amounts so payable to the holders of all outstanding
Cumulative Preference Shares, the holders of all series of such
shares shall share ratably in any distribution of assets in
proportion to the full amounts to which they would otherwise be
respectively entitled. The consolidation or merger of the
corporation into or with any other corporation or corporations
pursuant to the statutes of the State of Minnesota providing for
consolidation or merger shall not be deemed a liquidation,
dissolution or winding up of the affairs of the corporation
within the meaning of any of the provisions of this Subdivision E.
F. Voting and Restrictions on Certain Corporate Action.
The holders of the Cumulative Preference Shares shall not be
entitled to vote at any meetings of the shareholders of the
corporation, except as required by law or as hereinafter
otherwise provided in this Subdivision F and in Division IV:
(1) So long as any Cumulative Preference Shares of any
series are outstanding, the corporation shall not, without
the consent (given by vote at a special meeting of
shareholders called for the purpose) of the holders of at
least two-thirds (2/3) of the aggregate voting power
(determined as hereinafter provided in Division IV) vested
in the Cumulative Preference Shares of all series then
outstanding:
(a) Create or authorize any shares of any class
(other than the Cumulative Preferred Shares, whether
now or hereafter authorized) ranking prior to the
Cumulative Preference Shares as to dividends or assets;
or
(b) Amend the Articles of Incorporation so as to
affect adversely any of the preferences or other rights
of the holders of the Cumulative Preference Shares,
provided, however, that if any such amendment would
affect adversely the holders of one or more, but not
all, of the series of Cumulative Preference Shares at
the time outstanding, consent only of the holders of at
least two-thirds (2/3) of the aggregate voting power
(determined as hereinafter provided in Division IV)
vested in the shares of each series so adversely
affected shall be required.
(2) So long as any Cumulative Preference Shares of any
series are outstanding, the corporation shall not, without
the consent (given by vote at a special meeting of
shareholders called for the purpose) of the holders (i) of
at least a majority of the aggregate voting power
(determined as hereinafter provided in Division IV) vested
in the Cumulative Preference Shares of all series then
outstanding, or (ii) in case of the negative vote at such
meeting of the holders of more than one-fourth (1/4) of the
aggregate voting power (determined as hereinafter provided
in Division IV) vested in the Cumulative Preference Shares
of all series then outstanding, of at least two-thirds (2/3)
of the aggregate voting power (determined as hereinafter
provided in Division IV) vested in the Cumulative Preference
Shares of all series then outstanding:
(a) Increase the authorized number of Cumulative
Preference Shares, or create or authorize any shares of
any class ranking on a parity with the Cumulative
Preference Shares as to dividends or assets; or
(b) Consolidate or merge into or with any other
corporation or corporations pursuant to the statutes of
the State of Minnesota providing for consolidation or
merger unless, immediately after such consolidation or
merger shall become effective, the Cumulative
Preference Shares of the corporation outstanding
immediately prior to such consolidation or merger shall
remain outstanding or be constituted as shares of the
corporation resulting from such consolidation or merger
in the same number and with the same relative rights,
voting power, preferences and restrictions as
theretofore, the authorized number thereof shall not be
increased, and there shall be no shares of the
resulting corporation outstanding or authorized ranking
prior to or on a parity with the Cumulative Preference
Shares, except shares of the corporation outstanding or
authorized immediately prior to such consolidation or
merger; or
(c) Sell, lease or exchange all or substantially
all of its property and assets, unless, after the
completion of such transaction, the fair value of the
assets of the corporation shall at least equal the
preference on voluntary liquidation of all Cumulative
Preference Shares of all series then outstanding and of
all shares then outstanding of a class on a parity with
the Cumulative Preference Shares, after first deducting
an amount equal to all then existing indebtedness of
the corporation and an amount equal to the preference
on voluntary liquidation of all shares ranking prior to
the Cumulative Preference Shares.
DIVISION III
Provisions Relating to Common Shares
A. Dividends. Subject to the preferential rights of the
holders of the Cumulative Preferred Shares and the Cumulative
Preference Shares with respect to the payment of dividends, as
set forth in Subdivision B of Division I and Subdivision B of
Division II, respectively, holders of the Common Shares shall be
entitled to receive dividends, out of any funds legally available
therefor, when and as declared by the Board of Directors.
B. Liquidation Preferences. In the event of any
dissolution, liquidation or winding-up of the affairs of the
corporation, whether voluntary or involuntary, holders of the
Common Shares shall be entitled to receive ratably, in accordance
with the numbers of shares held by them respectively, the assets
of the corporation available for payment to shareholders
remaining after payment in full shall have been made to holders
of the Cumulative Preferred Shares and the Cumulative Preference
Shares in accordance with the provisions of Subdivision E of
Division I and Subdivision E of Division II, respectively.
DIVISION IV
Voting Rights and Other Provisions
Relating to Cumulative Preferred Shares,
Cumulative Preference Shares and Common Shares
A. Voting Rights of Common Shares. Except as otherwise
expressly set forth in this Article VI and as provided by law,
the holders of Common Shares shall have the sole voting rights of
shareholders of the corporation and shall be entitled to one vote
for each share held, and the holders of a majority of the Common
Shares outstanding shall have power to authorize the sale, lease,
exchange or other disposal of all, or substantially all, of the
property and assets of the corporation, including its good will,
to adopt or reject an agreement of consolidation or merger and to
amend the Articles of Incorporation.
B. Voting Rights of Cumulative Preferred Shares.
(1) After an amount equivalent to four (4) full
quarterly dividend installments on the Cumulative Preferred
Shares of any series outstanding shall be in default, the
holders of Cumulative Preferred Shares of all series at the
time outstanding, voting separately as a class, shall, at
any annual meeting of the shareholders or any special
meeting of the shareholders called as herein provided
occurring during such period, elect three members of the
Board of Directors, and the holders of the Common Shares,
voting separately as a class, shall, subject to any rights
of the holders of Cumulative Preference Shares to elect
directors as provided in Subdivision C of this Division IV,
elect the remaining directors of the corporation.
(2) After an amount equivalent to twelve (12) full
quarterly dividend installments on the Cumulative Preferred
Shares of any series outstanding shall be in default, the
holders of Cumulative Preferred Shares of all series at the
time outstanding, voting separately as a class, shall at any
annual meeting of the shareholders or any special meeting of
the shareholders called as herein provided occurring during
such period, elect the smallest number of directors
necessary to constitute a majority of the full Board of
Directors, and the holders of the Common Shares, voting
separately as a class, shall, subject to any rights of the
holders of Cumulative Preference Shares to elect directors
as provided in Subdivision C of this Division IV, elect the
remaining directors of the corporation.
(3) At any annual meeting or special meeting of the
shareholders for the election of directors occurring after
all dividends then in default on the Cumulative Preferred
Shares then outstanding shall be paid (and such dividends
shall be declared and paid out of any funds legally
available therefor as soon as reasonably practical), the
Cumulative Preferred Shares shall thereupon be divested of
any special rights with respect to the election of directors
provided in paragraphs (1) and (2) of this Subdivision B,
but always subject to the same provisions for the vesting of
such voting power in the holders of the Cumulative Preferred
Shares in the case of a future like default or defaults in
dividends thereon.
(4) Voting power vested in the holders of the
Cumulative Preferred Shares as provided in paragraphs (1)
and (2) of this Subdivision B may be exercised at any annual
meeting of shareholders or at a special meeting of
shareholders held for such purpose, which special meeting of
shareholders shall be called by the proper officers of the
corporation at any time when such voting power shall be so
vested, within twenty (20) days after written request
therefor signed by the holders of not less than five percent
(5%) of the aggregate voting power (determined as
hereinafter provided in Subdivision D of this Division IV)
vested in the Cumulative Preferred Shares of all series then
outstanding, the date of such special meeting to be not more
than forty (40) days from the date of giving of notice
thereof.
(5) Notice of any annual or special meeting of
shareholders for the election of directors held when voting
powers as aforesaid shall be vested in the holders of
Cumulative Preferred Shares shall be given to all holders of
Cumulative Preferred Shares not less than fifteen (15) days
prior to said meeting, and such notice shall describe with
particularity the voting rights of the holders of each
series of Cumulative Preferred Shares.
(6) At any such annual or special meeting the presence
in person or by proxy of the holders of a majority of the
aggregate voting power (determined as hereinafter provided
in Subdivision D of this Division IV) vested in the
Cumulative Preferred Shares of all series then outstanding
shall be required to constitute a quorum of the holders of
the Cumulative Preferred Shares for the election by them of
the directors whom they are entitled to elect; provided,
however, that the holders of a majority of the aggregate
voting power (determined as hereinafter provided in
Subdivision D of this Division IV) vested in the Cumulative
Preferred Shares who are present in person or by proxy shall
have power to adjourn such meeting for the election of
directors by the holders of the Cumulative Preferred Shares
from time to time, without notice other than announcement at
the meeting.
C. Voting Rights of Cumulative Preference Shares.
(1) After an amount equivalent to four (4) full
quarterly dividend installments on the Cumulative Preference
Shares of any series outstanding shall be in default, the
holders of Cumulative Preference Shares of all series at the
time outstanding, voting separately as a class, shall, at
any annual meeting of the shareholders or any special
meeting of the shareholders called as herein provided
occurring during such period, elect two members of the Board
of Directors, and the holders of the Common Shares, voting
separately as a class, shall, subject to any rights of the
holders of Cumulative Preferred Shares to elect directors as
provided in Subdivision B of this Division IV, elect the
remaining directors of the corporation.
(2) At any annual meeting or special meeting of the
shareholders for the election of directors occurring after
all dividends then in default on the Cumulative Preference
Shares then outstanding shall be paid (and such dividends
shall be declared and paid out of any funds legally
available therefor as soon as reasonably practical), the
Cumulative Preference Shares shall thereupon be divested of
any special rights with respect to the election of directors
provided for in paragraph (1) of this Subdivision C, but
always subject to the same provisions for the vesting ofsuch
voting power in the holders of the Cumulative Preference
Shares in the case of a future like default or defaults in
dividends thereon.
(3) All provisions of paragraphs (4), (5) and (6) of
Subdivision B of this Division IV with respect to the method
of exercising the special voting rights of the holders of
Cumulative Preferred Shares shall be applicable to the
special voting rights of the holders of Cumulative
Preference Shares in the same manner and with the same force
and effect as though such provisions were set forth in full
in this Subdivision C.
D. Number of Votes Applicable to Each Cumulative Preferred
Share and to Each Cumulative Preference Share. For the purpose
of each vote or consent under the Articles of Incorporation or
pursuant to applicable law, the number of votes to which each
Cumulative Preferred Share and each Cumulative Preference Share
shall be entitled shall be determined as follows:
(a) In voting by holders of Cumulative Preferred
Shares, separately as a class, or by series, each Cumulative
Preferred Share entitled to receive the smallest fixed
amount (in addition to accrued and unpaid dividends, if any)
in the event of any dissolution, liquidation or winding-up
of the affairs of the corporation which shall be involuntary
shall have one vote, and each Cumulative Preferred Share
entitled to receive a greater fixed amount (in addition to
accrued and unpaid dividends, if any) in any such event
shall have the number of votes which is in the same
proportion as such greater amount shall be to such smallest
amount;
(b) In voting by holders of Cumulative Preference
Shares, separately as a class, or by series, each Cumulative
Preference Share entitled to receive the smallest fixed
amount (in addition to accrued and unpaid dividends, if any)
in the event of any dissolution, liquidation or winding up
of the affairs of the corporation which shall be involuntary
shall have one vote, and each Cumulative Preference Share
entitled to receive a greater fixed amount (in addition to
accrued and unpaid dividends, if any) in any such event
shall have the number of votes which is in the same
proportion as such greater amount shall be to such smallest
amount; and
(c) In voting by holders of Cumulative Preferred
Shares and/or Cumulative Preference Shares and/or holders of
Common Shares, together as a single class, each Common Share
shall have one vote, each Cumulative Preferred Share and
each Cumulative Preference Share entitled to receive $100
(in addition to accrued and unpaid dividends, if any) in the
event of any dissolution, liquidation or winding up of the
affairs of the corporation which shall be involuntary shall
have one vote and each Cumulative Preferred Share and each
Cumulative Preference Share entitled to receive a different
fixed amount (in addition to accrued and unpaid dividends,
if any) in such event shall be entitled to such greater or
lesser number of votes which is in the same proportion as
such different amount shall be to $100.
E. Number and Term of Directors and Manner of Election.
(1) Except at such times as the holders of
Cumulative Preferred Shares and/or Cumulative Preference
Shares shall have voting rights for the election of
directors, (a) the Board of Directors shall consist of such
number of persons, not less than seven (7) nor more than
nine (9), as may be determined by the shareholders from time
to time at annual meetings thereof (subject to the authority
of the Board of Directors to increase or decrease the number
of directors as permitted by law), (b) the term of office of
each director other than directors elected to fill vacancies
shall be for the period ending at the third annual meeting
following his election and until his successor is elected
and qualified, (c) vacancies in the Board of Directors
occurring by reason of death, resignation, removal or
disqualification shall be filled for the unexpired term of
the director with respect to whom the vacancy occurred by a
majority of the remaining directors of the Board of
Directors, although less than a quorum, and (d) vacancies in
the Board of Directors occurring by reason of newly created
directorships resulting from an increase in the authorized
number of directors by action of the Board of Directors as
permitted by these Articles of Incorporation and the Bylaws
of the corporation shall be filled by a majority vote of the
directors serving at the time of such increase, each
director so elected to a newly created directorship to serve
for the appropriate term so as to maintain, as near as may
be, an equal division between the classes of directors.
Notwithstanding any other provisions of these Articles of
Incorporation or the Bylaws of the corporation or the fact
that a lesser percentage may be specified by law, these
Articles of Incorporation or the Bylaws of the corporation,
the affirmative vote of the holders of at least 75% of the
voting power of the then outstanding Common Shares shall be
required to amend, alter, adopt any provision inconsistent
with or repeal this paragraph (1) of Subdivision E of this
Division IV unless the Board of Directors, if all such
directors are Continuing Directors, as defined in this
Article VI, shall unanimously recommend such amendment,
alteration, adoption or repeal.
(2) If at any time the holders of Cumulative Preferred
Shares and/or Cumulative Preference Shares of the
corporation shall, under the provisions of paragraph (1) of
Subdivision B of this Division IV or of paragraph (1) of
Subdivision C of this Division IV, become entitled to elect
any directors, then the terms of all incumbent directors
shall expire at the time of the first annual meeting
thereafter at which such holders of Cumulative Preferred
Shares and/or Cumulative Preference Shares are so entitled
to elect directors. If at any time the holders of
Cumulative Preferred Shares of the corporation shall, under
the provisions of paragraph (2) of Subdivision B of this
Division IV, become entitled to elect a majority of the
Board of Directors, the terms of all incumbent directors
shall expire whenever such majority has been duly elected
and qualified. During any period during which the holders
of Cumulative Preferred Shares and/or Cumulative Preference
Shares of the corporation shall have voting rights with
respect to directors under the provisions of this Division
IV, the Board of Directors shall consist of eleven (11)
persons and the entire number of persons composing such
Board shall be elected at each annual or special meeting of
shareholders for the election of directors and shall serve
until the next such annual or special meeting or until their
successors have been elected and qualified, provided,
however, that whenever the holders of Cumulative Preferred
Shares and/or Cumulative Preference Shares acquire voting
rights under paragraph (1) of Subdivision B of this Division
IV or under paragraph (1) of Subdivision C of this Division
IV, and exercise such rights at a special meeting called
therefor, the terms of office of directors theretofore
elected by the holders of Common Shares will not expire
until the next annual meeting. If a vacancy or vacancies in
the Board of Directors shall exist with respect to a
director or directors who shall have been elected by the
holders of either Cumulative Preferred Shares or Cumulative
Preference Shares, the remaining directors elected by the
holders of Cumulative Preferred Shares or Cumulative
Preference Shares, as the case may be, by affirmative vote
of a majority thereof, or the remaining director so elected
if there be but one, may elect a successor or successors to
hold office for the unexpired term of the director or
directors whose place or places shall be vacant. Likewise,
if a vacancy or vacancies shall exist with respect to a
director or directors who shall have been elected by the
holders of Common Shares, the remaining directors elected by
the holders of Common Shares, by affirmative vote of a
majority thereof, or the remaining director so elected if
there be but one, may elect a successor or successors to
hold office for the unexpired term of the director or
directors whose place or places shall be vacant.
(3) Whenever the Cumulative Preferred Shares shall be
divested of voting powers with respect to the election of
directors as provided in paragraph (3) of Subdivision B of
this Division IV, the terms of all incumbent directors,
other than directors elected by the holders of Cumulative
Preference Shares pursuant to Subdivision C of this
Division IV, shall expire upon the election of their
successors by the holders of the Common Shares at the next
annual or special meeting of shareholders for the election
of directors. A special meeting shall be called for such
purpose within twenty (20) days after the written request
therefor signed by the holders of not less than five percent
(5%) of the Common Shares outstanding, the date of such
special meeting to be not more than forty (40) days from the
date of giving of notice thereof. Upon the election and
qualification of directors by the holders of Common Shares
as aforesaid the provisions of paragraph (1) of Subdivision
E of this Division IV shall again control, unless at that
time the holders of Cumulative Preference Shares have voting
rights for the election of directors.
(4) Whenever the Cumulative Preference Shares shall be
divested of voting powers with respect to the election of
directors as provided in paragraph (2) of Subdivision C of
this Division IV, the terms of all incumbent directors,
other than directors elected by the holders of Cumulative
Preferred Shares pursuant to Subdivision B of this
Division IV, shall expire on the election of their
successors by the holders of the Common Shares at the next
annual or special meeting of shareholders for the election
of directors. A special meeting shall be called for such
purpose within twenty (20) days after the written request
therefor signed by the holders of not less than five percent
(5%) of the Common Shares outstanding, the date of such
special meeting to be not more than forty (40) days from the
date of giving of notice thereof. Upon the election and
qualification of directors by the holders of Common Shares
as aforesaid, the provisions of paragraph (1) of Subdivision
E of this Division IV shall again control, unless at that
time the holders of Cumulative Preferred Shares have voting
rights for the election of directors.
F. Cumulative Voting. The holders of Common Shares of the
corporation shall have no right to cumulate votes in the election
of directors. If notice in writing is given by any holder of
Cumulative Preferred Shares or Cumulative Preference Shares to
any officer of the corporation before a meeting for the election
of directors at which such shareholder is entitled to vote, or to
the presiding officer at such meeting at any time before the
election of directors takes place, that he intends to cumulate
his votes in such election, each holder of shares of the class
with respect to which such notice has been given shall have the
right to multiply the number of votes to which he may be entitled
by the number of directors to be elected by the holders of shares
of such class, and he may cast all such votes for one candidate
or distribute them among any two or more candidates. In such
case, it shall be the duty of the presiding officer, before the
election of directors at the meeting, to announce that all
shareholders of the class with respect to which such notice has
been given shall cumulate their votes.
G. Preemptive Rights. No holder of shares of the
corporation of any class or of any security or obligation
convertible into, or of any warrant, option or right to purchase,
subscribe for or otherwise acquire, shares of any class of the
corporation, whether now or hereafter authorized, shall, as such
holder, have any preemptive or preferential right whatsoever to
purchase, subscribe for or otherwise acquire shares of any class
of the corporation or of any security or obligation convertible
into, or of any warrant, option or right to purchase, subscribe
for or otherwise acquire, shares of any class of the corporation,
whether now or hereafter authorized, other than such rights of
subscription, if any, as the Board of Directors may from time to
time determine.
DIVISION V
Voting Rights of Common Shares
Relating To Certain Business Combinations
A. In addition to any other affirmative vote required by
law or these Articles of Incorporation, and except as otherwise
expressly provided in Subdivision B of this Division V,
1. any merger or consolidation of the corporation or
any Subsidiary (as hereinafter defined) with (a) an
Interested Shareholder (as hereinafter defined) or (b) any
other corporation (whether or not itself an Interested
Shareholder) which is, or after such merger or consolidation
would be, an Affiliate or Associate (as such terms are
hereinafter defined) of an Interested Shareholder, or
2. any sale, lease, exchange, mortgage, pledge, grant
of a security interest, transfer or other disposition (in
one transaction or a series of transactions), other than in
the ordinary course of business, to or with (a) an
Interested Shareholder or (b) any other person (whether or
not itself an Interested Shareholder) which is, or after
such sale, lease, exchange, mortgage, pledge, grant of a
security interest, transfer or other disposition would be,
an Affiliate or Associate of an Interested Shareholder,
directly or indirectly, of all or any Substantial Part (as
hereinafter defined) of the assets of the corporation
(including, without limitation, any voting securities of a
Subsidiary) or any Subsidiary, or both, or
3. the issuance or transfer by the corporation or any
Subsidiary (in one transaction or a series of transactions)
of any securities (except pursuant to stock dividends, stock
splits or similar transactions which would not have the
effect of increasing the proportionate voting power of an
Interested Shareholder) of the corporation or any
Subsidiary, or both, to (a) an Interested Shareholder or
(b) any other person (whether or not itself an Interested
Shareholder) which is, or after such issuance or transfer
would be, an Affiliate or Associate of an Interested
Shareholder, or
4. the adoption of any plan or proposal for the
liquidation or dissolution of the corporation proposed by or
on behalf of an Interested Shareholder or any Affiliate or
Associate of an Interested Shareholder, or
5. any reclassification of securities (including any
reverse stock split), or recapitalization of the
corporation, or any merger or consolidation of the
corporation with any of its Subsidiaries or any other
transaction (whether or not with or into or otherwise
involving an Interested Shareholder) which has the effect,
directly or indirectly, of increasing the proportionate
share of the outstanding shares of any class of equity or
convertible securities of the corporation or any subsidiary
directly or indirectly beneficially owned by (a) an
Interested Shareholder or (b) any other person (whether or
not itself an Interested Shareholder) which is, or after
such reclassification, recapitalization, merger or
consolidation or other transaction would be, an Affiliate or
Associate of an Interested Shareholder,
shall not be consummated unless such consummation shall have been
approved by the affirmative vote of the holders of at least 75%
of the voting power of the then outstanding Common Shares. Such
affirmative vote shall be required notwithstanding the fact that
no vote may be required, or that a lesser percentage may be
specified, by law, in these Articles of Incorporation or in any
agreement with any national securities exchange or otherwise.
B. The provisions of Subdivision A of this Division V
shall not be applicable to any particular Business Combination
(as hereinafter defined) and such Business Combination shall
require only such affirmative vote as is required by law and any
other provision of these Articles of Incorporation, if the
Business Combination shall have been approved by a majority of
the Continuing Directors (as hereinafter defined) or all of the
following conditions shall have been met:
1. The transaction constituting the Business
Combination shall provide for a consideration to be received
by all holders of Common Shares in exchange for all their
Common Shares, and the aggregate amount of the cash and the
Fair Market Value as of the date of the consummation of the
Business Combination of consideration other than cash to be
received per share by holders of Common Shares in such
Business Combination shall be at least equal to the higher
of the following:
(a) (if applicable) the highest per-share price
(including any brokerage commissions, transfer taxes
and soliciting dealers' fees) paid in order to acquire
any Common Shares beneficially owned by an Interested
Shareholder (i) within the two-year period immediately
prior to the Announcement Date (as hereinafter
defined), (ii) within the two-year period immediately
prior to the Determination Date (as hereinafter
defined) or (iii) in the transaction in which it became
an Interested Shareholder, whichever is highest; or
(b) the Fair Market Value per Common Share on the
Announcement Date or on the Determination Date,
whichever is higher.
2. The consideration to be received by holders of
Common Shares shall be in cash or in the same form as was
previously paid in order to acquire the Common Shares that
are beneficially owned by an Interested Shareholder and, if
an Interested Shareholder beneficially owns Common Shares
that were acquired with varying forms of consideration, the
form of consideration for such Common Shares shall be either
cash or the form used to acquire the largest number
beneficially owned by it. The price determined in
accordance with paragraph 1 of this Subdivision B shall be
subject to appropriate adjustment in the event of any
recapitalization, stock dividend, stock split, combination
of shares or similar event.
3. After such Interested Shareholder has become an
Interested Shareholder and prior to the consummation of such
Business Combination:
(a) except as approved by a majority of the
Continuing Directors, there shall have been no failure
to declare and pay at the regular date therefor the
full amount of any dividends (whether or not
cumulative) payable on any outstanding Cumulative
Preferred Shares or Cumulative Preference Shares;
(b) there shall have been (i) no reduction in the
annual rate of dividends paid on the Common Shares
(except as necessary to reflect any subdivision of the
Common Shares) other than as approved by a majority of
the Continuing Directors and (ii) an increase in such
annual rate of dividends as necessary to prevent any
such reduction in the event of any reclassification
(including any reverse stock split), recapitalization,
reorganization or any similar transaction which has the
effect of reducing the number of outstanding Common
Shares, unless the failure so to increase such annual
rate is approved by a majority of the Continuing
Directors; and
(c) such Interested Shareholder shall not have
become the beneficial owner of any additional Common
Shares except as part of the transaction in which it
became an Interested Shareholder.
4. After such Interested Shareholder has become an
Interested Shareholder, such Interested Shareholder shall
not have received the benefit, directly or indirectly
(except proportionately as a shareholder), of any loans,
advances, guarantees, pledges or other financial assistance
or any tax credits or other tax advantages provided by the
corporation, whether in anticipation of or in connection
with such Business Combination or otherwise; and
5. A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934 and the
rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations) shall
be mailed to the shareholders of the corporation, no later
than the earlier of (a) 30 days prior to any vote on the
proposed Business Combination or (b) if no vote on such
Business Combination is required, 60 days prior to the
consummation of such Business Combination (whether or not
such proxy or information statement is required to be mailed
pursuant to such Act or subsequent provisions). Such proxy
statement shall contain at the front thereof, in a prominent
place, any recommendations as to the advisability (or
inadvisability) of the Business Combination which the
Continuing Directors, or any of them, may have furnished in
writing and, if deemed advisable by a majority of the
Continuing Directors, an opinion of a reputable investment
banking firm as to the fairness (or lack of fairness) of the
terms of such Business Combination, from the point of view
of the holders of the Common Shares other than an Interested
Shareholder (such investment banking firm to be selected by
a majority of the Continuing Directors, to be furnished with
all information it reasonably requests and to be paid a
reasonable fee for its services upon receipt by the
corporation of such opinion).
C. For the purposes of this Division V:
1. "Business Combination" shall mean any transaction
that is referred to in any one or more of paragraphs 1
through 5 of Subdivision A of this Division V.
2. "Person" shall mean any individual, firm, trust,
partnership, association, corporation or other entity.
3. "Interested Shareholder" shall mean any person
(other than the corporation or any Subsidiary) who or which:
(a) is the beneficial owner, directly or
indirectly, of more than 10% of the voting power of the
then outstanding Common Shares; or
(b) is an Affiliate of the corporation and at any
time within the two-year period immediately prior to
the date in question was the beneficial owner, directly
or indirectly, of more than 10% of the voting power of
the then outstanding Common Shares; or
(c) is an assignee of or has otherwise succeeded
to the beneficial ownership of any Common Shares which
were, at any time within the two-year period
immediately prior to the date in question, beneficially
owned by an Interested Shareholder, unless such
assignment or succession shall have occurred pursuant
to a Public Transaction (as hereinafter defined) or any
series of transactions involving a Public Transaction.
For the purpose of determining whether a person is an
Interested Shareholder, the number of Common Shares deemed
to be outstanding shall include shares deemed owned through
application of paragraph 5 below, but shall not include any
other Common Shares that may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
4. "Public Transaction" shall mean any (a) purchase
of shares offered pursuant to an effective registration
statement under the Securities Act of 1933 or (b) open-
market purchase of shares on a national securities exchange
or in the over-the-counter market if, in either such case,
the price and other terms of sale are not negotiated by the
purchaser and the seller of the beneficial interest in the
shares.
5. A person shall be a "beneficial owner" of any
Common Shares:
(a) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly;
or
(b) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such
right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement
or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or
otherwise or (ii) the right to vote or to direct the
voting thereof pursuant to any agreement, arrangement
or understanding; or
(c) which is beneficially owned, directly or
indirectly, by any other person with which such person
or any of its Affiliates or Associates has any
agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any
Common Shares.
6. "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on January 1, 1986.
7. "Subsidiary" shall mean any corporation of which a
majority of any class of equity security (as defined in Rule
3all-1 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on January 1,
1986) is owned, directly or indirectly, by the corporation;
provided, however, that, for purposes of the definition of
Interested Shareholder set forth in paragraph 3, the term
"Subsidiary" shall mean only a corporation of which a
majority of each class of equity security is owned, directly
or indirectly, by the corporation.
8. "Continuing Director" shall mean any member of the
Board of Directors of the corporation who (1) is not an
Affiliate or Associate of, and not a nominee of, an
Interested Shareholder having any interest, direct or
indirect, in the proposed Business Combination and (2) was a
member of the Board of Directors prior to the time that such
Interested Shareholder became an Interested Shareholder, and
any successor of a Continuing Director who is not an
Affiliate or Associate of, and not a nominee of, such
Interested Shareholder and is recommended to succeed a
Continuing Director by a majority of Continuing Directors
then on the Board of Directors.
9. "Announcement Date" shall mean the date of the
first public announcement of the proposed Business
Combination.
10. "Determination Date" shall mean the date on which
an Interested Shareholder became an Interested Shareholder.
11. "Fair Market Value" shall mean: (a) in the case
of stock, the highest closing sale price during the 30-day
period immediately preceding the date in question of a share
of such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not quoted on
the Composite Tape, on the New York Stock Exchange, or, if
such stock is not listed on such Exchange, on the principal
United States securities exchange registered under the
Securities Exchange Act of 1934 on which such stock is
listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation or last reported
sale price, whichever is applicable, with respect to a share
of such stock during the 30-day period preceding the date in
question on the National Association of Securities Dealers,
Inc. Automated Quotations System or any system then in use,
or if no such quotations are available, the fair market
value on the date in question of a share of such stock as
determined by a majority of the Continuing Directors in good
faith; and (b) in the case of property other than cash or
stock, the fair market value of such property on the date in
question as determined by a majority of the Continuing
Directors in good faith.
12. "Substantial Part" shall mean more than 30% of the
fair market value of the total assets of the corporation as
of the end of its most recent fiscal year ending prior to
the time the determination is being made.
D. A majority of the Continuing Directors shall have the
power and duty to determine for the purposes of this Division V,
on the basis of information known to them after reasonable
inquiry, all facts necessary to determine compliance with this
Division V, including, without limitation, (1) whether a person
is an Interested Shareholder, (2) the number of Common Shares
beneficially owned by any person, (3) whether a person is an
Affiliate or Associate of another, (4) whether the assets which
are the subject of any Business Combination constitute a
Substantial Part of the assets of the corporation or the
Subsidiary, or both, (5) whether the requirements of
Subdivision B of this Division V have been met, and (6) such
other matters with respect to which a determination is required
under this Division V. The good faith determination of a
majority of the Continuing Directors on such matters shall be
conclusive and binding for all purposes of this Division V.
E. Nothing contained in this Division V shall be construed
to relieve an Interested Shareholder from any fiduciary
obligation imposed by law.
F. Notwithstanding any other provisions of these Articles
of Incorporation or the Bylaws of the corporation or the fact
that a lesser percentage may be specified by law, these Articles
of Incorporation or the Bylaws of the corporation, the
affirmative vote of the holders of at least 75% of the voting
power of the then outstanding Common Shares, shall be required to
amend, alter, adopt any provision inconsistent with or repeal
this Division V unless the Board of Directors, if all such
directors are Continuing Directors, shall unanimously recommend
such amendment, alteration, adoption or repeal.
DIVISION VI
Provisions Relating to Purchases
Of Common Shares Of The Corporation
A. Except as otherwise expressly provided in this Division
VI, the corporation may not purchase any Common Shares at a per-
share price in excess of the Fair Market Price (as hereinafter
defined) as of the time of such purchase from a person known by
the corporation to be a Substantial Shareholder (as hereinafter
defined), unless such purchase has been approved by the
affirmative vote of the holders of at least two-thirds (2/3) of
the Common Shares voted thereon held by Disinterested
Shareholders (as hereinafter defined). Such affirmative vote
shall be required notwithstanding the fact that no vote may be
required or that a lesser percentage may be specified by law, in
these Articles of Incorporation or in any agreement with any
national securities exchange or otherwise.
B. The provisions of this Division VI shall not apply to
(1) any purchase pursuant to an offer to purchase which is made
on the same terms and conditions to the holders of all of the
outstanding Common Shares or (2) any open market purchase that
constitutes a Public Transaction (as hereinafter defined).
C. For the purposes of this Division VI:
1. The terms "Continuing Director," "Person," "Public
Transaction," "Affiliate" and "Associate" shall have the
meanings given to them in Division V of this Article VI.
2. "Substantial Shareholder" shall mean any person
(other than any employee benefit plan or trust of the
corporation or any similar entity) who or which:
(a) is the beneficial owner of more than 10% of
the voting power of the then outstanding Common Shares,
the acquisition of any shares of which has occurred
within the two-year period immediately prior to the
date on which the corporation purchases any such
shares; or
(b) is an assignee of or has otherwise succeeded
to the beneficial ownership of any Common Shares
beneficially owned by a Substantial Shareholder, unless
such assignment or succession shall have occurred
pursuant to a Public Transaction or any series of
transactions involving a Public Transaction and, with
respect to all Common Shares owned by such person, such
person has been the beneficial owner of any such shares
for a period of less than two years (including, for
these purposes, the holding period of the Substantial
Shareholder from whom such person acquired shares).
For the purposes of determining whether a person is a
Substantial Shareholder, the number of Common Shares deemed
to be outstanding shall include shares deemed owned through
application of paragraph 5 below, but shall not include any
other Common Shares which may be issuable pursuant to any
agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
3. "Disinterested Shareholders" shall mean those
holders of Common Shares who are not Substantial
Shareholders.
4. "Fair Market Price" shall mean the highest closing
sale price on the Composite Tape for New York Stock
Exchange-Listed Stocks during the 30-day period immediately
preceding the date in question of a Common Share or, if such
Common Shares are not quoted on the Composite Tape, on the
New York Stock Exchange or, if such Common Shares are not
listed on such Exchange, on the principal United States
securities exchange registered under the Securities Exchange
Act of 1934 on which such Common Shares are listed, or, if
such Common Shares are not listed on any such exchange, the
highest closing bid quotation with respect to a Common Share
during the 30-day period preceding the date in question on
the National Association of Securities Dealers, Inc.
Automated Quotations System or any system then in use, or,
if no such quotations are available, the fair market value
on the date in question of a Common Share, as determined by
a majority of the Board of Directors in good faith.
5. A person shall be a "beneficial owner" of any
Common Shares:
(a) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly;
or
(b) which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such
right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement
or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or
otherwise or (ii) the right to vote or to direct the
voting thereof pursuant to any agreement, arrangement
or understanding; or
(c) which is beneficially owned, directly or
indirectly, by any other person with which such person
or any of its Affiliates or Associates has any
agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any
Common Shares.
D. A majority of the Board of Directors shall have the
power and duty to determine for the purposes of this Division VI,
on the basis of information known to them after reasonable
inquiry, all facts necessary to determine compliance with this
Division VI, including without limitation, (1) whether a person
is a Substantial Shareholder, (2) the number of Common Shares
beneficially owned by any person, (3) whether a person is an
Affiliate or Associate of another, (4) whether a price is in
excess of the Fair Market Price, (5) whether a purchase
constitutes a Public Transaction, and (6) such other matters with
respect to which a determination is required under this
Division VI. The good faith determination of a majority of the
Board of Directors on such matters shall be conclusive and
binding for all purposes of this Division VI.
E. Nothing contained in this Division VI shall be
construed to relieve a Substantial Shareholder from any fiduciary
obligation imposed by law.
F. Notwithstanding any other provisions of these Articles
of Incorporation or the Bylaws of the corporation or the fact
that a lesser percentage may be specified by law, these Articles
of Incorporation or the Bylaws of the corporation, the
affirmative vote of the holders of at least 75% of voting power
of the then outstanding Common Shares shall be required to amend,
alter, adopt any provision inconsistent with or repeal this
Division VI unless the Board of Directors, if all such directors
are Continuing Directors, shall unanimously recommend such
amendment, alteration, adoption or repeal.
ARTICLE VII.
The Board of Directors of the corporation shall have
authority to accept or reject subscriptions for shares.
ARTICLE VIII.
Except as herein otherwise limited or qualified, the
corporation reserves the right to amend, alter, change or repeal
any of the terms or provisions of these Articles of
Incorporation, all in the manner now or hereafter prescribed by
the laws of the State of Minnesota, and all rights conferred
herein upon officers, directors and shareholders of the
corporation are granted subject to this reservation.
ARTICLE IX.
The Board of Directors shall have the power, to the extent
permitted by law, to adopt, amend or repeal the Bylaws of the
corporation, subject to the power of the shareholders to adopt,
amend or repeal such Bylaws. Bylaws fixing the number of
directors or their classifications, qualifications, or terms of
office, or prescribing procedures for removing such directors may
be adopted, amended or repealed only by (i) the Board of
Directors, to the extent permitted by law, or (ii) the
affirmative vote of the holders of 75% of the outstanding Common
Shares of the corporation or such lesser percentage of the
outstanding Common Shares as may from time to time be provided in
such Bylaws.
Notwithstanding any other provisions of these Articles of
Incorporation or the Bylaws of the corporation or the fact that a
lesser percentage may be specified by law, these Articles of
Incorporation or the Bylaws of the corporation, the affirmative
vote of the holders of at least 75% of the voting power of the
then outstanding Common Shares shall be required to amend, alter,
adopt any provision inconsistent with, or repeal this Article IX
unless the Board of Directors, if all such directors are
Continuing Directors, as defined in Article VI of the Articles of
Incorporation, shall unanimously recommend such amendment,
alteration, adoption or repeal.
ARTICLE X.
A director of the corporation shall not be personally liable
to the corporation or its shareholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i)
for any breach of the director's duty of loyalty to the
corporation or its shareholders; (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) under Sections 302A.559 or 80A.23
of the Minnesota Statutes; (iv) for any transaction from which
the director derived an improper personal benefit; or (v) for any
act or omission occurring prior to the date when this Article X
became effective.
Any repeal or modification of the foregoing provisions of
this Article X shall not adversely affect any right or protection
of a director of the corporation existing at the time of such
repeal or modification.
RESOLUTIONS OF BOARD OF DIRECTORS
ESTABLISHING SERIES OF
CUMULATIVE PREFERRED SHARES
$3.60 Cumulative Preferred Shares
The Board of Directors of the corporation adopted the
following resolution on August 12, 1946, which was filed with the
Secretary of State of Minnesota on August 13, 1946:
Resolution
Pursuant to authority conferred on the Board of Directors of
Otter Tail Power Company, a Minnesota corporation, by Article VI
of the Articles of Incorporation, as amended, BE IT RESOLVED that
an initial series of Cumulative Preferred Shares be and it hereby
is created as follows:
A. The designation of such series shall be "$3.60
Cumulative Preferred Shares," and the number of shares of such
series shall be sixty thousand (60,000);
B. The rate of dividends payable on the $3.60 Cumulative
Preferred Shares shall be Three & 60/100 Dollars -- ($3.60) per
annum, payable quarterly on the first days of March, June,
September and December in each year and such dividends shall be
cumulative and accrue in the case of shares issued prior to the
record date for the first dividend thereon from and including
September 1, 1946;
C. The $3.60 Cumulative Preferred Shares shall be
redeemable at One Hundred Two & 25/100 dollars -- ($102.25) per
share, together, as provided in said Articles of Incorporation,
with accrued dividends to the redemption date;
D. The amount payable on $3.60 Cumulative Preferred
Shares, in the event of any dissolution, liquidation or winding
up of the affairs of the corporation which shall be voluntary,
shall be the sum of One Hundred Two & 25/100 Dollars ($102.25)
per share, and the amount payable on $3.60 Cumulative Preferred
Shares, in the event of any dissolution, liquidation or winding
up of the affairs of the corporation which shall be involuntary,
shall be One Hundred Dollars ($100) per share, together in either
event, as provided in said Articles of Incorporation, with a sum,
in the case of each share, computed at the annual dividend rate
for the $3.60 Cumulative Preferred Shares, from the date on which
dividends on such share become cumulative to and including the
date fixed for such distribution or payment, less the aggregate
amount of all dividends which have theretofore been paid thereon
or which have been declared thereon and for which moneys for
payment have been set apart and remain available for payment.
$4.40 Cumulative Preferred Shares
The Board of Directors of the corporation adopted the
following resolution on March 6, 1950, which was filed with the
Secretary of State of Minnesota on March 8, 1950:
Resolution
Pursuant to authority conferred on the Board of Directors of
Otter Tail Power Company, a Minnesota corporation, by Article VI
of its Articles of Incorporation, as amended, BE IT RESOLVED that
a second series of Cumulative Preferred Shares be and it hereby
is created as follows:
A. The designation of such series shall be "$4.40
Cumulative Preferred Shares," and the number of shares of such
series shall be twenty-five thousand (25,000);
B. The rate of dividends payable on the $4.40 Cumulative
Preferred Shares shall be $4.40 per share per annum, payable
quarterly on the first days of March, June, September and
December of each year and such dividends shall be cumulative and
accrue in the case of shares issued prior to the record date for
the first dividend thereon from and including March 15, 1950;
C. The $4.40 Cumulative Preferred Shares shall be
redeemable at $104 per share if redeemed on or before March 15,
1955; at $103 if redeemed thereafter and on or before March 15,
1960; and at $102 per share if redeemed thereafter, together, as
provided in said Articles of Incorporation, in each instance with
accrued dividends to the redemption date;
D. The amount payable on $4.40 Cumulative Preferred Shares
in the event of any dissolution, liquidation or winding up of the
affairs of the corporation which shall be voluntary, shall be the
price at which said shares are at the time redeemable, and the
amount payable on $4.40 Cumulative Preferred Shares in the event
of any dissolution, liquidation or winding up of the affairs of
the Company which shall be involuntary, shall be One Hundred
Dollars ($100.00) per share together in either event as provided
in said Articles of Incorporation, with a sum, in the case of
each share, computed at the annual dividend rate for the $4.40
Cumulative Preferred Shares from the date on which dividends on
such share become cumulative to and including the date fixed for
such distribution or payment, less the aggregate amount of all
dividends which have heretofore been paid thereon or which have
been declared thereon and for which moneys for payment have been
set apart and remain available for payment.
$4.65 Cumulative Preferred Shares
The Board of Directors of the corporation adopted the
following resolution on March 24, 1964, which was filed with the
Secretary of State of Minnesota on March 25, 1964:
Resolution
Pursuant to authority conferred on the Board of Directors of
Otter Tail Power Company, a Minnesota corporation, by Article VI
of its Articles of Incorporation, as amended, BE IT RESOLVED that
a third series of Cumulative Preferred Shares be, and it hereby
is, created as follows:
A. The designation of such series shall be "$4.65
Cumulative Preferred Shares," and the number of shares of such
series shall be thirty thousand (30,000);
B. The rate of dividends payable on the $4.65 Cumulative
Preferred Shares shall be $4.65 per share per annum, payable
quarterly on the first days of March, June, September and
December of each year, and such dividends shall be cumulative and
accrue in the case of shares issued prior to the record date for
the first dividend thereon from and including the date of
issuance thereof;
C. The $4.65 Cumulative Preferred Shares shall be
redeemable at $107.50 per share if redeemed on or before April 1,
1969; at $106.00 per share if redeemed thereafter and on or
before April 1, 1974; at $104.50 per share if redeemed thereafter
and on or before April 1, 1979; at $103.00 per share if redeemed
thereafter and on or before April 1, 1984; and at $101.50 per
share if redeemed thereafter together, as provided in said
Articles of Incorporation, in each instance, with accrued
dividends to the redemption date; and
D. The amount payable on $4.65 Cumulative Preferred Shares
in the event of any dissolution, liquidation or winding up of the
affairs of the corporation which shall be voluntary shall be the
price at which said shares are at the time redeemable, and the
amount payable on $4.65 Cumulative Preferred Shares in the event
of any dissolution, liquidation or winding up of the affairs of
the Company which shall be involuntary shall be One Hundred
Dollars ($100.00) per share together in either event as provided
in said Articles of Incorporation, with a sum, in the case of
each share, computed at the annual dividend rate for the $4.65
Cumulative Preferred Shares from the date on which dividends on
such share become cumulative to and including the date fixed for
such distribution or payment, less the aggregate amount of all
dividends which have heretofore been paid thereon or which have
been declared thereon and for which moneys for payment have been
set apart and remain available for payment.
$9.50 Cumulative Preferred Shares
The Board of Directors of the corporation adopted the
following resolution on August 9, 1971, which was filed with the
Secretary of State of Minnesota on August 20, 1971:
Resolution
Pursuant to authority conferred on the Board of Directors of
Otter Tail Power Company, a Minnesota corporation, by Article VI
of its Articles of Incorporation, as amended, BE IT RESOLVED that
a fourth series of Cumulative Preferred Shares be, and it hereby
is, created as follows:
A. The designation of such series shall be "$9.50
Cumulative Preferred Shares," and the number of shares of such
series shall be forty thousand (40,000);
B. The rate of dividends payable on the $9.50 Cumulative
Preferred Shares shall be $9.50 per share per annum, payable
quarterly on the first days of March, June, September and
December of each year, commencing December 1, 1971, and such
dividends shall be cumulative and accrue in the case of shares
issued prior to the record date for the first dividend thereon
from and including the date of issuance thereof;
C. The $9.50 Cumulative Preferred Shares shall be
redeemable at $109.50 per share if redeemed before September 1,
1979 and, if redeemed thereafter, at a redemption price which
shall decrease by $0.50 on September 1, 1979 and on each
succeeding September 1 to and including September 1, 1997, on and
after which date the redemption price shall be $100.00 per share,
together, as provided in said Articles of Incorporation, in each
instance, with accrued dividends to the redemption date;
provided, however, that the $9.50 Cumulative Preferred Shares
shall not be redeemable, in whole or in part, prior to
September 1, 1978 as a part of or in contemplation of any
refunding operation including the application, directly or
indirectly, of money borrowed or the proceeds of preferred stock
sold at an interest or dividend cost to the corporation
(calculated in accordance with generally accepted financial
practice) of less than 9 1/2% per annum; and
D. The amount payable on the $9.50 Cumulative Preferred
Shares in the event of any dissolution, liquidation or winding up
of the affairs of the corporation which shall be voluntary shall
be the price at which said shares are at the time redeemable, and
the amount payable on the $9.50 Cumulative Preferred Shares in
the event of any dissolution, liquidation or winding up of the
affairs of the corporation which shall be involuntary shall be
One Hundred dollars ($100.00) per share, together, as provided in
said Articles of Incorporation, in either event, with a sum, in
the case of each share, computed at the annual dividend rate for
the $9.50 Cumulative Preferred Shares 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 which shall have theretofore been paid
thereon or which shall have been declared thereon and for which
moneys for payment shall have been set apart and remain available
for payment.
$11.50 Cumulative Preferred Shares 1
The Board of Directors of the corporation adopted the
following resolution on July 28, 1975, which was filed with the
Secretary of State of Minnesota on July 28, 1975:
Resolution
BE IT FURTHER RESOLVED That, pursuant to authority conferred
on the Board of Directors of Otter Tail Power Company, a
Minnesota corporation, by Article VI of its Articles of
Incorporation, as amended, a fifth series of Cumulative Preferred
Shares be, and it hereby is, created as follows:
A. The designation of such series shall be "$11.50
Cumulative Preferred Shares," and the number of shares of such
series shall be one hundred thousand (100,000).
B. The rate of dividends payable on the $11.50 Cumulative
Preferred Shares shall be $11.50 per share per annum, payable
quarterly on the first day of March, June, September and December
of each year, commencing September 1, 1975, and such dividends
shall be cumulative and accrue in the case of shares issued prior
to the record date for the first dividend thereon from and
including the date of issuance thereof.
C. The $11.50 Cumulative Preferred Shares shall be
redeemable (otherwise than with respect to any redemption
effected through or by the sinking funds hereafter described in
subdivision E below) at $111.50 per share if redeemed before June
1, 1976, and at the following redemption prices per share if
redeemed thereafter:
If redeemed during the twelve months' period beginning
Redemption Redemption
June 1 Price June 1 Price
1976 $110.86 1985 $105.11
1977 $110.22 1986 $104.48
1978 $109.58 1987 $103.83
1979 $108.94 1988 $103.19
1980 $108.31 1989 $102.56
1981 $107.77 1990 $101.92
1982 $107.03 1991 $101.28
1983 $106.39 1992 $100.64
1984 $105.75 1993 $100.00
together, as provided in said Articles of Incorporation, in each
instance, with accrued dividends to the redemption date;
____________________
1 The $11.50 Cumulative Preferred Shares were redeemed in
their entirety on March 1, 1986.
provided, however, that, except for redemptions effected through
or by the sinking funds described in subdivision E below, the
$11.50 Cumulative Preferred Shares shall not be redeemable, in
whole or in part, prior to July 15, 1985, as a part of or in
contemplation of any refunding operation including the
application, directly or indirectly, of (i) the proceeds from the
sale of common shares of the Company, or (ii) money borrowed or
the proceeds of preferred or preference shares of the Company
sold at an interest or dividend cost to the Company (calculated
in accordance with generally accepted financial practice) of less
than 11.5% per annum.
D. The amount payable on the $11.50 Cumulative Preferred
Shares in the event of any dissolution, liquidation or winding up
of the affairs of the Company which shall be voluntary shall be
the price at which said shares are at the time redeemable (as set
forth in subdivision C above), and the amount payable on the
$11.50 Cumulative Preferred Shares in the event of any
dissolution, liquidation or winding up of the affairs of the
Company which shall be involuntary shall be One Hundred Dollars
($100.00) per share, together, as provided in said Articles of
Incorporation, in either event, with a sum, in the case of each
share, computed at the annual dividend rate for the $11.50
Cumulative Preferred Shares 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 which shall have theretofore been paid thereon or
which shall have been declared thereon and for which moneys for
payment shall have been set apart and remain available for
payment.
E. So long as any of the $11.50 Cumulative Preferred
Shares remain outstanding, after all dividends on all Cumulative
Preferred Shares of all series for all past quarterly dividend
periods and for the current quarterly period shall have been paid
or declared and a sum sufficient for the payment thereof set
apart for payment, the Company shall, as and for a mandatory
sinking fund for the benefit of the $11.50 Cumulative Preferred
Shares, redeem, in the manner and upon the notice and with the
effect provided in Section C of Article VI of said Articles of
Incorporation, on June 1, 1979, and on each succeeding June 1 to
and including June 1, 1993 (each such June 1 being hereinafter
called a "sinking fund redemption date"), 6.50% of the maximum
number of $11.50 Cumulative Preferred Shares which shall
theretofore have been issued, and on June 1, 1994, the balance of
the $11.50 Cumulative Preferred Shares then outstanding (such
required redemptions being hereinafter called the "mandatory
sinking fund requirement"). The price at which the $11.50
Cumulative Preferred Shares shall be redeemed in satisfaction of
the mandatory sinking fund requirement shall be $100.00 per
share, together, as provided in said Articles of Incorporation,
in each instance, with accrued dividends to the redemption date.
The mandatory sinking fund requirement for the $11.50 Cumulative
Preferred Shares shall be cumulative so that if, in any year, the
Company shall not satisfy in full the sinking fund requirement
for such year, the amount of the deficiency shall be added to the
mandatory sinking fund requirement for succeeding years until the
deficiency shall have been fully satisfied.
In addition to the mandatory sinking fund requirement of the
immediately preceding paragraph, the Company may, at its option,
redeem, in the manner and upon the notice and with the effect
provided in Section C of Article VI of said Articles of
Incorporation, on any sinking fund redemption date $11.50
Cumulative Preferred Shares not in excess of 6.50% of the maximum
number of $11.50 Cumulative Preferred Shares which shall
theretofore have been issued at the mandatory sinking fund
redemption price hereinbefore specified in this subdivision E.
The privilege of so redeeming $11.50 Cumulative Preferred Shares
shall not be cumulative and shall not relieve the Company to any
extent from its obligation to redeem shares pursuant to the
mandatory sinking fund requirement.
$8.30 Cumulative Preferred Shares
The Board of Directors of the corporation adopted the
following resolution on March 30, 1977, which was filed with the
Secretary of State of Minnesota on March 30, 1977:
Resolution
BE IT FURTHER RESOLVED That, pursuant to authority conferred
on the Board of Directors of Otter Tail Power Company, a
Minnesota corporation, by Article VI of its Articles of
Incorporation, as amended, a sixth series of Cumulative Preferred
Shares be, and it hereby is, created as follows:
A. The designation of such series shall be "$8.30
Cumulative Preferred Shares," and the number of shares of such
series shall be forty-five thousand (45,000).
B. The rate of dividends payable on the $8.30 Cumulative
Preferred Shares shall be $8.30 per share per annum, payable
quarterly on the first day of March, June, September and December
of each year, commencing June 1, 1977, and such dividends shall
be cumulative and accrue in the case of shares issued prior to
the record date for the first dividend thereon from and including
the date of issuance thereof.
C. The $8.30 Cumulative Preferred Shares shall be
redeemable (otherwise than with respect to any redemption
effected through or by the sinking funds hereafter described in
subdivision E below) at $108.30 per share if redeemed before
March 1, 1978, and at the following redemption prices per share
if redeemed thereafter:
If redeemed during the twelve months' period beginning
Redemption Redemption
March 1 Price March 1 Price
1978 $107.95 1990 $103.80
1979 $107.61 1991 $103.46
1980 $107.26 1992 $103.11
1981 $106.92 1993 $102.77
1982 $106.57 1994 $102.42
1983 $106.23 1995 $102.08
1984 $105.88 1996 $101.73
1985 $105.53 1997 $101.38
1986 $105.19 1998 $101.04
1987 $104.84 1999 $100.69
1988 $104.50 2000 $100.35
1989 $104.15 2001 $100.00
together, as provided in said Articles of Incorporation, in each
instance, with accrued dividends to the redemption date;
provided, however, that, except for redemptions effected through
or by the sinking funds described in subdivision E below, the
$8.30 Cumulative Preferred Shares shall not be redeemable, in
whole or in part, prior to March 1, 1987 as a part of, or in
contemplation of, any refunding operation including the
application, directly or indirectly, of the proceeds of (i)
indebtedness for money borrowed by the Company or any affiliate
if such indebtedness (a) has an effective interest cost (computed
in accordance with generally accepted financial practice) of less
than 8.30% per annum or (b) has a Weighted Average Life to
Maturity, at the time of such redemption, of less than the
remaining Weighted Average Life to Maturity of the $8.30
Cumulative Preferred Shares or (ii) the issue or sale of
preferred or preference shares of the Company or any affiliate if
such shares have an effective dividend rate (based on the
proceeds to the Company or such affiliate from such issue or sale
net of any discount or commission to underwriters) of less than
8.30% per annum. The term "Weighted Average Life to Maturity"
shall mean, at any date, the number of years obtained by dividing
the then Remaining Dollar-years of such indebtedness or the $8.30
Cumulative Preferred Shares by the then outstanding principal
amount of such indebtedness or by the product of $100.00 times
the number of $8.30 Cumulative Preferred Shares which are then
outstanding, as the case may be; and for the purpose of this
definition, the term "Remaining Dollar-years" of any indebtedness
or the $8.30 Cumulative Preferred Shares shall mean, at any date,
the total of the products obtained by multiplying (i) the amount
of each then remaining installment, mandatory sinking fund,
serial maturity or other required payment, including payment at
final maturity, in respect thereof by (ii) the number of years
(calculated to the nearest one-twelfth) which will elapse between
such date and the date on which such payment is required to be
made.
D. The amount payable on the $8.30 Cumulative Preferred
Shares in the event of any dissolution, liquidation or winding up
of the affairs of the Company which shall be voluntary shall be
the price at which said shares are at the time redeemable (as set
forth in subdivision C above), and the amount payable on the
$8.30 Cumulative Preferred Shares in the event of any
dissolution, liquidation or winding up of the affairs of the
Company which shall be involuntary shall be $100.00 per share,
together, as provided in said Articles of Incorporation, in
either event, with a sum, in the case of each share, computed at
the annual dividend rate for the $8.30 Cumulative Preferred
Shares 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 which
shall have theretofore been paid thereon or which shall have been
declared thereon and for which moneys for payment shall have been
set apart and remain available for payment.
E. So long as any of the $8.30 Cumulative Preferred Shares
remain outstanding, after all dividends on all Cumulative
Preferred Shares of all series for all past quarterly dividend
periods and for the current quarterly dividend period shall have
been paid or declared and a sum sufficient for the payment
thereof set apart for payment, the Company shall, as and for a
mandatory sinking fund for the benefit of the $8.30 Cumulative
Preferred Shares, redeem, in the manner and upon the notice and
with the effect provided in Section C of Article VI of said
Articles of Incorporation, (i) on March 1, 1983, and on each
succeeding March 1 to and including March 1, 1997, 4% of the
maximum number of $8.30 Cumulative Preferred Shares which shall
theretofore have been issued, (ii) on March 1, 1998, and on each
succeeding March 1 to and including March 1, 2001, 8% of the
maximum number of $8.30 Cumulative Preferred Shares which shall
theretofore have been issued (each March 1 referred to in clause
(i) or (ii) above of this sentence being hereinafter called a
"sinking fund redemption date") and (iii) on March 1, 2002, the
balance of the $8.30 Cumulative Preferred Shares then outstanding
(such required redemptions being hereinafter called the
"mandatory sinking fund requirement"). The price at which the
$8.30 Cumulative Preferred Shares shall be redeemed in
satisfaction of the mandatory sinking fund requirement shall be
$100.00 per share, together, as provided in said Articles of
Incorporation, in each instance, with accrued dividends to the
redemption date. The mandatory sinking fund requirement for the
$8.30 Cumulative Preferred Shares shall be cumulative so that if,
in any year, the Company shall not satisfy in full the mandatory
sinking fund requirement for such year, the amount of the
deficiency shall be added to the mandatory sinking fund
requirement for succeeding years until the deficiency shall have
been fully satisfied.
In addition to the mandatory sinking fund requirement, the
Company may, at its option, redeem, in the manner and upon the
notice and with the effect provided in Section C of Article VI of
said Articles of Incorporation, on any sinking fund redemption
date $8.30 Cumulative Preferred Shares in an amount not to exceed
the number of $8.30 Cumulative Preferred Shares which shall be
redeemed on such sinking fund redemption date through the
mandatory sinking fund requirement at the mandatory sinking fund
redemption price hereinbefore specified in this subdivision E.
The privilege of so redeeming $8.30 Cumulative Preferred Shares
shall not be cumulative and shall not relieve the Company to any
extent from its obligation to redeem shares pursuant to the
mandatory sinking fund requirement.
$8.375 Cumulative Preferred Shares
The Board of directors of the corporation adopted the
following resolution on March 6, 1978, which was filed with the
Secretary of State of Minnesota on March 21, 1978:
Resolution
BE IT FURTHER RESOLVED That, pursuant to authority conferred
on the Board of Directors of Otter Tail Power Company, a
Minnesota corporation, by Article VI of its Articles of
Incorporation, as amended, a seventh series of Cumulative
Preferred Shares be, and it hereby is, created as follows:
A. The designation of such series shall be "$8.375
Cumulative Preferred Shares," and the number of shares of such
series shall be one hundred thousand (100,000).
B. The rate of dividends payable on the $8.375 Cumulative
Preferred Shares shall be $8.375 per share per annum, payable
quarterly on the first day of March, June, September and December
of each year, commencing June 1, 1978. Such dividends shall be
cumulative and accrue in the case of each share from and
including the date of original issuance thereof; and the amount
of the dividend for any period of less than a full quarter shall
be computed on the basis of a 360-day year of twelve 30-day
months.
C. The $8.375 Cumulative Preferred Shares shall be
redeemable (otherwise than with respect to any redemption
effected through or by the sinking funds hereafter described in
subdivision E below) at $108.375 per share if redeemed on or
before June 1, 1979, and at the following redemption prices per
share if redeemed thereafter:
If redeemed during the twelve months' period ending
Redemption Redemption
June 1 Price June 1 Price
1980 $108.026 1992 $103.839
1981 $107.677 1993 $103.490
1982 $107.329 1994 $103.141
1983 $106.979 1995 $102.792
1984 $106.630 1996 $102.443
1985 $106.281 1997 $102.094
1986 $105.932 1998 $101.745
1987 $105.583 1999 $101.396
1988 $105.234 2000 $101.047
1989 $104.886 2001 $100.698
1990 $104.537 2002 $100.349
1991 $104.188 2003 $100.000
together, as provided in said Articles of Incorporation, in each
instance, with accrued dividends to the redemption date;
provided, however, that, except for redemptions effected through
or by the sinking funds described in subdivision E below, the
$8.375 Cumulative Preferred Shares shall not be redeemable, in
whole or in part, prior to June 1, 1988 as a part of, or in
contemplation of, any refunding operation including the
application, directly or indirectly, of the proceeds of (i)
indebtedness for money borrowed by the Company or any affiliate
if such indebtedness (a) has an effective interest cost (computed
in accordance with generally accepted financial practice) of less
than 8.375% per annum or (b) has a Weighted Average Life to
Maturity, at the time of such redemption, of less than the
remaining Weighted Average Life to Maturity of the $8.375
Cumulative Preferred Shares or (ii) the issue or sale of shares
of the Company ranking prior to or on a parity with the $8.375
Cumulative Preferred Shares as to dividends or on liquidation if
such shares have an effective dividend rate (based on the
proceeds to the Company from such issue or sale net of any
discount or commission to underwriters) of less than 8.375% per
annum. The term "Weighted Average Life to Maturity" shall mean,
at any date, the number of years obtained by dividing the then
Remaining Dollar-years of such indebtedness or the $8.375
Cumulative Preferred Shares by the then outstanding principal
amount of such indebtedness or by the product of $100.00 times
the number of $8.375 Cumulative Preferred Shares which are then
outstanding, as the case may be; and for the purpose of this
definition, the term "Remaining Dollar-years" of any indebtedness
or the $8.375 Cumulative Preferred Shares shall mean, at any
date, the total of the products obtained by multiplying (i) the
amount of each then remaining installment, mandatory sinking
fund, serial maturity or other required payment, including
payment at final maturity, in respect thereof by (ii) the number
of years (calculated to the nearest one-twelfth) which will
elapse between such date and the date on which such payment is
required to be made.
D. The amount payable on the $8.375 Cumulative Preferred
Shares in the event of any dissolution, liquidation or winding up
of the affairs of the Company which shall be voluntary shall be
the price at which said shares are at the time redeemable (as set
forth in subdivision C above), and the amount payable on the
$8.375 Cumulative Preferred Shares in the event of any
dissolution, liquidation or winding up of the affairs of the
Company which shall be involuntary shall be $100.00 per share,
together, as provided in said Articles of Incorporation, in
either event, with a sum, in the case of each share, computed at
the annual dividend rate for the $8.375 Cumulative Preferred
Shares 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 which
shall have theretofore been paid thereon or which shall have been
declared thereon and for which moneys for payment shall have been
set apart and remain available for payment.
E. So long as any of the $8.375 Cumulative Preferred
Shares remain outstanding, after all dividends on all Cumulative
Preferred Shares of all series for all past quarterly dividend
periods and for the current quarterly dividend period shall have
been paid or declared and a sum sufficient for the payment
thereof set apart for payment, the Company shall, as and for a
mandatory sinking fund for the benefit of the $8.375 Cumulative
Preferred Shares, redeem, in the manner and upon the notice and
with the effect provided in Section C of Article VI of said
Articles of Incorporation (i) on June 1, 1984, and on each
succeeding June 1 to and including June 1, 1993, 2% of the
maximum number of $8.375 Cumulative Preferred Shares which shall
theretofore have been issued, (ii) on June 1, 1994, and on each
succeeding June 1 to and including June 1, 2002, 6.67% of the
maximum number of $8.375 Cumulative Preferred Shares which shall
theretofore have been issued (each June 1 referred to in clause
(i) or (ii) above of this sentence being hereinafter called a
"sinking fund redemption date") and (iii) on June 1, 2003, the
balance of the $8.375 Cumulative Preferred Shares then
outstanding (such required redemptions being hereinafter called
the "mandatory sinking fund requirement"). The price at which
the $8.375 Cumulative Preferred Shares shall be redeemed in
satisfaction of the mandatory sinking fund requirement shall be
$100.00 per share, together, as provided in said Articles of
Incorporation, in each instance, with accrued dividends to the
redemption date. The mandatory sinking fund requirement for the
$8.375 Cumulative Preferred Shares shall be cumulative so that
if, in any year, the Company shall not satisfy in full the
mandatory sinking fund requirement for such year, the amount of
the deficiency shall be added to the mandatory sinking fund
requirement for succeeding years until the deficiency shall have
been fully satisfied.
In addition to the mandatory sinking fund requirement, the
Company may, at its option, redeem, in the manner and upon the
notice and with the effect provided in Section C of Article VI of
said Articles of Incorporation, on any sinking fund redemption
date $8.375 Cumulative Preferred Shares in an amount not to
exceed the number of $8.375 Cumulative Preferred Shares which
shall be redeemed on such sinking fund redemption date through
the mandatory sinking fund requirement at the mandatory sinking
fund redemption price hereinbefore specified in this
subdivision E. The privilege of so redeeming $8.375 Cumulative
Preferred Shares shall not be cumulative and shall not relieve
the Company to any extent from its obligation to redeem shares
pursuant to the mandatory sinking fund requirement.
$8.90 Cumulative Preferred Shares
The Board of directors of the corporation adopted the
following resolution on July 23, 1979, which was filed with the
Secretary of State of Minnesota on July 26, 1979:
Resolution
BE IT FURTHER RESOLVED That, pursuant to authority conferred
on the Board of Directors of Otter Tail Power Company, a
Minnesota corporation, by Subdivision A of Division I of
Article VI of its Articles of Incorporation, as amended, an
eighth series of Cumulative Preferred Shares be, and it hereby
is, created as follows:
A. The designation of such series shall be "$8.90
Cumulative Preferred Shares," and the number of shares of such
series shall be seventy thousand (70,000).
B. The rate of dividends payable on the $8.90 Cumulative
Preferred Shares shall be $8.90 per share per annum, payable
quarterly on the first day of March, June, September and December
of each year, commencing September 1, 1979. Such dividends shall
be cumulative and accrue in the case of each share from and
including the date of original issuance thereof; and the amount
of the dividend for any period of less than a full quarter shall
be computed on the basis of a 360-day year of twelve 30-day
months.
C. The $8.90 Cumulative Preferred Shares shall be
redeemable (otherwise than with respect to any redemption
effected through or by the sinking funds hereafter described in
subdivision E below) at $108.90 per share if redeemed on or
before September 1, 1980, and at the following redemption prices
per share if redeemed thereafter:
If redeemed during the twelve months' period ending
Redemption Redemption
September 1 Price September 1 Price
1981 $108.529 1993 $104.079
1982 $108.158 1994 $103.708
1983 $107.788 1995 $103.338
1984 $107.417 1996 $102.967
1985 $107.046 1997 $102.596
1986 $106.675 1998 $102.225
1987 $106.304 1999 $101.854
1988 $105.933 2000 $101.483
1989 $105.563 2001 $101.113
1990 $105.192 2002 $100.742
1991 $104.821 2003 $100.371
1992 $104.450 2004 $100.000
together, as provided in subdivision C of said Division I, in
each instance, with accrued dividends to the redemption date;
provided, however, that, except for redemptions effected through
or by the sinking funds described in subdivision E below, the
$8.90 Cumulative Preferred Shares shall not be redeemable, in
whole or in part, prior to September 1, 1989 as a part of, or in
contemplation of, any refunding operation including the
application, directly or indirectly, of the proceeds of (i)
indebtedness for money borrowed by the Company or any affiliate
if such indebtedness (a) has an effective interest cost (computed
in accordance with generally accepted financial practice) of less
than 8.90% per annum or (b) has a Weighted Average Life to
Maturity, at the time of such redemption, of less than the
remaining Weighted Average Life to Maturity of the $8.90
Cumulative Preferred Shares or (ii) the issue or sale of shares
of the Company ranking prior to the Common Shares of the Company
as to dividends or on liquidation if such shares have an
effective dividend rate (based on the proceeds to the Company
from such issue or sale net of any discount or commission to
underwriters) of less than 8.90% per annum. The term "Weighted
Average Life to Maturity" shall mean, at any date, the number of
years obtained by dividing the then Remaining Dollar-years of
such indebtedness or the $8.90 Cumulative Preferred Shares by the
then outstanding principal amount of such indebtedness or by the
product of $100.00 times the number of $8.90 Cumulative Preferred
Shares which are then outstanding, as the case may be; and for
the purpose of this definition, the term "Remaining Dollar-years"
of any indebtedness or the $8.90 Cumulative Preferred Shares
shall mean, at any date, the total of the products obtained by
multiplying (i) the amount of each then remaining installment,
mandatory sinking fund, serial maturity or other required
payment, including payment at final maturity, in respect thereof
by (ii) the number of years (calculated to the nearest one-
twelfth) which will elapse between such date and the date on
which such payment is required to be made.
D. The amount payable on the $8.90 Cumulative Preferred
Shares in the event of any dissolution, liquidation or winding up
of the affairs of the Company which shall be voluntary shall be
the price at which said shares are at the time redeemable (as set
forth in subdivision C above), and the amount payable on the
$8.90 Cumulative Preferred Shares in the event of any
dissolution, liquidation or winding up of the affairs of the
Company which shall be involuntary shall be $100.00 per share,
together, as provided in subdivision E of said Division I, in
either event, with a sum, in the case of each share, computed at
the annual dividend rate for the $8.90 Cumulative Preferred
Shares 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 which
shall have theretofore been paid thereon or which shall have been
declared thereon and for which moneys for payment shall have been
set apart and remain available for payment.
E. So long as any of the $8.90 Cumulative Preferred Shares
remain outstanding, after all dividends on all Cumulative
Preferred Shares of all series for all past quarterly dividend
periods and for the current quarterly dividend period shall have
been paid or declared and a sum sufficient for the payment
thereof set apart for payment, the Company shall, as and for a
mandatory sinking fund for the benefit of the $8.90 Cumulative
Preferred Shares, redeem, in the manner and upon the notice and
with the effect provided in subdivision C of said Division I, (i)
on September 1, 1985, and on each succeeding September 1 to and
including September 1, 1994, 2 1/2% of the maximum number of
$8.90 Cumulative Preferred Shares which shall theretofore have
been issued, (ii) on September 1, 1995, and on each succeeding
September 1 to and including September 1, 2003, 7.5% of the
maximum number of $8.90 Cumulative Preferred Shares which shall
theretofore have been issued (each September 1 referred to in
clause (i) or (ii) above of this sentence being hereinafter
called a "sinking fund redemption date") and (iii) on
September 1, 2004, the balance of the $8.90 Cumulative Preferred
Shares then outstanding (such required redemptions being
hereinafter called the "mandatory sinking fund requirement").
The price at which the $8.90 Cumulative Preferred Shares shall be
redeemed in satisfaction of the mandatory sinking fund
requirement shall be $100.00 per share, together, as provided in
subdivision C of said Division I, in each instance, with accrued
dividends to the redemption date. The mandatory sinking fund
requirement for the $8.90 Cumulative Preferred Shares shall be
cumulative so that if, in any year, the Company shall not satisfy
in full the mandatory sinking fund requirement for such year, the
amount of the deficiency shall be added to the mandatory sinking
fund requirement for succeeding years until the deficiency shall
have been fully satisfied.
In addition to the mandatory sinking fund requirement, the
Company may, at its option, redeem, in the manner and upon the
notice and with the effect provided in subdivision C of said
Division I, on any sinking fund redemption date $8.90 Cumulative
Preferred Shares in an amount not to exceed the number of $8.90
Cumulative Preferred Shares which shall be redeemed on such
sinking fund redemption date through the mandatory sinking fund
requirement at the mandatory sinking fund redemption price
hereinbefore specified in this subdivision E; provided that not
more than 30% of the maximum number of $8.90 Cumulative Preferred
Shares which shall theretofore have been issued may be so
redeemed. The privilege of so redeeming $8.90 Cumulative
Preferred Shares shall not be cumulative and shall not relieve
the Company to any extent from its obligation to redeem shares
pursuant to the mandatory sinking fund requirement.
$11.50 Cumulative Preferred Shares (Series A) 1
The Board of Directors of the corporation adopted the
following resolution on June 18, 1980, which was filed with the
Secretary of State of Minnesota on June 20, 1980:
Resolution
BE IT FURTHER RESOLVED That, pursuant to authority conferred
on the Board of Directors of Otter Tail Power Company, a
Minnesota corporation, by subdivision A of Division I of
Article VI of its Articles of Incorporation, as amended, a ninth
series of Cumulative Preferred Shares be, and it hereby is,
created as follows:
A. The designation of such series shall be "$11.50
Cumulative Preferred Shares (Series A)," and the number of shares
of such series shall be eighty thousand (80,000).
B. The rate of dividends payable on the $11.50 Cumulative
Preferred Shares (Series A) shall be $11.50 per share per annum,
payable quarterly on the first day of March, June, September and
December of each year, commencing September 1, 1980. Such
dividends shall be cumulative and accrue in the case of each
share from and including the date of original issuance thereof;
and the amount of the dividend for any period of less than a full
quarter shall be computed on the basis of a 360-day year of
twelve 30-day months.
C. The $11.50 Cumulative Preferred Shares (Series A) shall
be redeemable (otherwise than with respect to any redemption
effected through or by the sinking funds hereafter described in
subdivision E below) at $111.50 per share if redeemed on or
before June 1, 1981, and at the following redemption prices per
share if redeemed thereafter:
If redeemed during the twelve months' period ending
Redemption Redemption
June 1 Price June 1 Price
1982 $111.02 1994 $105.27
1983 $110.54 1995 $104.79
1984 $110.06 1996 $104.31
1985 $109.58 1997 $103.83
1986 $109.10 1998 $103.35
1987 $108.63 1999 $102.88
1988 $108.15 2000 $102.40
1989 $107.67 2001 $101.92
1990 $107.19 2002 $101.44
1991 $106.71 2003 $100.96
________________
2 The $11.50 Cumulative Preferred Shares (Series A) were
redeemed in their entirety on March 1, 1996
1992 $106.23 2004 $100.48
1993 $105.75 2005 $100.00
together, as provided in subdivision C of said Division I, in
each instance, with accrued dividends to the redemption date;
provided, however, that, except for redemptions effected through
or by the sinking funds described in subdivision E below, the
$11.50 Cumulative Preferred Shares (Series A) shall not be
redeemable, in whole or in part, prior to June 1, 1990 as a part
of, or in contemplation of, any refunding operation including the
application, directly or indirectly, of the proceeds of (i)
indebtedness for money borrowed by the Company or any affiliate
if such indebtedness (a) has an effective interest cost (computed
in accordance with generally accepted financial practice) of less
than 11.50% per annum or (b) has a Weighted Average Life to
Maturity, at the time of such redemption, of less than the
remaining Weighted Average Life to Maturity of the $11.50
Cumulative Preferred Shares (Series A) or (ii) the issue or sale
of shares of the Company ranking prior to the Common Shares of
the Company as to dividends or on liquidation if such shares have
an effective dividend rate (based on the proceeds to the Company
from such issue or sale net of any discount or commission to
underwriters) of less than 11.50% per annum. The term "Weighted
Average Life to Maturity" shall mean, at any date, the number of
years obtained by dividing the then Remaining Dollar-years of
such indebtedness or the $11.50 Cumulative Preferred Shares
(Series A) by the then outstanding principal amount of such
indebtedness or by the product of $100.00 times the number of
$11.50 Cumulative Preferred Shares (Series A) which are then
outstanding, as the case may be; and for the purpose of this
definition, the term "Remaining Dollar-years" of any indebtedness
or the $11.50 Cumulative Preferred Shares (Series A) shall mean,
at any date, the total of the products obtained by multiplying
(i) the amount of each then remaining installment, mandatory
sinking fund, serial maturity or other required payment,
including payment at final maturity, in respect thereof by (ii)
the number of years (calculated to the nearest one-twelfth) which
will elapse between such date and the date on which such payment
is required to be made.
D. The amount payable on the $11.50 Cumulative Preferred
Shares (Series A) in the event of any dissolution, liquidation or
winding up of the affairs of the Company which shall be voluntary
shall be the price at which said shares are at the time
redeemable (as set forth in subdivision C above), and the amount
payable on the $11.50 Cumulative Preferred Shares (Series A) in
the event of any dissolution, liquidation or winding up of the
affairs of the Company which shall be involuntary shall be
$100.00 per share, together, as provided in Subdivision E of said
Division I, in either event, with a sum, in the case of each
share, computed at the annual dividend rate for the $11.50
Cumulative Preferred Shares (Series A) 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 which shall have theretofore been paid
thereon or which shall have been declared thereon and for which
moneys for payment shall have been set apart and remain available
for payment.
E. So long as any of the $11.50 Cumulative Preferred
Shares (Series A) remain outstanding, after all dividends on all
Cumulative Preferred Shares of all series for all past quarterly
dividend periods and for the current quarterly dividend period
shall have been paid or declared and a sum sufficient for the
payment therof set apart for payment, the Company shall, as and
for a mandatory sinking fund for the benefit of the $11.50
Cumulative Preferred Shares (Series A), redeem, in the manner and
upon the notice and with the effect provided in subdivision C of
said Division I, (i) on June 1, 1986, and on each succeeding
June 1 to and including June 1, 2004 (each such June 1 being
hereinafter called a "sinking fund redemption date"), 5% of the
maximum number of $11.50 Cumulative Preferred Shares (Series A)
which shall theretofore have been issued and (ii) on June 1,
2005, the balance of the $11.50 Cumulative Preferred Shares
(Series A) then outstanding (such required redemptions being
hereinafter called the "mandatory sinking fund requirement").
The price at which the $11.50 Cumulative Preferred Shares
(Series A) shall be redeemed in satisfaction of the mandatory
sinking fund requirement shall be $100.00 per share, together, as
provided in subdivision C of said Division I, in each instance,
with accrued dividends to the redemption date. The mandatory
sinking fund requirement for the $11.50 Cumulative Preferred
Shares (Series A) shall be cumulative so that if, in any year,
the Company shall not satisfy in full the mandatory sinking fund
requirement for such year, the amount of the deficiency shall be
added to the mandatory sinking fund requirement for succeeding
years until the deficiency shall have been fully satisfied.
In addition to the mandatory sinking fund requirement, the
Company may, at its option, redeem, in the manner and upon the
notice and with the effect provided in subdivision C of said
Division I, on any sinking fund redemption date $11.50 Cumulative
Preferred Shares (Series A) in an amount not to exceed the number
of $11.50 Cumulative Preferred Shares (Series A) which shall be
redeemed on such sinking fund redemption date through the
mandatory sinking fund requirement at the mandatory sinking fund
redemption price hereinbefore specified in this subdivision E;
provided that not more than 25% of the maximum number of $11.50
Cumulative Preferred Shares (Series A) which shall theretofore
have been issued may be so redeemed. The privilege of so
redeeming $11.50 Cumulative Preferred Shares (Series A) shall not
be cumulative and shall not relieve the Company to any extent
from its obligation to redeem shares pursuant to the mandatory
sinking fund requirement.
CERTIFICATE
The undersigned, D. R. EMMEN and JAY D. MYSTER, do hereby
certify that we are duly elected, qualified and acting as the
Senior Vice President, Finance and Treasurer and the Vice
President, Governmental and Legal and Secretary, respectively, of
Otter Tail Power Company, a Minnesota corporation (the
"Company"), and that the following is a true and correct copy of
a resolution duly adopted at a meeting of the Board of Directors
of the Company duly called and held on April 13, 1992, at which a
quorum was present and acted throughout:
BE IT RESOLVED That, pursuant to authority conferred on the
Board of Directors of Otter Tail Power Company, a Minnesota
corporation, by subdivision A of Division I of Article VI of its
Articles of Incorporation, as amended, a tenth series of
Cumulative Preferred Shares be, and it hereby is, created as
follows:
A. The designation of such series shall be "$9.00
Exchangeable Cumulative Preferred Shares," and the number of
shares of such series shall be fifty-three thousand three hundred
eleven (53,311).
B. The rate of dividends payable on the $9.00 Exchangeable
Cumulative Preferred Shares shall be $9.00 per share per annum,
payable quarterly on the first day of March, June, September and
December of each year, commencing on the first day of the first
such month following the date of original issuance of the $9.00
Exchangeable Cumulative Preferred Shares. Such dividends shall
be cumulative and accrue in the case of each share from and
including the date of original issuance thereof; and the amount
of the dividend for any period of less than a full quarter shall
be computed on the basis of a 360-day year of twelve 30-day
months.
C. The $9.00 Exchangeable Cumulative Preferred Shares
shall be redeemable at any time on or after the seventh
anniversary of the date of original issuance thereof at $100.00
per share together, as provided in subdivision C of said
Division I, in each instance, with accrued dividends to the
redemption date; provided, however, that the holder of any $9.00
Exchangeable Cumulative Preferred Shares to be redeemed pursuant
to this Section C shall have the right, at such holder's option,
to exchange any or all of the $9.00 Exchangeable Cumulative
Preferred Shares held by such holder and so to be redeemed into
Common Shares (as defined below) pursuant to, and subject to and
upon compliance with, the provisions of Section E hereof.
D. The amount payable on the $9.00 Exchangeable Cumulative
Preferred Shares in the event of any dissolution, liquidation or
winding up of the affairs of the Company, whether voluntary or
involuntary, shall be $100.00 per share, together, as provided in
subdivision E of said Division I, with a sum, in the case of each
share, computed at the annual dividend rate for the $9.00
Exchangeable Cumulative Preferred Shares 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 which shall have theretofore been paid
thereon or which shall have been declared thereon and for which
moneys for payment shall have been set apart and remain available
for payment.
E. (1) Subject to and upon compliance with the provisions
of this Section E, each holder of $9.00 Exchangeable Cumulative
Preferred Shares shall have the right, at each such holder's
option, at any time on or after the seventh anniversary of the
date of original issuance thereof, to exchange any or all of the
$9.00 Exchangeable Cumulative Preferred Shares held by each such
holder into either (a) cash in the amount of $100.00 per each
$9.00 Exchangeable Cumulative Preferred Share so exchanged,
together, in each instance, with accrued dividends to the
Exchange Date (as defined below), or (b) the number of fully paid
and nonassessable Common Shares obtained by dividing (i) the sum
of (A) the $100.00 liquidation value of a $9.00 Exchangeable
Cumulative Preferred Share and (B) any accrued dividends to the
Exchange Date with respect to the $9.00 Exchangeable Cumulative
Preferred Share to be exchanged, by (ii) the Fair Market Value
(as defined below) of a Common Share, and multiplying such
resulting number by the number of $9.00 Exchangeable Cumulative
Preferred Shares to be so exchanged (rounding such product, for
the purpose of determining the amount of any cash payments
provided for under subsection (3) of this Section E, to the
nearest 1/100 Common Share, with 1/200 of a Common Share being
rounded upward), and in the case of either clause (a) or (b), by
surrender of such $9.00 Exchangeable Cumulative Preferred Shares
to be so exchanged, such surrender to be made in the manner
provided in subsection (2) of this Section E.
For purposes of this Section E, the term "Common Shares"
shall mean the Common Shares of the Company as the same exists at
the date of original issue of the $9.00 Exchangeable Cumulative
Preferred Shares or as such shares may be constituted from time
to time thereafter.
For purposes of this Section E, the term "Exchange Date"
shall mean (x), if the $9.00 Exchangeable Cumulative Preferred
Shares are being exchanged for cash, the date which is 10
calendar days after the date such shares have been duly
surrendered to the Registrar or (y), if the $9.00 Exchangeable
Cumulative Preferred Shares are being exchanged for Common
Shares, the date which is 60 Trading Days (as defined below)
after the date such shares have been duly surrendered to the
Registrar, or, in the case of either clause (x) or (y), if such
day is not a business day, the next succeeding business day.
For purposes of this Section E, the term "Fair Market Value"
with respect to the Common Shares shall mean the average of the
reported last sale prices for the 60 consecutive Trading Days
immediately preceding the relevant Exchange Date. The reported
last sale price for each Trading Day shall be the reported last
sale price, regular way, or, in case no sale takes place on such
day, the average of the reported closing bid and asked prices,
regular way, in either case as reported on the New York Stock
Exchange Composite Tape or, if the Common Shares are not listed
or admitted to trading on the New York Stock Exchange, in the
principal national securities exchange on which the Common Shares
are listed or admitted to trading or, if not listed or admitted
to trading on any national securities exchange, on the National
Market System of the National Association of Securities Dealers,
Inc. Automated Quotations System ("NASDAQ") or, if the Common
Shares are not quoted on such National Market System, the average
of the closing bid and asked prices on such day in the over-the-
counter market as reported by NASDAQ or, if bid and asked prices
for Common Shares on each such day shall not have been reported
through NASDAQ, the average of the bid and asked prices for such
day as furnished by any New York Stock Exchange member firm
regularly making a market in the Common Shares selected for such
purpose by the Company and if no such quotations are available,
the fair market value of the Common Shares as determined by a New
York Stock Exchange member firm regularly making a market in the
Common Shares selected for such purpose by the Company.
For purposes of this Section E, the term "Trading Day" means
(x), if the Common Shares are listed or admitted for trading on
the New York Stock Exchange or another national securities
exchange, a day on which the New York Stock Exchange or such
other national securities exchange is open for business or (y),
if the Common Shares are quoted on the National Market System of
NASDAQ, a day on which trades may be made on such National Market
System or (z), otherwise, any day other than a Saturday or Sunday
or a day on which banking institutions in the State of New York
are authorized or obligated by law or executive order to close.
(2) In order to validly exercise the exchange privilege
pursuant to this Section E, the holder of each $9.00 Exchangeable
Cumulative Preferred Share to be exchanged shall surrender the
certificate representing such share at the office of the
Registrar for the $9.00 Exchangeable Cumulative Preferred Shares
in Fergus Falls, Minnesota, appointed for such purpose by the
Company (which may be the Company), with the Notice of Election
to Exchange on the back of such certificate completed and signed.
Unless the shares issuable on exchange are to be issued in the
same name as the name in which the share to be exchanged is
registered, each share surrendered for exchange shall be
accompanied by instruments of transfer, in form satisfactory to
the Registrar, duly executed by the holder or the holder's duly
authorized attorney, and by an amount sufficient to pay any
transfer or similar tax. If the $9.00 Exchangeable Cumulative
Preferred Shares have been called for redemption and are being
surrendered for exchange pursuant to the proviso contained in
Section C hereof, then the certificate representing such shares
must be duly surrendered, as aforesaid, to the Registrar on or
before the twentieth day following the date of the notice of
redemption relating to such shares in order for the exchange
privilege to be validly exercised, and any such shares with
respect to which the exchange privilege is not validly exercised
shall be redeemed on the redemption date.
On or before the Exchange Date, the Company shall deliver at
the office of the Registrar, for the account of each holder of
$9.00 Exchangeable Cumulative Preferred Shares surrendered for
exchange on such Exchange Date, (i) if such $9.00 Exchangeable
Cumulative Preferred Shares are being exchanged for cash, funds
in the amount provided in clause (a) of subsection (1) of this
Section E, or (ii) if such $9.00 Exchangeable Cumulative
Preferred Shares are being exchanged for Common Shares, a
certificate or certificates for the number of full Common Shares
issuable upon the exchange of such shares in accordance with the
provisions of clause (b) of subsection (1) of this Section E, and
funds for the settlement of any fractional interest in respect of
a Common Share arising upon such exchange as provided in
subsection (3) of this Section E. At the option of the Company,
the Common Shares so delivered may be newly issued shares,
treasury shares or shares reacquired by or on behalf of the
Company, including shares purchased in the open market at any
time in the sole discretion of the Company.
Each holder of $9.00 Exchangeable Cumulative Preferred
Shares acknowledges by acceptance thereof that (i) the Common
Shares deliverable upon any exchange of $9.00 Exchangeable
Cumulative Preferred Shares will not be registered under the
Securities Act of 1933, as amended, or any applicable state
securities laws and that any such Common Shares may not be resold
except pursuant to an exemption from such Act and all such
applicable laws or pursuant to registrations thereunder; (ii)
such Common Shares may not be sold, transferred or otherwise
disposed of in any manner without first obtaining (a) an opinion
of counsel reasonably acceptable to the Company, both as to
opinion and as to counsel, that such proposed sale, transfer or
other disposition can lawfully be made without registration
pursuant to the Securities Act of 1933, as then amended, and
applicable state securities laws, or (b) such registrations (it
being expressly understood that the Company shall not have any
obligation to register such securities for such purpose); (iii)
certificates representing such Common Shares may bear a legend
stating that such Common Shares have not been registered under
the Securities Act of 1933, as amended, and applicable state
securities laws and referring to the foregoing restrictions on
transferability of such Common Shares; and (iv) the Company may
place stop transfer orders or notations on the Company's stock
record referring to such restrictions on transferability.
All Common Shares delivered upon exchange of the $9.00
Exchangeable Cumulative Preferred Shares pursuant to this Section
E will, upon delivery, be duly and validly issued and fully paid
and nonassessable, free of all liens and charges and not subject
to any preemptive rights.
Each exchange of $9.00 Exchangeable Cumulative Preferred
Shares pursuant to this Section E shall be deemed to have been
effected immediately prior to the close of business on the
Exchange Date. Until such time on the Exchange Date, any $9.00
Exchangeable Cumulative Preferred Shares which have been
surrendered for exchange with respect to such Exchange Date shall
be treated as outstanding and the person or persons in whose name
or names a certificate for any such shares is registered (or any
prior holder who was the holder of record of such shares on the
relevant record date) shall remain the holder of record for the
purpose of voting such shares and receiving any dividends paid
with respect to such shares prior to such time on the Exchange
Date, notwithstanding that such shares might have been redeemed
on a date prior to the Exchange Date but for the exercise of the
right to exchange such shares pursuant to the proviso contained
in Section C hereof. At such time on such Exchange Date, the
person or persons in whose name or names any certificate or
certificates for Common Shares shall be deliverable upon such
exchange shall be deemed to have become the holder or holders of
record of the Common Shares represented thereby unless the stock
transfer books of the Company are closed on such date, in which
event such person or persons shall be deemed to have become such
holder or holders of record at the close of business on the next
succeeding day on which such stock transfer books are open.
(3) In connection with the exchange of any $9.00
Exchangeable Cumulative Preferred Shares for Common Shares
pursuant to this Section E, no fractional Common Share or scrip
representing fractions of a Common Share shall be issued.
Instead of any fractional interest in a Common Share which would
otherwise be deliverable upon the exchange of $9.00 Exchangeable
Cumulative Preferred Shares, the Company shall pay to the holder
of such $9.00 Exchangeable Cumulative Preferred Shares an amount
in cash (computed to the nearest cent, with one-half cent being
rounded upward) equal to the Fair Market Value of a Common Share
multiplied by the fraction of a Common Share represented by such
fractional interest.
(4) The number of $9.00 Exchangeable Cumulative Preferred
Shares which may be exchanged pursuant to this Section E in any
twelve-month period shall be limited to a total of 10,662 $9.00
Exchangeable Cumulative Preferred Shares, and the Company shall
have no obligation to exchange any shares surrendered in excess
of that amount; provided, however, that $9.00 Exchangeable
Cumulative Preferred Shares called for redemption and surrendered
for exchange pursuant to the proviso contained in Section C
hereof shall not be subject to the limitation set forth in this
subsection (4) and shall not be counted for purposes of
determining the limitation set forth in this subsection (4) as it
applies to shares otherwise surrendered for exchange.
(5) On any Exchange Date, the Company shall have no
obligation to exchange for Common Shares, whether pursuant to the
proviso contained in Section C hereof or otherwise, $9.00
Exchangeable Cumulative Preferred Shares held by any holder
unless either (i) the total number of $9.00 Exchangeable
Cumulative Preferred Shares surrendered for exchange by such
holder with respect to such Exchange Date equals or exceeds 500
or (ii) the total number of $9.00 Exchangeable Cumulative
Preferred Shares surrendered for exchange by all holders of $9.00
Exchangeable Cumulative Preferred Shares with respect to such
Exchange Date equals or exceeds 500.
IN WITNESS WHEREOF, the undersigned have hereunto set their
hands as the Senior Vice President, Finance and Treasurer and the
Vice President, Governmental and Legal and Secretary,
respectively, of Otter Tail Power Company and have affixed the
seal of Otter Tail Power Company this 10th day of August, 1992.
D. R. Emmen
D. R. Emmen
Senior Vice President, Finance and
Treasurer
Jay D. Myster
Jay D. Myster
Vice President, Governmental and
Legal and Secretary
[CORPORATE SEAL]
STATE OF MINNESOTA )
) SS
COUNTY OF OTTER TAIL)
ON this 10th day of August, 1992 before me a Notary Public
and for said County and State, personally appeared D. R. EMMEN
and JAY D. MYSTER, to me personally known to be the Senior Vice
President, Finance and Treasurer and the Vice President,
Governmental and Legal and Secretary, respectively, of Otter Tail
Power Company, who, being by me duly sworn, did say that they
are, respectively, the Senior Vice President, Finance and
Treasurer and the Vice President, Governmental and Legal and
Secretary of said corporation, and that the seal affixed to the
within certificate is the corporate seal of said corporation, and
that said certificate was signed and sealed in behalf of said
corporation by authority of its Board of Directors, and said D.
R. EMMEN and JAY D. MYSTER acknowledged said certificate to be
the free act and deed of said corporation.
Raymond J. Holmgren
[NOTARIAL SEAL]
CERTIFICATE
The undersigned, D. R. EMMEN and JAY D. MYSTER, do hereby
certify that we are duly elected, qualified and acting as the
Senior Vice President, Finance and Treasurer and the Vice
President, Governmental and Legal and Secretary, respectively, of
Otter Tail Power Company, a Minnesota corporation (the
"Company"), and that the following is a true and correct copy of
a resolution duly adopted by a Written Action of the Pricing
Committee of the Board of Directors of the Company, dated
September 29, 1992, executed by all the members of said Pricing
Committee, duly established by the Board of Directors of the
Company at a meeting thereof duly called and held on February 3,
1992, at which a quorum was present and acted throughout, to act
for the Board of Directors with respect to the matters set forth
in said Written Action:
RESOLUTION
BE IT RESOLVED That, pursuant to authority conferred on the
Board of Directors of Otter Tail Power Company, a Minnesota
corporation, by subdivision A of Division I of Article VI of its
Articles of Incorporation, as amended, an eleventh series of
Cumulative Preferred Shares be, and it hereby is, created as
follows:
A. The designation of such series shall be "$6.35
Cumulative Preferred Shares," and the number of shares of such
series shall be one hundred eighty thousand (180,000).
B. The rate of dividends payable on the $6.35 Cumulative
Preferred Shares shall be $6.35 per share per annum, payable
quarterly on the first day of March, June, September and December
of each year, commencing December 1, 1992. Such dividends shall
be cumulative and accrue in the case of each share from and
including the date of original issuance thereof; and the amount
of the dividend for any period of less than a full quarter shall
be computed on the basis of a 360-day year of twelve 30-day
months.
C. The $6.35 Cumulative Preferred Shares shall be
redeemable (otherwise than with respect to any redemption
effected through or by the sinking fund hereafter described in
subdivision E below), at the option of the Company, in whole or
in part, at $103.175 per share if redeemed before December 1,
1998, and at the following redemption prices per share if
redeemed thereafter:
If redeemed during the twelve months' period beginning:
Redemption
December 1 Price
1998 . . . . . . . . . . . . . . . . . $102.540
1999 . . . . . . . . . . . . . . . . . $101.905
2000 . . . . . . . . . . . . . . . . . $101.270
2001 . . . . . . . . . . . . . . . . . $100.635
2002 and thereafter . . . . . . . . . $100.000
together, as provided in subdivision C of said Division I, in
each instance, with accrued dividends to the redemption date;
provided, however, that the $6.35 Cumulative Preferred Shares
shall not be redeemable, in whole or in part, prior to December
1, 1997.
D. The amount payable on the $6.35 Cumulative Preferred
Shares in the event of any dissolution, liquidation or winding up
of the affairs of the Company which shall be voluntary shall be
$106.350 per share prior to December 1, 1993, and will decrease
by $0.635 per share on December 1, 1993 and on each December 1
thereafter to $100.00 per share on December 1, 2002, and the
amount payable on the $6.35 Cumulative Preferred Shares in the
event of any dissolution, liquidation or winding up of the
affairs of the Company which shall be involuntary shall be
$100.00 per share, together, as provided in subdivision E of said
Division I, in either event, with a sum, in the case of each
share, computed at the annual dividend rate for the $6.35
Cumulative Preferred Shares 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 which shall have theretofore been paid thereon or which
shall have been declared thereon and for which moneys for payment
shall have been set apart and remain available for payment.
E. So long as any of the $6.35 Cumulative Preferred
Shares remain outstanding, after all dividends on all Cumulative
Preferred Shares of all series for all past quarterly dividend
periods and for the current quarterly dividend period shall have
been paid or declared and a sum sufficient for the payment
thereof set apart for payment, the Company shall, as and for a
mandatory sinking fund for the benefit of the $6.35 Cumulative
Preferred Shares, redeem, in the manner and upon the notice and
with the effect provided in subdivision C of said Division I, (i)
on December 1, 2002, and on each succeeding December 1 to and
including December 1, 2006, 5% of the maximum number of $6.35
Cumulative Preferred Shares which shall theretofore have been
issued and (ii) on December 1, 2007, the balance of the $6.35
Cumulative Preferred Shares then outstanding (such required
redemptions being hereinafter called the "mandatory sinking fund
requirement"). The price at which the $6.35 Cumulative Preferred
Shares shall be redeemed in satisfaction of the mandatory sinking
fund requirement shall be $100.00 per share, together, as
provided in subdivision C of said Division I, in each instance,
with accrued dividends to the redemption date. The mandatory
sinking fund requirement for the $6.35 Cumulative Preferred
Shares shall be cumulative so that if, in any year, the Company
shall not satisfy in full the mandatory sinking fund requirement
for such year, the amount of the deficiency shall be added to the
mandatory sinking fund requirement for succeeding years until the
deficiency shall have been fully satisfied.
IN WITNESS WHEREOF, the undersigned have hereunto set their
hands as the Senior Vice President, Finance and Treasurer and the
Vice President, Governmental and Legal and Secretary,
respectively, of Otter Tail Power Company and have affixed the
seal of Otter Tail Power Company this 1st day of October, 1992.
D. R. Emmen
D. R. Emmen
Senior Vice President, Finance
and Treasurer
Jay D. Myster
Vice President, Governmental
and Legal and Secretary
[CORPORATE SEAL]
STATE OF MINNESOTA )
)SS
COUNTY OF OTTER TAIL)
On this 1st day of October, 1992, before me a Notary Public
within and for said County and State, personally appeared D. R.
EMMEN and JAY D. MYSTER, to me personally known to be the Senior
Vice President, Finance and Treasurer and the Vice President,
Governmental and Legal and Secretary, respectively, of Otter Tail
Power Company, who, being by me duly sworn, did say that they
are, respectively, the Senior Vice President, Finance and
Treasurer and the Vice President, Governmental and Legal and
Secretary of said corporation, and that the seal affixed to the
within certificate is the corporate seal of said corporation, and
that said certificate was signed and sealed in behalf of said
corporation by authority of its Board of Directors, and said D.
R. EMMEN and JAY D. MYSTER acknowledged said certificate to be
the free act and deed of said corporation.
Larry W. Marquard
[NOTARIAL SEAL]
CERTIFICATE
The undersigned, D. R. EMMEN and JAY D. MYSTER, do hereby
certify that we are duly elected, qualified and acting as the
Senior Vice President, Finance and Treasurer and the Vice
President, Governmental and Legal and Secretary, respectively, of
Otter Tail Power Company, a Minnesota corporation (the
"Company"), and that the following is a true and correct copy of
a resolution duly adopted by a Written Action of the Pricing
Committee of the Board of Directors of the Company, dated October
11, 1993, executed by all the members of said Pricing Committee,
duly established by the Board of Directors of the Company at a
meeting thereof duly called and held on February 3, 1992, at
which a quorum was present and acted throughout, to act for the
Board of Directors with respect to the matters set forth in said
Written Action:
RESOLUTION
BE IT RESOLVED That, pursuant to authority conferred on the
Board of Directors of Otter Tail Power Company, a Minnesota
corporation, by subdivision A of Division I of Article VI of its
Articles of Incorporation, as amended, a twelfth series of
Cumulative Preferred Shares be, and it hereby is, created as
follows:
A. The designation of such series shall be "$6.75
Cumulative Preferred Shares," and the number of shares of such
series shall be forty thousand (40,000).
B. The rate of dividends payable on the $6.75 Cumulative
Preferred Shares shall be $6.75 per share per annum, payable
quarterly on the first day of March, June, September and December
of each year, commencing December 1, 1993. Such dividends shall
be cumulative and accrue in the case of each share from and
including the date of original issuance thereof; and the amount
of the dividend for any period of less than a full quarter shall
be computed on the basis of a 360-day year of twelve 30-day
months.
C. The $6.75 Cumulative Preferred Shares shall be
redeemable at the option of the Company, in whole or in part, at
$103.375 per share if redeemed before December 1, 2004, and at
the following redemption prices per share if redeemed thereafter:
If redeemed during the twelve months' period beginning:
Redemption
December 1 Price
2004 . . . . . . . . . . . . . . . . . $103.0375
2005 . . . . . . . . . . . . . . . . . $102.7000
2006 . . . . . . . . . . . . . . . . . $102.3625
2007 . . . . . . . . . . . . . . . . . $102.0250
2008 . . . . . . . . . . . . . . . . . $101.6875
2009 . . . . . . . . . . . . . . . . . $101.3500
2010 . . . . . . . . . . . . . . . . . $101.0125
2011 . . . . . . . . . . . . . . . . . $100.6750
2012 . . . . . . . . . . . . . . . . . $100.3375
2013 and thereafter . . . . . . . . . $100.0000
together, as provided in subdivision C of said Division I, in
each instance, with accrued dividends to the redemption date;
provided, however, that the $6.75 Cumulative Preferred Shares
shall not be redeemable, in whole or in part, prior to December
1, 2003.
D. The amount payable on the $6.75 Cumulative Preferred
Shares in the event of any dissolution, liquidation or winding up
of the affairs of the Company which shall be voluntary shall be
$106.75 per share prior to December 1, 1994, and will decrease by
$0.3375 per share on December 1, 1994 and on each December 1
thereafter to $100.00 per share on December 1, 2013, and the
amount payable on the $6.75 Cumulative Preferred Shares in the
event of any dissolution, liquidation or winding up of the
affairs of the Company which shall be involuntary shall be
$100.00 per share, together, as provided in subdivision E of said
Division I, in either event, with a sum, in the case of each
share, computed at the annual dividend rate for the $6.75
Cumulative Preferred Shares 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 which shall have theretofore been paid thereon or which
shall have been declared thereon and for which moneys for payment
shall have been set apart and remain available for payment.
IN WITNESS WHEREOF, the undersigned have hereunto set
their hands as the Senior Vice President, Finance and Treasurer
and the Vice President, Governmental and Legal and Secretary,
respectively, of Otter Tail Power Company and have affixed the
seal of Otter Tail Power Company this 11th day of October, 1993.
D. R. Emmen
D. R. Emmen
Senior Vice President, Finance
and Treasurer
Jay D. Myster
Jay D. Myster
Vice President, Governmental
and Legal and Secretary
[CORPORATE SEAL]
STATE OF MINNESOTA )
)SS
COUNTY OF OTTER TAIL)
On this 11th day of October, 1993, before me a Notary Public
within and for said County and State, personally appeared D. R.
EMMEN and JAY D. MYSTER, to me personally known to be the Senior
Vice President, Finance and Treasurer and the Vice President,
Governmental and Legal and Secretary, respectively, of Otter Tail
Power Company, who, being by me duly sworn, did say that they
are, respectively, the Senior Vice President, Finance and
Treasurer and the Vice President, Governmental and Legal and
Secretary of said corporation, and that the seal affixed to the
within certificate is the corporate seal of said corporation, and
that said certificate was signed and sealed in behalf of said
corporation by authority of its Board of Directors, and said D.
R. EMMEN and JAY D. MYSTER acknowledged said certificate to be
the free act and deed of said corporation.
Larry W. Marquard
[NOTARIAL SEAL]
ARTICLES OF AMENDMENT
OF
RESTATED ARTICLES OF INCORPORATION
OF
OTTER TAIL POWER COMPANY
1. The name of the corporation is Otter Tail Power Company, a
Minnesota corporation.
2. The following is the full text of the amendment to the
Restated Articles of Incorporation of Otter Tail Power
Company:
BE IT RESOLVED That Article V of the Restated Articles
of Incorporation of Otter Tail Power Company, a Minnesota
corporation, as heretofore amended, shall be amended in its
entirety to read as follows:
ARTICLE V.
The total authorized number of shares of the
corporation is 27,500,000, divided into three classes;
namely, 1,500,000 Cumulative Preferred Shares without par
value (the "Cumulative Preferred Shares"); 1,000,000
Cumulative Preference Shares without par value (the
"Cumulative Preference Shares"); and 25,000,000 Common
Shares of the par value of $5 per share (the "Common
Shares"). No fractional shares of any class or series shall
be issued by the corporation.
3. The amendment was adopted by the shareholders pursuant to
Section 302A.135 of the Minnesota Business Corporation Act
on April 11, 1994.
IN WITNESS WHEREOF, the undersigned, the Vice
President, Governmental and Legal and Secretary of Otter Tail
Power Company, being duly authorized on behalf of Otter Tail
Power Company, has executed this document this 11th day of April,
1994.
Jay D. Myster
Jay D. Myster
Vice President, Governmental and
Legal and Secretary
CERTIFICATE OF DESIGNATION
OF
SERIES A JUNIOR PARTICIPATING PREFERRED SHARES
OF
OTTER TAIL POWER COMPANY
The undersigned hereby certifies that the Board of Directors
of Otter Tail Power Company (the "Corporation"), a corporation organized
and existing under the Minnesota Business Corporation Act, duly adopted
the following resolution on January 27, 1997:
RESOLVED, that a series of preferred shares of the
Corporation is hereby created, and the designation and amount thereof
and the relative rights and preferences of the shares of such series,
are as follows:
Section 1. Designation and Amount. The shares of such series
shall be designated as "Series A Junior Participating Preferred Shares"
(the "Preferred Shares") and the number of shares constituting the
Preferred Shares shall be 250,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors and any
necessary shareholder approval; provided, however, that no decrease
shall reduce the number of Preferred Shares to a number less than the
number of shares then outstanding plus the number of shares reserved for
issuance upon the exercise of outstanding options, rights or warrants or
upon the conversion of any outstanding securities issued by the
Corporation convertible into Preferred Shares.
Section 2. Dividends and Distributions.
(a) Subject to the rights of the holders of any series of
preferred shares (or any similar stock) ranking prior and superior to
the Preferred Shares with respect to dividends, the holders of Preferred
Shares, in preference to the holders of common shares, par value $5.00
per share (the "Common Shares"), of the Corporation, and of any other
junior stock, shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the first day of March, June,
September and December in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a Preferred
Share or fraction of a Preferred Share, in an amount per share (rounded
to the nearest cent) equal to the greater of (i) $0.01 or (ii) subject
to the provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash dividends
or other distributions, other than a dividend payable in Common Shares
or a subdivision of the outstanding Common Shares (by reclassification
or otherwise), declared on the Common Shares since the immediately
preceding Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any
Preferred Share or fraction of a Preferred Share. In the event the
Corporation shall at any time after February 7, 1997, declare or pay any
dividend on the Common Shares payable in Common Shares, or effect a
subdivision or combination or consolidation of the outstanding Common
Shares (by reclassification or otherwise) into a greater or lesser
number of Common Shares, then in each such case the amount to which
holders of Preferred Shares were entitled immediately prior to such
event under clause (ii) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the
number of Common Shares outstanding immediately after such event and the
denominator of which is the number of Common Shares that were
outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or distribution
on the Preferred Shares as provided in paragraph (a) of this Section-
immediately after it declares a dividend or distribution on the Common
Shares (other than a dividend payable in Common Shares or a subdivision
of the outstanding Common Shares); provided that, in the event no
dividend or distribution shall have been declared on the Common Shares
during the period between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, a dividend of $0.01 per
share on the Preferred Shares shall nevertheless be payable, out of
funds legally available for such purpose, on such subsequent Quarterly
Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on
outstanding Preferred Shares from their date of issue. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the
Preferred Shares in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at
the time outstanding. The Board of Directors may fix a record date for
the determination of holders of Preferred Shares entitled to receive
payment of a dividend or distribution declared thereon, which record
date shall be not more than 60 days prior to the date fixed for the
payment thereof.
Section 3. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Preferred Shares as provided in Section 2
are in arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on Preferred Shares
outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Preferred Shares;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up)
with the Preferred Shares, except dividends paid ratably on the
Preferred Shares and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Preferred Shares; provided, however, that the Corporation may at
any time redeem, purchase or otherwise acquire shares of any such
junior stock in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Preferred Shares;
or
(iv) redeem or purchase or otherwise acquire for
consideration any Preferred Shares, or any stock ranking on a
parity with the Preferred Shares, except in accordance with a
purchase offer made in writing or by publication (as determined by
the Board of Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine
in good faith will result in fair and equitable treatment among
the respective series or classes.
(b) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
paragraph (a) of this Section3, purchase or otherwise acquire such
shares at such time and in such manner.
Section 4. Reacquired Shares. Any Preferred Shares purchased
or otherwise acquired by the Corporation in any manner whatsoever shall
be retired and canceled promptly after the acquisition thereof. All
such shares shall upon their cancellation become authorized but unissued
shares of preferred stock and may be reissued as part of a new series of
preferred shares subject to the conditions and restrictions on issuance
set forth herein, in the Articles of Incorporation, or in any other
certificate of designation creating a series of preferred stock or any
similar stock or as otherwise required by law.
Section 5. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (1) to the holders of shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Preferred Shares unless, prior thereto, the holders
of Preferred Shares shall have received the greater of (i) $100 per
share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such
payment, or (ii) an aggregate amount per share, subject to the provision
for adjustment hereinafter set forth, equal to 100 times the aggregate
amount to be distributed per share to holders of Common Shares, or (2)
to the holders of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Preferred Shares,
except distributions made ratably on the Preferred Shares and all such
parity stock in proportion to the total amounts to which the holders of
all such shares are entitled upon such liquidation, dissolution or
winding up. In the event the Corporation shall at any time after
February 7, 1997, declare or pay any dividend on the Common Shares
payable in shares of Common Shares, or effect a subdivision or
combination or consolidation of the outstanding Common Shares (by
reclassification or otherwise) into a greater or lesser number of Common
Shares, then in each such case the aggregate amount to which holders of
shares of Preferred Shares were entitled immediately prior to such event
under clause (1)(ii) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is the
number of Common Shares outstanding immediately after such event and the
denominator of which is the number of Common Shares that were
outstanding immediately prior to such event.
Section 6. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger, combination or
other transaction in which the Common Shares are exchanged for or
changed into other stock or securities, cash and/or any other property,
then in any such case each Preferred Share shall at the same time be
similarly exchanged or changed into an amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 100 times the
aggregate amount of stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for which each
Common Share is changed or exchanged. In the event the Corporation
shall at any time after February 7, 1997, declare or pay any dividend on
the Common Shares payable in Common Shares, or effect a subdivision or
combination or consolidation of the outstanding Common Shares (by
reclassification or otherwise) into a greater or lesser number of Common
Shares, then in each such case the amount set forth in the preceding
sentence with respect to the exchange or change of Preferred Shares
shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of Common Shares outstanding
immediately after such event and the denominator of which is the number
of Common Shares that were outstanding immediately prior to such event.
Section 7. No Redemption. The Preferred Shares shall not be
redeemable.
Section 8. Rank. The Preferred Shares shall rank, with
respect to the payment of dividends and the distribution of assets,
junior to all other series of the Corporation's preferred shares.
Section 9. Fractional Shares. Preferred Shares may be issued
in fractions of a share which are integral multiples of one
one-hundredth of a share which shall entitle the holder, in proportion
to such holder's fractional shares, to receive dividends, participate in
distributions and to have the benefit of all other rights of holders of
Preferred Shares.
Section 11. Amendment. The Articles of Incorporation of the
Corporation shall not be amended in any manner which would materially
alter or change the powers, preferences or rights of the Preferred
Shares so as to affect them adversely without the affirmative vote of
the holders of at least two-thirds of the outstanding Preferred Shares,
voting together as a single class.
IN WITNESS WHEREOF, I have subscribed my name this 27th day of
January 1997.
OTTER TAIL POWER COMPANY
By A. E. Anderson
Its Vice President, Finance and Treasurer
ARTICLES OF AMENDMENT
OF
RESTATED ARTICLES OF INCORPORATION
OF
OTTER TAIL POWER COMPANY
1. The name of the corporation is Otter Tail Power Company, a
Minnesota corporation.
2. The following is the full text of the amendment to the
Restated Articles of Incorporation of Otter Tail Power
Company:
BE IT RESOLVED That Article V of the Restated Articles
of Incorporation of Otter Tail Power Company, a Minnesota
corporation, as heretofore amended, shall be amended in its
entirety to read as follows:
ARTICLE V.
The total authorized number of shares of the
corporation is 52,500,000, divided into three classes;
namely, 1,500,000 Cumulative Preferred Shares without par
value (the "Cumulative Preferred Shares"); 1,000,000
Cumulative Preference Shares without par value (the
"Cumulative Preference Shares"); and 50,000,000 Common
Shares of the par value of $5 per share (the "Common
Shares"). No fractional shares of any class or series shall
be issued by the corporation.
3. The amendment was adopted by the shareholders pursuant to
Section 302A.135 of the Minnesota Business Corporation Act
on April 12, 1999.
IN WITNESS WHEREOF, the undersigned, the President and
Chief Executive Officer of Otter Tail Power Company, being duly
authorized on behalf of Otter Tail Power Company, has executed
this document this 12th day of April, 1999.
John C. MacFarlane
------------------
John C. MacFarlane
President and Chief Executive Officer
<TABLE> <S> <C>
<ARTICLE> UT
<LEGEND>
This schedule contains summary financial information extracted from the
Consolidated Balance Sheet as of June 30, 1999 and the Consolidated
Statement of Income for the six months ended June 30, 1999, and is
qualified in its entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> JUN-30-1999
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 447,664
<OTHER-PROPERTY-AND-INVEST> 101,299
<TOTAL-CURRENT-ASSETS> 106,052
<TOTAL-DEFERRED-CHARGES> 8,427
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 663,442
<COMMON> 59,621
<CAPITAL-SURPLUS-PAID-IN> 41,406
<RETAINED-EARNINGS> 129,503
<TOTAL-COMMON-STOCKHOLDERS-EQ> 230,530
18,000
20,831
<LONG-TERM-DEBT-NET> 181,326
<SHORT-TERM-NOTES> 0
<LONG-TERM-NOTES-PAYABLE> 0
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 9,731
0
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 203,024
<TOT-CAPITALIZATION-AND-LIAB> 663,442
<GROSS-OPERATING-REVENUE> 222,897
<INCOME-TAX-EXPENSE> 9,222
<OTHER-OPERATING-EXPENSES> 191,345
<TOTAL-OPERATING-EXPENSES> 200,567
<OPERATING-INCOME-LOSS> 22,330
<OTHER-INCOME-NET> 1,412
<INCOME-BEFORE-INTEREST-EXPEN> 23,742
<TOTAL-INTEREST-EXPENSE> 7,347
<NET-INCOME> 16,395
1,179
<EARNINGS-AVAILABLE-FOR-COMM> 15,216
<COMMON-STOCK-DIVIDENDS> 11,786
<TOTAL-INTEREST-ON-BONDS> 7,139
<CASH-FLOW-OPERATIONS> 37,175
<EPS-BASIC> 1.28
<EPS-DILUTED> 1.28
</TABLE>
