UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1994
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 1-3543
PSI ENERGY, INC.
(Exact name of registrant as specified in its charter)
INDIANA 35-0594457
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1000 East Main Street
Plainfield, Indiana 46168
(Address of principal executive offices)
Telephone number: (317) 839-9611
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
(APPLICABLE ONLY TO CORPORATE ISSUERS:)
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Common Stock - without par value; $.01 stated value - 53,913,701 shares
outstanding at October 31, 1994, all of which were held by CINergy Corp.
PSI ENERGY, INC.
TABLE OF CONTENTS
Item Page
Number Number
PART I. FINANCIAL INFORMATION
1 Consolidated Financial Statements
Consolidated Balance Sheets . . . . . . . . . . . . . . 3
Consolidated Statements of Income . . . . . . . . . . . 5
Consolidated Statements of Changes in
Common Stock Equity . . . . . . . . . . . . . . . . . 6
Consolidated Statements of Cash Flows . . . . . . . . . 7
Notes to Consolidated Financial Statements. . . . . . . 8
2 Management's Discussion and Analysis of Financial
Condition and Results of Operations . . . . . . . . . . 14
PART II. OTHER INFORMATION
1 Legal Proceedings . . . . . . . . . . . . . . . . . . . . 23
6 Exhibits and Reports on Form 8-K . . . . . . . . . . . . 23
Signatures . . . . . . . . . . . . . . . . . . . . . . . 25
<PAGE>
PSI ENERGY, INC.
CONSOLIDATED BALANCE SHEETS
ASSETS
September 30 December 31
1994 1993
(unaudited)
(thousands)
Electric Utility Plant - original cost
In service . . . . . . . . . . . . . . . . $3 719 611 $3 449 127
Accumulated depreciation . . . . . . . . . 1 532 648 1 455 871
2 186 963 1 993 256
Construction work in progress . . . . . . . 162 921 243 802
Total electric utility plant . . . . . . 2 349 884 2 237 058
Current Assets
Cash and temporary cash investments . . . . 6 186 4 582
Restricted deposits . . . . . . . . . . . . 26 503 49 111
Accounts receivable . . . . . . . . . . . . 30 933 28 657
Income tax refunds. . . . . . . . . . . . . - 28 900
Fossil fuel - at average cost . . . . . . . 105 045 45 315
Materials and supplies - at average cost. . 29 235 31 212
Other . . . . . . . . . . . . . . . . . . . 3 686 2 669
201 588 190 446
Other Assets
Regulatory assets . . . . . . . . . . . . . 181 237 118 809
Unamortized costs of reacquiring debt . . . 37 629 39 504
Unamortized debt expense . . . . . . . . . 9 309 9 332
Other . . . . . . . . . . . . . . . . . . . 69 865 53 280
298 040 220 925
$2 849 512 $2 648 429
The accompanying notes are an integral part of these consolidated financial
statements.
<TABLE>
PSI ENERGY, INC.
CAPITALIZATION AND LIABILITIES
<CAPTION>
September 30 December 31
1994 1993
(unaudited)
(thousands)
<S> <C> <C>
Common Stock Equity
Common stock - without par value; $.01 stated
value; authorized shares - 60,000,000;
outstanding shares - 53,913,701 at September
30, 1994 and December 31, 1993. . . . . . . . $ 539 $ 539
Paid-in capital . . . . . . . . . . . . . . . . 229 287 229 288
Accumulated earnings subsequent to November 30,
1986 quasi-reorganization . . . . . . . . . . 498 553 483 242
Total common stock equity . . . . . . . . . 728 379 713 069
Cumulative Preferred Stock - Not Subject to
Mandatory Redemption. . . . . . . . . . . . . . 187 968 187 989
Long-term Debt . . . . . . . . . . . . . . . . . 877 658 816 152
Total capitalization. . . . . . . . . . . . 1 794 005 1 717 210
Current Liabilities
Long-term debt due within one year. . . . . . . 60 160 160
Notes payable . . . . . . . . . . . . . . . . . 291 801 126 701
Accounts payable. . . . . . . . . . . . . . . . 113 859 144 093
Refund due to customers . . . . . . . . . . . . 34 609 81 832
Litigation settlement . . . . . . . . . . . . . 80 000 80 000
Advance under accounts receivable
purchase agreement. . . . . . . . . . . . . . - 49 940
Accrued taxes . . . . . . . . . . . . . . . . . 27 482 37 269
Accrued interest and customers' deposits. . . . 15 633 25 792
623 544 545 787
Other Liabilities
Deferred income taxes . . . . . . . . . . . . . 310 466 281 417
Unamortized investment tax credits. . . . . . . 61 526 64 721
Other . . . . . . . . . . . . . . . . . . . . . 59 971 39 294
431 963 385 432
$2 849 512 $2 648 429
</TABLE>
<PAGE>
<TABLE>
PSI ENERGY, INC.
CONSOLIDATED STATEMENTS OF INCOME
(unaudited)
<CAPTION>
Quarter Ended Nine Months Ended Twelve Months Ended
September 30 September 30 September 30
1994 1993 1994 1993 1994 1993
(thousands) (thousands) (thousands)
<S> <C> <C> <C> <C> <C> <C>
Operating Revenues . . . . . . . . . . . $281 481 $292 822 $862 554 $800 023 $1 140 800 $1 071 370
Operating Expenses
Operation
Fuel . . . . . . . . . . . . . . . . 102 137 101 424 305 841 295 906 395 862 397 293
Purchased and exchanged power. . . . 8 052 7 896 36 278 15 190 45 361 16 978
Other operation. . . . . . . . . . . 51 724 47 870 152 339 139 514 199 520 182 681
Maintenance. . . . . . . . . . . . . . 25 413 22 402 67 789 63 380 88 429 85 634
Depreciation . . . . . . . . . . . . . 34 209 32 556 101 412 93 773 134 460 123 809
Post-in-service deferred
depreciation . . . . . . . . . . . . (2 484) (1 927) (7 106) (2 864) (9 311) (2 864)
Taxes
Federal and state income . . . . . . 11 880 22 248 44 581 44 201 65 291 62 553
State, local, and other. . . . . . . 12 884 11 500 38 355 33 872 49 960 42 351
243 815 243 969 739 489 682 972 969 572 908 435
Operating Income . . . . . . . . . . . . 37 666 48 853 123 065 117 051 171 228 162 935
Other Income and Expense - Net
Allowance for equity funds used
during construction. . . . . . . . . 1 813 1 862 5 252 6 276 10 149 7 663
Post-in-service carrying costs . . . . 2 452 2 304 6 758 3 907 8 856 3 907
Other - net. . . . . . . . . . . . . . (2 129) 176 (7 321) 8 671 (9 503) 8 816
2 136 4 342 4 689 18 854 9 502 20 386
Income Before Interest . . . . . . . . . 39 802 53 195 127 754 135 905 180 730 183 321
Interest
Interest on long-term debt . . . . . . 17 283 17 988 50 905 52 560 67 291 69 187
Other interest . . . . . . . . . . . . 4 820 943 10 202 3 089 11 304 4 634
Allowance for borrowed funds used
during construction. . . . . . . . . (2 539) (2 113) (7 316) (7 073) (9 397) (8 995)
19 564 16 818 53 791 48 576 69 198 64 826
Net Income . . . . . . . . . . . . . . . 20 238 36 377 73 963 87 329 111 532 118 495
Preferred Dividend Requirement . . . . . 3 296 3 541 9 887 8 958 13 754 10 639
Income Applicable to Common Stock. . . . $ 16 942 $ 32 836 $ 64 076 $ 78 371 $ 97 778 $ 107 856
The accompanying notes are an integral part of these consolidated financial statements.
/TABLE
<PAGE>
<TABLE>
PSI ENERGY, INC.
CONSOLIDATED STATEMENTS OF CHANGES IN COMMON STOCK EQUITY
(unaudited)
<CAPTION>
Common Paid-in Accumulated
Stock Capital Earnings
(thousands)
<S> <C> <C> <C>
Quarter Ended September 30, 1994
Balance July 1, 1994. . . . . . . . . . $539 $229 287 $497 784
Net income. . . . . . . . . . . . . . . 20 238
Dividends on preferred stock. . . . . . (3 295)
Dividends on common stock . . . . . . . (16 174)
Balance September 30, 1994. . . . . . . $539 $229 287 $498 553
Quarter Ended September 30, 1993
Balance July 1, 1993. . . . . . . . . . $539 $230 936 $448 476
Net income. . . . . . . . . . . . . . . 36 377
Gain on retiring preferred stock. . . . 2
Dividends on preferred stock. . . . . . (3 541)
Dividends on common stock . . . . . . . (13 868)
Other . . . . . . . . . . . . . . . . . 7
Balance September 30, 1993. . . . . . . $539 $230 945 $467 444
Nine Months Ended September 30, 1994
Balance January 1, 1994 . . . . . . . . $539 $229 288 $483 242
Net income. . . . . . . . . . . . . . . 73 963
Costs of retiring preferred stock . . . (1)
Dividends on preferred stock. . . . . . (9 886)
Dividends on common stock . . . . . . . (48 766)
Balance September 30, 1994. . . . . . . $539 $229 287 $498 553
Nine Months Ended September 30, 1993
Balance January 1, 1993 . . . . . . . . $539 $221 812 $432 747
Net income. . . . . . . . . . . . . . . 87 329
Gain on retiring preferred stock. . . . 2
Dividends on preferred stock. . . . . . (8 339)
Dividends on common stock . . . . . . . (44 293)
Other . . . . . . . . . . . . . . . . . 9 131
Balance September 30, 1993. . . . . . . $539 $230 945 $467 444
Twelve Months Ended September 30, 1994
Balance October 1, 1993 . . . . . . . . $539 $230 945 $467 444
Net income. . . . . . . . . . . . . . . 111 532
Costs of issuing and retiring
preferred stock . . . . . . . . . . . (1 658)
Dividends on preferred stock. . . . . . (13 835)
Dividends on common stock . . . . . . . (66 664)
Other . . . . . . . . . . . . . . . . . 76
Balance September 30, 1994. . . . . . . $539 $229 287 $498 553
Twelve Months Ended September 30, 1993
Balance October 1, 1992 . . . . . . . . $539 $221 811 $418 167
Net income. . . . . . . . . . . . . . . 118 495
Gain on retiring preferred stock. . . . 2
Dividends on preferred stock. . . . . . (10 020)
Dividends on common stock . . . . . . . (59 159)
Other . . . . . . . . . . . . . . . . . 9 132 (39)
Balance September 30, 1993. . . . . . . $539 $230 945 $467 444
The accompanying notes are an integral part of these consolidated
financial statements.
/TABLE
<PAGE>
<TABLE> PSI ENERGY, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited)
<CAPTION>
Quarter Ended Nine Months Ended Twelve Months Ended
September 30 September 30 September 30
1994 1993 1994 1993 1994 1993
(thousands) (thousands) (thousands)
<S> <C> <C> <C> <C> <C> <C>
OPERATING ACTIVITIES
Net income. . . . . . . . . . . . . . . . . . . . . $ 20 238 $ 36 377 $ 73 963 $ 87 329 $ 111 532 $ 118 495
Items providing (using) cash currently:
Depreciation. . . . . . . . . . . . . . . . . . . 34 209 32 556 101 412 93 773 134 460 123 809
Deferred income taxes and investment tax
credits - net . . . . . . . . . . . . . . . . . (1 145) 10 819 19 558 64 623 23 038 72 577
Allowance for equity funds used during
construction. . . . . . . . . . . . . . . . . . (1 813) (1 862) (5 252) (6 276) (10 149) (7 663)
Regulatory assets - excluding demand-side
management costs. . . . . . . . . . . . . . . . (6 298) (7 848) (17 857) (21 224) (26 542) (25 231)
Changes in current assets and current
liabilities
Restricted deposits . . . . . . . . . . . . . 1 547 (74) 1 397 52 1 276 (38)
Accounts receivable . . . . . . . . . . . . . 17 202 (23 166) (2 276) (11 274) 16 166 (15 952)
Income tax refunds. . . . . . . . . . . . . . 3 800 8 000 28 900 (10 000) 10 000 (10 000)
Fossil fuel and materials and supplies . . . (2 403) 19 383 (57 753) 59 117 (57 449) 77 337
Accounts payable. . . . . . . . . . . . . . . (9 309) 26 287 (30 234) 35 898 (9 717) 29 457
Refund due to customers . . . . . . . . . . . (2 999) - (47 223) 10 866 (115 391) 10 866
Advance under accounts receivable
purchase agreement. . . . . . . . . . . . . - - (49 940) - - -
Accrued taxes and interest. . . . . . . . . . (21 169) (5 402) (19 598) (43 506) 15 404 (43 244)
Other items - net . . . . . . . . . . . . . . . . 2 417 (6 138) (2 407) (20 213) 5 129 (24 140)
Net cash provided by (used in) operating
activities. . . . . . . . . . . . . . . . 34 277 88 932 (7 310) 239 165 97 757 306 273
FINANCING ACTIVITIES
Issuance of preferred stock . . . . . . . . . . . . - - - 96 850 59 475 96 850
Issuance of long-term debt. . . . . . . . . . . . . 59 910 163 016 108 978 241 704 108 978 241 704
Funds on deposit from issuance of long-term
debt. . . . . . . . . . . . . . . . . . . . . . . 8 810 9 894 21 211 (43 170) 33 039 (36 413)
Retirement of preferred stock . . . . . . . . . . . - (1) (10) (1) (60 116) (1)
Redemption of long-term debt. . . . . . . . . . . . - (112 585) - (112 585) (95 295) (112 585)
Change in short-term debt . . . . . . . . . . . . . (1 199) (36 301) 165 100 (97 301) 268 301 (46 702)
Dividends on preferred stock. . . . . . . . . . . . (3 296) (3 541) (9 887) (8 339) (13 836) (10 020)
Dividends on common stock . . . . . . . . . . . . . (16 174) (13 868) (48 766) (44 293) (66 664) (59 159)
Other items - net . . . . . . . . . . . . . . . . . - 7 - 12 538 - 12 538
Net cash provided by (used in) financing
activities. . . . . . . . . . . . . . . . 48 051 6 621 236 626 45 403 233 882 86 212
INVESTING ACTIVITIES
Utility plant additions . . . . . . . . . . . . . . (73 143) (89 559) (207 621) (264 282) (304 946) (363 678)
Allowance for equity funds used during
construction. . . . . . . . . . . . . . . . . . . 1 813 1 862 5 252 6 276 10 149 7 663
Demand-side management costs. . . . . . . . . . . . (9 829) (7 537) (25 343) (17 591) (38 488) (24 273)
Equity investment in Argentine utility. . . . . . . - (8) - (10 200) - (10 705)
Net cash provided by (used in) investing
activities. . . . . . . . . . . . . . . . (81 159) (95 242) (227 712) (285 797) (333 285) (390 993)
Net increase (decrease) in cash and
temporary cash investments. . . . . . . . . . . . 1 169 311 1 604 (1 229) (1 646) 1 492
Cash and temporary cash investments at
beginning of period . . . . . . . . . . . . . . . 5 017 7 521 4 582 9 061 7 832 6 340
Cash and temporary cash investments at
end of period . . . . . . . . . . . . . . . . . . $ 6 186 $ 7 832 $ 6 186 $ 7 832 $ 6 186 $ 7 832
The accompanying notes are an integral part of these consolidated financial statements.
/TABLE
<PAGE>
PSI ENERGY, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. These Consolidated Financial Statements reflect all adjustments (which
include only normal, recurring adjustments) necessary in the opinion of
PSI Energy, Inc. (Energy) for a fair presentation of the interim
results. These statements should be read in conjunction with Energy's
1993 Annual Report on Form 10-K, as amended (1993 Form 10-K) (Commission
File Number 1-3543). Certain amounts in the 1993 Consolidated Financial
Statements have been reclassified to conform to the 1994 presentation.
2. As disclosed in the 1993 Form 10-K, PSI Resources, Inc. (Resources),
Energy, and The Cincinnati Gas & Electric Company (CG&E) entered into an
Agreement and Plan of Reorganization dated as of December 11, 1992,
which was subsequently amended and restated on July 2, 1993, and as of
September 10, 1993, and was further amended as of June 20, 1994, as of
July 26, 1994, and as of September 30, 1994. The companies received
final regulatory approvals in October 1994, and on October 24, 1994,
consummated the merger in a transaction accounted for as a pooling of
interests. Each outstanding share of Resources common stock and CG&E
common stock was exchanged for 1.023 shares and one share, respectively,
of CINergy Corp. (CINergy) common stock, resulting in the issuance of
approximately 148 million shares of CINergy common stock. Following the
merger, CINergy became the parent holding company for CG&E and Energy.
The outstanding preferred stock and debt securities of Energy and CG&E
were not affected by the merger. (See Note 9 beginning on page 11 for
supplemental condensed consolidating financial information for CINergy.)
CINergy is a registered holding company under the Public Utility Holding
Company Act of 1935 (PUHCA). Under the PUHCA, the divestiture of CG&E's
gas operations may be required. In its order approving the merger, the
Securities and Exchange Commission (SEC) reserved jurisdiction over
CINergy's ownership of the gas operations for a period of three years.
CINergy believes it has a justifiable basis for retention of its gas
operations and will continue its pursuit of SEC approval to retain the
gas portion of the business. However, if divestiture is required, the
SEC has historically allowed companies sufficient time to accomplish
divestiture in a manner that protects shareholder value.
3. In an effort to begin to realize merger savings, Energy recently
completed a voluntary workforce reduction plan. Under the plan, 169
employees elected to terminate their employment with Energy, resulting
in a pre-tax cost of approximately $11.3 million. This cost is included
in the costs to achieve merger savings. In its merger savings
allocation plan filed with the Indiana Utility Regulatory Commission
(IURC), Energy has requested authority to defer the costs associated
with this voluntary workforce reduction and to amortize such costs over
a 10-year period as an offset against merger savings (see Note 5).
4. In February 1994, Energy issued $50 million, 7 1/8% first mortgage
bonds, Series AAA, due February 1, 2024. These bonds are not redeemable
prior to February 1, 2004, and are redeemable thereafter at the option
of Energy. On August 30, 1994, Energy issued $60 million of secured
medium-term notes, Series B, 5.75%, due August 30, 1995. Proceeds from
these debt issuances were used to reduce short-term debt incurred to
finance construction.
5. Hearings have been held before the IURC on Energy's case-in-chief
supporting Energy's request for a $103 million, 11.6% retail rate
increase. On July 6, 1994, the Indiana Office of the Utility Consumer
Counselor (UCC) filed testimony with the IURC recommending an $8.5
million retail rate increase. The primary differences between Energy's
case and the UCC's case are the requested rate of return, proposed
depreciation expense, and Energy's request to include in rates the cost
of postretirement benefits other than pensions on an accrual basis. A
final rate order is anticipated by the end of April 1995. Energy cannot
predict what action the IURC may take with respect to this proposed rate
increase.
In July 1994, Energy filed with the IURC its plan for the allocation of
Energy's portion of the net benefits of the merger. Net savings as a
result of the merger, computed based upon customer revenue requirements,
are estimated to be approximately $1.5 billion over 10 years. Energy
estimates that approximately half of the CINergy net merger savings will
be allocated to Energy. Under Energy's plan, Energy would recover its
share of projected merger transaction costs (current estimate of $27
million) and costs to achieve merger savings (current estimate of $21
million) out of merger benefits. Additionally, under Energy's plan, up
to 15% of Energy's share of the net savings would be retained for the
benefit of shareholders, depending on Energy's performance on certain
indicators. The hearings on this plan are anticipated to be completed
by the end of January 1995 with an order expected by the end of June
1995. Energy cannot predict what action the IURC may take with respect
to the proposed merger savings allocation.
Energy's petition for an increase in retail rates and its merger savings
allocation plan previously discussed include a "performance efficiency
plan" (PEP). Under its proposed PEP, Energy would retain all earnings
up to a 12.75% common equity return and provide for sharing of common
equity returns from 12.75% to 15.75% between shareholders and ratepayers
depending on Energy's performance on measures of customer price,
customer satisfaction, customer service reliability, equivalent
availability of its generating units, and employee safety. All earnings
above a 15.75% return on common equity would be returned to ratepayers.
In addition, in July 1994, in a separate proceeding, Energy filed a
petition with the IURC requesting an additional retail rate increase of
up to approximately 8% primarily to recover the costs of two major
projects previously approved by the IURC. The first project is a flue-
gas desulfurization unit (scrubber) which was available for service at
Energy's Gibson Generating Station in September 1994. The second
project is Energy's clean coal power generating facility at the Wabash
River Generating Station which is planned to go in service during the
third quarter of 1995. Additionally, Energy has requested approval to
defer, and subsequently recover in future rate proceedings, any costs
incurred by Energy for investigation and remediation of previously owned
manufactured gas plant sites. Energy cannot predict what action the
IURC may take with respect to this proposed rate increase.
6. As disclosed in the 1993 Form 10-K, in February 1989, Energy and its
officers reached a settlement with Wabash Valley Power Association, Inc.
(WVPA) which, if approved by judicial and regulatory authorities, will
settle the suit filed by WVPA which seeks $478 million plus interest and
other damages to recover its share of Marble Hill costs. The settlement
is also contingent on the resolution of WVPA's bankruptcy proceeding.
Alternative plans of reorganization sponsored by WVPA and the Rural
Electrification Administration (REA) incorporate the settlement
agreement. However, REA's proposed plan provides for full recovery of
principal and interest on WVPA's debt to REA, which is substantially in
excess of the amount to be recovered under WVPA's proposed plan. In
August 1991, the United States Bankruptcy Court for the Southern
District of Indiana (Bankruptcy Court) confirmed WVPA's plan of
reorganization and denied confirmation of REA's opposing plan. The
Bankruptcy Court's approval of WVPA's reorganization plan is contingent
upon WVPA's receipt of regulatory approval to increase rates. REA
appealed the Bankruptcy Court's decision to the United States District
Court for the Southern District of Indiana (Indiana District Court). In
June 1994, the Indiana District Court ruled in favor of WVPA's plan.
REA subsequently appealed this decision. Energy cannot predict the
outcome of this appeal, nor is it known whether WVPA can obtain
regulatory approval to increase its rates. If reasonable progress is
not made in satisfying conditions to the settlement by February 1, 1995,
either party may terminate the settlement agreement.
7. As disclosed in the 1993 Form 10-K, Energy was involved in litigation
with Exxon Coal USA, Inc. and Exxon Corporation (Exxon) regarding the
price for coal delivered under a coal supply contract. On June 20,
1994, the United States Supreme Court denied Energy's request for review
of a ruling by the United States Court of Appeals for the Seventh
Circuit, which established the contract price at $30 per ton and
reversed the trial court's decision holding that the price should be
$23.266 per ton. The IURC has authorized Energy to recover the
additional cost through the fuel adjustment clause process. In
addition, on August 3, 1994, Energy announced that it had resolved the
two remaining lawsuits with Exxon related to coal quality, price and
price components, and Exxon's claims against Energy for Energy's failure
to take coal after Energy terminated its contract pursuant to a December
1992 court decision. This August 1994 settlement concludes all
outstanding litigation between Energy and Exxon with no significant
effect on Energy's financial condition.
8. As disclosed in the 1993 Form 10-K, Energy has IURC authority to borrow
up to $200 million under short-term credit arrangements. As of
September 30, 1994, Energy had $165.5 million outstanding under these
arrangements. Energy may also arrange for additional short-term
borrowings in accordance with Federal Energy Regulatory Commission
(FERC) authority. As discussed in the 1993 Form 10-K, such additional
borrowings were previously limited by Energy's Board of Directors to a
maximum of $100 million. In July 1994, the Board of Directors
authorized Energy to arrange for additional short-term borrowings in
accordance with the maximum exemption allowed under FERC. Energy had
$126.3 million outstanding under these arrangements as of September 30,
1994.
9. The following supplemental condensed consolidating financial information
combines the historical unaudited Consolidated Statements of Income and
Consolidated Balance Sheets of Resources and CG&E after giving effect to
the merger and is presented as if the merger was consummated as of the
beginning of the earliest period presented. As previously discussed,
the merger was accounted for as a pooling of interests, and each
outstanding share of common stock of Resources and CG&E was exchanged
for 1.023 shares and one share, respectively, of CINergy common stock.
The following supplemental condensed consolidating financial information
did not require any adjustments to conform the accounting policies of
the two companies. In addition, the following supplemental condensed
consolidating financial information should be read in conjunction with
the historical consolidated financial statements and related notes
thereto of Resources, Energy, and CG&E. The following information is
not necessarily indicative of the operating results or financial
position that would have occurred had the merger been consummated at the
beginning of the period for which the merger is being given effect, nor
is it necessarily indicative of future operating results or financial
position.
<PAGE>
<TABLE>
SUPPLEMENTAL CONDENSED CONSOLIDATING STATEMENTS OF INCOME
(unaudited)
(in millions, except per share amounts)
<CAPTION>
Quarter Ended Nine Months Ended Twelve Months Ended
September 30, 1994 September 30, 1994 September 30, 1994
Resources CG&E CINergy Resources CG&E CINergy Resources CG&E CINergy
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Operating revenues . . . $283 $409 $692 $868 $1 363 $2 231 $1 149 $1 845 $2 994
Operating expenses . . . 247 328 575 749 1 105 1 854 985 1 507 2 492
Operating income . . . . 36 81 117 119 258 377 164 338 502
Other income and
expense - net. . . . . 3 3 6 6 19 25 11 (199)* (188)
Interest charges - net . 20 37 57 55 114 169 71 153 224
Preferred dividend
requirement of
subsidiaries . . . . . 3 5 8 10 17 27 14 23 37
Net income (loss). . . . $ 16 $ 42 $ 58 $ 60 $ 146 $ 206 $ 90 $ (37) $ 53
Average common shares
outstanding <F1> . . . 56 89 147 56 89 146 56 89 146
Earnings (Loss) per
common share <F1>. . . $.27 $.47 $.39 $1.06 $1.64 $1.41 $1.60 $(.41) $.36
Dividends declared per
common share <F1>. . . $.31 $.43 $.38 $.93 $1.29 $1.14 $1.24 $1.72 $1.51
* Reflects write-off of a portion of Wm. H. Zimmer Generating Station ($223 million net of tax).
See Notes to Supplemental Condensed Consolidating Financial Information.
/TABLE
<PAGE>
<TABLE>
SUPPLEMENTAL CONDENSED CONSOLIDATING BALANCE SHEET
at September 30, 1994
(unaudited)
(in millions)
<CAPTION>
Resources CG&E CINergy
<S> <C> <C> <C>
ASSETS
Utility plant - original cost
In service. . . . . . . . . . . . . . . . $3 720 $5 294 $9 014
Accumulated depreciation. . . . . . . . . 1 533 1 569 3 102
2 187 3 725 5 912
Construction work in progress . . . . . . 163 66 229
Total utility plant . . . . . . . . . . 2 350 3 791 6 141
Current assets. . . . . . . . . . . . . . . 209 583 792
Other assets. . . . . . . . . . . . . . . . 307 781 1 088
Total assets. . . . . . . . . . . . . . $2 866 $5 155 $8 021
CAPITALIZATION AND LIABILITIES
Common stock . . . . . . . . . . . . . . . $ 1 $ 762 $ 1
Paid-in capital . . . . . . . . . . . . . . 261 337 1 360
Retained earnings . . . . . . . . . . . . . 458 487 945
Total common stock equity . . . . . . . 720 1 586 2 306
Cumulative preferred stock of subsidiaries. 188 290 478
Long-term debt. . . . . . . . . . . . . . . 878 1 838 2 716
Total capitalization. . . . . . . . . . 1 786 3 714 5 500
Current liabilities . . . . . . . . . . . . 648 373 1 021
Deferred income taxes . . . . . . . . . . . 310 745 1 055
Other liabilities . . . . . . . . . . . . . 122 323 445
Total capitalization and liabilities. . $2 866 $5 155 $8 021
Notes to Supplemental Condensed Consolidating Financial Information
<F1>The Supplemental Condensed Consolidating Statements of Income reflect the conversion of each share of
Resources' common stock ($.01 stated value per share) outstanding into 1.023 shares of CINergy common
stock ($.01 par value per share) and each share of CG&E's common stock ($8.50 par value per share)
outstanding into one share of CINergy common stock. Dividends declared per common share reflect the
historical dividends declared by Resources and CG&E, divided by the average number of CINergy common stock
shares outstanding.
<F2>Intercompany transactions (including purchased and exchanged power transactions) between Resources and
CG&E during the periods presented were not material and accordingly no adjustments were made to eliminate
such transactions.
</TABLE>
<PAGE>
PSI ENERGY, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
FINANCIAL CONDITION
Merger Consummation with The Cincinnati Gas & Electric Company
General As disclosed in PSI Energy, Inc.'s (Energy) 1993 Annual Report on
Form 10-K, as amended (1993 Form 10-K), PSI Resources, Inc. (Resources),
Energy, and The Cincinnati Gas & Electric Company (CG&E) entered into an
Agreement and Plan of Reorganization dated as of December 11, 1992, which was
subsequently amended and restated on July 2, 1993, and as of September 10,
1993, and was further amended as of June 20, 1994, as of July 26, 1994, and as
of September 30, 1994. The companies received final regulatory approvals in
October 1994, and on October 24, 1994, consummated the merger in a transaction
accounted for as a pooling of interests. Each outstanding share of Resources
common stock and CG&E common stock was exchanged for 1.023 shares and one
share, respectively, of CINergy Corp. (CINergy) common stock, resulting in the
issuance of approximately 148 million shares of CINergy common stock.
Following the merger, CINergy became the parent holding company for CG&E and
Energy. The outstanding preferred stock and debt securities of Energy and
CG&E were not affected by the merger. (See Note 9 beginning on page 11 for
supplemental condensed consolidating financial information for CINergy.)
PUHCA Implications CINergy is a registered holding company under the Public
Utility Holding Company Act of 1935 (PUHCA). The PUHCA imposes restrictions
on the operations of registered holding company systems, such as requirements
that security issuances, sales and acquisitions of utility assets or of
securities of utility companies, and acquisitions of interests in any other
business be approved by the Securities and Exchange Commission (SEC). The
PUHCA also limits the ability of registered holding companies to engage in
non-utility ventures and regulates holding company system service companies,
such as CINergy Services, Inc., and the rendering of services by holding
company affiliates to the systems' utilities. CINergy Services, Inc., a
wholly owned subsidiary of CINergy, was formed to provide CG&E, Energy, and
other companies of the CINergy system with a variety of administrative,
management, and support services.
Also, under the PUHCA, the divestiture of CG&E's gas operations may be
required. In its order approving the merger, the SEC reserved jurisdiction
over CINergy's ownership of the gas operations for a period of three years.
CINergy believes it has a justifiable basis for retention of its gas
operations and will continue its pursuit of SEC approval to retain the gas
portion of the business. However, if divestiture is required, the SEC has
historically allowed companies sufficient time to accomplish divestiture in a
manner that protects shareholder value. It is expected that if the gas
operations are required to be divested, it will not have a material impact on
merger savings.
Originally, the merger agreement provided that CG&E, Resources, and Energy
would be merged into CINergy as an Ohio corporation. Under this structure,
CG&E and Energy would have become operating divisions of CINergy, ceasing to
exist as separate corporations, and CINergy would not have been subject to the
restrictions imposed by the PUHCA. However, the Indiana Utility Regulatory
Commission (IURC) dismissed Energy's application for approval of the transfer
of its license or property to a non-Indiana corporation. The IURC's decision
was appealed, and on October 18, 1994, the Indiana Court of Appeals reversed
the IURC's decision.
Regulatory Matters
Hearings have been held before the IURC on Energy's case-in-chief supporting
Energy's request for a $103 million, 11.6% retail rate increase. On July 6,
1994, the Indiana Office of the Utility Consumer Counselor (UCC) filed
testimony with the IURC recommending an $8.5 million retail rate increase.
The primary differences between Energy's case and the UCC's case are the
requested rate of return, proposed depreciation expense, and Energy's request
to include in rates the cost of postretirement benefits other than pensions on
an accrual basis. A final rate order is anticipated by the end of April 1995.
Energy cannot predict what action the IURC may take with respect to this
proposed rate increase.
In July 1994, Energy filed with the IURC its plan for the allocation of
Energy's portion of the net benefits of the merger. Net savings as a result
of the merger, computed based upon customer revenue requirements, are
estimated to be approximately $1.5 billion over 10 years. Energy estimates
that approximately half of the CINergy net merger savings will be allocated to
Energy. Under Energy's plan, Energy would recover its share of projected
merger transaction costs (current estimate of $27 million) and costs to
achieve merger savings (current estimate of $21 million) out of merger
benefits. Additionally, under Energy's plan, up to 15% of Energy's share of
the net savings would be retained for the benefit of shareholders, depending
on Energy's performance on certain indicators. The hearings on this plan are
anticipated to be completed by the end of January 1995 with an order expected
by the end of June 1995. Energy cannot predict what action the IURC may take
with respect to the proposed merger savings allocation.
Energy's petition for an increase in retail rates and its merger savings
allocation plan previously discussed include a "performance efficiency plan"
(PEP). Under its proposed PEP, Energy would retain all earnings up to a
12.75% common equity return and provide for sharing of common equity returns
from 12.75% to 15.75% between shareholders and ratepayers depending on
Energy's performance on measures of customer price, customer satisfaction,
customer service reliability, equivalent availability of its generating units,
and employee safety. All earnings above a 15.75% return on common equity
would be returned to ratepayers.
In addition, in July 1994, in a separate proceeding, Energy filed a petition
with the IURC requesting an additional retail rate increase of up to
approximately 8% primarily to recover the costs of two major projects
previously approved by the IURC. The first project is a flue-gas
desulfurization unit (scrubber) which was available for service at Energy's
Gibson Generating Station in September 1994. The second project is Energy's
clean coal power generating facility at the Wabash River Generating Station
which is planned to go in service during the third quarter of 1995.
Additionally, Energy has requested approval to defer, and subsequently recover
in future rate proceedings, any costs incurred by Energy for investigation and
remediation of previously owned manufactured gas plant sites. Energy cannot
predict what action the IURC may take with respect to this proposed rate
increase.
Energy currently forecasts that if the two proposed rate increases and merger
savings allocation plan previously discussed are approved, it would not need
further rate relief through the year 2000. Delayed rate relief will continue
to put downward pressure on earnings.
1994 Voluntary Workforce Reduction Plan
In an effort to begin to realize merger savings, Energy recently completed a
voluntary workforce reduction plan. Under the plan, 169 employees elected to
terminate their employment with Energy, resulting in a pre-tax cost of
approximately $11.3 million. This cost is included in the costs to achieve
merger savings previously discussed. In its merger savings allocation plan
filed with the IURC, Energy has requested authority to defer the costs
associated with this voluntary workforce reduction and to amortize such costs
over a 10-year period as an offset against merger savings.
CAPITAL RESOURCES
As disclosed in the 1993 Form 10-K, Energy has IURC authority to borrow up to
$200 million under short-term credit arrangements. As of September 30, 1994,
Energy had $165.5 million outstanding under these arrangements. Energy may
also arrange for additional short-term borrowings in accordance with Federal
Energy Regulatory Commission (FERC) authority. As discussed in the 1993 Form
10-K, such additional borrowings were previously limited by Energy's Board of
Directors to a maximum of $100 million. In July 1994, the Board of Directors
authorized Energy to arrange for additional short-term borrowings in
accordance with the maximum exemption allowed under FERC. Energy had $126.3
million outstanding under these arrangements as of September 30, 1994.
As disclosed in the 1993 Form 10-K, Resources had planned to sell up to eight
million shares of common stock in 1994. This sale did not occur before merger
consummation, and as a result, CINergy has filed a registration statement for
the sale of up to eight million shares of CINergy common stock. A public
offering of CINergy common stock is expected to occur by the end of 1994. Up
to $160 million of the net proceeds from the issuance and sale of this common
stock will be contributed to the equity capital of Energy. Energy will use
this contributed capital for general corporate purposes, including repayment
of short-term debt incurred for construction financing. Any balance of such
net proceeds will be used by CINergy for general corporate purposes.
In August 1994, Energy issued $60 million of long-term debt (see Note 4
beginning on page 8).
RESULTS OF OPERATIONS FOR THE QUARTER ENDED SEPTEMBER 30, 1994
Kilowatt-hour Sales
For the quarter ended September 30, 1994, kilowatt-hour (kwh) sales remained
relatively unchanged showing less than a 1% decrease when compared to the same
period last year. The decrease primarily attributable to the milder weather
conditions experienced in the third quarter of 1994 was substantially offset
by increased industrial sales reflecting growth primarily in the primary
metals, bituminous coal mining, and transportation equipment sectors and an
increase in the number of both domestic and commercial customers in Energy's
service territory.
Revenues
Total operating revenues decreased $11 million (4%) in the third quarter of
1994 as compared to the same period last year. This decrease reflects the
return of approximately $6 million to ratepayers in accordance with Indiana
law which requires all retail operating income above a certain rate of return
to be refunded to ratepayers. Also contributing to this decrease was the 1.5%
retail rate reduction resulting from the IURC's December 1993 order, which
approved the settlement agreement resolving outstanding issues related to the
appeals of the IURC's April 1990 order and June 1987 order.
An analysis of operating revenues is shown below:
Quarter
Ended September 30
(millions)
Operating revenues - September 30, 1993 $293
Increase (Decrease) due to change in:
Price per kwh
Retail (9)
Sales for resale
Firm power obligations 1
Non-firm power transactions (2)
Total change in price per kwh (10)
Kwh sales
Retail -
Sales for resale
Firm power obligations (1)
Non-firm power transactions (1)
Total change in kwh sales (2)
Operating revenues - September 30, 1994 $281
Operating Expenses
Other Operation and Maintenance
When compared to the same period last year, other operation and maintenance
expenses for the quarter ended September 30, 1994, increased $7 million (10%).
This increase was partially attributable to a $1.3 million increase in fuel
litigation expenses. Also contributing to Energy's increase were the general
inflationary effects on operating costs.
RESULTS OF OPERATIONS FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1994
Kwh Sales
Kwh sales for the nine months ended September 30, 1994, increased 8% when
compared to the same period last year. This increase was primarily the result
of increased sales for resale. Increased third party short-term power sales
to other utilities through Energy's system and increased direct power sales to
other utilities contributed to increased non-firm power sales. The more
extreme weather conditions experienced during the first and second quarters of
1994 resulted in increased firm power sales. Retail sales increased as a
result of the increased number of both domestic and commercial customers in
Energy's service territory, in addition to the weather conditions previously
discussed. Increased industrial sales occurred due to growth primarily in the
primary metals, transportation equipment, and rubber and miscellaneous plastic
products sectors.
Revenues
Total operating revenues increased $63 million (8%) for the nine months ended
September 30, 1994, as compared to the same period last year. This increase
primarily reflects the changes in kwh sales previously discussed, the effects
of the $31 million refund accrued in June 1993 as a result of the settlement
of the April 1990 order, and increased fuel costs. Partially offsetting these
increases were the 1.5% retail rate reduction resulting from the IURC's
December 1993 order previously discussed and the return of approximately $6
million to ratepayers in accordance with Indiana law which requires all retail
operating income above a certain rate of return to be refunded to ratepayers.
An analysis of operating revenues is shown below:
Nine Months
Ended September 30
(millions)
Operating revenues - September 30, 1993 $800
Increase (Decrease) due to change in:
Price per kwh
Retail 14
Sales for resale
Firm power obligations -
Non-firm power transactions 2
Total change in price per kwh 16
Kwh sales
Retail 25
Sales for resale
Firm power obligations 5
Non-firm power transactions 17
Total change in kwh sales 47
Operating revenues - September 30, 1994 $863
Operating Expenses
Fuel
An increase in kwh generation resulted in fuel costs for the nine months ended
September 30, 1994, increasing $10 million (3%) when compared to the same
period last year.
Purchased and Exchanged Power
For the nine months ended September 30, 1994, purchased and exchanged power
increased $21 million when compared to the same period last year. This
increase was due to increased purchases of power by Energy to sell to other
utilities and to meet Energy's own load.
Other Operation and Maintenance
Other operation and maintenance expenses for the nine months ended September
30, 1994, increased $17 million (8%) as compared to the same period last year.
This increase was partially a result of a $7 million increase in fuel
litigation expense. Also contributing to this increase were the general
inflationary effects on operating costs.
Depreciation
Depreciation expense for the nine months ended September 30, 1994, increased
$8 million (8%) when compared to the same period last year due to increased
plant additions.
State, Local, and Other Taxes
State, local, and other taxes for the nine months ended September 30, 1994, as
compared to the same period last year, increased $4 million (13%). This was
primarily attributable to higher property taxes, which reflect plant additions
and increased property tax rates.
Other Income and Expense - Net
For the nine months ended September 30, 1994, other income and expense
reflected a $14 million (75%) decrease primarily due to the June 1993
reduction of the loss related to the June 1987 order, as previously discussed.
Amounts related to the additional number of completed environmental compliance
projects in 1994 which qualify, under IURC authority, for continued accrual of
the debt component of the allowance for funds used during construction (AFUDC)
(post-in-service carrying costs) partially offset this decrease.
RESULTS OF OPERATIONS FOR THE TWELVE MONTHS ENDED SEPTEMBER 30, 1994
Kwh Sales
Kwh sales for the twelve months ended September 30, 1994, increased 7% when
compared to the same period last year. Retail sales increased as a result of
increased domestic and commercial customers in Energy's service territory as
well as the more extreme weather conditions experienced during the first and
second quarters of 1994. In addition, growth primarily in the primary metals,
transportation equipment, and rubber and miscellaneous plastic products
sectors resulted in increased industrial sales. Also contributing to
increased kwh sales were increased sales for resale primarily as a result of
increased third party short-term power sales to other utilities through
Energy's system.
Revenues
Total operating revenues increased $69 million (6%) for the twelve months
ended September 30, 1994, as compared to the same period last year. In
addition to the increased kwh sales previously discussed, this increase in
operating revenues reflects the effects from the $31 million refund accrued in
June 1993 as a result of the settlement of the April 1990 order. Partially
offsetting these increases were the effects of the 1.5% retail rate reduction
resulting from the IURC's December 1993 order previously discussed and the
return of approximately $6 million to ratepayers in accordance with Indiana
law which requires all retail operating income above a certain rate of return
to be refunded to ratepayers.
An analysis of operating revenues is shown below:
Twelve Months
Ended September 30
(millions)
Operating revenues - September 30, 1993 $1 071
Increase (Decrease) due to change in:
Price per kwh
Retail 7
Sales for resale
Firm power obligations -
Non-firm power transactions 4
Total change in price per kwh 11
Kwh sales
Retail 43
Sales for resale
Firm power obligations 5
Non-firm power transactions 13
Total change in kwh sales 61
Other (2)
Operating revenues - September 30, 1994 $1 141
Operating Expenses
Purchased and Exchanged Power
Purchased and exchanged power for the twelve months ended September 30, 1994,
increased $28 million as compared to the same period last year. This increase
reflects increased purchases of power by Energy which were necessary to meet
Energy's own load and to sell to other utilities.
Other Operation and Maintenance
When compared to the same period last year, other operation and maintenance
expenses increased $20 million (7%) for the twelve months ended September 30,
1994. This increase was partially attributable to the general inflationary
effects on operating costs. In addition, this increase also reflects a $7
million increase in fuel litigation expenses and the initial costs of Energy's
new distribution line clearing program.
Depreciation
Due to increased plant additions, depreciation expense increased $11 million
(9%) for the twelve months ended September 30, 1994, as compared to the same
period last year.
State, Local, and Other Taxes
State, local, and other taxes for the twelve months ended September 30, 1994,
as compared to the same period last year, increased $8 million (18%). This
was primarily attributable to higher property taxes, which reflect plant
additions and increased property tax rates.
Other Income and Expense - Net
Other income and expense for the twelve months ended September 30, 1994,
decreased $11 million (53%) as compared to the same period last year. This
decrease was primarily attributable to the June 1993 reduction of the loss
related to the June 1987 order, as previously discussed. Partially offsetting
this decrease was the implementation of the January 1993 IURC order
authorizing the accrual of post-in-service carrying costs. In addition, the
equity component of AFUDC increased primarily as a result of increased
construction.
<PAGE>
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Refer to Notes 6 and 7 on page 10 of Part I, Item 1 - Notes to Consolidated
Financial Statements.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a. Copies of the documents listed below which are identified with an
asterisk (*) have heretofore been filed with the Securities and Exchange
Commission and are incorporated herein by reference and made a part
hereof; and the exhibit number of the document so filed, and
incorporated herein by reference, is stated in parentheses in the
description of such exhibit. Exhibits not so identified are filed
herewith.
Exhibit
Designation Nature of Exhibit
2-a * Amendment dated as of June 20, 1994, to the Amended and
Restated Agreement and Plan of Reorganization by and
among The Cincinnati Gas & Electric Company (CG&E), PSI
Resources, Inc. (Resources), PSI Energy, Inc. (Energy),
CINergy Corp., an Ohio corporation, CINergy Corp.
(CINergy), a Delaware corporation, and CINergy Sub, Inc.
dated as of December 11, 1992, as amended and restated on
July 2, 1993, and as of September 10, 1993. (Exhibit 2-a
to Energy's June 30, 1994, Form 10-Q.) This amendment
extended the date after which the agreement may be
terminated from June 30, 1994, to September 30, 1994.
2-b * Amendment dated as of July 26, 1994, to the Amended and
Restated Agreement and Plan of Reorganization by and
among CG&E, Resources, Energy, CINergy Corp., and Ohio
corporation, CINergy, and CINergy Sub, Inc. dated as of
December 11, 1992, as amended and restated on July 2,
1993, and as of September 10, 1993, and as further
amended as of June 20, 1994. (Exhibit 2-b to Energy's
June 30, 1994, Form 10-Q.) Among other things, this
amendment provides for CINergy to pay dividends to
shareholders that have not exchanged their Resources or
CG&E stock certificates for CINergy stock certificates.
Exhibit
Designation Nature of Exhibit
2-c Amendment dated as of September 30, 1994, to the Amended
and Restated Agreement and Plan of Reorganization by and
among CG&E, Resources, Energy, CINergy Corp., and Ohio
corporation, CINergy, and CINergy Sub, Inc. dated as of
December 11, 1992, as amended and restated on July 2,
1993, and as of September 10, 1993, and as further
amended as of June 20, 1994, and July 26, 1994. This
amendment extended the date after which the agreement may
be terminated from September 30, 1994, to December 31,
1994.
3 Amended Articles of Consolidation, as amended to May 11,
1994.
27 Financial Data Schedule (included in electronic
submission only).
b. The following reports on Form 8-K were filed subsequent to the second
quarter of 1994:
Items Filed Date of Report
Item 7 - Financial Statements
and Exhibits. (The Cincinnati
Gas & Electric Company's Quarterly
Report on Form 10-Q for the
second quarter ended June 30, 1994.) August 31, 1994
Item 1 - Changes in Control of
Registrant. (On October 24, 1994,
PSI Resources, Inc. was merged with
and into CINergy Corp., and a subsidiary
of CINergy Corp. was merged with and
into The Cincinnati Gas & Electric Company.)
Item 7 - Financial Statements and
Exhibits. (Joint press release
announcing the consummation of the merger.) October 24, 1994
<PAGE>
SIGNATURES
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting
principles have been condensed or omitted pursuant to such rules and
regulations, although PSI Energy, Inc. (Energy) believes that the disclosures
are adequate to make the information presented not misleading. In the opinion
of Energy, these statements reflect all adjustments (which include only
normal, recurring adjustments) necessary to reflect the results of operations
for the respective periods. The unaudited statements are subject to such
adjustments as the annual audit by independent public accountants may disclose
to be necessary.
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed by an
officer and the principal accounting officer on its behalf by the undersigned
thereunto duly authorized.
PSI ENERGY, INC.
Registrant
Date November 10, 1994 J. Wayne Leonard
Senior Vice President and
Chief Financial Officer
Date November 10, 1994 Charles J. Winger
Comptroller and Principal
Accounting Officer
<PAGE>
AMENDMENT
TO
AMENDED AND RESTATED
AGREEMENT AND PLAN OF REORGANIZATION
This Amendment, dated as of September 30, 1994 (the "Amendment"),
amends to the extent specified herein the Amended and Restated Agreement and
Plan of Reorganization, dated as of December 11, 1992, as amended and restated
on July 2, 1993 and as of September 10, 1993 and as further amended as of June
20, 1994 and as of July 26, 1994 (the "Merger Agreement"), by and among The
Cincinnati Gas & Electric Company, an Ohio corporation ("CG&E"), PSI
Resources, Inc., an Indiana corporation ("PSI"), PSI Energy, Inc., an Indiana
corporation ("Energy"), CINergy Corp., a Delaware corporation (the "Company")
and CINergy Sub, Inc., an Ohio corporation ("CINergy Sub"). Capitalized terms
used in this Amendment and not otherwise defined in this Amendment shall have
such meanings as are ascribed to such terms in the Merger Agreement.
W I T N E S S E T H
WHEREAS, the parties to the Merger Agreement deem it to be in
their best interest to amend Sections 1A.2(c) and 9.1(b) of the Merger
Agreement.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, the
parties, each intending to be legally bound hereby, agree as follows:
1. Section 1A.2(c) of the Merger Agreement is hereby amended
and restated to read in its entirety as follows:
"(c) The date set forth in Sections 2, 7(a) and 7(d) of each of
the PSI Stock Option Agreement and the CG&E Stock Option Agreement is
amended to be December 31, 1994."
2. Section 9.1(b) of the Merger Agreement is hereby amended and
restated to read in its entirety as follows:
"(b) by any party hereto, by written notice to the other, if the
Effective Time shall not have occurred on or before December 31, 1994;
provided, however, that the right to terminate the Agreement under this
Section 9.1(b) shall not be available to any party whose failure to
fulfill any obligation under this Agreement has been the cause of, or
resulted in, the failure of the Effective Time to occur on or before
this date;"
3. Without limiting in any respect any of the representations
and warranties set forth in the Merger Agreement, each party represents and
warrants with respect to itself that this Amendment has been duly and validly
authorized, executed and delivered and constitutes a valid and binding
obligation of each such party enforceable against such party in accordance
with its terms.
4. The Merger Agreement is hereby reaffirmed in its entirety,
except to the extent specifically amended hereby.
5. This Amendment may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument.
6. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
IN WITNESS WHEREOF, CG&E, PSI, Energy, CINergy Sub and the Company
have caused this Amendment to be signed by their respective officers thereunto
duly authorized as of the date first written above.
THE CINCINNATI GAS & ELECTRIC
COMPANY
By: /s/ Jackson H. Randolph
Name: Jackson H. Randolph
Title: Chairman, President and
Chief Executive Officer
PSI RESOURCES, INC.
By: /s/ James E. Rogers
Name: James E. Rogers
Title: Chairman and Chief
Executive Officer
PSI ENERGY, INC.
By: /s/ James E. Rogers
Name: James E. Rogers
Title: Chairman, President
and Chief Executive
Officer
CINERGY CORP.
By: /s/ Jackson H. Randolph
Name: Jackson H. Randolph
Title: Chairman and Chief
Executive Officer
CINERGY SUB, INC.
By: /s/ Jackson H. Randolph
Name: Jackson H. Randolph
Title: Chairman and Chief
Executive Officer
AMENDED
ARTICLES OF CONSOLIDATION
OF
PSI ENERGY, INC.
AS AMENDED TO MAY 11, 1994
(ORIGINALLY EFFECTIVE SEPTEMBER 6, 1941)
AND PROVISIONS OF
3-1/2% CUMULATIVE PREFERRED STOCK,
4.32% CUMULATIVE PREFERRED STOCK,
4.16% CUMULATIVE PREFERRED STOCK,
7.15% CUMULATIVE PREFERRED STOCK,
7.44% CUMULATIVE PREFERRED STOCK,
6-7/8% CUMULATIVE PREFERRED STOCK.
EXPLANATORY NOTE
Neither the footnotes nor the Table of Contents herein appear in the
original Articles of Consolidation, the amendments thereto or the
Amended Articles of Consolidation and are no part thereof, being here
added solely for the convenience of the reader.
In this Explanatory Note, the footnotes and the Table of Contents,
the following corporations, person, instruments, securities and
statute are referred to by the following abbreviated designations:
PSI Energy, Inc., successor to
Public Service Company of Indiana, Inc. Corporation
Public Service Company of Indiana Service Company
Central Indiana Power Company Central
Northern Indiana Power Company Northern
Terre Haute Electric Company, Inc. Terre Haute
Dresser Power Corporation Dresser
Service Company, Central, Northern, Constituent Corporations
Terre Haute and Dresser, collectively
The Indiana General Corporation Act or Corporation Act
The Indiana Business Corporation Law
Articles of Consolidation of the Corporation Original Charter
effective September 6, 1941, prior to any
amendments thereto
Original Charter as amended to date Charter
Articles of Amendment effective September 6, 1945 Amendment
1945 to the Original Charter
Articles of Amendment effective November 1, 1948 Amendment
1948 to the Original Charter as amended
Notice of Change of Principal Office and Notice of Change of
Address of Resident Agent, effective Principle Office
February 1, 1951
Articles of Amendment effective April 9, 1951 1951 Amendment
to the Original Charter as amended
Statement of Reduction of the Authorized 1952 Stock Reduction
Cumulative Preferred Stock of the New Statement
Corporation, effective January 25, 1952
Articles of Amendment effective April 9, 1952 1952 Amendment
to the Original Charter as amended
Statement of Reduction of the Authorized 1953 Stock Reduction
Cumulative Preferred Stock of the New Statement
Corporation, effective January 23, 1953
Articles of Amendment effective April 9, 1953 1953 Amendment
to the Original Charter as amended
Articles of Amendment effective June 25, 1954 1954 Amendment
to the Original Charter as amended
Statement of Reduction of the Authorized 1954 Stock Reduction
Cumulative Preferred Stock of the New Statement
Corporation, effective August 12, 1954
Articles of Amendment effective April 4, 1955 1955 Amendment
to the Original Charter as amended
Statement of Increase of Unissued Preferred 1958 Stock
Shares effective April 30, 1958 Increase Statement
Articles of Amendment effective April 2, 1962 1962 Amendment
to the Original Charter as amended
Statement of Increase of Unissued Preferred 1962 Stock
Shares effective July 2, 1962 Increase Statement
Articles of Amendment effective October 16, 1968 Amendment
1968 to the Original Charter as amended
Articles of Amendment effective May 22, 1970 1970 Amendment
to the Original Charter as amended
Articles of Amendment effective April 27, 1972 1972 Amendment
to the Original Charter as amended
Articles of Amendment effective April 11, 1973 1973 Amendment
to the Original Charter as amended
Articles of Amendment effective May 1, 1975 1975 Amendment
to the Original Charter as amended
Amended Articles of Consolidation 1976 Amended Articles
effective April 5, 1976 amended
Original Charter entirely
Articles of Amendment effective April 2, 1979 1979 Amendment
to the amended Articles of Consolidation
Articles of Amendment effective April 7, 1980 1980 Amendment
to the amended Articles of Consolidation
Articles of Amendment effective April 19, 1988 1988 Amendment
to the amended Articles of Consolidation
Articles of Amendment effective April 20, 1990
to the amended Articles of Consolidation 1990 Amendment
Articles of Amendment effective May 13, 1992
to the amended Articles of Consolidation 1992 Amendment
Articles of Amendment effective March 19, 1993 March 1993
to the amended Articles of Consolidation Amendment
Articles of Amendment effective October 21, 1993 October 1993
to the amended Articles of Consolidation Amendment
Articles of Amendment effective May 11, 1994
to the amended Articles of Consolidation 1994 Amendment
The Corporation was created on September 6, 1941 by a consolidation,
under the Corporation Act, of Service Company, Central, Northern,
Terre Haute and Dresser. All of the Constituent Corporations, except
Dresser, were Indiana corporations that had been reorganized under the
Corporation Act. Dresser was an Indiana corporation organized under
the Corporation Act.
The Corporation had its principal office in Marion County, Indiana,
at all times prior to February 1, 1951, and on and after said date has
had its principal office in Hendricks County, Indiana.
The respective dates on which duly executed counterparts of the
Original Charter, the Amendments, the Stock Reduction Statements, the
Stock Increase Statements, the Notice of Change of Principal Office,
and the 1976 Amended Articles were filed with, and approved by, the
Secretary of State of Indiana, and also the respective dates on which
said approved instruments were filed for record in the offices of the
recorders of the respective counties in which the Corporation has had
its principal office, are as follows:
Date Filed with
And Approved by County
Secretary of In Which Date
Instrument State of Indiana Recorded Recorded
Original Charter September 6, 1941 Marion* September 6, 1941
Hendricks September 8, 1941
1945 Amendment September 6, 1945 Marion* September 6, 1945
Hendricks September 7, 1945
1948 Amendment November 1, 1948 Marion* November 1, 1948
Hendricks November 3, 1948
Notice of Change January 26, 1951 Marion February 1, 1951
of Principal Office Hendricks January 31, 1951
1951 Amendment April 9, 1951 Hendricks April 9, 1951
1952 Stock January 25, 1952 Hendricks January 25, 1952
Reduction Statement
1952 Amendment April 9, 1952 Hendricks April 9, 1952
1953 Stock January 23, 1953 Hendricks January 24, 1953
Reduction Statement
1953 Amendment April 9, 1953 Hendricks April 9, 1953
1954 Amendment June 25, 1954 Hendricks June 25, 1954
1954 Stock August 12, 1954 Hendricks August 12, 1954
Reduction Statement
1955 Amendment April 4, 1955 Hendricks April 4, 1955
1958 Stock Increase April 30, 1958 Hendricks May 21, 1958
Statement
1962 Amendment April 2, 1962 Hendricks April 2, 1962
*The Original Charter, the 1945 Amendment and the 1948 Amendment were
also filed, pursuant to the provisions of the Corporation Act, in the
other counties in the State of Indiana in which the Corporation owned
real estate. Under the Corporation Act, subsequent charter amendments
of the Corporation were filed for record only in the recorder's office
in the county in which the Corporation has its principal office.
Date Filed with
And Approved by County
Secretary of In Which Date
Instrument State of Indiana Recorded Recorded
1962 Stock Increase July 2, 1962 Hendricks July 2, 1962
Statement
1968 Amendment October 16, 1968 Hendricks October 16, 1968
1970 Amendment May 22, 1970 Hendricks May 22, 1970
1972 Amendment April 27, 1972 Hendricks April 27, 1972
1973 Amendment April 11, 1973 Hendricks April 11, 1973
1975 Amendment May 1, 1975 Hendricks May 1, 1975
1976 Amended April 5, 1976 Hendricks April 5, 1976
Articles
1979 Amendment April 2, 1979 Hendricks April 2, 1979
1980 Amendment April 7, 1980 Hendricks April 7, 1980
1988 Amendment April 19, 1988 Hendricks April 19, 1988
1990 Amendment April 20, 1990 Not required by statute
1992 Amendment May 13, 1992 Not required by statute
March 1993 March 19, 1993 Not required by statute
Amendment
October 1993 October 21, 1993 Not required by statute
Amendment
1994 Amendment May 11, 1994 Not required by statute
As required under the Corporation Act, upon the creation of each new
series of its Cumulative Preferred Stock, the Corporation filed with
the Secretary of State of Indiana a certificate as to resolutions of
the board of directors of the Corporation determining and stating the
designation, relative rights, preferences, qualifications, limitations
and restrictions of such series. The provisions of these resolutions
which appertain to the series of Cumulative Preferred Stock now
outstanding are included in the appendices to this volume. Following
are the respective dates on which such certificates were filed with
and approved by the Secretary of State of Indiana and were filed for
record in the offices of the recorders of the respective counties in
which the Corporation has had its principal office:
Date Filed with
And Approved by County
Secretary of In Which Date
Certificate As To: State of Indiana Recorded Recorded
3-1/2% Cumulative May 10, 1946 Marion May 10, 1946
Preferred Stock Hendricks April 17, 1952
($100 par value)
*4.64% Cumulative December 6, 1949 Marion December 6, 1949
Preferred Stock Hendricks April 17, 1952
($100 par value)
4.32% Cumulative June 18, 1952 Hendricks June 18, 1952
Preferred Stock
($25 par value)
*4.90% Cumulative June 3, 1953 Hendricks June 3, 1953
Preferred Stock
($25 par value)
4.16% Cumulative July 1, 1954 Hendricks July 1, 1954
Preferred Stock
($25 par value)
*4.20% Cumulative April 5, 1955 Hendricks April 5, 1955
Preferred Stock
($100 par value)
*4.80% Cumulative September 15, 1958 Hendricks September 15, 1958
Preferred Stock
($100 par value)
7.15% Cumulative January 4, 1973 Hendricks January 4, 1973
Preferred Stock
($100 par value)
*9.44% Cumulative July 8, 1975 Hendricks July 9, 1975
Preferred Stock
($100 par value)
*8.52% Cumulative August 16, 1976 Hendricks August 17, 1976
Preferred Stock
($100 par value)
*8.38% Cumulative February 9, 1978 Hendricks February 10, 1978
Preferred Stock
($100 par value)
*8.96% Cumulative April 2, 1979 Hendricks April 3, 1979
Preferred Stock
($100 par value)
*9.60% Cumulative January 25, 1980 Hendricks January 25, 1980
Preferred Stock
($100 par value)
*13.25% Cumulative December 22, 1981 Hendricks December 22, 1981
Preferred Stock
($100 par value)
7.44% Cumulative March 19, 1993 Not required by statute
Preferred Stock
($25 par value)
6-7/8% Cumulative October 21, 1993 Not required by statute
Preferred Stock
($100 par value)
* None of the shares of the 4.64%, 4.20%, 4.80%, 9.44%, 9.60%, 13.25%,
8.52%, 8.38% and 8.96% Cumulative Preferred Stock ($100 par value) are
now outstanding, having been reacquired by the Corporation, either
through conversion into its Common Stock or through redemption, and
cancelled. None of the shares of the 4.90% Cumulative Preferred Stock
($25 par value) are now outstanding, having been reacquired by the
Corporation through redemption and cancelled.
TABLE OF CONTENTS
Charter
Name of Corporation
Statements Required In All Amended Articles Of Incorporation By The
Provisions Of The Indiana Business Corporation Law
A. Name
B. Purposes for which formed
C. Term of existence
D. Principal office
Name and address of Resident Agent
E. Number of shares of authorized capital stock
F. Classes, designations, rights, preferences, etc. of capital stock
(I) Classes of stock
(II) Designations, rights (other than voting), preferences, etc. of
stock
(A)Cumulative Preferred Stock
Authority of board of directors in respect of:
(i) Creation and designation of series, and of number of shares
(ii) Dividend rate
(iii) Dividend payment dates
(iv) Redemption provisions
(v) Sinking Fund provisions
(vi) Conversion provisions
(vii) Liquidation rights
(viii) Other rights (other than voting rights) not in conflict
with Charter
General provisions applicable to all series:
(i) Dividend preference
(ii) Liquidation preferences
(iii) Redemption provisions
(B) Preference Stock
Authority of board of directors in respect of:
(i) Creation and designation of series and of number of shares
(ii) Dividend rate
(iii) Quarterly dividend payment dates
(iv) Redemption provisions
(v) Sinking Fund provisions
(vi) Conversion provision
(vii) Liquidation provision
(viii) Other rights (other than voting rights) not in conflict
with Charter
General provisions applicable to all series:
(i) Dividend preference subordinate
(ii) Liquidation provisions subordinate
(iii) Redemption provision
(C) Common Stock
(i) Definitions:
(a) Dividends on shares of the Common Stock
(b) Common Stock Equity
(c) Total Capitalization
(d) Gross Operating Revenues of the Corporation
(e) Net Earnings of the Corporation Available for the
Payment of Interest Charges
(f) Net Income of the Corporation Available for
Dividends on the Common Stock
(ii) Payment of dividends on the Common Stock
(iii) Common Stock dividend limitations based on amount of
Common Stock Equity
(D) Scrip
Issues in connection with consolidation
Subsequent issues
G. Voting rights of shareholders
(I) Voting rights of Cumulative Preferred Stock
(i) General provisions
(ii) Consent of holders of two-thirds of Cumulative
Preferred Stock necessary before:
(a) Creating or issuing senior class of shares
(b) Issuing shares of a senior or parity class unless
specified earnings and Common Stock Equity
conditions exist
(c) Amending Charter to affect Cumulative
Preferred Stock adversely
Consent not required if redemption of Cumulative Preferred
Stock provided for
(iii) Consent of holders of majority of Cumulative Preferred
Stock necessary before merger, consolidation or sale of
substantially all assets
Consent not required if redemption of all Cumulative Preferred
Stock provided for
(iv) Special voting rights of Cumulative Preferred Stock
in event of defaults in dividend payments thereon
(v) Effect of such defaults on existing directorships
(vi) Effect of curing of such defaults
(vii) Effect of lack of quorum of holders of
Cumulative Preferred Stock at shareholders'
meetings to elect directors after such defaults
(viii)Specifying, after such defaults, of acting directors
to be replaced
(ix) All series of Cumulative Preferred Stock to vote as
a class-Exceptions
(II) Voting rights of Preference Stock
(i) General provisions
(ii) Consent of two-thirds of Preference Stock necessary
before:
(a) Creation of issuing senior class of shares
(b) Amending Charter to affect Preference Stock
adversely
Consent not required if redemption of Preference Stock
provided for
(iii) Consent of holders of majority of Preference Stock
necessary before merger, consolidation of sale of
substantially all assets
Consent not required if redemption of all Preference Stock
provided for
(iv) Special voting rights of Preference Stock in event of
default in dividend payments thereon
(v) Effect of such defaults on existing directorships
(vi) Effect of curing of such defaults
(vii) Effect of lack of quorum of holders of Preference
Stock at shareholders' meetings to elect directors after
such defaults
(viii) Specifying, after such defaults, of acting directors
to be replaced
(ix) All series of Preference Stock to vote as a class-
Exceptions
(III) Voting rights of Common Stock
(IV) Scrip to have no voting rights
H. Paid-in Capital
I. Number of directors
J. Names and addresses of board of directors
K. Names and addresses of President and Secretary of Corporation
L. Miscellaneous provisions
(I) Consideration to be received for shares of stock issued
(II) To whom shares of stock may be issued and sold
(III) Reliance by directors on books of account, etc.
(IV) Places of holding of shareholders' and directors' meetings
and of keeping of corporate records
(V) Bylaws
(VI) Indemnification of directors
(VII) Corporation not required to recognize equitable rights in
its stock
(VIII) Powers of board of directors in respect of working capital,
etc.
(IX) Inspection of corporate records by shareholders
(X) General grant of power to board of directors
(XI) Increase or decrease of authorized capital
stock-Amendments to Charter
(XII) Shareholders' preemptive rights
(XIII) Three for two split-up of Common Stock (1976)
(XIV) Limitation on age of directors
(XV) Amended Articles supersede existing Charter
SUBDIVISION B
MANNER OF AND VOTE FOR ADOPTION OF CHARTER
IN WITNESS CLAUSE TO CHARTER
SIGNATURES AND ACKNOWLEDGEMENTS ON CHARTER
APPENDIX A. 3-1/2% CUMULATIVE PREFERRED STOCK SERIES
APPENDIX B. 4.32% CUMULATIVE PREFERRED STOCK SERIES
APPENDIX C. 4.16% CUMULATIVE PREFERRED STOCK SERIES
APPENDIX D. 7.15% CUMULATIVE PREFERRED STOCK SERIES
APPENDIX E. 9.44% CUMULATIVE PREFERRED STOCK SERIES
APPENDIX F. 8.52% CUMULATIVE PREFERRED STOCK SERIES
APPENDIX G. 8.38% CUMULATIVE PREFERRED STOCK SERIES
APPENDIX H. 8.96% CUMULATIVE PREFERRED STOCK SERIES
APPENDIX I. 9.60% CUMULATIVE PREFERRED STOCK SERIES
APPENDIX J. 13.25% CUMULATIVE PREFERRED STOCK SERIES
APPENDIX K. 7.44% CUMULATIVE PREFERRED STOCK SERIES
APPENDIX L. 6-7/8% CUMULATIVE PREFERRED STOCK SERIES
AMENDED ARTICLES OF CONSOLIDATION
OF
PSI ENERGY, INC.
The undersigned officers of PSI Energy, Inc. (hereinafter referred
to as the "Corporation") existing pursuant to the provisions of The
Indiana Business Corporation Law, as amended (hereinafter referred to
as the "Act"), desiring to give notice of corporate action
effectuating certain amendments of its Articles of Consolidation by
the adoption of new Amended Articles of Consolidation to supersede and
take the place of its heretofore existing Amended Articles of
Consolidation, certify the following facts:
SUBDIVISION A
Text of the Amended Articles
The exact text of the Amended Articles of Consolidation of the
Corporation (hereinafter referred to as the "Amended Articles''), now
is as follows:
AMENDED ARTICLES OF CONSOLIDATION
OF
PSI ENERGY, INC.
A CORPORATION
With respect to the Corporation, all of the statements required by
"The Indiana Business Corporation Law," as amended, to be set forth in
the Amended Articles of Consolidation follow:
A.The name of the Corporation shall be:
PSI ENERGY, INC.
B.The purpose or purposes for which it is formed are as follows:
(i)To manufacture, produce, transmit, distribute, purchase and sell,
furnish and supply, or otherwise dispose of as a public utility or
otherwise, electricity, gas, water , heat, and any other commodities
or services now or hereafter furnished or supplied by public
utilities; to engage, as a common carrier or otherwise, in
transporting persons and property; and to manufacture, produce,
purchase, sell, furnish and supply ice.
(ii) To acquire (by purchase, exchange, lease, hire or
otherwise), own, hold, develop, operate, sell, lease, assign,
transfer, convey, exchange, mortgage, pledge, or otherwise dispose of,
or encumber, and to aid and subscribe toward the acquisition,
development or improvement of, or to turn to account, and convey, real
and personal property, of every class and description, and rights and
privileges therein, in the State of Indiana or elsewhere.
(iii) To manufacture, assemble, buy, lease, rent or otherwise
acquire, sell, exchange, mortgage, lease or otherwise dispose of,
store, repair, operate, export, import and generally deal in and with,
machines, and machinery, as well as apparatus, equipment, devices and
appliances of every kind and description, and all the parts, supplies
and accessories therefor, and to promote, operate and manage for
others all of the foregoing, or any of them.
(iv) To conduct, engage in and carry on, the business of
manufacturing, producing, assembling, buying or otherwise acquiring,
selling or otherwise disposing of, exporting, importing, leasing
(either as lessee or lessor) and generally dealing and trading in
goods, wares, merchandise, devices and commodities of every class and
description, either as principal or agent or in any other capacity, or
upon commission, consignment or otherwise, and to promote, operate and
manage for others all of the foregoing, or any of them.
(v)To subscribe or cause to be subscribed for, and to purchase or
otherwise acquire, hold for investment, sell, assign, transfer,
mortgage, pledge, exchange, distribute, or otherwise dispose of, the
whole or any part of the shares, bonds, coupons, mortgages, deeds of
trust, debentures, securities, obligations, notes and other evidences
of indebtedness of and/or interests in any private corporation or
public corporation, stock company or association now or hereafter
existing, whether created by or under the laws of the State of Indiana
or under the laws of any other state, country or government; and of
any government or body politic, domestic or foreign, and of any agency
or subdivision thereof; and while owner of any of said shares or bonds
or other property, to exercise all the rights, powers and privileges
of ownership of every kind and description, to exercise the right to
vote thereon, and to designate some person or persons for that purpose
from time to time to the same extent as natural persons might or could
do.
(vi) To buy, lease, or otherwise acquire, so far as may be
permitted by law, the whole or any part of the business, goodwill and
assets of any person, firm, association or corporation (either foreign
or domestic), suitable, convenient, advantageous or necessary for the
business of the Corporation; and generally, as principal or agent, to
institute, enter into, carry on, assist, promote and participate in
financial, commercial, mercantile and other business, works,
contracts, undertakings and operations.
(vii) To purchase or otherwise acquire, lease, assign, mortgage,
pledge or otherwise dispose of trade names, trademarks, concessions,
inventions, devices, formulae, improvements, processes of any nature
whatsoever, copyrights and letters patent of the United States and of
foreign countries, and to accept and grant licenses thereunder.
(viii) To have and to exercise all the powers conferred by the laws
of Indiana upon corporations formed under The Indiana General
Corporation Act and all amendments made thereto from time to time and
all subsequent laws of the State of Indiana.
C.The period during which it is to continue as a corporation is
perpetual.
D.*The post office address of its principal office is 1000 East Main
Street, Plainfield, Hendricks County, Indiana.
**The name and post office address of its resident agent in charge
of such office is Cheryl M. Foley, 1000 East Main Street, Plainfield,
Hendricks County, Indiana.
E.***The total number of shares into which its authorized capital
stock is to be divided is seventy-five million (75,000,000) consisting
of shares as follows:
5,000,000 shares with the par value of $100.00 per share, 5,000,000
shares with the par value of $25.00 per share, and 65,000,000 shares
without par value.
F.*(If the shares are to be divided into classes or kinds, the
designation of the different classes, the number and par value, if
any, of the shares of each class, and either (a) a statement of the
relative rights, preferences, limitations and restrictions of each
class, or (b) a provision expressly vesting authority in the board of
directors, subject to such restrictions as may be provided, to
determine the relative rights, preferences, limitations and
restrictions (other than voting rights) of each class by resolution or
resolutions adopted prior to the issuance of any of the shares of such
class; and, if the shares of any class are to be issuable in series,
descriptions of the several series, and either (a) a statement of the
relative rights, preferences, limitations and restrictions of each
series, or (b) a provision expressly vesting authority in the board of
directors, subject to such restrictions as may be provided, to
determine the relative rights, preferences, limitations and
restrictions (other than voting rights) of each series by resolution
or resolutions adopted prior to the issuance of any of the shares of
such series.)
*Notice of change of Principal Office
**Effective July 14, 1992, the designated resident agent was changed
from Jon D. Noland to Cheryl M. Foley
***Amended several times
Indicate here:
(I)
The total authorized capital stock of the Corporation shall consist
of the following designated three classes and the following respective
number of shares in each class, to wit:
(i)a class of stock comprising the Cumulative Preferred Stock and
consisting of five million (5,000,000) shares with the par value of
$100.00 per share and five million (5,000,000) shares with the par
value of $25.00 per share,
(ii) a class of stock comprising the Preference Stock and
consisting of five million (5,000,000) shares without par value, and
(iii) a class of stock comprising the Common Stock and consisting
of sixty million (60,000,000) shares without par value.
(II)
The designations, relative rights, preferences, qualifications,
limitations and restrictions (other than voting rights) which shall
attach to said Cumulative Preferred Stock, Preference Stock and Common
Stock, respectively, shall be as hereinafter provided, to wit:
(A) CUMULATIVE PREFERRED STOCK
The Corporation shall have the right to issue the Cumulative
Preferred Stock in series, each of which series shall have such
designation and such relative rights, preferences, qualifications,
limitations and restrictions as are stated or expressed in these
Amended Articles of Consolidation, and, to the extent permitted by
these Amended Articles of Consolidation, as are determined and stated
by the board of directors in and by the resolution or resolutions
authorizing the issue of shares of such series. All shares of the
Cumulative Preferred Stock shall be of equal rank and shall be
identical, except in respect of the par value thereof which may be
either $100.00 per share or $25.00 per share, and in respect of the
particulars that may be fixed by the board of directors as hereinafter
in this Division F(II)(A) provided, and in respect of the voting
rights which shall be as provided for in Division G(I) hereof; 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. Shares of Cumulative Preferred
Stock shall be issued only as fully paid and nonassessable shares.
Grant of Authority to Board of Directors:
Authority is hereby expressly granted to the board of directors to
authorize the issue of shares of Cumulative Preferred Stock in one or
more series, and to determine and state, by the resolution or
resolutions authorizing the issue of each series of Cumulative
Preferred Stock, the designation of such series and the relative
rights (other than voting rights), preferences, qualifications,
limitations and restrictions of such series, in respect of the matters
set forth in the following subparagraphs designated (i) to (viii),
both inclusive:
(i)The designation of the series and the number of shares which
shall constitute such series, which number may be varied from time to
time by like action of the board of directors.
(ii) *The rate of dividends payable on shares of such series, or
the method or methods by which such rate shall be determined, and the
date from which dividends on all shares of such series issued prior to
the record date for the first dividend on shares of such series shall
be cumulative.
*1992 Amendment
(iii) *The dates on which dividends, if declared, shall be payable.
(iv) **The price or prices per share at which the shares of such
series shall be redeemable.
(v) Whether or not the shares of such series shall be entitled to the
benefits of a sinking fund to be applied to the purchase or redemption
of shares of such series, and if such sinking fund is to be
established, the terms and provisions governing the operation thereof.
Installments for any such sinking fund may be made payable in priority
to any dividends upon any stock of the Corporation which is junior to
the Cumulative Preferred Stock with respect to preference as to
dividends or assets (such stock being herein commonly referred to as
"junior to" or "ranking junior to" the Cumulative Preferred Stock).
(vi) *Whether or not the shares of such series shall be made
convertible into or exchangeable for shares of any other class or for
any other series of the same class of shares of the Corporation, or
for any other Securities of the Corporation, and if made convertible
or exchangeable, the conversion price or prices, or the rates of
exchange, and the adjustments, if any, at which such conversion or
exchange may be made.
(vii) 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 the affairs of
the Corporation.
(viii) Any other rights (other than voting rights), preferences,
qualifications, limitations and restrictions in respect of shares of
such series, which are not in conflict with the rights (other than
voting rights), preferences, qualifications, limitations and
restrictions expressly provided in this Division F(II)(A).
General Provisions:
The following provisions shall apply to all the Cumulative Preferred
Stock of the Corporation irrespective of series:
(i) The record holders of the Cumulative Preferred Stock of each
series, in preference to the holders of any class of stock ranking
junior to the Cumulative Preferred Stock, shall be entitled to
receive, when and as declared by the board of directors, cash
dividends in lawful money of the United States at the rate fixed for
such series, and no more. 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:
(a) if issued prior to the record date for the first dividend on
shares of such series, then from the date fixed for the purpose by
the board of directors as provided in this Division F(II)(A),
(b) if issued during the period commencing immediately after the
record date for a dividend on shares of such series and terminating
at the close of the payment date for such dividend, then from such
dividend payment date, and
(c) *otherwise from the dividend payment date next preceding the
date of issue of such shares.
*1992 Amendment
**Amended by the 1973 and 1992 Amendments
No dividend shall be paid upon, or declared or set apart for payment
upon, any share of Cumulative Preferred Stock of any series for any
quarterly dividend period unless at the same time a like proportionate
dividend for the same quarterly dividend period, ratably in proportion
to the respective annual dividend rates fixed therefor, shall be paid
upon, or declared and set apart for payment up on, all shares of
Cumulative Preferred Stock of all series then issued and outstanding
and entitled to receive such dividend. In no event, so long as any
shares of Cumulative Preferred Stock shall be outstanding, shall any
dividend, whether in cash or property, be paid or declared, or shall
any distribution be made on any class of stock of the Corporation
ranking junior to the Cumulative Preferred Stock, or shall any shares
of any such junior stock be purchased, redeemed or otherwise acquired
for value by the Corporation, unless all dividends on the Cumulative
Preferred Stock of all series for all past quarterly dividend periods
and for the current dividend period shall have been paid or declared
and a sum sufficient for the payment thereof set apart for payment.
The provisions of the immediately preceding sentence shall not,
however, apply to a dividend with respect to any such junior stock,
payable in any class of stock ranking junior to the Cumulative
Preferred Stock, or to the acquisition of shares of any such junior
stock in exchange for, or through application of the proceeds of the
sale of, shares of any such junior stock. Subject to the foregoing and
to the provisions of Division F(II)(C), and to any further limitations
prescribed in accordance with the provisions of subdivision (viii)
under "Grant of Authority to Board of Directors" in this Division
F(II)(A), the board of directors may declare, out of any funds legally
available therefor, dividends upon the then outstanding shares of any
class of stock ranking junior to the Cumulative Preferred Stock, and
no holders of shares of Cumulative Preferred Stock of any series shall
be entitled to share therein.
(ii) *In the event of any dissolution, liquidation or winding up
of the affairs of the Corporation, then, before any distribution or
payment shall be made to the holders of any class of stock ranking
junior to the Cumulative Preferred Stock, the holders of the
Cumulative Preferred Stock shall be entitled to be paid in full the
respective amounts fixed in accordance with the provisions of
subdivision (vii) under "Grant of Authority to Board of Directors" in
this Division F(II)(A), together with a sum, in the case of each
share, equal to accrued and unpaid dividends thereon (whether or not
earned or declared) to the date of final distribution. If such payment
shall have been made in full to the holders of the Cumulative
Preferred Stock, 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 stock ranking junior to the
Cumulative Preferred Stock, according to their respective rights and
preferences and in each case according to their respective shares. If,
upon any dissolution, liquidation or winding up of the affairs of the
Corporation, the assets available are not sufficient to pay in full
the amounts so payable to the holders of all outstanding shares of
Cumulative Preferred Stock, the holders of all series of Cumulative
Preferred Stock shall share ratably in any distribution of assets in
proportion to the full amounts to which they would otherwise be
respectively entitled. A consolidation, merger or reorganization of
the Corporation with any other corporation or corporations, or a
reorganization of the Corporation alone, or a sale of all or
substantially all of the assets of the Corporation, shall not be
considered a dissolution, liquidation or winding up of the Corporation
within the meaning of these provisions.
(iii) *The Cumulative Preferred Stock of any series may be
redeemed, as a whole or in part, at the option of the Corporation by
vote of its board of directors, at any time or from time to time, at
the applicable redemption price for such series fixed in accordance
with the provisions of subdivision (iv) under "Grant of Authority to
Board of Directors" in this Division F (II)(A), together with an
amount (hereinafter referred to as "accrued dividends to the
redemption date") in the case of each share, equal to accrued and
unpaid dividends whereon (whether or not earned or declared) to the
date fixed for redemption. If less than all the outstanding shares of
Cumulative Preferred Stock of any series are to be redeemed, the
shares to be redeemed shall be determined by lot in such manner as the
board of directors may prescribe. Notice of every redemption of
Cumulative Preferred Stock shall specify (a) the date of redemption,
(b) the designation of the series of Cumulative Preferred Stock to be
redeemed, (c) if less than all the outstanding Cumulative Preferred
Stock of such series is called for redemption, appropriate
specifications of the shares to be redeemed as determined by the board
of directors, (d) the place of redemption of such series, and (e) the
redemption price of the shares to be redeemed. Copies of such notice
shall be mailed, addressed to the holders of record of the shares to
be redeemed at their respective addresses as they shall appear on the
stock books of the Corporation (but no failure to mail such notice or
any defect therein or in the mailing thereof
*1992 Amendment
shall affect the validity of the proceedings for such redemption) and
such notice shall also be published once each week for at least two
successive weeks (in each case on any business day of the week) in one
daily newspaper printed in the English language and published and of
general circulation in the City of Chicago, Illinois, and in one daily
newspaper printed in the English language and published and of general
circulation in the Borough of Manhattan, the City of New York, State
of New York, the first publication in each such newspaper and such
mailing to be at least 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 published and if, on or before the redemption
date specified in the notice, all funds necessary for the redemption
shall have been deposited in trust with a bank or trust company of the
character described in the immediately succeeding sentence and
designated in the notice of redemption, for the pro rata benefit of
the holders of the shares so called for redemption, so as to be and
continue to be available therefor, then, from and after the date of
redemption so designated, notwithstanding that any certificate for
shares of Cumulative Preferred Stock so called for redemption shall
not have been surrendered for cancellation, the shares represented
thereby shall no longer be deemed outstanding, the dividends thereon
shall cease to accumulate, and all rights with respect to the shares
of Cumulative Preferred Stock so called for redemption shall forthwith
on the redemption date cease and terminate, except only the right of
the holders thereof to receive the redemption price of the shares so
redeemed, including accrued dividends to the redemption date, but
without interest. The Corporation may also, at any time prior to the
redemption date specified in the notice of redemption, deposit in
trust, for the account of the holders of the Cumulative Preferred
Stock to be redeemed, with a bank or trust company in good standing,
organized under the laws of the United States of America or of the
State of Illinois, doing business in the City of Chicago, Illinois,
having capital, surplus and undivided profits aggregating at least two
million dollars ($2,000,000), designated in the notice of redemption,
all funds necessary for the redemption, and deliver irrevocable
written instructions authorizing such bank or trust company, on behalf
and at the expense of the Corporation, to cause notice of redemption
to be duly mailed and publication of the notice to be made as herein
provided promptly upon receipt of such irrevocable instructions.
Thereupon, notwithstanding that any certificate for shares of
Cumulative Preferred Stock so called for redemption shall not have
been surrendered for cancellation, all shares of Cumulative Preferred
Stock with respect to which the deposit shall have been made shall no
longer be deemed to be outstanding, and all rights with respect to
such shares of Cumulative Preferred Stock shall forthwith, upon such
deposit in trust accompanied by irrevocable instructions as provided
above, cease and terminate except only the right of the holders
thereof to receive from such bank or trust company, at any time after
the time of the deposit, the redemption price, including accrued
dividends to the redemption date, but without interest, of the shares
so to be redeemed, and the right to exercise, on or before the date
fixed for redemption, privileges of conversion or exchange, if any,
not theretofore expiring. Any moneys deposited by the Corporation
pursuant to this paragraph (iii) which shall not be required for the
redemption because of the exercise of any such right of conversion or
exchange subsequent to the date of the deposit shall be repaid to the
Corporation forthwith. Any other moneys deposited by the Corporation
pursuant to this paragraph (iii) and unclaimed at the end of six years
from the date fixed for redemption shall be repaid to the Corporation
upon its request expressed in a resolution of its board of directors,
after which repayment the holders of the shares so called for
redemption shall look only to the Corporation for the payment thereof.
(B) *PREFERENCE STOCK
So long as any shares of Cumulative Preferred Stock are outstanding,
the Preference Stock shall be junior and subordinate in all respects
to the Cumulative Preferred Stock.
*Added by 1976 Amended Articles
The Corporation shall have the right to issue the Preference Stock
in series, each of which series shall have such designation and such
relative rights, preferences, qualifications, limitations and
restrictions as are stated or expressed in these Amended Articles of
Consolidation, and, to the extent permitted by these Amended Articles
of Consolidation, as are determined and stated by the board of
directors in and by the resolution or resolutions authorizing the
issue of shares of such series. All shares of the Preference Stock
shall be of equal rank and shall be identical, except in respect of
the particulars that may be fixed by the board of directors as
hereinafter in this Division F(II)(B) provided, and in respect of the
voting rights which shall be as provided for in Division G(II) hereof;
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. Shares of Preference Stock
shall be issued only as fully paid and nonassessable shares.
Grant of Authority to Board of Directors:
Authority is hereby expressly granted to the board of directors to
authorize the issue of shares of Preference Stock in one or more
series, and to determine and state, by the resolution or resolutions
authorizing the issue of each series of Preference Stock, the
designation of such series and the relative rights (other than voting
rights), preferences, qualifications, limitations and restrictions of
such series, in respect of the matters set forth in the following
subparagraph designated (i) to (viii), both inclusive:
(i)The designation of the series and the number of shares which
shall constitute such series, which number may be varied from time to
time by like action of the board of directors.
(ii) The annual rate of dividends payable on shares of such
series and the date from which dividends on all shares of such series
issued prior to the record date for the first dividend on shares of
such series shall be cumulative.
(iii) The dates on which dividends, if declared, shall be payable,
which shall be quarterly.
(iv) The price or prices per share at which the shares of such
series shall be redeemable plus accrued dividends to the date of
redemption.
(v)Whether or not the shares of such series shall be entitled to the
benefits of a sinking fund to be applied to the purchase or redemption
of shares of such series, and if such sinking fund is to be
established, the terms and provisions governing the operation thereof.
Installments for any such sinking fund may be made payable in priority
to any dividends upon any stock of the Corporation which is junior to
the Preference Stock with respect to preference as to dividends or
assets (such stock being herein commonly referred to as "junior to" or
"ranking junior to" the Preference Stock).
(vi) Whether or not the shares of such series shall be made
convertible into or exchangeable for shares of any other class or of
any other series of the same class of shares of the Corporation, and
if made convertible or exchangeable, the conversion price or prices,
or the rates of exchange, and the adjustments, if any, at which such
conversion or exchange may be made.
(vii) 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 the affairs of
the Corporation.
(viii) Any other rights (other than voting rights), preferences,
qualifications, limitations and restrictions in respect of shares of
such series, which are not in conflict with the rights (other than
voting rights), preferences, qualifications, limitations and
restrictions expressly provided in this Division F(II)(B).
General Provisions:
The following provisions shall apply to all the Preference Stock of
the Corporation irrespective of series:
(i)The record holders of the Preference Stock of each series, in
preference to the holders of any class of stock ranking junior to the
Preference Stock, shall, subject to the provisions of Division
F(II)(A) hereof, be entitled to receive, when and as declared by the
board of directors, cash dividends in lawful money of the United
States at the rate fixed for such series, and no more. 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:
(a)if issued prior to the record date for the first dividend on
shares of such series, then from the date fixed for the purpose by
the board of directors as provided in this Division F(II)(B),
(b)if issued during the period commencing immediately after the
record date for a dividend on shares of such series and terminating
at the close of the payment date for such dividend, then from such
dividend payment date, and
(c)otherwise from the quarterly dividend payment date next
preceding the date of issue of such shares.
No dividend shall be paid upon, or declared or set apart for payment
upon, any share of Preference Stock of any series for any quarterly
dividend period unless at the same time a like proportionate dividend
for the same quarterly dividend period, ratably in proportion to the
respective annual dividend rates fixed therefor, shall be paid upon,
or declared and set apart for payment upon, all shares of Preference
Stock of all series then issued and outstanding and entitled to
receive such dividend. In no event, so long as any shares of
Preference Stock shall be outstanding, shall any dividend, whether in
cash or property, be paid or declared, or shall any distribution be
made on any class of stock of the Corporation ranking junior to the
Preference Stock, or shall any shares of any such junior stock be
purchased, redeemed or otherwise acquired for value by the
Corporation, unless all dividends on the Preference Stock of all
series for all past quarterly dividend periods and for the current
dividend period shall have been paid or declared and a sum sufficient
for the payment thereof set apart for payment. The provisions of the
immediately preceding sentence shall not, however, apply to a dividend
with respect to any such junior stock, payable in any class of stock
ranking junior to the Preference Stock, or to the acquisition of
shares of any such junior stock in exchange for, or through
application of the proceeds of the sale of, shares of any such junior
stock. Subject to the foregoing and to the provisions of Divisions
F(II)(B) and F(II)(C), and to any further limitations prescribed in
accordance with the provisions of subdivision (viii) under "Grant of
Authority to Board of Directors" in this Division F(II)(B), the board
of directors may declare, out of any funds legally available therefor,
dividends upon the then outstanding shares of any class of stock
ranking junior to the Preference Stock, and no holders of shares of
Preference Stock of any series shall be entitled to share therein.
(ii) In the event of any dissolution, liquidation or winding up
of the affairs of the Corporation, then, before any distribution or
payment shall be made to the holders of any class of stock ranking
junior to the Preference Stock, the holders of the Preference Stock
shall, subject to the provisions of F(II)(A) hereof, be entitled to be
paid in full the respective amounts fixed in accordance with the
provisions of subdivision (vii) under "Grant of Authority to Board of
Directors" in this Division F(II)(B), 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 for which moneys
for payment in full have been set apart and remain available for
payment. If such payment shall have been made in full to the holders
of the Preference Stock, 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 stock ranking junior
to the Preference Stock, according to their respective rights and
preferences and in each case according to their respective shares. If,
upon any dissolution, liquidation or winding up of the affairs of the
Corporation, the assets available are not sufficient to pay in full
the amounts so payable to the holders of all outstanding shares of
Preference Stock, the holders of all series of Preference Stock shall
share ratably in any distribution of assets in proportion to the full
amounts to which they would otherwise be respectively entitled. A
consolidation, merger or reorganization of the Corporation with any
other corporation or corporations, or a reorganization of the
Corporation alone, or a sale of all or substantially all of the assets
of the Corporation, shall not be considered a dissolution, liquidation
or winding up of the Corporation within the meaning of these
provisions.
(iii) The Preference Stock of any series may, subject to the
provisions of F(II)(A) hereof, be redeemed, as a whole or in part, at
the option of the Corporation by vote of its board of directors, at
any time or from time to time, at the applicable redemption price for
such series fixed in accordance with the provisions of subdivision
(iv) under "Grant of Authority to Board of Directors" in this Division
F(II)(B), together with an amount (hereinafter referred to as "accrued
dividends to the redemption date") in the case of each share, computed
at the annual dividend rate for the series of which the particular
share is a part, from the date on which dividends on such share became
cumulative to and including the date of redemption, less the aggregate
amount of all dividends which have theretofore been paid thereon or
for which moneys for payment in full have been set apart and remain
available for payment. If less than all the outstanding shares of
Preference Stock of any series are to be redeemed, the shares to be
redeemed shall be determined by lot in such manner as the board of
directors may prescribe. Notice of every redemption of Preference
Stock shall specify (a) the date of redemption, (b) the designation of
the series of Preference Stock to be redeemed, (c) if less than all
the outstanding Preference Stock of such series is called for
redemption, appropriate specifications of the shares to be redeemed as
determined by the board of directors, (d) the place of redemption of
such series, and (e) the redemption price of the shares to be
redeemed. Copies of such notice shall be mailed, addressed to the
holders of record of the shares to be redeemed at their respective
addresses as they shall appear on the stock books of the Corporation
(but no failure to mail such notice or any defect therein or in the
mailing thereof shall affect the validity of the proceedings for such
redemption) and such notice shall also be published once each week for
at least two successive weeks (in each case on any business day of the
week) in one daily newspaper printed in the English language and
published and of general circulation in the City of Chicago, Illinois,
and in one daily newspaper printed in the English language and
published and of general circulation in the Borough of Manhattan, the
City of New York, State of New York, the first publication in each
such newspaper and such mailing to be at least 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 published and if, on or
before the redemption date specified in the notice, all funds
necessary for the redemption shall have been deposited in trust with a
bank or trust company of the character described in the immediately
succeeding sentence and designated in the notice of redemption, for
the pro rata benefit of the holders of the shares so called for
redemption, so as to be and continue to be available therefor, then,
from and after the date of redemption so designated, notwithstanding
that any certificate for shares of Preference Stock so called for
redemption shall not have been surrendered for cancellation, the
shares represented thereby shall no longer be deemed outstanding, the
dividends thereon shall cease to accumulate, and all rights with
respect to the shares of Preference Stock so called for redemption
shall forthwith on the redemption date cease and terminate, except
only the right of the holders thereof to receive the redemption price
of the shares so redeemed, including accrued dividends to the
redemption date, but without interest. The Corporation may also, at
any time prior to the redemption date specified in the notice of
redemption, deposit in trust, for the account of the holders of the
Preference Stock to be redeemed, with a bank or trust company in good
standing, organized under the laws of the United States of America or
of the State of Illinois, doing business in the City of Chicago,
Illinois, having capital, surplus and undivided profits aggregating at
least two million dollars ($2,000,000), designated in the notice of
redemption, all funds necessary for the redemption, and deliver
irrevocable written instructions authorizing such bank or trust
company, on behalf and at the expense of the Corporation, to cause
notice of redemption to be duly mailed and publication of the notice
to be made as herein provided promptly upon receipt of such
irrevocable instructions. Thereupon, notwithstanding that any
certificate for shares of Preference Stock so called for redemption
shall not have been surrendered for cancellation, all shares of
Preference Stock with respect to which the deposit, shall have been
made shall no longer be deemed to be outstanding, and all rights with
respect to such shares of Preference Stock shall forthwith, upon such
deposit in trust accompanied by irrevocable instructions as provided
above, cease and terminate except only the right of the holders
thereof to receive from such bank or trust company, at any time after
the time of the deposit, the redemption price, including accrued
dividends to the redemption date, but without interest, of the shares
so to be redeemed, and the right to exercise, on or before the date
fixed for redemption, privileges of conversion or exchange, if any,
not theretofore expiring. Any moneys deposited by the Corporation
pursuant to this paragraph (iii) which shall not be required for the
redemption because of the exercise of any such right of conversion or
exchange subsequent to the date of the deposit shall be repaid to the
Corporation forthwith. Any other moneys deposited by the Corporation
pursuant to this paragraph (iii) and unclaimed at the end of six years
from the date fixed for redemption shall be repaid to the Corporation
upon its request expressed in a resolution of its board of directors,
after which repayment the holders of the shares so called for
redemption shall look only to the Corporation for the payment thereof.
(C) COMMON STOCK
The shares of the Common Stock shall not be entitled to any
preferences and each share of Common Stock shall be equal to every
other share of said stock in every respect.
Dividends:
(i)For purposes of this Division F(II)(C), and Division G(I) of
these Amended Articles of Consolidation:
(a)the term "dividends on shares of the Common Stock" shall
include dividends or other distributions on or the purchase or other
acquisition of shares of the Common Stock, but shall not include
dividends payable solely in shares of the Common Stock; and
(b)the term "Common Stock Equity" shall mean the sum of the amount
of the stated value of the issued and outstanding shares of the
Common Stock and the surplus (including capital or paid-in surplus)
of the Corporation, less the amount known, or estimated if not
known, to represent the excess, if any, of recorded value over
original cost of used and useful utility plant and other property,
and less any items set forth on the asset side of the balance sheet
as a result of accounting convention such as unamortized debt
discount and expense, capital stock discount and expense, and the
excess, if any, of the aggregate amount payable on involuntary
dissolution, liquidation or winding up of the Corporation upon all
outstanding shares of Cumulative Preferred Stock and Preference
Stock over the aggregate stated value of such shares, unless such
amount or items so to be deducted in the determination of the Common
Stock Equity are being amortized or are provided for by reserves;
and
(c)the term "Total Capitalization" shall mean the aggregate of the
stated value of the issued and outstanding shares of stock of all
classes of the Corporation and the surplus (including capital or
paid-in surplus) of the Corporation, plus the principal amount of
all outstanding debt maturing more than twelve months from the date
of the determination of Total Capitalization; and
(d)the term "Gross Operating Revenues of the Corporation" for any
period shall mean an amount determined by deducting from all
revenues of the Corporation for such period derived from the
operation of the physical properties owned by the Corporation and
subject to the lien of any indenture of mortgage or deed of trust
securing mortgage bonds issued or assumed by the Corporation, the
total of all cash payments which shall have been made or agreed to
be made and for which liability shall have been incurred by the
Corporation (x) as rental for such period for any utility property
not owned by the Corporation, and (y) for the purchase during such
period of electric energy, electric capacity, and gas, manufactured,
natural or mixed, from others in the regular course of business of
the Corporation.
(e)The term "Net Earnings of the Corporation Available for the
Payment of Interest Charges" for any twelve-month period shall mean
an amount equal to the sum of the operating revenues and income from
investments and other miscellaneous income for such period with
respect to which the determination of such net income is being made,
less all proper deductions (including accruals) for operating
expenses for such period, including maintenance and provision for
depreciation in the actual amount thereof for such period as shown
on the books of the Corporation or an amount equal to fifteen
percentum (15) of the Gross Operating Revenues of the Corporation
for such period, whichever is greater, income and excess profits and
other taxes, all as shall be 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 sound accounting practice.
(f)The term "Net Income of the Corporation Available for Dividends
on the Common Stock" for any twelve-month period shall mean the Net
Earnings of the Corporation Available for the Payment of Interest
Charges for such period, less interest charges, amortization
charges, other proper income deductions, and dividends, paid or
accrued, on all outstanding shares of stock of the Corporation
having a preference as to dividends over the Common Stock, for such
period, all as shall be 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 sound accounting practice.
(ii) Out of any assets of the Corporation available for dividends
remaining after full cumulative dividends, for all past quarterly
dividend periods and for the current dividend period, on all stock
having priority over the Common Stock shall have been paid or declared
and set apart for payment, and after complying with all provisions in
respect of any sinking fund or funds for any shares of any series of
stock having priority over the Common Stock, installments for which
are payable in priority to any dividends upon the Common Stock, then,
and not otherwise, dividends may, subject to the limitations set forth
in the immediately following paragraph (iii), be paid upon the Common
Stock but only when and as determined by the board of directors.
(iii) So long as any shares of the Cumulative Preferred Stock and
the Preference Stock shall remain outstanding:
(a)if and so long as the Common Stock Equity at the end of the
calendar month immediately preceding the date on which a dividend on
Common Stock is declared is, or as a result of such dividend would
become, less than twenty percentum (20) of Total Capitalization, the
Corporation shall not declare dividends on the Common Stock in an
amount which, together with all other dividends on Common Stock
declared within the year ending with (but including) the date of
such dividend declaration, exceeds fifty percentum (50) of the Net
Income of the Corporation Available for Dividends on the Common
Stock for the twelve full calendar months immediately preceding the
month in which such dividends are declared, and
(b)if and so long as the Common Stock Equity at the end of the
calendar month immediately preceding the date on which a dividend on
Common Stock is declared is, or as a result of such dividend would
become, less than twenty-five percentum (25) but not less than
twenty percentum (20) of Total Capitalization, the Corporation shall
not declare dividends on the Common Stock in an amount which,
together with all other dividends on Common Stock declared within
the year ending with (but including) the date of such dividend
declaration, exceeds seventy-five percentum (75) of Net Income of
the Corporation Available for Dividends on the Common Stock for the
twelve full calendar months immediately preceding the month in which
such dividends are declared, and
(c)at any time when the Common Stock Equity is twenty-five
percentum (25) or more of Total Capitalization, the Corporation may
not pay dividends on shares of the Common Stock which would reduce
the Common Stock Equity below twenty-five percentum (25) of Total
Capitalization: provided, however, that even though the payment of
such dividends would reduce the Common Stock Equity below twenty-
five percentum (25) of Total Capitalization, such dividends may be
declared to the extent that the same, together with all dividends on
Common Stock declared within the year ending with (but including)
the date of such dividend declaration, do not exceed seventy-five
percentum (75) of the Net Income of the Corporation Available for
Dividends on the Common Stock for the twelve full calendar months
immediately preceding the month in which such dividends are
declared.
If at any time, in connection with the issuance of additional shares
of (x) the Cumulative Preferred Stock or shares of stock of any class
ranking on a parity with the Cumulative Preferred Stock as to
dividends or assets, or (y) the Preference Stock or shares of stock of
any class ranking on a parity with the Preference Stock as to
dividends or assets, it becomes necessary, in order to meet the test
stated in Division G(I)(ii)(b)(2), to take into consideration any
earned surplus of the Corporation, the Corporation shall not
thereafter pay any dividends on shares of the Common Stock which would
result in reducing the Common Stock Equity to an amount less than the
aggregate amount payable on involuntary dissolution, liquidation or
winding up of the Corporation on all shares of the Cumulative
Preferred Stock and on all shares of any stock ranking prior to or on
a parity with the Cumulative Preferred Stock as to dividends or assets
and on all shares of the Preference Stock and on all shares of any
stock ranking prior to or on a parity with the Preference Stock as to
dividends or assets, at the time outstanding (such stock being herein
commonly referred to, respectively, as "prior to" or "ranking prior
to" or "on a parity with" the Cumulative Preferred Stock or the
Preference Stock, as the case may be).
(D) SCRIP
The Corporation may from time to time issue scrip certificates for
fractional shares if and to the extent that in the opinion of the
board of directors it is desirable so to do. Such scrip certificates
shall not confer upon the holder thereof any right to dividends or any
other rights of a shareholder of the Corporation, but the Corporation
shall in each case where scrip certificates shall be issued by the
Corporation, either with or without limit of time as the board of
directors shall fix and determine in connection with the authorization
by it of the issuance of such scrip certificates by the Corporation,
from time to time (within such limit of time, if any, as is fixed as
hereinabove provided) issue certificates for one or more whole shares
upon the surrender of scrip certificates for fractional shares
aggregating the number of whole shares issuable in respect of the
scrip certificates so surrendered: provided, however, that the scrip
certificates so surrendered shall be properly endorsed for transfer if
in registered form.
At the option of the board of directors, any scrip certificate
issued by the Corporation may also provide that, at the option of the
board of directors, there may be sold by the Corporation at public or
private sale at any time on or after any determined date, in such
manner, for such amounts, and on such terms as the board of directors
may in its absolute discretion determine, the number of shares of the
Corporation in respect of which such scrip certificates are then
outstanding and thereafter the bearers of such scrip certificates,
upon surrender thereof at the office or agency of the Corporation,
shall be entitled to receive their proper proportions of the net
proceeds of such sale but without interest and on and after the date
of such sale shall be entitled to no other rights in respect of such
scrip certificates.
G. *(If the shares are to be divided into classes or kinds, a
statement of the voting rights and powers, if any, of the shares of
each class, and of each series if the shares of any class are to be
issuable in series, including the extent, if any, to which the shares
of each such class and series shall be entitled to vote on questions
of merger, consolidation and the sale of all or of substantially all
of the assets of the Corporation.)
*1945, 1948, 1951 and 1952 Amendments
Indicate here:
(I)
Voting Rights of Cumulative Preferred Stock
(i)At all meetings of the shareholders of the Corporation each
record holder of Cumulative Preferred Stock having a par value of
$100.00 per share shall be entitled to one vote for each share of such
stock so held by him, and each record holder of Cumulative Preferred
Stock having a par value of $25.00 per share shall be entitled to one-
fourth of one full vote for each share of such stock so held by him,
all subject, however, to the following provisions of this Division
G(I).
(ii) So long as any shares of the Cumulative Preferred Stock of
any series are outstanding, the Corporation (except as otherwise
provided in the last sentence of this paragraph (ii)) shall not
without, but may with, the affirmative vote by the record holders of
the Cumulative Preferred Stock (given at an annual or special meeting)
in such number of votes as is at least two-thirds of the aggregate
number of votes appertaining to the Cumulative Preferred Stock that
would be voted at such meeting if all the then outstanding Cumulative
Preferred Stock were there voted:
(a) create, authorize or issue shares of stock of any class ranking
prior to the Cumulative Preferred Stock as to dividends or assets or
any securities of any kind or class convertible into shares of stock
of any class ranking prior to the Cumulative Preferred Stock as to
dividends or assets; or
(b)issue any shares of the Cumulative Preferred Stock or shares of
stock of any class ranking on a parity with the Cumulative Preferred
Stock as to dividends or assets or securities convertible into
shares of the Cumulative Preferred Stock or stock on a parity
therewith, other than in exchange for or for the purpose of
effecting the retirement, by redemption or otherwise, of not less
than a like number of shares of the Cumulative Preferred Stock or
shares of stock on a parity therewith or securities convertible into
not less than a like number of such shares, as the case may be, at
the time outstanding, unless
(1)the Net Earnings of the Corporation Available for the Payment
of Interest Charges for any twelve consecutive calendar months
within the fifteen calendar months immediately preceding the month
within which such additional shares of the Cumulative Preferred
Stock or shares of stock on a parity therewith or securities
convertible into such shares are proposed to be issued, shall have
been at least one and one-half times the aggregate of (x) the
dividend requirements for a twelve-month period upon all shares of
the Cumulative Preferred Stock and stock, if any, ranking prior to
or on a parity with the Cumulative Preferred Stock as to dividends
or assets, to be outstanding after the issuance of the shares or
convertible securities proposed to be issued, and (y) the interest
requirements for a twelve-month period upon all indebtedness of
the Corporation to be outstanding after the issuance of the shares
or convertible securities proposed to be issued, and
(2)the Common Stock Equity shall be not less than the aggregate
amount payable on involuntary dissolution, liquidation or winding
up of the Corporation upon all shares of the Cumulative Preferred
Stock and stock, if any, ranking prior thereto or on a parity
therewith, to be outstanding after the issuance of the shares or
convertible securities proposed to be issued; or
(c)amend the provisions of these Amended Articles of Consolidation
so as to affect adversely any of the preferences or other rights
hereby given to the holders of shares of the Cumulative Preferred
Stock, provided, however, that if any such amendment would be
adverse to the holders of one or more, but less than all, of the
series of the Cumulative Preferred Stock at the time outstanding,
the affirmative vote hereby required shall be only the affirmative
vote by the record holders of each series so adversely affected in
such number of votes from each such series as is at least two-thirds
of the aggregate number of votes appertaining to such series that
would be voted at such meeting if all the then outstanding shares of
such series were there voted.
No such consent of the holders of the Cumulative Preferred Stock
shall be required if, at or prior to the time when such amendment,
alteration or repeal is to take effect or when the issuance of any
such stock or convertible securities is to be made, as the case may
be, provision is to be made for the redemption of all shares of
Cumulative Preferred Stock at the time outstanding or, in the case of
any such amendment, alteration or repeal as to which the consent of
less than all series of the Cumulative Preferred Stock would otherwise
be required, for the redemption of all shares of the series of
Cumulative Preferred Stock the consent of which would otherwise be
required.
(iii) So long as any shares of the Cumulative Preferred Stock of
any series are outstanding, the Corporation (except as otherwise
provided in the last sentence of this paragraph (iii)) shall not
without, but may with, the affirmative vote by the record holders of
the Cumulative Preferred Stock (given at an annual or special meeting)
in such number of votes as is a majority of the aggregate number of
votes appertaining to the Cumulative Preferred Stock that would be
voted at such meeting if all the then outstanding Cumulative Preferred
Stock were there voted, merge or consolidate the Corporation with or
into any other corporation, merge any other corporation into the
Corporation, or sell all or substantially all of the assets of the
Corporation, unless such merger, consolidation or sale, or the
issuance or assumption of all securities to be issued or assumed in
connection therewith, shall have been ordered, approved or permitted
by the Securities and Exchange Commission under the Public Utility
Holding Company Act of 1935, or by any successor commission or other
regulatory authority of the United States having jurisdiction in the
premises. No such consent of the holders of the Cumulative Preferred
Stock shall be required if, at the time of or prior to effecting such
sale, lease, conveyance, consolidation or merger, provision is to be
made for the redemption of all shares of Cumulative Preferred Stock at
the time outstanding.
(iv) *If and when dividends payable on the Cumulative Preferred
Stock shall be in default in an amount equivalent to or greater than
four (4) full quarter-yearly dividends on all shares of all series of
the Cumulative Preferred Stock then outstanding, then at the annual or
a special meeting of shareholders held as soon as practicable
thereafter and each subsequent meeting at which directors are elected,
in each case held prior to such time as all dividends in default on
the Cumulative Preferred Stock shall have been paid or declared and
set aside for payment, the record holders of all shares of the
Cumulative Preferred Stock, voting separately as one class, shall
elect the smallest number of directors necessary to constitute a
majority of the full board of directors, the record holders of all
shares of the Preference Stock, voting separately as one class, shall
elect two (2) members of the board of directors, and the record
holders of the Common Stock, voting separately as a class, shall elect
the remaining directors of the Corporation.
(v)The term of office of a director shall not be affected by the
occurrence of the defaults in the payment of dividends on the
Cumulative Preferred Stock above referred to, or by the rights
hereinabove given the record holders of Cumulative Preferred Stock to
elect directors; and the term of office of each director serving at
such time shall continue until his successor has been duly elected and
has qualified.
(vi) If and when all dividends then in default on the Cumulative
Preferred Stock then outstanding shall be paid or declared and set
aside for payment (and such dividends shall be declared and paid out
of any funds legally available therefor as soon as reasonably
practicable), the Cumulative Preferred Stock shall thereupon be
divested of the special rights with respect to the election of
directors provided in paragraph (iv) of this Division G(I) and the
voting rights of the Cumulative Preferred Stock, Preference Stock and
the Common Stock shall revert to the status existing before the
occurrence of such default; but always subject to the same provisions
for vesting such special voting rights in the Cumulative Preferred
Stock in case of further like default in dividends thereon, and the
termination of such special voting rights upon such default being
remedied.
*1994 Amendment
(vii) At all meetings of shareholders held for the purpose of
electing directors during such times as the record holders of shares
of the Cumulative Preferred Stock shall, voting separately as one
class, elect directors pursuant to said paragraph (iv) of this
Division G(I), the presence in person or by proxy of the record
holders of a majority of the outstanding shares of any other class
entitled to elect directors shall be required to constitute a quorum
of such class for the election of directors, and the presence in
person or by proxy of the record holders of such number of the
outstanding shares of the Cumulative Preferred Stock as represents a
majority of the aggregate voting power of the then outstanding shares
of such class shall be required to constitute a quorum of such class
for the election of directors: provided, however, that the absence of
a quorum of the record holders of shares of any such class shall not
prevent the election at any such meeting or adjournment thereof of
directors by any other such class if the necessary quorum of the
record holders of shares of such class is present in person or by
proxy at such meeting; and, provided, further, that in the absence of
a quorum of the record holders of shares of any such class, a majority
of those record holders of the shares of such class who are present in
person or by proxy shall have power to adjourn, from time to time, the
election of the directors to be elected by such class without notice
other than announcement at the meeting, until the necessary quorum of
record holders of the shares of such class shall be present in person
or by proxy. At any such meeting of shareholders at which a quorum of
a class is present, the votes of a majority of the voting power of
such class represented at such meeting shall be sufficient to elect
the directors to be elected by such class at such meeting.
(viii) If and in each case where such default in the payment of
dividends has occurred that the provisions of paragraph (iv) of this
Division G(I) have become applicable, then, in electing directors for
the Corporation during the time the provisions of said paragraph (iv)
continue to be applicable, the record holders of each class, in voting
for the persons to be then elected directors by it, shall (subject to
the following provisions of this paragraph (viii)) specify the names
of the respective then acting directors whose places are to be taken
by the persons being presently elected directors by such class:
provided, however, that no director who was elected by any other class
of shares shall be so specified until after all of the directors who
were elected by such class as is then voting for directors (or the
successors of such directors) have been specified as persons to be
succeeded. At any such meeting held prior to the time that one class
has elected its directors under the provisions of said paragraph (iv),
the holders of the Cumulative Preferred Stock, if a quorum be present
at such meeting, shall have the right and be afforded the opportunity
first to specify the names of the then acting directors who are to be
succeeded by the directors to be elected by the holders of the
Cumulative Preferred Stock under the provisions of said paragraph
(iv). Whenever a class of shares has elected the directors it is
entitled to elect under the provisions of said paragraph(iv), then
thereafter so long as the provisions of said paragraph (iv) continue
to apply (a) successors to such directors shall not be elected by any
other class of shares, and (b) the class of shares electing such
directors shall not during such time elect a successor for any
director other than a director elected by such class or his successor.
(ix) Except when some mandatory provisions of law shall be
controlling and except as otherwise provided in this Division G(I),
whenever shares of two or more series of the Cumulative Preferred
Stock are outstanding, no particular series of the Cumulative
Preferred Stock shall be entitled to vote as a separate series on any
matter and all shares of the Cumulative Preferred Stock of all series
shall be deemed to constitute but one class for any purpose for which
a vote of the shareholders of the Corporation by classes may now or
hereafter be required.
(II)*
Voting Rights of Preference Stock
(i)Except when some mandatory provision of law shall be controlling
and except as otherwise provided in this Division G(II), the holders
of the Preference Stock of the Corporation shall have no voting powers
and shall not be entitled to notice of any meetings of the
shareholders of the Corporation. At all meetings of the shareholders
of the Corporation at which the holders of the Preference Stock are
entitled to vote as provided in this Division G(II), each record
holder of Preference Stock shall be entitled to one vote for each
share of Preference Stock so held by him.
*Added by 1976 Amended Articles
(ii) So long as any shares of the Preference Stock of any series
are outstanding, the Corporation (except as otherwise provided in the
last sentence of this paragraph (ii)) shall not without, but may with,
the affirmative vote by the record holders of the Preference Stock
(given at an annual or special meeting) in such number of votes as is
at least two-thirds of the aggregate number of votes appertaining to
the Preference Stock that would be voted at such meeting if all the
then outstanding Preference Stock were there voted:
(a)create, authorize or issue shares of stock of any class (other
than the Cumulative Preferred Stock) ranking prior to the Preference
Stock as to dividends or assets or any securities of any kind or
class (other than the Cumulative Preferred Stock) convertible into
shares of stock of any class ranking prior to the Preference Stock
as to dividends or assets; or
(b)amend the provisions of these Amended Articles of Consolidation
so as to affect adversely any of the preferences or other rights
hereby given to the holders of shares of the Preference Stock,
provided, however, that if any such amendment would be adverse to
the holders of one or more, but less than all, of the series of the
Preference Stock at the time outstanding, the affirmative vote
hereby required shall be only the affirmative vote by the record
holders of each series so adversely affected in such number of votes
from each such series as is at least two-thirds of the aggregate
number of votes appertaining to such series that would be voted at
such meeting if all the then outstanding shares of such series were
there voted.
No such consent of the holders of the Preference Stock shall be
required if, at or prior to the time when such amendment, alteration
or repeal is to take effect or when the issuance of any such stock or
convertible securities is to be made, as the case may be, provision is
to be made for the redemption of all shares of Preference Stock at the
time outstanding or, in the case of any such amendment, alteration or
repeal as to which the consent of less than all series of the
Preference Stock would otherwise be required, for the redemption of
all shares of the series of Preference Stock the consent of which
would otherwise be required.
(iii) So long as any shares of the Preference Stock of any series
are outstanding, the Corporation (except as otherwise provided in the
last sentence of this paragraph (iii)) shall not without, but may
with, the affirmative vote by the record holders of the Preference
Stock (given at an annual or special meeting) in such number of votes
as is a majority of the aggregate number of votes appertaining to the
Preference Stock that would be voted at such meeting if all the then
outstanding Preference Stock were there voted, merge or consolidate
the Corporation with or into any other corporation, merge any other
corporation into the Corporation, or sell all or substantially all of
the assets of the Corporation, unless such merger, consolidation or
sale, or the issuance or assumption of all securities to be issued or
assumed in connection therewith, shall have been ordered, approved or
permitted by the Securities and Exchange Commission under the Public
Utility Holding Company Act of 1935, or by any successor commission or
other regulatory authority of the United States having jurisdiction in
the premises. No such consent of the holders of the Preference Stock
shall be required if, at the time of or prior to effecting such sale,
lease, conveyance, consolidation or merger, provision is to be made
for the redemption of all shares of Preference Stock at the time
outstanding.
(iv) If and when dividends payable on the Preference Stock shall
be in default in an amount equivalent to or greater than four (4) full
quarter-yearly dividends on all shares of all series of the Preference
Stock then outstanding, then the record holders of all shares of the
Preference Stock shall be given notice of each meeting of shareholders
at which directors are elected thereafter held prior to such time as
all dividends in default on the Preference Stock shall have been paid
or declared and set aside for payment, and the record holders of all
shares of the Preference Stock, voting separately as one class, shall
elect two directors of the Corporation, and subject to the provisions
of paragraph (iv) of Division G(I) and to the provisions of this
paragraph (iv) of Division G(II), the record holders of the Common
Stock shall elect the remaining directors of the Corporation.
(v)The term of office of a director shall not be affected by the
occurrence of the defaults in the payment of dividends on the
Preference Stock above referred to, or by the rights hereinabove given
the record holders of Preference Stock to elect directors; and the
term of office of each director serving at such time shall continue
until his successor has been duly elected and has qualified.
(vi) If and when all dividends then in default on the Preference
Stock then outstanding shall be paid or declared and set aside for
payment (and such dividends shall be declared and paid out of any
funds legally available therefor as soon as reasonably practicable),
the Preference Stock shall thereupon be divested of the special rights
with respect to the election of directors provided in paragraph (iv)
of this Division G(II) and the voting rights of the Preference Stock
and the Common Stock shall revert to the status existing before the
occurrence of such default; but always subject to the same provisions
for vesting such special voting rights in the Preference Stock in case
of further like default in dividends thereon, and the termination of
such special voting rights upon such default being remedied.
(vii) At all meetings of shareholders held for the purpose of
electing directors during such times as the record holders of shares
of the Preference Stock shall, voting separately as one class, elect
directors pursuant to said paragraph (iv) of this Division G(II), the
presence in person or by proxy of the record holders of a majority of
the outstanding shares of the Preference Stock shall be required to
constitute a quorum of such class for the election of directors, and
the presence in person or by proxy of the record holders of such
number of the outstanding shares of any other class of stock entitled
to elect directors as represents a majority of the aggregate voting
power of the then outstanding shares of such class shall be required
to constitute a quorum of such class for the election of directors:
provided, however, that the absence of a quorum of the record holders
of shares of any such class shall not prevent the election at any such
meeting or adjournment thereof of directors by any other such class if
the necessary quorum of the record holders of shares of such class is
present in person or by proxy at such meeting; and, provided, further,
that in the absence of a quorum of the record holders of shares of any
such class, a majority of those record holders of the shares of such
class who are present in person or by proxy shall have power to
adjourn, from time to time, the election of the directors to be
elected by such class without notice other than announcement at the
meeting, until the necessary quorum of record holders of the shares of
such class shall be present in person or by proxy. At any such meeting
of shareholders at which a quorum of a class is present, the votes of
a majority of the voting power of such class represented at such
meeting shall be sufficient to elect the directors to be elected by
such class at such meeting.
(viii) If and in each case where such default in the payment of
dividends has occurred that the provisions of paragraph (iv) of this
Division G(II) have become applicable, then, in electing directors for
the Corporation during the time the provisions of said paragraph (iv)
continue to be applicable, the record holders of each class, in voting
for the persons to be then elected directors by it, shall (subject to
the following provisions of this paragraph (viii)) specify the names
of the respective then acting directors whose places are to be taken
by the persons being presently elected directors by such class:
provided, however, that no director who was elected by any other class
of shares shall be so specified until after all of the directors who
were elected by such class as is then voting for directors (or the
successors of such directors) have been specified as persons to be
succeeded. At any such meeting held prior to the time that one class
has elected its directors under the provisions of said paragraph (iv),
the holders of the Preference Stock, if a quorum be present at such
meeting, shall have the right and be afforded the opportunity, subject
to the provisions of paragraph (viii) of Division G(l), to specify the
names of the then acting directors who are to be succeeded by the
directors to be elected by the holders of the Preference Stock under
the provisions of said paragraph (iv). Whenever a class of shares has
elected the directors it is entitled to elect under the provisions of
said paragraph (iv), then thereafter so long as the provisions of said
paragraph (iv) continue to apply (a) successors to such directors
shall not be elected by any other class of shares, and (b) the class
of shares electing such directors shall not during such time elect a
successor for any director other than a director elected by such class
or his successor.
(ix) Except when some mandatory provisions of law shall be
controlling and except as otherwise provided in this Division G(II),
whenever shares of two or more series of the Preference Stock are
outstanding, no particular series of the Preference Stock shall be
entitled to vote as a separate series on any matter and all shares of
the Preference Stock of all series shall be deemed to constitute but
one class for any purpose for which a vote of the shareholders of the
Corporation by classes may now or hereafter be required.
(III)
Voting Rights of Common Stock
At all meetings of the shareholders of the Corporation each record
holder of Common Stock shall be entitled to one vote for each share of
Common Stock held by him, subject, however, to the provisions of
Division G(l) and Division G(ll) hereof.
(IV)
Voting Rights of Scrip
The issuance or holding of scrip shall not confer upon the holder
thereof any voting rights in the Corporation.
H. *The stated capital of the Corporation at the time of filing
these Amended Articles of Consolidation is in excess of One Thousand
Dollars ($1,000).
I. **The number of directors of the Corporation shall be fixed by
the bylaws.
For the purpose of Division F(II)(A)(B) and (D) and Division L(I)
and (II) whenever the phrase "board of directors" is used it shall
mean a quorum of the full board of directors or a committee thereof,
if a committee has been established by the bylaws of the Corporation.
J. *The names and post office addresses of the board of directors
are as follows:
Name Address
HUGH A. BARKER, 1000 East Main Street, Plainfield, Hendricks County,
Indiana.
EUGENE N. BEESLEY, 2801 North Meridian Street, Indianapolis, Marion
County, Indiana.
JOSEPH A. BINFORD, Post Office Box 499, New Albany, Floyd County,
Indiana.
RICHARD H. BLACKLIDGE, 300 North Union Street, Kokomo, Howard
County, Indiana.
C. H. BLANCHAR, 1000 East Main Street, Plainfield, Hendricks County,
Indiana.
JOSEPH R. CLOUTIER, 900 Wabash Avenue, Terre Haute, Vigo County,
Indiana.
W. J. MATTHEWS, 1000 East Main Street, Plainfield, Hendricks County,
Indiana.
RICHARD B. STONER, 1000 Fifth Street, Columbus, Bartholomew County,
Indiana.
BURR S. SWEZEY, JR., Lafayette National Bank, Lafayette, Tippecanoe
County, Indiana.
K. The names and post office addresses of the president and
secretary of the Corporation are as follows:
HUGH A. BARKER, President, 1000 East Main Street, Plainfield,
Hendricks County, Indiana 46168
GEORGE W. PEAK, Secretary, 1000 East Main Street, Plainfield,
Hendricks County, Indiana 46168
L. (Any other provisions, consistent with the laws of this state,
for the regulation of the business and conduct of the affairs of the
Corporation, and creating, defining, limiting or regulating the powers
of the Corporation, of the directors or of the shareholders or any
class or classes of shareholders.)
*Amended by 1976 Amended Articles
**Amended by 1980 and 1990 Amendments
Indicate here:
(I)*
Subject to the provisions of Item (XIII) of this Division L of these
Amended Articles of Consolidation, the shares of Cumulative Preferred
Stock and/or Preference Stock and/or Common Stock of the Corporation
may be issued, sold or otherwise disposed of by it for such amount of
consideration (whether, in case of shares having a par value, such
amount of consideration is less than, equal to or in excess of the par
value of such shares), and upon such other terms and conditions, as
the board of directors may by resolution from time to time and at any
time fix and determine in connection with the issue, sale or other
disposition thereof.
(II)**
Subject to the provisions of Item (Xlll) of this Division L of these
Amended Articles of Consolidation, any of the shares of the
Corporation may be issued, sold or otherwise disposed of by it from
time to time to such persons, corporations or other legal entities as
the board of directors may determine.
(III)
A director shall be fully protected in relying in good faith upon
the books of account of the Corporation or statements prepared by any
of its officials as to the value and amount of the assets, liabilities
and net profits of the Corporation, or any of said items, or in
relying in good faith upon any other information pertinent to the
existence and amount of surplus or other funds from which dividends
might properly be declared and paid.
(IV)
Subject to the limitations existing by virtue of the laws of the
State of Indiana, meetings of the share holders and the directors of
the Corporation may be held, and the books of account, records,
documents and papers of the Corporation may be kept, at any place or
places within or without the State of Indiana. Limitations on the
place or places where meetings of the shareholders or the directors of
the Corporation may be held or where the books of account, records,
documents and papers of the Corporation may be kept, may be made from
time to time by the bylaws of the Corporation.
(V)
The bylaws of the Corporation shall be and remain the bylaws of the
Corporation until, except as, and to the extent that, the same are
changed from time to time, in whole or in part, according to law and
as prescribed by such bylaws.
(VI)***
Each director or officer of the Corporation shall be indemnified by
the Corporation to the fullest extent permitted by law, as the same
exists now or in the future, against liability, expenses (including
attorneys' fees), judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection
with the defense of any proceeding in which he or she was or is a
party or is threatened to be made a party by reason of being
or having been a director or officer of the Corporation and such
right shall inure to the benefit of his or her heirs, executors and
administrators. The right to indemnification conferred in this
Section VI shall include, to the full extent permitted by law, the
right to be paid by the Corporation the expenses incurred in defending
or otherwise participating in any proceeding in advance of its final
disposition.
*1945, 1948 and 1972 Amendments and 1976 Amended Articles
**1948 and 1972 Amendments
***As amended by 1972 Amendment and further amended by the 1988 Amendment
The Corporation may, to the extent authorized from time to time by
the Board of Directors, provide rights to indemnification and to the
advancement of expenses to employees and agents of the Corporation who
are not directors or officers similar to those conferred in this
Section VI to directors and officers of the Corporation.
Such right to indemnification and to the advancement of expenses
conferred in this Section VI shall not be exclusive of any other
rights to which any person may be entitled under any now or hereafter
existing statute, any other provision of these Articles, bylaw,
agreement, vote of shareholders or otherwise.
Any repeal or modification of this Section VI by the shareholders of
the Corporation shall not adversely affect any right or protection of
a director, officer, employee or agent of the Corporation existing
pursuant to this Section VI with respect to any acts or omissions
occurring prior to such repeal or modification.
(VII)
The Corporation shall be entitled to treat the person in whose name
any share or right is registered on the books of the Corporation as
the owner thereof, for all purposes, and shall not be bound to
recognize any equitable or other claim to or interest in such share or
right on the part of any other person, whether or not the Corporation
shall have notice thereof.
(VIII)
The board of directors shall have power, from time to time, to fix
and determine and to vary the amount to be reserved as working capital
of the Corporation and, before the payment of any dividends or the
making of any distribution of profits, it may set aside out of the net
profits of the Corporation such sum or sums as it may from time to
time in its absolute discretion determine to be proper whether as a
reserve fund to meet contingencies or for the equalizing of dividends
or for repairing or maintaining any property of the Corporation or for
an addition to corporate surplus or for any corporate purposes that
the board of directors shall think conducive to the best interest of
the Corporation, subject only to such limitations as the bylaws of the
Corporation may from time to time impose.
(IX)
Subject to any limitations provided by resolution of a majority of
the shareholders, the board of directors shall have power from time to
time to determine whether and to what extent and at what times and
places and under what conditions and regulations the accounts and
books of the Corporation (other than the stock ledger), or any of
them, shall be open to the inspection of shareholders; and no
shareholder shall have any right to inspect any account or book or
document of the Corporation except as conferred by statute or
authorized by the directors or by a resolution of the shareholders.
(X)
The board of directors, in addition to the powers and authority
otherwise conferred upon it by this agreement of consolidation or
conferred upon it by statute or by the bylaws of the Corporation, is
hereby empowered to exercise all such powers as may be exercised by
the Corporation; subject, however, to the provisions of the statutes
of the State of Indiana from time to time in effect, and of this
agreement of consolidation and any amendments thereto.
(XI)
The Corporation reserves the right to increase or decrease its
authorized capital stock, or any class or series thereof, and to
reclassify the same, and to amend, alter, change or repeal any
provision contained in these Amended Articles of Consolidation, or in
any amendment hereto, or to add any provision to these Amended
Articles of Consolidation or to any amendment hereto, in any manner
now or hereafter prescribed or permitted by the provisions of The
Indiana Business Corporation Law or any amendment thereto, or by the
provisions of any other applicable statute of the State of Indiana;
and all rights conferred upon shareholders in these Amended Articles
of Consolidation or any amendment hereto are granted subject to this
reservation.
(XII)*
None of the holders of the stock, common, preferred or preference,
of the Corporation shall be entitled as a matter of right to subscribe
for, purchase or receive additional shares of the stocks, common,
preferred or preference, of the Corporation.
(XIII)**
Upon the issuance by the Secretary of State for Indiana to the
Corporation of a certificate of amendment covering, among other
things, the amendment of these Amended Articles of Consolidation of
the Corporation by the addition thereto of this Item (XIII) (such
event being hereinafter in this Item referred to as the "Completion of
the 1976 Amendment"), a "split-up" of the then outstanding Common
Stock of the Corporation shall be immediately effected upon the basis
of there being outstanding upon the Completion of the 1976 Amendment
three shares of the Common Stock of the Corporation for each two
shares of Common Stock of the Corporation outstanding immediately
prior to the Completion of the 1976 Amendment; and, simultaneously
with the Completion of the 1976 Amendment, each holder of record of a
share or shares of the Common Stock of the Corporation shall, without
the payment of any amount whatsoever to the Corporation and without
any act whatsoever being taken by such holder, be and become the owner
of one additional share of Common Stock of the Corporation for each
two shares of the Common Stock of the Corporation owned of record by
such holder immediately prior to the Completion of the 1976 Amendment.
As promptly as practicable thereafter, the Corporation shall cause to
be issued and delivered to and in the name of each such holder of
record of a share or shares of Common Stock of the Corporation, a
stock certificate or stock certificates representing in the aggregate
in each case a number of whole shares of fully paid and nonassessable
shares of the Common Stock of the Corporation equal to one additional
share of Common Stock for each two shares of Common Stock of the
Corporation owned of record by such holder immediately prior to the
Completion of the 1976 Amendment. No certificates representing
fractional shares will be issued, and in lieu thereof the Corporation
shall issue to an agent, for fractional interest holders appointed for
the purpose, a certificate or certificates representing in the
aggregate a number of whole shares of fully paid and nonassessable
shares of the Common Stock of the Corporation equal to the number of
shares of Common Stock of the Corporation to which all holders of
fractional interest would be entitled upon Completion of the 1976
Amendment if certificates representing fractional shares were issued
and shall make arrangements with such agent for the sale of such
fractional interests or for the purchase of additional fractional
interests to permit a person entitled thereto to acquire a whole share
within such period of time as may be determined by the board of
directors.
(XIV)***
No person shall be eligible for election, reelection, or appointment
as a member of the board of directors if such person shall have
attained the age of seventy years in the calendar year preceding the
date of such election, reelection or appointment.
(XV)
These Amended Articles of Consolidation shall supersede and take the
place of the heretofore existing Articles of Consolidation, as
amended.
*As Amended by 1945, 1972 and 1976 Amendments
**Added by 1976 Amended Articles
***As Amended by 1968 Amendments
SUBDIVISION B
The manner of the adoption and the vote by which the Amended
Articles of Consolidation were adopted was as follows:
The board of directors duly adopted resolutions proposing to the
shareholders entitled to vote thereon that the Articles of
Consolidation as amended be further amended in their entirety and that
the Amended Articles of Consolidation be adopted as filed with the
Secretary of State.
The Amended Articles of Consolidation were then adopted by and
received the affirmative vote of a #majority of the shareholders
entitled to vote thereon at a meeting duly called.
IN WITNESS WHEREOF, the undersigned officers execute these Amended
Articles of Consolidation of the Corporation, and certify to the truth
of the facts herein stated, this 5th day of April, 1976.
S/Vernley R. Rehnstrom
Vernley R. Rehnstrom,
A Vice President of Public Service
Company of Indiana, Inc.
(Corporate Seal)
S/George W. Peak
George W. Peak,
Secretary of Public Service
Company of Indiana, Inc.
STATE OF INDIANA )
) SS:
COUNTY OF HENDRICKS )
I, the undersigned, a Notary Public duly commissioned to take
acknowledgments and administer oaths in the State of Indiana, certify
that Vernley R. Rehnstrom, a Vice President and George W. Peak, the
Secretary, of Public Service Company of Indiana, Inc., the officers
executing the foregoing Amended Articles of Consolidation, personally
appeared before me, acknowledged the execution thereof, and swore to
the truth of the facts therein stated.
WITNESS my hand and notarial seal this 5th day of April, 1976.
(Notarial Seal) S/Doris J. Richey
(Doris J. Richey) Notary Public
My Commission Expires November 9, 1978.
This instrument was prepared by Greg K. Kimberlin, Attorney at Law,
1000 East Main Street, Plainfield, Indiana 46168.
APPENDIX A
CREATION OF 150,000 SHARES OF 3-1/2% CUMULATIVE PREFERRED STOCK BY
RESOLUTION ADOPTED BY BOARD OF DIRECTORS OF CORPORATION ON MARCH 19,
1946 AND AMENDED ON APRIL 26, 1946.
Designation: 3-1/2% Cumulative Preferred Stock
Par Value: $100 per share
Dividend Rate: 3-1/2% of par value per annum
Dividend Payable: March 1, June 1, September 1 and December 1
The shares of the 3-1/2% Stock shall be redeemable at $103 per share
if the redemption date is prior to March 1, 1951, $102 per share if
the redemption date is on or after March 1, 1951 and prior to March 1,
1956, $101 per share if the redemption date is on or after March 1,
1956 and prior to March 1, 1961, and $100 per share if the redemption
date is on or after March 1, 1961, plus in the case of each share
dividends computed at the annual rate of 3-1/2% from March 1, 1946 to
and including the date of redemption, less the aggregate amount of all
dividends which have theretofore been paid thereon or for which moneys
for payment in full have been set apart and remain available for
payment.
Sinking Fund: None
Conversion Rights: None
In the event of any dissolution, liquidation or winding up of this
Corporation, whether voluntary or involuntary, the record holders of
the then outstanding shares of the 3-1/2% Stock shall receive, or have
set apart and made available for payment to them, the par value of
such shares, plus a sum equal to the amount of all accumulated and
unpaid dividends thereon at the dividend rate fixed for such shares,
before any assets and funds of this Corporation may be distributed to
the holders of any stock of this Corporation ranking junior to the 3-
1/2% Stock as to assets of this Corporation.
Except during such time as all dividends on the 3-1/2% Stock for all
past quarterly dividend periods and for the current dividend period
have been paid, or declared and a sum sufficient for the payment
thereof set apart for payment, this Corporation shall not call for
redemption, or purchase, less than all of the then outstanding shares
of the 3-1/2% Stock.
APPENDIX B
CREATION OF 800,000 SHARES OF 4.32% CUMULATIVE PREFERRED STOCK BY
RESOLUTION ADOPTED BY BOARD OF DIRECTORS OF CORPORATION ON JUNE 16,
1952.
Designation: 4.32% Cumulative Preferred Stock
Par Value: $25 per share
Dividend Rate: 4.32% of par value per annum
Dividend Payable: March 1, June 1, September 1 and December 1
The shares of the 4.32% Stock shall be redeemable at $26 per share
if the redemption date is prior to June 1, 1957, $25.75 per share if
the redemption date is on or after June 1, 1957 and prior to June 1,
1962, $25.50 per share if the redemption date is on or after June 1,
1962 and prior to June 1, 1967, $25.25 per share if the redemption
date is on or after June 1, 1967 and prior to June 1, 1972, and $25
per share if the redemption date is on or after June 1, 1972, plus in
the case of each share dividends computed at the annual rate of 4.32%
from June 1, 1952 to and including the date of redemption, less the
aggregate amount of all dividends which have theretofore been paid
thereon or for which moneys for payment in full have theretofore been
set apart and remain available for payment.
Sinking Fund: None
Conversion Rights: None
In the event of any dissolution, liquidation or winding up of this
Corporation, whether voluntary or involuntary, the record holders of
the then outstanding shares of the 4.32% Stock shall receive, or have
set apart and made available for payment to them, the par value of
such shares, plus a sum equal to the amount of all accumulated and
unpaid dividends thereon at the dividend rate fixed for such shares
before any assets and funds of this Corporation may be distributed to
the holders of any stock of this Corporation ranking junior to the
4.32% Stock as to assets of this Corporation.
Except during such time as all dividends on the 4.32% Stock for all
past quarterly dividend periods and for the current dividend period
have been paid, or declared and a sum sufficient for the payment
thereof set apart for payment, this Corporation shall not call for
redemption, or purchase, less than all of the then outstanding shares
of the 4.32% Stock.
APPENDIX C
CREATION OF 600,000 SHARES OF 4.16% CUMULATIVE PREFERRED STOCK BY
RESOLUTION ADOPTED BY BOARD OF DIRECTORS OF CORPORATION ON JUNE 28 ,
1954.
Designation: 4.16% Cumulative Preferred Stock
Par Value: $25 per share
Dividend Rate: 4.16% of par value per annum
Dividend Payable: March 1, June 1, September 1 and December 1
The shares of the 4.16% Stock shall be redeemable at $26 per share
if the redemption date is prior to June 1, 1959, at $25.75 per share
if the redemption date is on or after June 1, 1959 and prior to June
1, 1964, at $25.50 per share if the redemption date is on or after
June 1, 1964 and prior to June 1, 1969, at $25.25 per share if the
redemption date is on or after June 1, 1969 and prior to June 1, 1974,
and at $25 per share if the redemption date is on or after June 1,
1974, plus in the case of each share dividends computed at the annual
rate of 4.16% from June 1, 1954 to and including the date of
redemption, less the aggregate amount of all dividends which have
theretofore been paid thereon or for which moneys for payment in full
have theretofore been set apart and remain available for payment.
Sinking Fund: None
Conversion Rights: None
In the event of any dissolution, liquidation or winding up of this
Corporation, whether voluntary or involuntary, the record holders of
the then outstanding shares of the 4.16% Stock shall receive, or have
set apart and made available for payment to them, the par value of
such shares, plus a sum equal to the amount of all accumulated and
unpaid dividends thereon at the dividend rate fixed for such shares,
before any assets and funds of this Corporation may be distributed to
the holders of any stock of this Corporation ranking junior to the
4.16% Stock as to assets of this Corporation.
Except during such time as all dividends on the 4.16% Stock for all
past quarterly dividend periods and for the current dividend period
have been paid, or declared and a sum sufficient for the payment
thereof set apart for payment, this Corporation shall not call for
redemption, or purchase, less than all of the then outstanding shares
of the 4.16% Stock.
APPENDIX D
CREATION OF 300,000 SHARES OF 7.15% CUMULATIVE PREFERRED STOCK BY
RESOLUTION ADOPTED BY BOARD OF DIRECTORS OF CORPORATION ON JANUARY 4,
1973.
Designation: 7.15% Cumulative Preferred Stock
Par Value: $100 per share
Dividend Rate: 7.15% of par value per annum
Dividend Payable: March 1, June 1, September 1 and December 1
The shares of the 7.15% Stock shall be nonredeemable prior to March
1, 1978 but shall be redeemable on such date or thereafter at $105 per
share if the redemption date is prior to March 1, 1983, at $103 per
share if the redemption date is on or after March 1, 1983 and prior to
March 1, 1988 or at $101 per share if the redemption date is on or
after March 1, 1988, plus in the case of each share dividends computed
at the annual rate of 7.15% from January 17, 1973 to and including the
date of redemption, less the aggregate amount of all dividends which
have theretofore been paid thereon or for which moneys for payment in
full have theretofore been set apart and remain available for payment.
Sinking Fund: None
Conversion Rights: None
In the event of any dissolution, liquidation or winding up of this
Corporation, whether voluntary or involuntary, the record holders of
the then outstanding shares of the 7.15% Stock shall receive, or have
set apart and made available for payment to them, the par value of
such shares, plus a sum equal to the amount of all accumulated and
unpaid dividends thereon at the dividend rate fixed for such shares,
before any assets and funds of this Corporation may be distributed to
the holders of any stock of this Corporation ranking junior to the
7.15% Stock as to assets of this Corporation.
Except during such time as all dividends on the 7.15% Stock for all
past quarterly dividend periods and for the current dividend period
have been paid, or declared and a sum sufficient for the payment
thereof set apart for payment, this Corporation shall not call for
redemption, or purchase, less than all of the then outstanding shares
of the 7.15% Stock.
APPENDIX E
CREATION OF 350,000 SHARES OF 9.44% CUMULATIVE PREFERRED STOCK BY
RESOLUTION ADOPTED BY BOARD OF DIRECTORS OF CORPORATION ON JULY 8,
1975.
NOTE: The 9.44% Cumulative Preferred Stock was called for redemption
on March 16, 1987.
APPENDIX F
CREATION OF 400,000 SHARES OF 8.52% CUMULATIVE PREFERRED STOCK BY
RESOLUTION ADOPTED BY BOARD OF DIRECTORS OF CORPORATION ON AUGUST
16, 1976.
NOTE: The 8.52% Cumulative Preferred Stock was called for redemption
on December 1, 1993.
APPENDIX G
CREATION OF 450,000 SHARES OF 8.38% CUMULATIVE PREFERRED STOCK BY
RESOLUTION ADOPTED BY BOARD OF DIRECTORS OF CORPORATION ON FEBRUARY
8, 1978.
NOTE: The 8.38% Cumulative Preferred Stock was called for redemption
on December 1, 1993.
APPENDIX H
CREATION OF 350,000 SHARES OF 8.96% CUMULATIVE PREFERRED STOCK BY
RESOLUTION ADOPTED BY BOARD OF DIRECTORS OF CORPORATION ON APRIL 2 ,
1979.
NOTE: The 8.96% Cumulative Preferred Stock was called for redemption
on December 1, 1993.
APPENDIX I
CREATION OF 500,000 SHARES OF 9.60% CUMULATIVE PREFERRED STOCK BY
RESOLUTION ADOPTED BY BOARD OF DIRECTORS OF CORPORATION ON JANUARY
24, 1980.
NOTE: The 9.60% Cumulative Preferred Stock was called for redemption
on March 16, 1987.
APPENDIX J
CREATION OF 450,000 SHARES OF 13.25% CUMULATIVE PREFERRED STOCK BY
RESOLUTION ADOPTED BY BOARD OF DIRECTORS OF CORPORATION ON DECEMBER
18, 1981.
NOTE: The 13.25% Cumulative Preferred Stock was called for
redemption on March 2, 1992.
APPENDIX K
CREATION OF 4,000,000 SHARES OF 7.44% CUMULATIVE PREFERRED STOCK BY
RESOLUTION ADOPTED BY BOARD OF DIRECTORS OF CORPORATION ON APRIL 15,
1992.
Designation: 7.44% Cumulative Preferred Stock
Par Value: $25 per share
Dividend Rate: 7.44% of par value per annum
Dividend Payable: March 1, June 1, September 1 and December 1
The shares of the 7.44% Stock may not be redeemed prior to March 1,
1998. The 7.44% Stock may be redeemed at the option of this
Corporation, in whole or in part, at any time, or from time to time,
upon at least 30 days' and not more than 90 days' notice by mail on or
after March 1, 1998, upon and by paying to the holders of the shares
to be redeemed a redemption price equal to $25 per share, plus accrued
and unpaid dividends to the date fixed for redemption.
Sinking Fund: None
Conversion Rights: None
In the event of any dissolution, liquidation or winding up of the
affairs of this Corporation, whether voluntary or involuntary, the
record holders of the then outstanding shares of the 7.44% Stock shall
receive, or have set apart and made available for payment to them, the
par value of such shares, plus a sum equal to the amount of all
accrued and unpaid dividends thereon, before any assets and funds of
this Corporation may be distributed to the holders of any stock of
this Corporation ranking junior to the 7.44% Stock as to the assets of
this Corporation. If the assets available are not sufficient to pay in
full the amounts so payable, the holders of all series of Cumulative
Preferred Stock shall share ratably in any distribution of assets in
proportion to the full amounts to which they would otherwise be
respectively entitled. A consolidation, merger or reorganization of
this Corporation with any other corporation or corporations, or a
reorganization of this Corporation alone, or a sale of all or
substantially all of the assets of this Corporation, shall not be
considered a dissolution, liquidation or winding up of the affairs of
this Corporation for such purposes.
Except during such time as all dividends on the 7.44% Stock for all
past quarterly dividend periods and the current dividend period have
been paid, or declared and a sum sufficient for the payment thereof
set apart for payment, this Corporation shall not call for redemption,
or purchase, less than all of the then outstanding shares of the 7.44%
Stock.
APPENDIX L
CREATION OF 600,000 SHARES OF 6-7/8% CUMULATIVE PREFERRED STOCK BY
RESOLUTION ADOPTED BY BOARD OF DIRECTORS OF CORPORATION ON APRIL 15,
1992.
Designation: 6-7/8% Cumulative Preferred Stock
Par Value: $100 per share
Dividend Rate: 6-7/8% of par value per annum
Dividend Payable: March 1, June 1, September 1 and December 1
The shares of the 6-7/8% Stock may not be redeemed prior to October
1, 2003. Thereafter, the Offered Shares of the 6-7/8% Stock are
redeemable at the option of this Corporation, in whole or in part, at
any time, or from time to time, upon at least 30 days' and not more
than 90 days' notice by mail, at the redemption prices set forth
below, in each case plus accrued and unpaid dividends thereon to the
date fixed for redemption:
12-month 12-month
period Redemption Price period Redemption Price
beginning Per Share of New beginning Per Share of New
October 1, Preferred Stock October 1, Preferred Stock
2003 $103.44 2008 $101.72
2004 103.09 2009 101.38
2005 102.75 2010 101.03
2006 102.41 2011 100.69
2007 102.06 2012 100.34
2013 & 100.00
thereafter
Sinking Fund: None
Conversion Rights: None
In the event of any dissolution, liquidation or winding up of the
affairs of this Corporation, whether voluntary or involuntary, the
record holders of the then outstanding shares of the 6-7/8% Stock
shall receive, or have set apart and made available for payment to
them, the par value of such shares, plus a sum equal to the amount of
all accrued and unpaid dividends thereon, before any assets and funds
of this Corporation may be distributed to the holders of any stock of
this Corporation ranking junior to the 6-7/8% Stock as to the assets
of this Corporation. If the assets available are not sufficient to pay
in full the amounts so payable, the holders of all series of
Cumulative Preferred Stock shall share ratably in any distribution of
assets in proportion to the full amounts to which they would otherwise
be respectively entitled. A consolidation, merger or reorganization of
this Corporation with any other corporation or corporations, or a
reorganization of this Corporation alone, or a sale of all or
substantially all of the assets of this Corporation, shall not be
considered a dissolution, liquidation or winding up of the affairs of
this Corporation for such purposes.
Except during such time as all dividends on the 6-7/8% Stock for all
past quarterly dividend periods and for the current dividend period
have been paid, or declared and a sum sufficient for the payment
thereof set apart for payment, this Corporation shall not call for
redemption, or purchase, less than all of the then outstanding shares
of the 6-7/8% Stock.
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