Exhibit 99.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made as of
December 13, 2005, by and between GEORGIA POWER COMPANY, a Georgia corporation
("Georgia Power"), and SAVANNAH ELECTRIC AND POWER COMPANY, a Georgia
corporation ("Savannah Electric").
WHEREAS, Georgia Power has authorized capital stock consisting of (i)
15,000,000 shares of Common Stock, without par value ("Georgia Power Common
Stock"), of which 7,761,500 shares are issued and outstanding and are owned
beneficially and of record by The Southern Company ("Southern"), (ii) 50,000,000
shares of Class A Preferred Stock ("Georgia Power Class A Preferred Stock"), of
which all shares are undesignated and unissued, and (iii) 5,000,000 shares of
Preferred Stock ("Georgia Power Preferred Stock"), of which 145,689 shares are
currently issued and outstanding and are designated as the $4.60 Preferred
Stock, 1954 Series ("Georgia Power $4.60 Preferred Stock");
WHEREAS, Savannah Electric has authorized capital stock consisting of
(i) 16,000,000 shares of Common Stock, with a par value of $5 per share
("Savannah Electric Common Stock"), of which 10,844,635 shares are issued and
outstanding and are owned beneficially and of record by Southern, and (ii)
4,000,000 shares of Preferred Stock ("Savannah Electric Preferred Stock"), of
which a total of 1,800,000 shares are issued and outstanding and are designated
as the 6.00% Series Preferred Stock, Non-Cumulative, Par Value $25 per Share
("Savannah Electric 6.00% Preferred Stock"); and
WHEREAS, the Board of Directors of each of Georgia Power and Savannah
Electric deems it advisable to merge Savannah Electric with and into Georgia
Power in accordance with the Georgia Business Corporation Code ("GBCC"), Chapter
4 of Title 14 of the Official Code of Georgia Annotated and this Agreement;
NOW, THEREFORE, in consideration of the premises and agreements
contained herein, the parties agree that (i) Savannah Electric shall be merged
with and into Georgia Power (hereinafter the "Merger"), (ii) Georgia Power shall
be the corporation surviving the Merger, and (iii) the terms and conditions of
the Merger, the means of carrying it into effect and the manner of converting
shares of capital stock shall be as follows:
ARTICLE 1
THE MERGER
1.1 Plan of Merger. This Agreement shall constitute a plan of merger
between Georgia Power and Savannah Electric (Georgia Power and Savannah Electric
being sometimes referred to herein as the "Constituent Corporations") in
accordance with Article II of the GBCC.
1.2 Certificate of Merger. Upon satisfaction of the conditions set
forth in Article 7 below, and subject to and in accordance with the provisions
of this Agreement, a certificate of merger complying with ss. 14-2-1105 of the
GBCC (the "Certificate of Merger") shall be executed by Georgia Power and
delivered to the Secretary of State of the State of Georgia for filing in
accordance with ss. 14-2-1105 of the GBCC.
1.3 Merger Time. The Merger shall become effective at the time
specified in the Certificate of Merger filed with the Secretary of State of the
State of Georgia (the effective time of the Merger being herein called the
"Merger Time"). At the Merger Time, the separate existence of Savannah Electric
shall cease and Savannah Electric shall be merged with and into Georgia Power,
which shall continue its corporate existence as the surviving corporation
(Georgia Power, as the surviving corporation, being sometimes referred to herein
as the "Surviving Corporation"). From and after the Merger Time, Georgia Power,
as the Surviving Corporation, shall be possessed of all the rights, privileges,
powers and franchises of a public and private nature of Savannah Electric and
shall be subject to all of the duties, liabilities, debts and obligations of
each of the Constituent Corporations in the same manner as if Georgia Power had
itself incurred them.
1.4 Appropriate Actions. Prior to, at and after the Merger Time,
Georgia Power and Savannah Electric, respectively, shall take all such actions
as may be necessary or appropriate in order to effectuate the Merger. In case at
any time after the Merger Time any further action is necessary or desirable to
carry out the purposes of this Agreement and to vest the Surviving Corporation
with full title to all properties, assets, privileges, rights, immunities and
franchises of either of the Constituent Corporations, the officers and directors
of each of the Constituent Corporations as of the Merger Time shall take all
such further action.
ARTICLE 2
TERMS OF CONVERSION AND EXCHANGE OF SHARES
2.1 Conversion and Exchange. At the Merger Time,
(a) each share of Georgia Power Common Stock issued and
outstanding immediately prior to the Merger shall remain issued and
outstanding;
(b) each share of Georgia Power $4.60 Preferred Stock issued
and outstanding on the date hereof shall have been redeemed;
(c) the issued and outstanding shares of Savannah Electric
Common Stock, all of which shall continue to be held by Southern until
the Merger Time, without further action on the part of anyone, shall be
converted into the right to receive an aggregate of 1,500,000 shares of
Georgia Power Common Stock; and
(d) each share of Savannah Electric 6.00% Preferred Stock
issued and outstanding immediately prior to the Merger shall, without
further action on the part of anyone, be converted into the right to
receive one share of a new series of Georgia Power Class A Preferred
Stock, non-cumulative, par value $25 per share, which shall be
designated as Georgia Power's "6 1/8% Series Class A Preferred Stock."
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ARTICLE 3
CHARTER AND BYLAWS
3.1 Georgia Power's Charter. From and after the Merger Time, and until
thereafter amended as provided by law, the Charter of Georgia Power, as amended
in accordance with ss. 3.2 hereof, shall be and continue to be the Charter of
the Surviving Corporation.
3.2 Amendments to Georgia Power's Charter. At or prior to the Merger
Time:
(a) the Charter of Georgia Power shall be amended and restated
in substantially the form attached hereto as Exhibit A; and
(b) the Charter of Georgia Power, as so amended and restated,
shall be further amended to designate 1,800,000 shares of Georgia Power's 6 1/8%
Series Class A Preferred Stock, with such amendment in substantially the form
attached hereto as Exhibit B.
3.3 Georgia Power's Bylaws. From and after the Merger Time, and until
thereafter amended as provided by law, the Bylaws of Georgia Power as in effect
immediately prior to the Merger shall be and continue to be the Bylaws of the
Surviving Corporation.
ARTICLE 4
DIRECTORS AND OFFICERS
4.l Georgia Power's Directors and Officers. The persons who are
directors and officers of Georgia Power immediately prior to the Merger shall
continue as directors and officers, respectively, of the Surviving Corporation
and shall continue to hold office as provided in the Bylaws of the Surviving
Corporation. If, at or following the Merger Time, a vacancy shall exist in the
Board of Directors or in the position of any officer of the Surviving
Corporation, such vacancy may be filled in the manner provided in the Bylaws of
the Surviving Corporation.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF GEORGIA POWER
Georgia Power hereby represents and warrants to Savannah Electric as
follows:
5.1 Organization and Good Standing. Georgia Power is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Georgia.
5.2 Power and Authority. Subject to the approvals set forth in Article
7 below, Georgia Power has full power and authority to execute, deliver and
perform this Agreement.
5.3 Authorization. The execution, delivery and performance of this
Agreement by Georgia Power has been duly authorized by all requisite corporate
action.
5.4 Binding Effect. This Agreement is a valid, binding and legal
obligation of Georgia Power enforceable in accordance with its terms, except for
the effect of bankruptcy, insolvency, reorganization, receivership, liquidation,
fraudulent conveyance, moratorium or other similar laws affecting creditors'
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rights generally or general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or in equity).
5.5 No Default; Consents. The execution, delivery and performance of
this Agreement by Georgia Power do not and will not:
(a) conflict with or result in any breach of any provision of
the Charter or Bylaws of Georgia Power;
(b) violate, breach or otherwise constitute or give rise to a
default under any material contract, commitment or other obligation to
which Georgia Power is a party or by which any of its assets are bound;
or
(c) violate or conflict with any law, regulation, judgment,
order or decree of any government, governmental instrumentality or
court having jurisdiction over Georgia Power or any of its assets.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF SAVANNAH ELECTRIC
Savannah Electric hereby represents and warrants to Georgia Power as
follows:
6.1 Organization and Good Standing. Savannah Electric is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Georgia.
6.2 Power and Authority. Subject to the approvals set forth in Article
7 below, Savannah Electric has full power and authority to execute, deliver and
perform this Agreement.
6.3 Authorization. The execution, delivery and performance of this
Agreement by Savannah Electric has been duly authorized by all requisite
corporate action.
6.4 Binding Effect. This Agreement is a valid, binding and legal
obligation of Savannah Electric enforceable in accordance with its terms, except
for the effect of bankruptcy, insolvency, reorganization, receivership,
liquidation, fraudulent conveyance, moratorium or other similar laws affecting
creditors' rights generally or general principles of equity (regardless of
whether enforcement is considered in a proceeding at law or in equity).
6.5 No Default; Consents. The execution, delivery and performance
of this Agreement by Savannah Electric do not and will not:
(a) conflict with or result in any breach of any provision of
the Charter or Bylaws of Savannah Electric;
(b) violate, breach or otherwise constitute or give rise to a
default under any material contract, commitment or other obligation to
which Savannah Electric is a party or by which any of its assets are
bound; or
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(c) violate or conflict with any law, regulation, judgment,
order or decree of any government, governmental instrumentality or
court having jurisdiction over Savannah Electric or any of its assets.
ARTICLE 7
CONDITIONS TO THE MERGER
Completion of the Merger is subject to the satisfaction of the
following conditions:
7.l Shareholder Approval. The principal terms of this Agreement and the
transactions provided for herein shall have been approved by holders of capital
stock of each of the Constituent Corporations as and to the extent required by
their respective organizational documents and the GBCC.
7.2 Regulatory Approvals. All authorizations by and approvals of any
governmental or public authority or agency deemed necessary or advisable by the
Board of Directors of each of Georgia Power and Savannah Electric in connection
with the Merger and other related transactions, including, without limitation,
the Georgia Public Service Commission, the Federal Energy Regulation Commission
and the Federal Communication Commission, shall have been obtained, shall be in
full force and effect, shall not have been revoked and shall be legally
sufficient to authorize the transactions contemplated by this Agreement.
7.3 Listing on NYSE. Georgia Power's 6 1/8% Series Class A Preferred
Stock shall be approved for listing on the New York Stock Exchange, subject to
official notice of issuance.
ARTICLE 8
AMENDMENT AND TERMINATION
8.l Amendment. The parties to this Agreement, by mutual consent of
their respective Boards of Directors, may amend, modify or supplement this
Agreement in such manner as may be agreed upon by them in writing at any time
before or after approval of this Agreement by the shareholders of the
Constituent Corporations; provided, however, that no such amendment,
modification or supplement shall, if agreed to after such approval by the
pre-Merger shareholders of the Constituent Corporations, change any of the
principal terms of this Agreement without further approval of such shareholders.
8.2 Termination. This Agreement may be terminated and the Merger and
other transactions provided for by this Agreement may be abandoned at any time
by the mutual written consent of the parties hereto.
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ARTICLE 9
MISCELLANEOUS
9.l Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
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IN WITNESS WHEREOF, Georgia Power and Savannah Electric have each
caused this Agreement to be executed by its respective officer thereunto duly
authorized as of the date first written above.
GEORGIA POWER COMPANY SAVANNAH ELECTRIC AND POWER COMPANY
By: /s/Xxxxxxx X. Xxxxxxx By: /s/W. Xxxxx Xxxxx
Xxxxxxx X. Xxxxxxx W. Xxxxx Xxxxx
President President
and Chief Executive Officer and Chief Executive Officer
Attest: Attest:
/s/Xxxxxx Xxxxxx /s/Xxxxx X. Xxxxxxxxxxxxx
Xxxxxx Xxxxxx Xxxxx X. Xxxxxxxxxxxxx
Corporate Secretary Comptroller and
Corporate Secretary
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EXHIBIT A
(Form of Amended and Restated Charter of Georgia Power)
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AMENDED AND RESTATED
CHARTER
OF
GEORGIA POWER COMPANY
-----------------------
I. The name of the corporation is GEORGIA POWER COMPANY. It is a street and
suburban railroad, electric light and power and steam heat corporation. Its
charter was granted by the Secretary of State of the State of Georgia on June
26, 1930, for the term of One Hundred One Years (101 years), with the right of
renewal and continuance thereafter as may be provided by law, upon a petition
duly filed and pursuant to an Act of the General Assembly of the State of
Georgia approved December 17, 1892, and acts amendatory thereof. It was
organized under the laws of the State of Georgia for the purpose of operating by
electricity a street railroad, suburban railroad or interurban railroad and for
the purpose of generating electricity, and the general nature of the business or
businesses to be transacted shall be to engage in any form or type of business
for any lawful purpose or purposes not specifically prohibited to such
corporations under the laws of the State of Georgia and to have all the rights,
powers, privileges and immunities which are now or hereafter may be allowed to
such corporations under the laws of the State of Georgia.
II. The principal office of the corporation is 241 Xxxxx XxXxxx Xxxxxxxxx, XX,
Xxxxxxx, Xxxxxxx 00000.
III. The number of shares of capital stock that may be issued by the corporation
is 90,000,000, of which 5,000,000 shares shall be preferred stock with a par or
face value of $100 each, 50,000,000 shares shall be Class A preferred stock with
a par or face value of $25 each, 15,000,000 shares shall be preference stock
with a par or face value of $100 each, and 20,000,000 shares shall be common
stock with no par or face value.
IV. The designations, preferences and voting powers of the shares of preferred
stock, Class A preferred stock, preference stock and common stock, or
restrictions or qualifications thereof, shall be as follows:
Preferred Stock
Provision for Division Into and Issue in Series
of Preferred Stock and Grant of Authority
to Board of Directors
The shares of the preferred stock may be divided into and issued in
series. Each such series shall be designated so as to distinguish the shares
thereof from the shares of all other series and classes, and all shares of the
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preferred stock irrespective of series shall be identical except as to the
following rights and preferences in respect of any or all of which there may be
variations between different series, and authority is hereby expressly vested in
the Board of Directors to establish and designate such series and to determine
prior to the issuance of any shares of such series the following rights and
preferences of the shares thereof in accordance with the provisions of the
Official Code of Georgia Annotated applicable thereto:
(a) The dividend rights of such series, including the cumulative or
non-cumulative nature thereof, the relative rights of priority among series, the
rate of dividend (which may be fixed or variable), the dividend payment dates
and the date from which dividends will accumulate, if applicable;
(b) The date, prices and other terms of any mandatory or optional
redemption;
(c) The amount payable upon shares in the event of any voluntary or
involuntary liquidation;
(d) The terms and conditions, if any, on which shares of such series
shall be by their terms convertible into or exchangeable for shares of any other
class of stock of the corporation over which the preferred stock has preference
as to payment of dividends and as to assets;
(e) The sinking fund provisions, if any, for the redemption or purchase
of shares of such series; and
(f) The special voting rights, if any, of such series.
The stockholders of the corporation, by resolution duly adopted by the
holders of a majority of the shares of the issued and outstanding common stock
at any annual meeting or any special meeting called for that purpose, or, if
permitted by the laws of the State of Georgia then applicable, the Board of
Directors may issue and sell all the authorized and unissued shares of preferred
stock as shares of any series or any number of series, and in the event that the
corporation shall acquire, by purchase or redemption or otherwise, any issued
shares of its preferred stock of any series, the holders of a majority of the
outstanding common stock, or, if permitted by the laws of the State of Georgia
then applicable, the Board of Directors may resell or convert and sell or
otherwise dispose of, in their discretion, any shares so acquired as shares of
the same or of any other series of preferred stock which shall have been duly
created.
Provision for Division Into and Issue in Series
of Class A Preferred Stock and Grant of Authority
to Board of Directors
The shares of the Class A preferred stock may be divided into and
issued in series. Each such series shall be designated so as to distinguish the
shares thereof from the shares of all other series and classes, and all shares
of the Class A preferred stock irrespective of series shall be identical except
as to the following rights and preferences in respect of any or all of which
there may be variations between different series, and authority is hereby
expressly vested in the Board of Directors to establish and designate such
series and to determine prior to the issuance of any shares of such series the
following rights and preferences of the shares thereof in accordance with the
provisions of the Official Code of Georgia Annotated applicable thereto:
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(a) The dividend rights of such series, including the cumulative or
non-cumulative nature thereof, the relative rights of priority among series, the
rate of dividend (which may be fixed or variable), the dividend payment dates
and the date from which dividends will accumulate, if applicable;
(b) The date, prices and other terms of any mandatory or optional
redemption;
(c) The amount payable upon shares in the event of any voluntary or
involuntary liquidation;
(d) The terms and conditions, if any, on which shares of such series
shall be by their terms convertible into or exchangeable for shares of any other
class of stock of the corporation over which the Class A preferred stock has
preference as to payment of dividends and as to assets;
(e) The sinking fund provisions, if any, for the redemption or purchase
of shares of such series; and
(f) The special voting rights, if any, of such series.
The stockholders of the corporation, by resolution duly adopted by the
holders of a majority of the shares of the issued and outstanding common stock
at any annual meeting or any special meeting called for that purpose, or, if
permitted by the laws of the State of Georgia then applicable, the Board of
Directors may issue and sell all the authorized and unissued shares of Class A
preferred stock as shares of any series or any number of series, and in the
event that the corporation shall acquire, by purchase or redemption or
otherwise, any issued shares of its Class A preferred stock of any series, the
holders of a majority of the outstanding common stock, or, if permitted by the
laws of the State of Georgia then applicable, the Board of Directors may resell
or convert and sell or otherwise dispose of, in their discretion, any shares so
acquired as shares of the same or of any other series of Class A preferred stock
which shall have been duly created.
General Provisions Applicable to Preferred Stock and Class A Preferred Stock
The following provisions shall apply to all series of preferred stock
and Class A preferred stock which may now or hereafter be authorized or created
irrespective of series:
(A) So long as any shares of preferred stock or Class A preferred stock
are outstanding, no dividends shall be declared or paid upon or set apart for
the shares of common stock, preference stock or any other class of stock of the
corporation over which the preferred stock and Class A preferred stock have
preference as to the payment of dividends (the "Junior Stock"), nor any sums
applied to the purchase, redemption or other retirement of any class of Junior
Stock, unless (i) full dividends on all shares of cumulative preferred stock and
cumulative Class A preferred stock, of all series outstanding, for all past
dividend periods shall have been paid or declared and a sum sufficient for the
payment thereof set apart and the full dividend for the then current dividend
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period shall have been or concurrently shall be declared, and (ii) full
dividends for the then-current dividend period on all shares of non-cumulative
preferred stock and non-cumulative Class A preferred stock, of all series
outstanding, have been, or contemporaneously are, paid, or declared and a sum
sufficient for the payment thereof set aside. Unpaid accrued dividends on the
preferred stock and Class A preferred stock shall not bear interest.
When specified dividends are not paid in full on all series of
preferred stock and Class A preferred stock, the shares of each series of
preferred stock and Class A preferred stock shall share ratably in any partial
payment of dividends in accordance with the sums which would be payable on said
shares if all dividends were paid in full; provided, however, that
non-cumulative preferred stock and non-cumulative Class A preferred stock shall
not share in accumulations of accrued and unpaid dividends for prior dividend
periods unless previously declared.
(B) After such dividends as aforesaid upon the preferred stock and
Class A preferred stock of all series then outstanding shall have been paid or
declared and set apart for payment, the Board of Directors may declare dividends
on the Junior Stock, and no holders of any series of the preferred stock or
Class A preferred stock as such shall be entitled to share therein.
(C) Upon any dissolution, liquidation or winding up of the corporation,
whether voluntary or involuntary, the holders of preferred stock and Class A
preferred stock of each series, without any preference of the shares of any
series of preferred stock or Class A preferred stock over the shares of any
other series of preferred stock or Class A preferred stock, shall be entitled to
receive out of the assets of the corporation, whether capital, surplus or other,
before any distribution of the assets to be distributed shall be made to the
holders of Junior Stock, the amount specified to be payable on the shares of
such series in the event of voluntary or involuntary liquidation, as the case
may be. In case the assets shall not be sufficient to pay in full the amounts
determined to be payable on all the shares of preferred stock and Class A
preferred stock in the event of voluntary or involuntary liquidation, as the
case may be, then the assets available for such payment shall be distributed to
the extent available as follows: first, to the payment, pro rata, of the amount
payable in the event of involuntary liquidation on each share of preferred stock
and Class A preferred stock outstanding irrespective of series; second, to the
payment of the accrued dividends, if any, on such shares, such payment to be
made pro rata in accordance with the amount of accrued dividends on each such
share; and, third, to the payment of any amounts in excess of the amount payable
in the event of involuntary liquidation on each share plus accrued dividends
which may be payable on the shares of any series in the event of voluntary or
involuntary liquidation, as the case may be, such payment also to be made pro
rata in accordance with the amounts, if any, so payable on each such share.
After payment to the holders of the preferred stock and Class A preferred stock
of the full preferential amounts hereinbefore provided for, the holders of the
preferred stock and Class A preferred stock as such shall have no right or claim
to any of the remaining assets of the corporation, either upon any distribution
of such assets or upon dissolution, liquidation or winding up, and the remaining
assets to be distributed, if any, upon a distribution of such assets or upon
dissolution, liquidation or winding up, may be distributed among the holders of
Junior Stock. Without limiting the right of the corporation to distribute its
assets or to dissolve, liquidate or wind up in connection with any sale, merger
or consolidation, the sale of all the property of the corporation to, or the
merger or consolidation of the corporation into or with, any other corporation
shall not be deemed to be a distribution of assets or a dissolution, liquidation
or winding up for the purposes of this paragraph.
(D) So long as any shares of the preferred stock or Class A preferred
stock are outstanding, the corporation shall not, without the affirmative vote
in favor thereof of the holders of at least a majority of the total voting power
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of the shares of preferred stock and Class A preferred stock at the time
outstanding voting together as a single class, issue (such issuance to be within
12 months after such vote) any shares of any class of stock preferred as to
dividends or assets over the preferred stock or Class A preferred stock or any
security convertible into such class of stock or authorize or create any class
of stock preferred as to dividends or assets over the preferred stock or Class A
preferred stock or change any of the rights and preferences of the then
outstanding preferred stock or Class A preferred stock in any manner so as to
affect adversely the holders thereof; provided, however, that if any such change
would affect adversely the holders of only one, but not the other, such kind of
stock, only the vote of the holders of at least a majority of the total voting
power of the outstanding shares of the kind so affected voting together as a
single class shall be required; and provided further, that nothing in this
paragraph contained shall authorize any such authorization, creation or change
by the vote of the holders of a less number of shares of preferred stock or
Class A preferred stock, or of any other class of stock, or of all classes of
stock, than is required for such authorization, creation or change by the laws
of the State of Georgia at the time applicable thereto.
Preference Stock
Provision for Division Into and Issue in Series
of Preference Stock and Grant of Authority
to Board of Directors
The shares of the preference stock may be divided into and issued in
series. The preference stock is subject to the prior rights and preferences of
the preferred stock and the Class A preferred stock and all other classes of
stock of equal rank therewith hereafter authorized. Each such series shall be
designated so as to distinguish the shares thereof from the shares of all other
series and classes, and all shares of the preference stock irrespective of
series shall be identical except as to the following rights and preferences in
respect of any or all of which there may be variations between different series,
and authority is hereby expressly vested in the Board of Directors to establish
and designate such series and to determine prior to the issuance of any shares
of such series the following rights and preferences of the shares thereof in
accordance with the provisions of the Official Code of Georgia Annotated
applicable thereto:
(a) The dividend rights of such series, including the cumulative or
non-cumulative nature thereof, the relative rights of priority among series, the
rate of dividend (which may be fixed or variable), the dividend payment dates
and the date from which dividends will accumulate, if applicable;
(b) The dates, prices and other terms of any mandatory or optional
redemption;
(c) The amount payable upon shares in the event of any voluntary or
involuntary liquidation;
(d) The terms and conditions, if any, on which shares of such series
shall be by their terms convertible into or exchangeable for shares of any other
class of stock of the corporation over which the preference stock has preference
as to payment of dividends and as to assets;
(e) The sinking fund provisions, if any, for the redemption or purchase
of shares of such series; and
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(f) The special voting rights, if any, of such series.
The stockholders of the corporation, by resolution duly adopted by the
holders of a majority of the shares of the issued and outstanding common stock
at any annual meeting or any special meeting called for that purpose, or, if
permitted by the laws of the State of Georgia then applicable, the Board of
Directors may issue and sell all the authorized and unissued shares of
preference stock as shares of any series or any number of series, and in the
event that the corporation shall acquire, by purchase or redemption or
otherwise, any issued shares of its preference stock of any series, the holders
of a majority of the outstanding common stock, or, if permitted by the laws of
the State of Georgia then applicable, the Board of Directors may resell or
convert and sell or otherwise dispose of, in their discretion, any shares so
acquired as shares of the same or of any other series of preference stock which
shall have been duly created.
General Provisions Applicable to Preference Stock
The following provisions shall apply to all series of preference stock
which may now or hereafter be authorized or created irrespective of series:
(A) So long as any shares of preference stock are outstanding, no
dividends shall be declared or paid upon or set apart for the shares of common
stock or any other class of stock over which the preference stock has preference
as to the payment of dividends and as to assets, nor any sums applied to the
purchase, redemption or retirement of any class of such stock, unless (i) full
dividends on all shares of cumulative preference stock, of all series
outstanding, for all past dividend periods shall have been paid or declared and
a sum sufficient for the payment thereof set apart and the full dividend for the
then-current dividend period shall have been or concurrently shall be declared,
and (ii) full dividends for the then-current dividend period on all shares of
non-cumulative preference stock, of all series outstanding, have been, or
contemporaneously are, paid, or declared and a sum sufficient for the payment
thereof set aside. Unpaid accrued dividends on the preference stock shall not
bear interest.
When specified dividends are not paid in full on all classes of
preference stock, the shares of each series of preference stock shall share
ratably in any partial payment of dividends in accordance with the sums which
would be payable on said shares if all dividends were paid in full; provided,
however, that non-cumulative preference stock shall not share in accumulations
of accrued and unpaid dividends for prior dividend periods unless previously
declared.
After such dividends as aforesaid upon the preference stock of all
series then outstanding shall have been paid or declared and set apart for
payment, the Board of Directors may declare dividends on the common stock or any
other class of stock over which the preference stock has preference as to the
payment of dividends, and no holders of any series of the preference stock as
such shall be entitled to share therein.
(B) Upon any dissolution, liquidation or winding up of the corporation,
whether voluntary or involuntary, before any distribution shall be made to the
holders of the common stock or any other class of stock over which the
preference stock has preference as to the payment of dividends or assets, but
subject to the prior rights and preferences of the holders of preferred stock
and the Class A preferred stock, the holders of preference stock of each series,
without any preference of the shares of any series of preference stock over the
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shares of any other series of preference stock, shall be entitled to receive out
of the assets of the corporation, whether capital, surplus or other, the amount
specified to be payable on the shares of such series in the event of voluntary
or involuntary liquidation, as the case may be.
In case the assets shall not be sufficient to pay in full the amounts
determined to be payable on all the shares of preference stock in the event of
voluntary or involuntary liquidation, as the case may be, then the assets
available for such payment shall be distributed to the extent available as
follows: first, to the payment, pro rata, of the amount payable in the event of
involuntary liquidation on each share of preference stock outstanding
irrespective of series; second, to the payment of the accrued dividends, if any,
on such shares, such payment to be made pro rata in accordance with the amount
of accrued dividends on each such share; and, third, to the payment of any
amounts in excess of the amount payable in the event of involuntary liquidation
on each share plus accrued dividends which may be payable on the shares of any
series in the event of voluntary or involuntary liquidation, as the case may be,
such payment also to be made pro rata in accordance with the amounts, if any, so
payable on each such share. After payment to the holders of the preference stock
of the full preferential amounts hereinbefore provided for, the holders of the
preference stock as such shall have no right or claim to any of the remaining
assets of the corporation, either upon any distribution of such assets or upon
dissolution, liquidation or winding up, and the remaining assets to be
distributed, if any, upon a distribution of such assets or upon dissolution,
liquidation or winding up, may be distributed among the holders of the common
stock or of any other class of stock over which the preference stock has
preference as to assets. Without limiting the right of the corporation to
distribute its assets or to dissolve, liquidate or wind up in connection with
any sale, merger or consolidation, the sale of all the property of the
corporation to, or the merger or consolidation of the corporation into or with,
any other corporation shall not be deemed to be a distribution of assets or a
dissolution, liquidation or winding up for the purposes of this paragraph.
(C) So long as any shares of the preference stock are outstanding, the
corporation shall not, without the affirmative vote in favor thereof of the
holders of at least a majority of the total voting power of the shares of
preference stock at the time outstanding voting together as a single class,
increase the authorized shares of preferred stock or Class A preferred stock or
authorize or create any other class of stock preferred as to dividends or assets
over the preference stock or change any of the rights and preferences of the
then outstanding preference stock in any manner so as to affect adversely the
holders thereof; provided, however, that if any such change would affect
adversely the holders of only one or more series of the preference stock, but
not other series of the preference stock, only the vote of the holders of at
least a majority of the total voting power of the outstanding shares of the
series so affected voting together as a single class shall be required; and
provided further that nothing in this paragraph contained shall authorize any
such authorization, creation or change by the vote of the holders of a less
number of shares of preference stock, or of any other class of stock, or of all
classes of stock, than is required for such authorization, creation or change by
the laws of the State of Georgia at the time applicable thereto.
Common Stock
There shall be a class of stock of the corporation designated common
stock and each share of common stock shall be equal to every other share of said
stock in every respect.
A-8
Voting Powers
At all elections of directors of the corporation, the holders of
preferred stock and Class A preferred stock shall have full voting rights with
the holders of common stock, all voting together as a single class; each holder
of preferred stock being entitled to one vote for each share thereof standing in
his name, each holder of Class A preferred stock being entitled to one-quarter
vote for each share thereof standing in his name, and each holder of common
stock being entitled to one vote for each share thereof standing in his name. In
addition, with the approval of the Board of Directors and the holders of a
majority of the outstanding shares of common stock, this Amended and Restated
Charter may be amended to provide that the holders of outstanding shares of any
series of preference stock may be entitled to full voting rights in the election
of directors, to vote together with the holders of common stock, preferred stock
and Class A preferred stock, with each holder of shares of any series of
preference stock to be entitled to such number of votes for each share of such
series not to exceed one-tenth of a vote for each share standing in his name.
On other matters, except on matters in respect of which the laws of the
State of Georgia shall provide that all stockholders shall have the right to
vote irrespective of whether such right shall have been relinquished by any of
such stockholders and except as otherwise herein provided, the holders of the
common stock shall have the exclusive right to vote.
Notwithstanding the foregoing, in the event that (1) with respect to
any series of non-cumulative preferred stock, Class A preferred stock or
preference stock, any six quarterly dividends (whether or not consecutive and
whether or not earned and declared), or (2) with respect to any series of
cumulative preferred stock, Class A preferred stock or preference stock, any six
consecutive quarterly dividends, in any case, have not been paid in full on such
series of preferred stock, Class A preferred stock or preference stock, the
holders of such series of preferred stock, Class A preferred stock or preference
stock will have the right, voting together as a single class with holders of
shares of any one or more other series of preferred stock, Class A preferred
stock or preference stock upon which like voting rights are then exercisable, at
the next meeting of stockholders called for the election of directors, to elect
two members of the Board of Directors of the corporation and the size of the
corporation's Board of Directors will be increased accordingly to effect such
election, with each holder of any series of preferred stock upon which such
voting rights are then exercisable to be entitled to one vote per share thereof
standing in his name, with each holder of any series of Class A preferred stock
upon which such voting rights are then exercisable being entitled to one-fourth
vote per share thereof standing in his name and with each holder of any series
of preference stock upon which such voting rights are then exercisable having
one-tenth vote per share thereof standing in his name.
The rights of such holders of any series of preferred stock, Class A
preferred stock or preference stock to elect (together as a single class with
the holders of shares of any one or more other series of preferred stock, Class
A preferred stock or preference stock upon which like voting rights are then
exercisable) members of the Board of Directors of the corporation will continue
until such time as (A) with respect to any series of non-cumulative preferred
stock, Class A preferred stock or preference stock, full dividends on such
series of preferred stock, Class A preferred stock or preference stock have been
paid or declared and set apart regularly for at least one year (i.e., four
consecutive full quarterly dividend periods), or (B) with respect to any series
of cumulative preferred stock, Class A preferred stock or preference stock, the
dividends in arrears and the current dividend on such series of preferred stock,
Class A preferred stock or preference stock shall have been paid or declared and
A-9
set aside for payment, at which time, in either case, such right will terminate,
subject to revesting in the event of a subsequent failure to pay dividends of
the character described above. Upon any termination of the right of the holders
of shares of preferred stock, Class A preferred and preference stock to vote as
a single class for the election of two additional directors, the term of office
of all directors then in office elected by such holders voting as a single class
will terminate immediately.
Whenever the right shall have accrued to the holders of shares of the
preferred stock, Class A preferred stock and preference stock to elect, as a
single class, two additional directors, it shall be the duty of the president, a
vice-president or the secretary of the corporation forthwith to call and cause
notice to be given to the stockholders entitled to vote at a meeting to be held
at such time as the officers of the corporation may fix, not less than
forty-five nor more than sixty days after the accrual of such right, for the
purpose of electing such directors. The notice so given shall be mailed to each
holder of record of each series of the preferred stock, Class A preferred stock
and preference stock upon which such voting rights are then exercisable at his
last known address appearing on the books of the corporation and shall set
forth, among other things, (i) that by reason of the fact that six quarterly
dividends payable on such series of the preferred stock, Class A preferred stock
or preference stock are in default, the holders of such series of the preferred
stock, Class A preferred stock or preference stock, voting together as a single
class with the holders of one or more other series of preferred stock, Class A
preferred stock or preference stock upon which like voting rights are then
exercisable, have the right to elect two additional members to the Board of
Directors of the corporation, (ii) that any such holder of the preferred stock,
Class A preferred stock or preference stock has the right, at any reasonable
time, to inspect, and make copies of, the list or lists of holders of the
preferred stock, Class A preferred stock or preference stock maintained at the
principal office of the corporation or at the office of any transfer agent of
the preferred stock, Class A preferred stock or preference stock, and (iii)
either the entirety of this section or the substance thereof with respect to the
number of shares of the preferred stock, Class A preferred stock or preference
stock required to be represented at any meeting or adjournment thereof called
for the election of directors of the corporation.
At the first meeting of stockholders held for the purpose of electing
such additional directors during such time as the holders of the preferred
stock, Class A preferred stock and preference stock have the special right,
voting together as a single class, to elect two additional directors to the
Board of Directors, the presence in person or by proxy of the holders of a
majority of the total voting power of the outstanding shares of preferred stock,
Class A preferred stock and preference stock for which the special right to
elect two additional directors is then exercisable shall be required to
constitute a quorum of such class for the election of such additional directors;
provided, however, that in the absence of a quorum of the holders of the
preferred stock, Class A preferred stock and preference stock for which the
special right to elect two additional directors is then exercisable, no election
of such additional directors shall be held, but the holders of a majority of the
total voting power of the shares of the preferred stock, Class A preferred stock
and preference stock for which the special right to elect two additional
directors is then exercisable who are present in person or by proxy shall have
power to adjourn the election of the directors to a date not less than fifteen
nor more than fifty days from the giving of the notice of such adjourned meeting
hereinafter provided for; and provided, further, that at such adjourned meeting,
the presence in person or by proxy of the holders of 35% of the total voting
A-10
power of the outstanding preferred stock, Class A preferred stock and preference
stock for which the special right to elect two additional directors is then
exercisable shall be required to constitute a quorum of such class for the
election of such additional directors.
In the event such first meeting of stockholders shall be so adjourned,
it shall be the duty of the president, a vice-president or the secretary of the
corporation, within ten days from the date on which such first meeting shall
have been adjourned, to cause notice of such adjourned meeting to be given to
the stockholders entitled to vote thereat, such adjourned meeting to be held not
less than fifteen nor more than fifty days from the giving of such second
notice. Such second notice shall be given in the form and manner hereinabove
provided for with respect to the notice required to be given of such first
meeting of stockholders, and shall further set forth that a quorum was not
present at such first meeting and that the holders of 35% of the total voting
power of the outstanding preferred stock, Class A preferred stock and preference
stock for which the special right to elect two additional directors is then
exercisable shall be required to constitute a quorum of such class for the
election of such additional directors at such adjourned meeting. If the
requisite quorum of holders of the preferred stock, Class A preferred stock and
preference stock for which the special right to elect two additional directors
is then exercisable shall not be present at said adjourned meeting, then the
directors of the corporation then in office shall remain in office until the
next annual meeting of the corporation, or special meeting in lieu thereof, and
until their successors shall have been elected and shall qualify.
Neither such first meeting nor such adjourned meeting shall be held on
a date within sixty days of the date of the next annual meeting of the
corporation or special meeting in lieu thereof. At each annual meeting of the
corporation, or special meeting in lieu thereof, held during such time as the
holders of one or more series of the preferred stock, Class A preferred stock
and preference stock, voting together as a single class, shall have the right to
elect two members to the Board of Directors, the foregoing provisions of this
paragraph shall govern such annual meeting, or special meeting in lieu thereof,
as if said annual meeting or special meeting were the first meeting of
stockholders held for the purpose of electing directors after the right of the
holders of such preferred stock, Class A preferred stock or preference stock,
voting together as a single class, to elect two members to the Board of
Directors, should have accrued, with the exception that if, at any adjourned
annual meeting, or special meeting in lieu thereof, 35% of the total voting
power of the preferred stock, Class A preferred stock and preference stock for
which the special right to elect two directors is then exercisable is not
present in person or by proxy, all the directors shall be elected by a vote of
the holders of a majority of the aggregate voting power of the outstanding
shares of common stock, preferred stock, Class A preferred stock and, if this
Amended and Restated Charter have been amended to provide that the holders of
preference stock shall have the right to vote generally in the election of
directors, the preference stock of the corporation present or represented at the
meeting.
For purposes of the foregoing provisions, and except as otherwise
provided in this Amended and Restated Charter or as otherwise required by law,
the preferred stock, the Class A preferred stock and the preference stock of all
series shall be deemed to be a single class and the relative voting power of
each series of preferred stock, Class A preferred stock and preference stock
shall be as follows: each holder of preferred stock shall be entitled to one
vote per share thereof standing in his name, each holder of Class A preferred
stock shall be entitled to one-fourth vote per share thereof standing in his
name and each holder of preference stock shall be entitled to one-tenth vote per
share thereof standing in his name.
A-11
Miscellaneous Provisions
The corporation may issue and dispose of any of its authorized shares
of stock for such consideration as may be fixed from time to time by the Board
of Directors subject to the laws of the State of Georgia then applicable and any
and all shares issued for the consideration so fixed shall be fully paid and
non-assessable.
Subject to any limitations elsewhere herein set forth, the corporation
may from time to time, out of its net profits or surplus earnings, purchase any
of its stock outstanding at such price as may be fixed by its Board of Directors
and accepted by the holders of the stock purchased.
The corporation shall be entitled to treat the person in whose name any
share, right or option is registered 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, right or option on the part of any other person, whether or not the
corporation shall have notice thereof, save as may be expressly provided by the
laws of the State of Georgia then applicable.
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/or net
profits of the corporation, or any other facts pertinent to the existence and
amount of surplus or other funds from which dividends might properly be declared
and paid.
No holder of any stock of this corporation shall be entitled as of
right to purchase or subscribe for any part of any unissued stock of this
corporation or of any additional stock of any class to be issued by reason of
any increase of the authorized capital stock of this corporation or of bonds,
certificates of indebtedness, debentures or other securities convertible into
stock of this corporation, but any such unissued stock or any such additional
authorized issue of new stock or of securities convertible into stock may be
issued and disposed of by the Board of Directors to such persons, firms,
corporations or associations and upon such terms as the Board of Directors may
in their discretion determine, without offering to the stockholders then of
record, or any class of stock holders, any thereof, on the same terms or on any
terms.
V. A director shall not be disqualified by his office from dealing or
contracting with the corporation either as a vendor, purchaser or otherwise, nor
shall any transaction or contract of the corporation be void or voidable by
reason of the fact that any director or any firm of which any director is a
member or any corporation of which any director is a shareholder or director, is
in any way interested in such transaction or contract, provided that such
transaction or contract is or shall be authorized, ratified or approved either
(1) by a vote of a majority of a quorum of the Board of Directors of the
corporation without counting in such majority or quorum any director so
interested or member of a firm so interested or a shareholder or director of a
corporation so interested, or (2) by the written consent, or by the vote at any
stockholders' meeting, of the holders of record of a majority of all the
outstanding shares of the common stock of the corporation; nor shall any
director be liable to account to the corporation for any profits realized by and
from or through any such transaction, or contract of the corporation authorized,
ratified or approved as aforesaid by reason of the fact that he or any firm of
which he is a member or any corporation of which he is a shareholder or
director, was interested in such transaction or contract. Nothing herein
contained shall create any liability in the events above described or prevent
A-12
the authorization, ratification or approval of such contracts in any other
manner provided by law.
VI. A director of the corporation shall not be personally liable to the
corporation or its shareholders for monetary damages for breach of the duty of
care or other duty as a director, except for liability (i) for any
appropriation, in violation of the director's duties, of any business
opportunity of the corporation, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of the law, (iii)
for the types of liability set forth in Section 14-2-832 or successor provisions
of the Georgia Business Corporation Code, or (iv) for any transaction from which
the director derived an improper personal benefit.
Any repeal or modification of the foregoing paragraph by the
shareholders of the corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time of such repeal
or modification.
VII. The street address of this corporation's registered office is 241 Xxxxx
XxXxxx Boulevard, NE, #B-10180, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx 00000, and the
name of its registered agent is Xxxxx Xxxxxx.
GEORGIA POWER COMPANY
By:
Name:
Title:
A-13
EXHIBIT B
(Form of Amendment to Designate the 6 1/8% Series Class A Preferred Stock)
B-1
AMENDMENT NO. 1 TO AMENDED AND RESTATED CHARTER
There is hereby added to the Amended and Restated Charter of the
corporation the following section immediately after the section of such Charter
entitled "Preferred Stock - Provision for Division Into and Issue in Series of
Class A Preferred Stock and Grant of Authority to Board of Directors" which
shall create such 6 1/8% Series Class A Preferred Stock, Non-Cumulative, Par
Value $25 Per Share, having the preferences, limitations and relative rights as
follows:
"6 1/8% SERIES CLASS A PREFERRED STOCK,
NON-CUMULATIVE, PAR VALUE $25 PER SHARE
There shall be a series of Class A preferred stock of the corporation
to consist initially of 1,800,000 shares with a par value of $25 per share,
designated as "6 1/8% Series Class A Preferred Stock, Non-Cumulative, Par Value
$25 Per Share" (the "6 1/8% Series Class A Preferred Stock"). The preferences,
limitations and relative rights of the shares of the 6 1/8% Series Class A
Preferred Stock in those respects in which the shares thereof may vary from the
shares of any other series of preference stock of the corporation shall be as
follows:
(a) Dividends. Out of any assets of the corporation available for
dividends, the holders of the 6 1/8% Series Class A Preferred Stock shall be
entitled to receive, from and after the date the 6 1/8% Series Class A Preferred
Stock is issued, but only when, as and if declared by the Board of Directors,
dividends at a rate of 6 1/8% per annum of the $25 par value of such shares.
Such holders shall be entitled to dividends at said rate so fixed, and no more.
Dividends declared shall be payable quarterly on January 1, April 1, July 1 and
October 1 in each year (each, a "Dividend Payment Date"), commencing on October
1, 2006, to stockholders of record on a date not more than 30 days prior to such
payment date, as may be determined by the Board of Directors of the corporation.
If a Dividend Payment Date is not a business day, the related dividend (if
declared) will be paid on the next succeeding business day with the same force
and effect as though paid on the Dividend Payment Date, without any increase to
account for the period from such Dividend Payment Date through the date of
actual payment. Dividends payable on the 6 1/8% Series Class A Preferred Stock
for the initial dividend period and any period less than a full dividend period
will be computed on the basis of a 360-day year consisting of twelve 30-day
months and the actual number of days elapsed in such period. Dividends on the 6
1/8% Series Class A Preferred Stock shall be non-cumulative and, accordingly, if
the Board of Directors of the corporation does not declare a dividend or
declares less than a full dividend on the 6 1/8% Series Class A Preferred Stock
for a quarterly dividend period, holders of the 6 1/8% Series Class A Preferred
Stock will have no right to receive a dividend or the full dividend, as the case
may be, for that period, and the corporation will have no obligation to pay a
dividend for that period, whether or not the corporation pays dividends in full
or has sufficient funds to pay dividends in the future.
B-2
(b) Redemption.
(i) The 6 1/8% Series Class A Preferred Stock shall not be
redeemable prior to July 1, 2009. On or after that date, subject to the notice
provisions set forth in subparagraph (ii) below and subject to any further
limitations which may be imposed by the Charter or by law, the corporation may
redeem the 6 1/8% Series Class A Preferred Stock, in whole or in part, at any
time or from time to time, out of funds legally available therefor, at a
redemption price equal to $25 per share plus an amount equal to the amount of
the accrued and unpaid dividend (whether or not declared) from the Dividend
Payment Date immediately preceding the redemption date to but excluding the
redemption date, but without accumulation of unpaid dividends on the 6 1/8%
Series Class A Preferred Stock for prior dividend periods. If less than all of
the outstanding shares of 6 1/8% Series Class A Preferred Stock are to be
redeemed, the corporation will select the shares to be redeemed from the
outstanding shares not previously called for redemption by lot or pro rata (as
nearly as possible) or by any other method that the Board of Directors in its
sole discretion deems equitable.
(ii) In the event the corporation shall determine to redeem
any or all of the 6 1/8% Series Class A Preferred Stock as aforesaid, the
corporation will give notice of any such redemption to holders of record of the
6 1/8% Series Class A Preferred Stock not more than 60 nor less than 30 days
prior to the date fixed by the Board of Directors for such redemption. Failure
to give notice to any holder of record of the 6 1/8% Series Class A Preferred
Stock shall not affect the validity of the proceedings for the redemption of
shares of any other holder of record of the 6 1/8% Series Class A Preferred
Stock being redeemed.
(iii) Notice having been given as herein provided, from and
after the redemption date, dividends on the 6 1/8% Series Class A Preferred
Stock called for redemption shall cease to accrue and such 6 1/8% Series Class A
Preferred Stock called for redemption will no longer be deemed outstanding, and
all rights of the holders thereof, other than the right to receive the
redemption price as herein provided, will cease.
(iv) Holders of the 6 1/8% Series Class A Preferred Stock will
have no right to require redemption of any shares of the 6 1/8% Series Class A
Preferred Stock.
(v) Any shares of the 6 1/8% Series Class A Preferred Stock
that are redeemed or retired shall thereafter have the status of authorized but
unissued shares of Class A preferred stock of the corporation undesignated as to
series, and may thereafter be reissued by the Board of Directors in the same
manner as any other authorized and unissued shares of Class A preferred stock.
B-3
(vi) If the corporation shall deposit on or prior to any date
fixed for redemption of the 6 1/8% Series Class A Preferred Stock, with any bank
or trust company having a capital, surplus and undivided profits aggregating at
least fifty million dollars ($50,000,000), as a trust fund, a fund sufficient to
redeem the shares called for redemption, with irrevocable instructions and
authority to such bank or trust company to pay on and after the date fixed for
redemption or such earlier date as the Board of Directors may determine, to the
respective holders of such shares, the redemption price thereof, then from and
after the date of such deposit (although prior to the date fixed for redemption)
such shares so called shall be deemed to be redeemed and dividends thereon shall
cease to accrue after said date fixed for redemption and such deposit shall be
deemed to constitute full payment of said shares to the holders thereof and
thereafter said shares shall no longer be deemed to be outstanding, and the
holders thereof shall cease to be stockholders with respect to such shares, and
shall have no rights with respect thereto except only the right to receive from
said bank or trust company payment of the redemption price of such shares
without interest.
(vii) In case the holder of any such 6 1/8% Series Class A
Preferred Stock shall not, within six years after said deposit, claim the amount
deposited as above stated for the redemption thereof, the bank or trust company
shall upon demand pay over to the corporation such amounts so deposited and the
bank or trust company shall thereupon be relieved from all responsibility to the
holder thereof. No interest on such deposit shall be payable to any such holder.
(viii) Nothing contained in this paragraph (b) shall limit any
legal right of the corporation to purchase or otherwise acquire any shares of
the 6 1/8% Series Class A Preferred Stock.
(c) Voluntary or Involuntary Liquidation. In the event of any
liquidation, dissolution or winding up of the corporation, whether voluntary or
involuntary, before any distribution shall be made to the holders of the
preference stock, common stock or any other class of stock over which the 6 1/8%
Series Class A Preferred Stock has preference as to the payment of dividends or
assets, the holders of the 6 1/8% Series Class A Preferred Stock, without any
preference over the holders of any other series of preferred stock or Class A
preferred stock, shall be entitled to receive $25 per share, plus accrued and
unpaid dividends (whether or not declared) for the then current quarterly
dividend period, accrued to but excluding the date of such liquidation payment,
but without accumulation of unpaid dividends on the 6 1/8% Series Class A
Preferred Stock for any prior dividend periods.
(d) Conversion or Exchange of the 6 1/8% Series Class A Preferred
Stock. The shares of the 6 1/8% Series Class A Preferred Stock shall not be, by
their terms, convertible or exchangeable.
(e) Sinking Fund. The shares of the 6 1/8% Series Class A Preferred
Stock shall not be, by their terms, entitled to the benefit of any sinking fund
or purchase fund."
B-4
