PART III
ITEM 1. INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION PAGE
----------- ----------- ----
I Articles of Incorporation, as amended 23
II Article of Amendment of the Certificate 29
of Incorporation (11/01/64)
III Articles of Amendment to the 32
Articles of Incorporation (10/29/96)
IV Bylaws, as amended 35
V Agreement, dated March 20, 1997, 39
between Rocky Mountain Power Co.
and Prime Rate Investment Management
Enterprises, Inc.
VI Consent of Accountant (RMPC) 40
VII Consent of Accountant (PRIME) 41
VIII Bank Loan Agreement 42
22
EXHIBIT I
ARTICLES OF INCORPORATION
OF
ROCKY MOUNTAIN POWER CO.
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned,
XXXXXXXX XXXX, XXXXX XXXXXXXX, and XXXXXXX XXXXXXX, hereby associate
ourselves together for the purpose of becoming a body politic and
corporate under and by virtue of the laws of the State of Colorado,
and do hereby make, sign, execute, and acknowledge this certificate
in writing of our intention so to become a body corporate, and do
hereby certify:
ARTICLE I
The name of this corporation shall be:
ROCKY MOUNTAIN POWER CO.
ARTICLE II
The objects, powers, and purposes of the corporation shall be:
1. To carry on the general business of the generation, transmission,
distribution, and sale of electric current to towns, cities, other power
companies, and the general public for heating, lighting, power, and other
purposes.
2. To take, acquire, appropriate, purchase, sell, store, supply,
furnish, and otherwise deal in water for irrigation, manufacturing,
industrial, mining, domestic, and other purposes.
3. To acquire, build, construct, own, maintain, and operate all
necessary and convenient lands, buildings, structures, dams, machinery,
poles, wires, and other devices and property incident to the foregoing
objects and to obtain such licenses, permits, and franchises from federal
and state authorities and others as may be incident thereto.
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4. To borrow money or incur debts for any purpose of the corporation
and secure the same by mortgage, pledge, or otherwise, and issue therefor
promissory notes, debentures, or other obligations, to loan money upon
property, both real and personal, and to take notes and encumbrances
secured by real and personal property.
5. To purchase, hold, sell, assign, transfer, mortgage, pledge, or
otherwise dispose of, or deal in, any bonds, stock, loans or other
securities or evidences of indebtedness created or issued by any other
corporation or corporations, association, or partnership of the State of
Colorado, or of any other state, territory or country, and while owner
thereof, to exercise all the rights, powers and privileges of ownership.
6. To purchase, acquire, hold, own, mortgage, pledge, lease, sell,
assign, transfer, invest, trade and deal in, goods, wares, merchandise
and all other kinds of personal property.
7. To carry out all or any part of the foregoing objects as principal,
factor, agent, contractor or otherwise, either alone or in conjunction
with any person, firm, partnership, association, or any other corporation,
and in carrying on its business and for the purpose of attaining or
furthering any of its objects, to make and perform such contracts of any
kind and description, to do such acts and things, and to exercise any and
all such powers as a natural person could lawfully make, perform, do or
exercise.
8. To conduct business and carry out all or any part of the foregoing
objects and powers in any of the state, territories, colonies, or
dependencies of the United States, in the District of Columbia, and in
any and all foreign countries.
9. To exercise any and all powers conferred by law upon corporations
organized under the laws of Colorado.
The foregoing enumeration of the objects, powers and purposes of
the corporation is not intended as a limitation upon its powers and
objects of our corporation and shall not be construed or held to prohibit
24
or limit the exercise of any other and further rights and powers which
may now or hereafter be allowed or permitted by law to a corporation.
ARTICLE III
This corporation shall have perpetual existence.
ARTICLE IV
The total number of shares of all classes of stock which this
corporation shall have authority to issue is 600,000 shares including
200,000 shares of common stock without par value and 400,000 shares of
cumulative preferred stock with a par value of $1 per share. The
designation, powers, preferences, and rights, and the qualifications,
limitations, or restrictions thereof, in respect to the classes of stock
of the corporation are as follows:
Section 1. The holders of the cumulative preferred stock shall be
entitled to receive out of surplus of net profits of the corporation,
but only when declared by the Board of Directors, dividends at the rate
of, but not exceeding, six cents ($.06) per share per annum, payable
quarterly on the first days of January, April, July, and October in each
year.
Section 2. Upon dissolution or liquidation of the corporation the
holder of each share of preferred stock shall be entitled to receive and
shall be paid an amount not to exceed $1.00 per share plus an amount
equal to all dividends accrued and unpaid on each share before any sum
shall be paid to or distributed among the holders of the common stock.
After the payment to the holders of the preferred stock of the full
preferential amounts payable to them as aforesaid, any and all assets of
the corporation then remaining shall be available for distribution
pro rata among the holders of the common stock, according to the number
of shares held by each of them respectively.
Section 3. All or any part of the shares of preferred stock shall
be subject to redemption at the option of the Board of Directors of the
corporation on any dividend payment date, upon thirty days' notice by
mail to the holders of shares intended to be redeemed, at their
respective addresses appearing on the stock books of the corporation, at
25
$1.00 per share. If it is intended at any time to redeem fewer than all
of the shares of preferred stock then outstanding, shares shall be
selected for redemption by lot in such manner as shall from time to time
be determined by the Board of Directors. At any time after the notice of
intention to redeem has been mailed as herein provided, the corporation
may deposit the aggregate redemption price with a bank or trust company
in the City and County of Denver, State of Colorado, named in said
notice, payable in the amounts aforesaid to the respective record holders
of the shares to be redeemed on endorsement and surrender of their
certificates; and upon the making of the deposit, said holders shall
cease to be stockholders with respect to said shares, and from and after
the making of the deposit, said holders shall have no interest in or
claim against the corporation with respect to said shares, but shall be
entitled only to receive said monies from said bank or trust company
without interest. Any monies unclaimed at the end of six years from the
date of said deposit shall be repaid to the corporation. Shares of
preferred stock from time to time redeemed shall be forthwith cancelled
and shall not be reissued.
Section 4. The common stock shall have the sole and exclusive
right to vote on all questions, including the election of directors, and
the holders thereof shall be entitled to one vote for each share of
stock held.
Section 5. As long as any share of preferred stock remains
outstanding, the following conditions shall control:
A. Article IV of the Articles of Incorporation shall not be
amended, changed, or altered in any respect without the consent in
writing of the preferred stockholders representing a majority of the
then issued and outstanding preferred stock.
B. No dividend other than stock dividends shall be declared or
paid on the common stock except when the Board of Directors shall have
declared and paid, or set apart for payment; dividends at the rate
aforesaid on the preferred stock for all prior periods for which such
dividends shall have been cumulative and shall have appropriated and set
apart a sum sufficient for the payment of dividends on the preferred
26
stock for the then current dividend period.
C. A determination as to whether the requisite criteria are met for
the declaration and payment of dividends on common stock, pursuant to
this Article shall be made by the Board of Directors, which determination
or determinations, in the absence of fraud, shall be conclusive.
Section 6. No holder of common or preferred stock shall have any
preemptive right to subscribe to any issue of stock of this corporation,
to any securities convertible into stock, whether now or hereafter
authorized, except as follows:
After 140,000 shares of common stock have been issued, the holders
of common stock shall have the preemptive right to subscribe for and
purchase their proportionate part of additional shares of common stock,
or securities convertible into common stock, upon their original issue
by the corporation.
ARTICLE V
The corporate powers of this company shall be exercised by a Board
of Directors which shall consist of five members, and XXXXXXXX XXXX,
XXXXX XXXXXXXX, XXXXXXX XXXXXXX, XXXXXX X. XXXXXXXXX, and XXXX X.
XXXXXXXX are hereby designated as directors who shall manage the affairs
of said corporation for the first year of its existence and until their
successors are elected and qualified.
ARTICLE VI
The principal office and place of business of this corporation shall
be at Denver, Colorado, and the original stock ledger and books of
accounts shall be kept in such principal office.
ARTICLE VII
Meetings of the Board of Directors and of stockholders may be held
beyond the limits of the State of Colorado.
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ARTICLE VIII
Cumulative voting shall not be allowed in the election of directors.
ARTICLE IX
The Board of Directors shall have power to make such Bylaws as it
may deem proper for the management of the affairs of the company and
for the purpose of carrying on all kinds of business within the objects
and purposes of this corporation.
IN WITNESS WHEREOF the said incorporators have hereunto set their
hands and seals this 22 day of September A.D. 1958.
/S/ Xxxxxxxx Xxxx
--------------------
Xxxxxxxx Xxxx
/S/ Xxxxx Xxxxxxxx
---------------------
Xxxxx Xxxxxxxx
/S/ Xxxxxxx Xxxxxxx
----------------------
Xxxxxxx Xxxxxxx
XXXXX XX XXXXXXXX
XXXX XXX XXXXXX XX XXXXXX
The foregoing instrument was acknowledged before me this 22 day of
September , 1958, by XXXXXXXX XXXX, XXXXX XXXXXXXX, and
XXXXXXX XXXXXXX.
Witness my hand and official seal.
My commission expires -------------------
/S/ Xxxxxx X. Xxxxx
-----------------------
Notary Public
28
EXHIBIT II
ARTICLE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
ROCKY MOUNTAIN POWER CO.
1. The Articles of Incorporation of Rocky Mountain Power Co.
have been amended as follows:
(a) The preamble to Article IV has been amended to read:
"The total number of shares of all classes of stock which this corporation
shall have authority to issue is 1,400,000 shares including 1,000,000
shares of common stock with a par value of $.10 a share and 400,000
shares of cumulative preferred stock with a par value of $1.00 a share.
The designation, powers, preferences, and rights, and the qualifications,
limitations, or restrictions thereof, in respect to the classes of stock
of the corporation are as follows:"
(b) Article IV, Section 6, has been amended to read:
"Section 6. No holder of common or preferred stock shall have any
pre-emptive right to subscribe to any issue of stock of this corporation,
or any securities convertible into stock, whether now or hereafter
authorized, except as follows:
"The holders of common stock shall have the pre-emptive right to
subscribe for and purchase their proportionate part of additional shares
of common stock, or securities convertible into common stock, upon their
original issue by the corporation, except that such pre-emptive rights
are denied with respect to 70,000 shares of the common stock of the
Company and with respect to such shares of common stock as the Board of
Directors in its discretion may determine from time to time to issue and
sell upon a bona fide public offering, the Board of Directors to have the
authority to determine what constitutes a bona fide public offering."
2. The said amendments were adopted by the shareholders of the
corporation at a special meeting of stockholders duly and lawfully noticed
and convened in Denver, Colorado, at 2:00 o'clock P.M. on October 12,
1964.
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3. The number of shares of common no par value stock of the
corporation outstanding on October 12, 1964 and entitled to vote at said
special stockholders meeting was 189,915.
4. At said meeting 165,090 shares of the common no par value stock
were voted in favor of the adoption of the above and foregoing amendments
and each of them. No shares of the common no par value stock were voted
against said amendments.
5. Article IV, Section 5, provides that "as long as any shares of
preferred stock remains outstanding * * * Article IV shall not be amended,
changed or altered in any respect without the consent in writing of the
preferred stockholders representing a majority of the then issued and
outstanding preferred stock." Stockholders holding 183,131 shares of the
6% cumulative preferred par value $1.00 stock of the corporation,
constituting a majority of the 343,193 shares of issued and outstanding
preferred stock, have indicated in writing their consent to the adoption
of the above and foregoing amendments and each of them. None of the
holders of said preferred shares withheld consent or disapproved said
amendment.
6. The manner of exchange, reclassification and cancellation of
the 200,000 shares of common no par value stock of said corporation
theretofore authorized is fully set forth in the following resolution:
"RESOLVED, that the present outstanding 200,000 shares of no par
common stock of Rocky Mountain Power Co. be reconstituted and
reclassified into 200,000 shares of common stock with a par value
of $.10 a share and said stock be considered a part of the 1,000,000
shares of common stock authorized by Article IV of the Articles of
Incorporation, as amended, and that all certificates of no par common
stock of the Company shall be promptly surrendered to the Company
for cancellation and that new certificates representing the
reconstituted and reclassified shares in like numbers shall be issued
to such registered holders."
The above resolution was adopted by an affirmative vote of 165,090
shares of said common no par value stock. No shares were voted
against. The consent in writing to the adoption of the foregoing
resolution has been given by the holders of 183,131 shares of the 6%
cumulative, par value $1.00 stock of the corporation constituting a
majority of the issued and outstanding preferred stock. There was
on October 12, 1964, 343,193 shares of said preferred stock issued and
outstanding.
7. Said amendment effects a change in the amount of stated capital
30
of Rocky Mountain Power Co. from 200,000 shares of common stock
without par value to 1,000,000 shares of common stock of the par value
of ten cents ($.10) per share. The preferred stock remains unchanged
or unaffected in any respect. The stated capital of this corporation
as changed by said amendments is $500,000.00.
IN WITNESS WHEREOF, this certificate has been executed in duplicate
this 1st day of November, 1964, by the President and Assistant
Secretary of said corporation.
(Registrant) ROCKY MOUNTAIN POWER CO.
(Date) June 2, 1997
By:(Signature) /S/ Xxxxxxx X. Xxxxxxx
-----------------------------
(Name and Title) Xxxxxxx X. Xxxxxxx, President
ATTEST:
/S/ X. X. Xxxxxxxx
---------------------
Assistant Secretary
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EXHIBIT III
Mail to: Secretary of State For office use only
Corporations Section
0000 Xxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
(000) 000-0000
MUST BE TYPED Fax (000) 000-0000
FILING FEE: $25.00
MUST SUBMIT TWO COPIES
ARTICLES OF AMENDMENT
Please Include a typed TO THE
self-addressed envelope ARTICLES OF INCORPORATION
Pursuant to the provisions of the Colorado Business Corporation Act, the
undersigned corporation adopts the following Articles of Amendment to its
Articles of Incorporation:
FIRST: The name of the corporation is Rocky Mountain Power Co.
SECOND: The following amendment to the Articles of Incorporation was adopted
on October 29, 1996, as prescribed by the Colorado Business Corporation
----------------------
Act, in the manner marked with an X below:
No shares have been issued or Directors Elected - Action by Incorporators
No shares have been issued by Directors Elected - Action by Directors
Such amendment was adopted by the board of directors where shares have
been issued
X Such amendment was adopted by a vote of the shareholders. The number of
shares voted for the amendment was sufficient for approval.
See Exhibit "A" attached hereto.
THIRD: The manner, if not set forth in such amendment, in which any exchange,
reclassification, or cancellation of issued shares provided for in the
amendment shall be effected, is as follows:
Each share of issued and outstanding $0.10 par value common stock is
converted into one share of $0.05 par value common stock.
If these amendments are to have a delayed effective date, please list that
date:
-------------------
(Not to exceed (90) days from the date of filing)
Rocky Mountain Power Co.
-------------------------
By /S/ Xxxxxxx X. Xxxxxxxxxx
--------------------------
Its President
-------------
Title
32
ARTICLE IV
The total number of shares of all classes of stock which this corporation
shall have authority to issue is 100,200,000 which shall include 200,000
shares of cumulative preferred stock with a par value of 25.00 per share and
100,000,000 shares of common stock, with a par value of five cents per share.
Designation, preferences, limitations and relative rights of each class shall
be as follows:
Section 1: The holders of the cumulative preferred stock shall be entitled
to receive out of the surplus or the earnings and profits of the corporation,
but only when declared by the Board of Directors, dividends at the rate of
$1.50 per share per annum. Any dividends which are payable, but not paid,
upon the preferred stock shall be cumulated. The holders of the common stock
shall be entitled to receive out of the surplus or the earnings and profits
of the corporation, such dividends as may be declared from time to time by
the Board of Directors, but no dividend shall be declared or paid on the
common stock unless all dividends, current and cumulated, have been paid on,
or otherwise provided for, the preferred stock.
Section 2: All or part of the shares of preferred stock shall be subject to
redemption at the option of the Board of Directors of the Corporation upon
thirty (30) days notice by mail to the holders of shares intended to be
redeemed, at their respective addresses appearing on the stock books of the
corporation, at the par value of such stock, without premium, plus an amount
equal to all dividends accrued and unpaid on such stock. If it is intended
at any time to redeem fewer than all of the shares of preferred stock then
outstanding, shares shall be selected for redemption by lot in such manner as
shall be determined by the Board of Directors. At any time after the notice
of intention to redeem has been mailed as herein provided, the corporation
may deposit the aggregate redemption price with any bank or trust company in
the City and County of Denver, State of Colorado, named in said notice,
payable in the amounts aforesaid to the respective record holders of the
shares to be redeemed on endorsement and surrender of their certificates.
Upon the making of the deposit, said holders shall cease to be stockholders
with respect to said shares and from and after the making of the deposit,
said holders shall have no interest in or claim against the corporation with
respect to said shares, but shall be entitled only to receive said monies
from said bank or trust company without interest. Any monies unclaimed at
the end of six years from the date of said deposit shall be repaid to the
corporation. Shares of preferred stock from time to time redeemed shall be
forthwith cancelled and shall not be reissued.
33
Section 3. Upon dissolution or liquidation of the corporation the holder of
each share of preferred stock shall be entitled to receive and shall be paid
an amount not to exceed $25.00 per share plus an amount equal to all
dividends accrued and unpaid on each share before any sum shall be paid to or
distributed to the holders of the common stock. After the payment to the
holders of the preferred stock of the full preferential amounts payable to
them as aforesaid, any and all assets of the corporation then remaining
shall be distributed pro-rata among the holders of the common stock, according
to the number of shares held by each of them.
Section 4. The common stock shall have sole and exclusive right to vote on
all questions, including the election of directors, and the holders thereof
shall be entitled to one vote for each share of stock held.
Section 5. No holder of common or of preferred stock shall have any
preemptive right to subscribe to any issue of stock of this corporation, or
any securities convertible into stock, whether now or hereafter authorized.
34
EXHIBIT IV
ROCKY MOUNTAIN POWER CO.
BYLAWS
(Revised June 6, 1961)
ARTICLE I. MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of the stockholders of the
company shall be held at the office of the corporation in Denver, Colorado,
on the second Tuesday of September, for the election of directors and the
transaction of such other business as may come before said meeting.
Section 2. Special Meetings. Special meetings of the stockholders may be
called at any time by resolution of the Board of Directors. It shall be the
duty of the President to call a special meeting whenever so requested in
writing by stockholders owning twenty per cent of the common stock issued and
outstanding. Special meetings shall be held within or without the State of
Colorado at such place as the Board of Directors shall by resolution from
time to time designate.
Section 3. Notice of Stockholders' Meetings. Written or printed notice
stating the place, day and hour of the meeting, and, in case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
delivered not less than ten or more than fifty days before the date of the
meeting, either personally or by mail, by or at the direction of the
president, the secretary, or the officer or persons calling the meeting, to
each stockholder of record entitled to vote at such meeting, except that if
the authorized capital stock is to be increased at least thirty days' notice
shall be given. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail addressed to the stockholder at his
address as it appears on the stock transfer books of the corporation, with
postage thereon prepaid.
Section 4. Quorum. Stockholders owning a majority of the common stock of
the corporation, present either in person or by proxy, shall constitute a
quorum.
Section 5. Voting. At all meetings of stockholders, the right of any
stockholder to vote shall be determined as prescribed by Section 4 of Article
IV of the Articles of Incorporation and by the laws of the State of Colorado;
provided, however, that only stockholders of record thirty days prior to the
date of any meeting shall be entitled to notice of and to vote at the meeting.
ARTICLE II. DIRECTORS
Section 1. Election. The directors shall be elected at the annual meeting
of stockholders by a plurality of the votes thereat. They shall hold office
35
for a term of one year and until their successors are elected and qualified.
The number of directors of the corporation shall be seven.
Section 2. Vacancies. Vacancies in the Board of Directors shall be filled
for the unexpired term by a majority vote of the remaining directors at any
regular meeting of the Board or at any special meeting called for that
purpose.
Section 3. Rules and Regulations. The Board of Directors may adopt such
rules and regulations for the conduct of their meetings and the management of
the affairs of the company as they deem proper, not inconsistent however,
with these Bylaws.
Section 4. Meetings. Regular meetings shall be held on such day, at such
hour, and at such place within or without the State of Colorado as the Board
shall by resolution from time to time establish, and no notice thereof shall
be required. Special meetings may be held at any time or any place within or
without the State of Colorado upon call by the President or any three
directors. Notice of any meeting shall be given to each member in person or
by telephone at least twenty-four hours before the meeting, or it may be
mailed or telegraphed to him at his residence or business address at least
seventy-two hours before the meeting. The President shall preside at all
meetings of the Board of Directors unless the Board, at any meeting, shall
elect one of its members to preside at the meeting.
Section 5. Powers. The Board of Directors shall exercise all the powers
of this company and shall have the authority to do all lawful acts and things
not required by statute to be done by the stockholders.
Section 6. Executive Committee. An Executive Committee consisting of
three or more members of the Board of Directors may be appointed from time to
time by resolution passed by a majority of the whole Board. It shall have
all the powers provided by statute except as specially limited by the Board of
Directors. Meetings may be held at any time and at any place within or
without the State of Colorado upon call by any committee member. Notice of
any meeting shall be given to each member in person or by telephone at least
two hours before the meeting, or it may be mailed or telegraphed to him at
his residence or business address at least forty-eight hours before the
meeting. A majority of the members shall constitute a quorum. The Committee
shall record minutes of each meeting in a book kept for that purpose and
shall report the same to the Board of Directors at its next meeting.
ARTICLE III. OFFICERS
Section 1. Officers. The officers of this company shall be: a president,
one or more vice presidents, a secretary, and a treasurer. All of said
officers shall serve for a term of one year and until their successors are
elected and qualified.
Section 2. Election. The Board of Directors shall meet immediately after
the annual meeting of stockholders and elect the officers by a majority vote.
The president must be a director. All other offices may be held by anyone,
irrespective of whether he is a member of the Board of Directors. Two or more
of the offices may be held by one person, except that one person may not hold
36
the office of president and secretary. The officers shall have the duties
set forth hereinafter and such other duties as the Board of Directors may
prescribe.
Section 3. Duties of President. The president shall have general
supervision of the company's affairs, and shall have authority to sign all
certificates, contracts, deeds, and other instruments of the corporation.
Section 4. Duties of Vice President. The Vice Presidents shall in the
absence or incapacity of the president perform the duties of that office.
Section 5. Duties of Secretary. The secretary shall have the custody of
the company's seal and books of record, shall complete the minutes of all
meetings of directors and stockholders, shall attend to the giving and
serving of all notices of the company, and shall keep a stock ledger which
shall be open for inspection, as required by law.
Section 6. Duties of Treasurer. The treasurer shall have the care and
custody of all the funds and securities of the company and shall deposit the
same in the name of the company in such banks or bank as the directors may
designate. He shall give such bond for the faithful performance of his
duties as the Board of Directors may require.
Section 7. Other Officers. The Board of Directors may select such other
officers, employees, and agents with such duties as it may determine.
ARTICLE IV. CAPITAL STOCK
Section 1. Subscriptions. Subscriptions to the capital stock must be paid
to the treasurer at such time or times and in such installments as the Board
of Directors may require.
Section 2. Certificates of Stock. Certificates of stock shall be numbered
and registered in the order they are issued, shall be signed by the president
or vice president and by the secretary, and the seal of the corporation shall
be bound in a book and shall be issued in consecutive order therefrom. There
shall be entered on the certificate stub the name of the person owning the
shares represented thereby, the number of shares, and the date thereof. All
certificates exchanged or returned to the corporation shall be marked
cancelled, with the date of cancellation, by the secretary, and shall
immediately be pasted in the certificate book opposite the memorandum of
their issue.
Section 3. Transfer of Stock. Transfer of stock shall be made only upon
the books of the corporation by the holder in person or by power of attorney
duly executed and filed with the secretary of the corporation, upon the
surrender of the certificate or certificates representing such stock.
ARTICLE V. FISCAL YEAR
The fiscal year of this corporation shall commence on the first day of July
of each year.
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ARTICLE VI. SEAL
The seal of the company shall be in the form of a circle and shall bear the
name of the company and the state of its corporation.
ARTICLE VII. AMENDMENT OF BYLAWS
These Bylaws may be amended at any regular or special meeting of the Board
of Directors.
ARTICLE VIII. WAIVER OF NOTICE
Whenever under the provisions of these Bylaws or of any of the corporate
laws of Colorado, the stockholders, directors, or members of the executive
committee are authorized to hold any meeting after notice or after the lapse
of any prescribed period of time, such meeting may be held without notice and
without such lapse of time by a written waiver of such notice signed by every
person entitled to notice. The signature of any director affixed to the
minutes of any meeting of the Board of Directors or the signature of any
member of the executive committee affixed to the minutes of any meeting of
the committee shall constitute waiver of notice of such meeting.
ARTICLE IV. INDEMNITY
The corporation shall indemnify any director or officer or former director
or officer of the corporation, or any person who may have served at its
request as a director or officer of another corporation in which it owns
shares of capital stock or of which it is a creditor, and the personal
representatives of all such persons, against expenses actually and necessarily
incurred by him in connection with the defense of any action, suit or
proceeding in which he is made a party by reason of being or having been such
director or officer, except in relation to matters as to which he shall be
judged in such action, suit or proceeding to be liable for negligence or
misconduct in the performance of duty; but such indemnification shall not be
deemed exclusive of any other rights to which such director or officer may be
entitled, under any bylaw hereafter adopted, or any agreement, vote of
shareholders, or otherwise.
38
EXHIBIT V
AMENDED EXCHANGE AGREEMENT
This amended agreement is hereby entered into this 20th day of March, 1997
between Rocky Mountain Power Co. (Rocky), Prime Rate Investment Management
Enterprises, Inc. (Prime) and Prime Rate Income & Dividend Enterprises, Inc.
(Pride), a wholly-owned subsidiary of Prime.
Rocky hereby agrees to issue 655,582 shares of its $.05 par value common stock
to 12 shareholders of PRIME in exchange for their approximate 93.65% ownership
of Prime.
Pride, hereby agrees to return its 12,000 (post-split) shares of common stock
and its 32,000 preferred shares of Rocky for cancellation subject to issuance
of the 700,000 post split shares to Prime shareholders.
The effective date of this business combination agreement to be March 31,
1997.
Agreed to this 20th day of March, 1997:
Rocky Mountain Power Co.
/S/ Xxxxxxx X. Xxxxxxxxxx
--------------------------------
By: Xxxxxxx X. Xxxxxxxxxx, President
Prime Rate Investment Management Enterprises, Inc.
/S/ Xxxxxx X. Xxxxxx
---------------------------------
By: Xxxxxx X. Xxxxxx, Vice-President
Prime Rate Income & Dividend Enterprises, Inc.
/S/ Xxxxxx X. Xxxxxx
--------------------------------
By: Xxxxxx X. Xxxxxx, Vice-President
39
EXHIBIT VI
CONSENT OF ACCOUNTANT
We hereby consent to the use of our report dated September 6, 1996, on the
financial statements of Rocky Mountain Power Company for the two years ended
June 30, 1996. Such report is being included in a Registration Statement to
be filed by Rocky Mountain Power Company on Form 10-SB.
Xxxxxx and XxXxxxxx, CPA's
/S/ Xxxxxx and XxXxxxxx CPA's
---------------------------
Denver, Colorado
June 2, 1997
40
EXHIBIT VII
CONSENT OF ACCOUNTANT
We hereby consent to the use of our report dated December 6, 1996, on the
financial statements of Prime Rate Investment Management Enterprises, Inc.
and Consolidated Subsidiaries for the two years ended October 31, 1996.
Such report is being included in a Registration Statement to be filed by
Rocky Mountain Power Company on Form 10-SB.
Xxxxxx and XxXxxxxx, CPA's
/S/ Xxxxxx and XxXxxxxx CPA's
----------------------------
Denver, Colorado
June 2, 1997
41
Bank One, Colorado, N.A. Tel 000 000 0000
Westminster Banking Center
0000 Xxxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX 00000
BANK ONE
January 28, 1997
Mr. Xxxxxxx Xxxxxxxxxx, President
Rocky Mountain Power Co.
00000 X. Xxxxxxxx Xxxx, X-XX, #000
Xxxxxxxxx, XX 00000
Dear Xx. Xxxxxxxxxx:
We are pleased to inform you that Bank One, Colorado, N.A. (hereinafter
referred to as "Bank") has approved the $400,000 Revolving Line of Credit for
working capital and the Single Pay term loan in the amount of $600,000.
BORROWER: Rocky Mountain Power Co. (RMPC)\
Prime Rate Investment Management Enterprises, Inc. (PRIME) and
Subsidiaries
LOAN AMOUNT: 1) $400,000 Line of Credit
1) $600,000 Single Pay Term Loan
MATURITY DATE: 1) January 31, 1998
2) January 31, 1998
LOAN FEE: 1) 1% - $4,000
2) $1500 will be due quarterly if any amount of the loan
remains outstanding on the first
day of each quarter.
INTEREST RATE: 1) Interest to be computed on the unpaid balance at the rate
of Bank's prime rate plus 1.00% per annum, adjusted on the
day of change.
2) Interest to be computed on the unpaid balance at the Bank
One Certificate of Deposit rate on the date of closing, plus
3%.
GUARANTOR: Xxxxxxx X. Xxxxxxxxxx
42
PAYMENT: 1) Interest due monthly with remaining principal and interest
due at maturity.
2) Interest payable quarterly with principal plus interest due
at maturity.
COLLATERAL: 1) Assignment of Notes and Deed of Trust, Bank One CD will be
pledged for first draw to collateralize the full amount of
the note.
2) 90 day Certificate of Deposit. Bank will allow
substitution of other collateral for the balance of the loan,
solely and subject to the approval and acceptance of the
replacement collateral.
3) Life Insurance assigned to Bank One for Xxxxxxx Xxxxxxxxxx
in the amount of $250,000.
SPECIFIC LENDING CONDITIONS: Bank's obligation to make the loan contemplated
herein and to advance any funds thereunder from time to time shall be
conditioned upon the following:
1) The execution, receipt, and our acceptance of all necessary loan
documentation.
2) The commitment letter is signed and returned to the Bank within 30 days
of the date of this letter.
3) A loan agreement to include the following terms and conditions:
Financial Reporting:
A) Borrowers agree to provide the Bank with CPA Audited Financial Statements
annually within 120 days of each fiscal year end.
B) Borrowers agree to provide the Bank with quarterly financial statements
and accounts receivable agings within 45 days of each quarter end.
C) Borrowers agree to provide bank with mortgage status report for notes
pledged, quarterly within 45 days of each quarter end. Report is to include
balance of note, date last payment was made, notation if pas due and the
number of days past due.
D) Guarantor agrees to provide the Bank with a Personal Financial Statement
annually along with a copy annually of Personal Federal Income Tax Returns
upon their filing with the Internal Revenue Service.
Financial Statement Ratios:
A) Borrower agrees to maintain a debt to tangible net worth ratio not to
exceed 1.00:1.
B) Borrower agrees to maintain debt service coverage ratio greater than
1.25:1.
C) Borrower agrees to maintain a current ratio greater than 1.00:1.
43
Other:
1) Advances will be limited to 50% of the principal balance of the mortgages
less than 45 days past due and any note greater than 45 days past due will be
eliminated from the borrowing base.
2) The Bank will advance only on foreclosure certificates that represent a
first lien position.
3) The Bank will advance 100% of the purchase amount of a foreclosure
certificate, but the amount of the certificate must be less than or equal to
75% of the properties' value.
4) Only certificates on single family residences will be accepted for
advances. No certificates on condominiums or town homes will be accepted.
5) A separate note will be drawn for each advance. Any note collateralized
by a foreclosure certificate not redeemed in 75 days will be given a five day
grace period for each junior lien on a property to a maximum of 90 days. If
not paid within that time, the note will be extended for 180 days with
interest due monthly and any remaining principal and interest due at the 180
day maturity. The line will be reduced by an equal amount until the note is
paid.
6) Borrower may redeem certificates of deposit pledged as collateral for
purposes of paying down the loans.
7) Full disclosure of the Bank One transactions must be given to all
shareholders of PRIDE, RMPC, and NASDAQ. A letter to Bank One by Borrower
and subsidiaries, acknowledging the requirement has been satisfied is to
follow within 90 days of the closing of the loans.
CANCELLATION OF COMMITMENT: This loan commitment may be cancelled at the
Bank's option under any of the following circumstances:
1. The loan does not close within 30 days of the date of this letter, or
2. The Borrower fails to comply with any of the terms and conditions of this
loan commitment, or
3. There is a material adverse change in the financial condition of the
Borrower or the Borrower files a petition for Bankruptcy or has one filed
against him, or
4. There is a material change in the management or ownership
of the Borrower.
ACKNOWLEDGMENT: Please acknowledge your acceptance of this commitment by
executing the enclosed copy of this letter and returning it to us.
We hope that you will find the above loan proposal adequate for your needs
and that you will look to Bank One, Colorado, N.A. for all your banking
services.
44
Sincerely,
/S/ Xxxxxxx X. Xxxxxx
---------------------
Xxxxxxx X. Xxxxxx
Assistant Vice-President
Business Banking Group'
ACCEPTED:
Rocky Mountain Power Co.
/S/ Xxxxxxx X. Xxxxxxxxxx Date: 1/30/97
--------------------------------- ------------------
by: Xxxxxxx X. Xxxxxxxxxx, President
Guarantor: /S/ Xxxxxxx X. Xxxxxxxxxx Date: 1/30/97
-------------------------- ------------------
Xxxxxxx X. Xxxxxxxxxx
Prime Rate Investment Management Enterprises, Inc.
By: /S/ Xxxxxxx X. Xxxxxxxxxx Date: 1/30/97
---------------------- ------------------
Xxxxxxx X. Xxxxxxxxxx
45
SIGNATURES
In accordance with Section 12 of the Securities Exchange Act of 1934, the
registrant caused this registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized.
(Registrant) ROCKY MOUNTAIN POWER COMPANY
(Date) June 2, 1997
BY(Signature) /S/ Xxxxxxx X. Xxxxxxxxxx
(Name and Title) Xxxxxxx X. Xxxxxxxxxx
President, CFO and Director
(Date) June 2, 1997
BY(Signature) /S/ Xxxxxx X. Xxxxxx
(Name and Title) Xxxxxx X. Xxxxxx
Vice President and Director
(Date) June 2, 1997
BY(Signature) /S/ Xxxxxx X. Xxxxxx
(Name and Title) Xxxxxx X. Xxxxxx
Director
(Date) June 2, 1997
BY(Signature) /S/ Xxxxxx X. Xxxxxxxx
(Name and Title) Xxxxxx X. Xxxxxxxx
Director
(Date) June 2, 1997
BY(Signature) /S/ Xxxxxx X. Xxxxxxxxx
(Name and Title) Xxxxxx X. Xxxxxxxxx
Director
46
