ARTICLES
OF INCORPORATION
OF
ENTERGY
ARKANSAS, INC.
These
Second Amended and Restated Articles of Incorporation, duly adopted pursuant to
the authority and provisions of Title 4, Chapter 27 of the Arkansas Code of 1987
Annotated, amend, restate, integrate and supersede the existing Amended and
Restated Articles of Incorporation and all amendments thereto.
FIRST:
Name
. The
name of the Corporation is Entergy Arkansas, Inc.
SECOND:
Adoption of Arkansas
Business Corporation Act
. The provisions of Title 4, Chapter
27 of the Arkansas Code of 1987 Annotated, as may be amended or otherwise
modified (the “Arkansas Business Corporation Act”), shall apply to the
Corporation and to these Second Amended and Restated Articles of
Incorporation.
THIRD:
Purposes
. The
purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the Arkansas Business Corporation
Act. The primary purpose for which the Corporation is organized,
which is provided for informational purposes-only and shall not limit the
purposes provided in the Arkansas Business Corporation Act, is to engage in the
business of constructing, holding, operating, and maintaining (i) telephone,
telegraph, radio, wireless and other systems, facilities, structures and devices
for the receipt and transmission of sounds and signals, (ii) inter-urban, city
and street railways, railroads, and bus lines, and (iii) systems, facilities,
structures and devices for the manufacture, production, transmission,
distribution, control, storage, purchase, sale, supply and application of
electricity, gas, water, steam, ice, refrigeration, and power.
FOURTH:
Powers
. The
Corporation shall have and exercise all of the powers conferred upon
corporations by virtue of their existence under, and as authorized by, the
Arkansas Business Corporation Act.
FIFTH:
Authorized Shares and Rights
of Shareholders
.
(a) The
total number of shares of capital stock which the Corporation shall have
authority to issue is 352,730,000, which shall consist of one class of
325,000,000 shares of common stock of the par value of $0.01 per share (“Common
Stock”) and three classes of preferred stock consisting of 15,000,000 shares of
preferred stock of the par value of $0.01 per share (“Class A Preferred Stock”),
3,730,000 shares, of preferred stock of the par value of $100 per share (“$100
Preferred Stock”), and 9,000,000 shares of preferred stock of the par value of
$25 per share (“$25 Preferred Stock”), which three classes of preferred stock
may be collectively referred to as “Preferred Stock.”
(b) The
Board of Directors of the Corporation is authorized, subject to the limitations
prescribed by the Arkansas Business Corporation Act and the provisions of this
Article FIFTH, to provide for the issuance of the shares of Preferred Stock in
series, and, by filing articles of amendment and restatement pursuant to the
Arkansas Business Corporation Act, to establish from time to time the number of
shares to be included in each such series and to fix the designation, powers,
preferences and rights of the shares of each such series and the qualifications,
limitations or restrictions thereof. The authority of the Board of
Directors with respect to each such series shall include determination of only
the following:
(1) The
number of shares constituting that series and the distinctive designation of
that series;
(2) The
dividend rate, or the method of calculation thereof, on the shares of that
series, the dates on which dividends shall be paid in each year or the method of
determination thereof, and the date from which such dividends shall commence to
accumulate;
(3) Whether
that series shall have conversion privileges, and, if so, the terms and
conditions of such conversion, including provision for adjustment of the
conversion rate in such events as the Board of Directors shall
determine;
(4) Whether
or not the shares of that series shall be redeemable, and, if so, the terms and
conditions of such redemption, including the date or dates upon or after which
they shall be redeemable, and the amount per share payable in case of
redemption, which amount may vary under different conditions and at different
redemption dates;
(5) Whether
that series shall have a sinking fund for the redemption or purchase of shares
of that series, and, if so, the terms and amount of such sinking fund;
and
(6) The
amount payable on the shares of that series in the event of voluntary or, in the
case of the Class A Preferred stock, involuntary liquidation, dissolution or
winding up of the Corporation.
The Class
A Preferred Stock, the $100 Preferred Stock and the $25 Preferred Stock shall
have the same rank and shall be identical with each other, except as to matters
relating to the par values thereof, the variations between the respective series
thereof, and the voting entitlement of the respective shares thereof in cases
when the shares of two or more classes of Preferred Stock are required to vote
together as a voting group or one or more classes of Preferred Stock are
required to vote together with the Common Stock as a voting
group. The shares of all series within a class of Preferred Stock
shall have the same rank, shall be identical with each other, and shall have the
same relative rights, except as to those characteristics described in clauses l
through 6 above.
(c) Subject
to the foregoing, the distinguishing characteristics of the Preferred Stock
shall be:
(1) Each
series of the Preferred Stock,
pari
passu
with all shares
of Preferred Stock of any class or series then outstanding, shall be entitled,
but only when and as declared by the Board of Directors out of funds legally
available for the payment of dividends, in preference to the Common Stock, to
dividends at the rate stated and expressed with respect to such series by these
Second Amended and Restated Articles of Incorporation or by the articles of
amendment and restatement creating such series; such dividends to be cumulative
from such date and payable on such dates in each year as may be stated and
expressed in these Second Amended and Restated Articles of Incorporation or such
articles of amendment and restatement to stockholders of record as of a date not
to exceed forty (40) days and not less than ten (10) days preceding the dividend
payment dates so fixed.
(2) (A) When
dividends payable on any shares of the Preferred Stock at any time outstanding
shall be in arrears in an amount equal to or greater than the aggregate
dividends accumulated on the outstanding Preferred Stock in any period of twelve
(12) months, and thereafter until all dividends on any such Preferred Stock in
arrears shall have been paid or declared and set apart for payment, the holders
of Preferred Stock, voting together as a voting group, to the exclusion of the
holders of Common Stock, shall be entitled to elect the smallest number of
directors necessary to constitute a majority of the full Board of Directors (the
“Preferred Directors”), and except as provided in subparagraph (B) below, the
holders of Common Stock, voting together as a voting group, to the exclusion of
the holders of Preferred Stock, shall be entitled to elect the remaining
directors of the Corporation (the “Remaining Directors”). The terms
of office, as directors, of all persons who may be directors of the Corporation
at the time shall terminate upon the election of the Preferred Directors, except
that if the holders of Common Stock shall not have elected the Remaining
Directors then, and only in that event, the directors of the Corporation in
office just prior to the election of the Preferred Directors shall elect the
Remaining Directors. Thereafter, while such arrearage continues, the
Remaining Directors, whether elected by directors, as aforesaid, or whether
originally or later elected by holders of the Common Stock, shall continue in
office until their successors are elected by holders of the Common Stock and
shall qualify.
(B) Accumulations
of dividends on any shares of the Preferred Stock shall not bear
interest. If and when all dividends in arrears on the Preferred Stock
shall be paid in full, or declared and set apart for payment (such dividends to
be declared and paid out of any funds legally available therefor as soon as
reasonably practicable), the holders of the Preferred Stock shall be divested of
any special right with respect to the election of directors, and the voting
power of the holders of the Preferred Stock and the holders of the Common Stock
shall revert to the status existing before the vesting of such special voting
right in the holders of the Preferred Stock, but always subject to the same
provisions for vesting such special rights in the holders of the Preferred Stock
in case of further like arrearage or arrearages in the payment of dividends
thereon as described in subparagraph (A) above. When all dividends in
arrears on the Preferred Stock shall have been paid in full, or declared and set
apart for payment, the terms of office of all Preferred Directors shall
forthwith terminate, and the resulting vacancies shall be filled by the vote of
a majority of the Remaining Directors.
(C) Except
as provided in Article SEVENTH hereof, in case of any vacancy in the office of a
director occurring among the Preferred Directors the remaining Preferred
Directors by affirmative vote of a majority thereof, or the remaining Preferred
Director, if there be but one, may elect a successor or successors to hold
office for the unexpired term or terms of the Preferred Director or Directors
whose place or places shall be vacant. Likewise, except as provided
in Article SEVENTH hereof, in case of any vacancy in
the office of a
director occurring among the Remaining Directors the holders of the Common
Stock, by affirmative vote of a majority thereof, shall elect a successor or
successors to hold office for the unexpired term or terms of the Remaining
Director or Director whose place or places shall be vacant.
(D) Whenever
the right shall have accrued to the holders of the Preferred Stock to elect
directors it shall be the duty of the President, a Vice-President or the
Secretary of the Corporation 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
Corporation’s officers may fix, not less than forty-five (45) nor more than
ninety (90) days after the accrual of such right, for the purpose of electing
directors. The notice so given shall be mailed to each holder of
record of Preferred Stock 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 dividends payable on any shares of Preferred Stock are in arrears
in an amount equal to or greater than the aggregate dividends accumulated on the
outstanding Preferred Stock in any period of twelve (12) months, the holders of
Preferred Stock, voting together as a voting group, to the exclusion of holders
of Common Stock, have the right to elect the smallest number of directors
necessary to constitute a majority of the full Board of Directors of the
Corporation, (ii) that any holder of the Preferred Stock has the right, at any
reasonable time, to inspect, and make copies of, the list or lists of holders of
Preferred Stock maintained at the principal office of the Corporation or at the
office of any Transfer Agent of the Preferred Stock, and (iii) either the
entirety of this paragraph (2) or the substance thereof with respect to the
number of shares of the Preferred 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 directors during such time as the holders of the Preferred
Stock shall have the special right to elect directors (“First Meeting”), the
presence in person or by proxy of the holders of a majority of the votes
entitled to be cast by the Common Stock shall be required to constitute a quorum
of such voting group for the election of directors, and the presence in person
or by proxy of the holders of a majority of the votes entitled to be cast by the
Preferred Stock shall be required to constitute a quorum of such voting group
for the election of directors; provided, however, that in the absence of a
quorum of the holders of the Preferred Stock, no election of directors shall be
held, but the holders of a majority of the votes entitled to be cast by the
Preferred Stock which are represented at the meeting shall have power to adjourn
the election of the directors to a date not less than fifteen (15) nor more than
fifty (50) days from the giving of the notice of such adjourned meeting
hereinafter provided for (“Adjourned Meeting”); and provided, further, that at
such Adjourned Meeting the presence in person or by proxy of the holders of
thirty-five percent (35%) of the votes entitled to be cast by the Preferred
Stock shall be required to constitute a quorum of such voting group far the
election of 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 (10) 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 (15) days nor
more than fifty (50) 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 thirty-five percent (35%) of the votes
entitled to be cast by the Preferred Stock shall be required to constitute a
quorum of such voting group for the election of directors at such Adjourned
Meeting. If the requisite quorum of holders of the Preferred Stock
shall not be present at such 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 ninety
(90) days before 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 the Preferred Stock shall have the right to elect Preferred
Directors, the foregoing provisions of this paragraph (2) shall govern each
Annual Meeting, or special meeting in lieu thereof, as if such Annual Meeting or
special meeting were the First Meeting; provided that if at any adjourned annual
meeting, or special meeting in lieu thereof, the holders of at least thirty-five
percent (35%) of the votes entitled to be cast by the Preferred Stock shall not
be represented at the meeting, all the directors shall be elected by a vote of
the holders of the Common Stock of the Corporation represented at the
meeting.
(3) So
long as any shares of the Preferred Stock are outstanding, the Corporation shall
not, without the consent (given by vote at a meeting called for that purpose) of
the holders of at least two-thirds (2/3) of the votes entitled to be cast by the
Preferred Stock, voting together as a voting group:
(A) create,
authorize or issue any new stock which after issuance would rank prior to the
Preferred Stock as to dividends or distributions or in liquidation, dissolution,
or winding up, or create, authorize or issue any security convertible into
shares of any such stock except for the purpose of providing funds for the
redemption of all of the Preferred Stock then outstanding, such new stock or
security not to be issued until such redemption shall have been authorized and
notice of such redemption given and the aggregate redemption price deposited as
provided in paragraph (7) below; provided, however, that any such new stock or
security shall be issued within twelve (12) months after the vote of the
Preferred Stock herein provided for authorizing the issuance of such new Stock
or security; or
(B) amend,
alter or repeal any of the rights, preferences or powers of the holders of the
Preferred Stock so as to affect adversely any such rights, preferences or
powers; provided, however, that if such amendment, alteration or repeal affects
adversely the rights, preferences or powers of one or more, but not all, series
of Preferred Stock at the time outstanding, only the consent of the holders of
at least two-thirds (2/3) of votes entitled to be cast by the shares of all
series so affected, voting together as a voting group, shall be required; and
provided, further, that an amendment to increase or decrease the authorized
amount of Preferred Stock or to create or authorize or increase or decrease the
amount of any class of stock ranking on a parity with the outstanding shares of
the Preferred Stock as to dividends or assets shall not be deemed to affect
adversely the rights, preferences or powers of the holders of the Preferred
Stock or any series thereof.
(4) So
long as any shares of the Preferred Stock are outstanding, the Corporation shall
not, without the consent (given at a meeting called for that purpose) of the
holders of a majority of the votes entitled to be cast, in the case of
Subparagraphs (A), (C) and (D) following, by the Preferred Stock, voting
together as a voting group, and, in the case of Subparagraph (B) following, by
the $100 Preferred Stock and the Class A Preferred Stock, voting together as a
voting group:
(A) merge
or consolidate with or into any other corporation or sell or otherwise dispose
of all or substantially all of its assets unless such merger, consolidation,
sale or other disposition or the issuance or assumption of securities in the
effectuation thereof shall have been ordered or approved under the Public
Utility Holding Company Act of 1935, as amended, or as may be amended (“Public
Utility Holding, Company Act”);
(B) issue
or assume any unsecured notes, debentures or other securities representing
unsecured debt (other than for the purpose of refunding or renewing outstanding
unsecured securities issued or assumed by the Corporation resulting in equal or
longer maturities or redeeming or otherwise retiring all outstanding shares of
the Preferred Stock) if immediately after such issue or assumption (i) the total
outstanding principal amount of all unsecured notes, debentures or other
securities representing unsecured debt of the Corporation will thereby exceed
twenty percent (20%) of the aggregate of all existing secured debt of the
Corporation and the capital stock, premiums thereon, and surplus of the
Corporation, as stated on its books, or (ii) the total outstanding principal
amount of all unsecured notes, debentures, or other securities representing
unsecured debt of the Corporation of maturities of less than ten (10) years will
thereby exceed ten percent (10%) of such aggregate. For the purposes
of this subparagraph (B), the payment due upon the maturity of unsecured debt
having an original single maturity in excess of ten (10) years or the payment
due upon the final maturity of any unsecured serial debt which had original
maturities in excess of ten (10) years shall not be regarded as unsecured debt
of a maturity of less than ten (10) years until such payment shall be required
to be made within three (3) years;
(C) issue,
sell, or otherwise dispose of any shares of the Preferred Stock or of any other
class of stock ranking on a parity with the Preferred Stock as to dividends or
distributions or in liquidation, dissolution, or winding up (other than for the
purpose of refinancing an equal par amount of the $100 or $25 Preferred Stock or
an equal liquidation value amount of the Class A Preferred Stock or of stock
ranking prior to or on a parity with the Preferred Stock as to dividends or
distributions or in liquidation, dissolution, or winding up) unless the gross
income of the Corporation for a period of twelve (12) consecutive calendar
months within a period of fifteen (15) calendar months immediately preceding the
calendar month of the issuance, sale or disposition of such stock, determined in
accordance with generally accepted accounting principles (but in any event after
deducting all taxes and the greater of (i) the amount for said period charged by
the Corporation on its books to depreciation expense or (ii) the largest amount
then required to be provided therefor by any mortgage indenture of the
Corporation), shall have been at least one and one-half times the sum of (a) the
annual interest charges on all bonds, debentures, notes and other securities
representing indebtedness of the Corporation and (b) the annual dividend
requirements on all outstanding shares of the Preferred Stock and of all other
classes of stock ranking prior to, or on a parity with, the Preferred Stock as
to dividends or distributions, including the shares proposed to be issued
computed at the initial rate applicable at the time of issuance; provided, that
there shall be excluded from the foregoing computation interest charges on all
indebtedness and dividends on all shares of stock which are to be retired in
connection with the issue of such additional shares of the Preferred Stock or
other class of stock ranking prior to, or on a parity with, the Preferred Stock
as to dividends or distributions; and provided, further, that if any such
indebtedness or stock bears interest or provides for dividends at a variable
rate, then the interest or dividends on such indebtedness or stock shall be
computed at the average annual rate in effect for such indebtedness or stock
during the period of twelve (12) consecutive calendar months (or any portion
thereof in which such indebtedness or stock is outstanding) being used for the
calculation of gross income, and if such indebtedness or stock has been issued
after the end of such twelve (12) consecutive calendar months, then computed at
the initial rate applicable at the time of issuance; and provided, further, that
in any case where such additional shares of the Preferred Stock, or other class
of stock ranking prior to, or on a parity with, the Preferred Stock as to
dividends or distributions, are to be issued in connection with the acquisition
of additional property, the gross income of the property to be so acquired,
computed on the same basis as the gross income of the Corporation, may be
included on a pro forma basis in making the foregoing computation;
or
(D) issue,
sell, or otherwise dispose of any shares of the Preferred Stock, or of any other
class of stock ranking on a parity with the Preferred Stock as to dividends or
distributions, unless the aggregate of the capital of the Corporation applicable
to the Common Stock and the surplus of the Corporation shall be not less than
the aggregate amount payable on the involuntary liquidation, dissolution or
winding up of the Corporation in respect of all shares of the Preferred Stock
and all shares of stock, if any, ranking prior thereto, or on a parity
therewith, as to dividends or distributions, which will be outstanding after the
issue of the shares proposed to be issued; provided, that if, for the purposes
of meeting the requirements of this subparagraph (D), it becomes necessary to
take into consideration any earned surplus of the Corporation, the Corporation
shall not thereafter pay any dividends on shares of the Common Stock which would
result in reducing the Corporation’s Common Stock Equity (as in paragraph (8)
hereinafter defined) to an amount less than the aggregate amount payable, on
involuntary liquidation, dissolution or winding up of the Corporation, on all
shares of the Preferred Stock and of any stock ranking prior to, or on a parity
with, the Preferred Stock, as to dividends or other distributions, at the time
outstanding.
(5) Each
holder of Common Stock of the Corporation shall be entitled to one vote for each
share of such stock standing in his name on the books of the
Corporation. Except as hereinbefore expressly provided in this
Article FIFTH and as may otherwise be required by law, the holders of Preferred
Stock shall have no power to vote and shall be entitled to no notice of any
meeting of the stockholders of the Corporation. As to those matters
upon which holders of Common Stock, the Class A Preferred Stock, the $100
Preferred Stock and the $25 Preferred Stock are entitled to vote as separate
voting groups, each holder of such stock shall be entitled to one vote for each
share of such stock standing in his name on the books of the
Corporation. As to those matters upon which holders of the Class A
Preferred Stock, the $100 Preferred Stock, and the $25 Preferred Stock shall be
required to vote as a single voting group, each holder of Class A Preferred
Stock shall be entitled to the number of votes per share produced by dividing
the liquidation value of such share by $100, each holder of $100 Preferred Stock
shall be entitled to one vote for each share of such stock standing in his name
on the books of the Corporation, and each holder of $25 Preferred Stock shall be
entitled to one-quarter (l/4) vote for each share of such stock standing in his
name on the books of the Corporation. As to those matters upon which
the holders of Common Stock and the holders of Preferred Stock shall be required
to vote together as a single voting group, each holder of Common Stock shall be
entitled to one vote for each share of such stock standing in his name on the
books of the Corporation, each holder of Class A Preferred Stock shall be
entitled to the number of votes per share produced by dividing the liquidation
value of such share by $100, each holder of $100 Preferred Stock shall be
entitled to one vote for each share of such stock standing in his name on the
books of the Corporation, and each holder of $25 Preferred Stock shall be
entitled to one-quarter (l/4) vote for each share of such stock standing in his
name on the books of the Corporation.
(6) In
the event of any voluntary liquidation, dissolution or winding up of the
Corporation, the Preferred Stock, all shares of which then outstanding being
treated
pari
passu
, shall
have a preference over the Common Stock until an amount equal to the then
current redemption price shall have been paid. In the event of any
involuntary liquidation, dissolution or winding up of the Corporation, which
shall include any such liquidation, dissolution or winding up that may arise out
of or result from the condemnation or purchase of all or a major portion of the
properties of the Corporation by (i) the United States Government or any
authority, agency or instrumentality thereof, (ii) a state of the United States
or any political subdivision, authority, agency, or instrumentality thereof, or
(iii) a district, cooperative or other association or entity not organized for
profit, the Preferred Stock, all shares of which then outstanding being treated
pari
passu
, shall also
have a preference over the Common Stock until the full par value thereof, in the
case of the $100 Preferred Stock and the $25 Preferred Stock, and the full
liquidation value thereof, in the case of the Class A Preferred Stock, and an
amount equal to all accumulated and unpaid dividends thereon shall have been
paid by dividends or distribution.
(7) (A) The
Corporation may at any time (except to the extent redemption is restricted
herein or in the articles of amendment and restatement creating a series of the
Preferred Stock) redeem all of any series of the Preferred Stock or may from
time to time (except to the extent so restricted) redeem any part thereof, by
paying in cash the redemption price then applicable thereto as stated and
expressed with respect to such series herein or in the articles of amendment and
restatement providing for the issue of such shares, plus, in each case, an
amount equivalent to the accumulated and unpaid dividends, if any, to the date
of redemption. Notice of the intention of the Corporation to redeem
all or any part of the Preferred Stock shall be mailed not less than thirty (30)
days nor more than sixty (60) days before the date of redemption to each holder
of record of Preferred Stock to be redeemed, at his last known address as shown
by the Corporation’s records, and not less than thirty (30) days’ nor more than
sixty (60) days’ notice of such redemption may be published in such manner as
may be prescribed by resolution of the Board of Directors of the Corporation;
and, in the event of such publication, no defect in the mailing of such notice
shall affect the validity of the proceedings for the redemption of any shares of
Preferred Stock so to be redeemed. Contemporaneously with the mailing
or the publication of such notice as aforesaid or at any time thereafter prior
to the date of redemption, the Corporation may deposit the aggregate redemption
price (or the portion thereof not already paid in the redemption of such
Preferred Stock so to be redeemed) with any bank or trust company in the City of
New York, New York, or in the City of Little Rock, Arkansas, or in the City of
Pine Bluff, Arkansas, named in such notice, payable to the order of the record
holders of the Preferred Stock so to be redeemed, as the case may be, on the
endorsement and surrender of their certificates, and thereupon said holders
shall cease to be stockholders with respect to such shares; and from and after
the making of such deposit such holders shall have no interest in or claim
against the Corporation with respect to such shares, but shall be entitled only
to receive such moneys from such bank or trust company deposited as in this
paragraph (7) provided, on endorsement and surrender of their certificates, as
aforesaid. Such moneys may be invested in such securities as are then
legal investments for such bank or trust company and the earnings, if any,
thereon shall be paid to or at the direction of the Corporation. Any
moneys so deposited, plus interest thereon, if any, remaining unclaimed at the
end of four (4) years from the date fixed for redemption, if thereafter
requested by resolution of the Board of Directors, shall be repaid to the
Corporation, and in the event of such repayment to the Corporation, such holders
of record of the shares so redeemed as shall not have made claim against such
moneys prior to such repayment to the Corporation, shall be deemed to be
unsecured creditors of the Corporation for an amount, without interest,
equivalent to the amount deposited, as above stated, for the redemption of such
shares and so paid to the Corporation. The Corporation shall not be
obligated to keep such moneys repaid to the Corporation separate and apart from
other funds of the Corporation. Shares of the Preferred Stock which
have been redeemed shall not be reissued as part of the same series as
originally issued, but shall revert to the status of authorized but unissued
shares of Preferred Stock of the same class, which may thereafter be reissued as
part of a new series of preferred stock of the same class in accordance with the
terms of these Second Amended and Restated Articles of
Incorporation. If less than all of the shares of a series of the
Preferred Stock are to be redeemed, the shares thereof to be redeemed, unless
otherwise provided in these Second Amended and Restated Articles of
Incorporation or the articles of amendment and restatement creating such series,
shall be selected by lot, in such manner as the Board of Directors of the
Corporation shall determine, by an independent bank or trust company selected
for that purpose by the Board of Directors of the Corporation.
(B) Nothing
herein contained shall limit any legal right of the Corporation to purchase or
otherwise acquire any shares of the Preferred Stock; provided, however, that if
at any time it shall have failed to pay dividends in full on any outstanding
shares of the Preferred Stock, thereafter and until dividends in full on all
shares of the Preferred Stock outstanding shall have been paid, or declared and
set aside for payment, for all past quarter-yearly dividend periods, it shall
not (i) acquire any shares of the Preferred Stock (except by redemption of all
shares of the Preferred Stock) unless approval is obtained under the Public
Utility Holding Company Act, or (ii) make any payment or set aside any funds for
payment into any sinking fund for the purchase or redemption of any shares of
the Preferred Stock unless approval is obtained under the Public Utility Holding
Company Act. Any shares of the Preferred Stock so redeemed, purchased
or acquired shall not be reissued as part of the same series as originally
issue, but shall revert to the status of authorized but unissued shares of
Preferred Stock of the same class, which shares may thereafter be reissued as
part of a new series of Preferred Stock of the same class in accordance with the
terms of these Second Amended and Restated Articles of
Incorporation.
(8) For
the purposes of this paragraph (8) and subparagraph (D) of paragraph (4) the
term “Common Stock Equity” shall mean the aggregate of (i) the par value of, or
stated capital represented by, the outstanding shares (other than shares owned
by the Corporation) of stock ranking junior to the Preferred Stock as to
dividends and assets, (ii) the premium on such junior stock and (iii) the
surplus (including earned surplus, capital surplus and surplus invested in
plant) of the Corporation less (unless the amounts or items are being amortized
or are being provided for by reserves) (a) any amounts recorded on the books of
the Corporation for utility plant and other plant in excess of the original cost
thereof, (b) unamortized debt discount and expense, capital stock discount and
expense and any other intangible items set forth on the asset side of the
balance sheet as a result of accounting convention, (c) the excess, if any, of
the aggregate amount payable on involuntary liquidation, dissolution or winding
up of the affairs of the Corporation upon all outstanding Preferred Stock of the
Corporation over the aggregate par or stated value thereof and any premiums
thereon, and (d) the excess, if any for the period beginning with January 1,
1954 to the end of a month within ninety (90) days preceding the date as of
which Common Stock Equity is determined, of the cumulative amount computed under
requirements contained in the Corporation’s mortgage indentures relating to
minimum depreciation provisions (this cumulative amount being the aggregate of
the largest amounts separately computed for entire periods of differing
coexisting mortgage indenture requirements), over the amount charged by the
Corporation on its books for depreciation during such period, including the
final fraction of a year. For the purpose of this paragraph (8): (i)
the term “Total Capitalization” shall mean the sum of the Common Stock Equity
plus item (c) in this paragraph (8) plus the stated capital applicable to, and
any premium on, outstanding stock of the Corporation not included in Common
Stock Equity, plus the principal amount of all outstanding bonds, debentures,
notes and other securities representing indebtedness of the Corporation maturing
more than twelve months after the date of the determination of the Total
Capitalization; and (ii) the term “dividends on Common Stock” shall include
dividends on Common Stock (other than dividends payable only in shares of Common
Stock), distributions on, and purchases or other acquisitions for value of, any
Common Stock of the Corporation or other stock, if any, subordinate to Preferred
Stock as to dividends or other distributions. So long as any shares
of the Preferred Stock are outstanding, the Corporation shall not declare or pay
any dividends on the Common Stock, except as follows:
(A) If
and so long as the Common Stock Equity at the end of the calendar month
immediately preceding the date on which a dividend on Common Stock is declared
is, or as a result of such dividend would become, less than twenty percent (20%)
of Total Capitalization, the Corporation shall not declare such dividend in an
amount which, together with all other dividends on Common Stock paid within the
year ending with and including the date on which such dividend is payable,
exceeds fifty percent (50%) of the net income of the Corporation available for
dividends on the Common Stock for the twelve (12) full calendar months
immediately preceding the month in which such dividend is declared, except that
the Corporation may at any time declare a dividend in an amount not exceeding
the aggregate of dividends on Common Stock which under the restrictions set
forth above in this subparagraph (A) could have been, and have not been,
declared; and
(B) If
and so long as the Common Stock Equity at the end of the calendar month
immediately preceding the date on which a dividend on Common Stock is declared
is, or as a result of such dividend would become, less than twenty-five percent
(25%) but not less than twenty percent (20%) of Total Capitalization, the
Corporation shall not declare such dividend on the Common Stock in an amount
which, together with all other dividends on Common Stock paid within the year
ending with and including the date on which such dividend is payable, exceeds
seventy-five percent (75%) of the net income of the Corporation available for
dividends on the Common Stock for the twelve (12) full calendar months
immediately preceding the month in which such dividend is, declared, except that
the Corporation may at any time declare dividends in an amount not exceeding the
aggregate of dividends on Common Stock which under the restrictions set forth
above in subparagraph (A) and in this subparagraph (B) could have been, and have
not been, declared; and
(C) At
any time when the Common Stock Equity is twenty-five percent (25%) or more of
Total Capitalization, the Corporation may not declare dividends on shares of the
Common Stock which would reduce the Common Stock Equity below twenty-five
percent (25%) of Total Capitalization, except to the extent provided in
subparagraphs (A) and (B) above.
At any
time when the aggregate of all amounts credited subsequent to January 1, 1954 to
the depreciation reserve account of the Corporation through charges to operating
revenue deductions or otherwise on the books of the Corporation (other than
transfers out of the balance of surplus as of December 31, 1953) shall be less
than the amount computed as provided in clause (i) below, under requirements
contained in the Corporation’s mortgage indentures, then for the purposes of
subparagraphs (A) and (B) above, in determining the earnings available for
Common Stock dividends during any twelve-month period, the amount to be provided
for depreciation in that period shall be (i) the greater of the cumulative
amount charged to depreciation expense on the books of the Corporation or the
cumulative amount computed under requirements contained in the Corporation’s
mortgage indentures relating to minimum depreciation provisions (the latter
cumulative amount being the aggregate of the largest amounts separately computed
for entire periods of differing coexisting mortgage indenture requirements) for
the period from January l, 1954 to and including any such twelve-month period,
less (ii) the greater of the cumulative amount charged to depreciation expense
on the books of the Corporation or the cumulative amount computed under
requirements contained in the Corporation’s mortgage indentures relating to
minimum depreciation provisions (the latter cumulative amount being the
aggregate of the largest amounts separately computed for entire periods of
differing coexisting mortgage indenture requirements) from January l, 1954 up to
but excluding any such twelve-month period; provided that in the event any
company is merged into the Corporation the “cumulative amount computed under
requirements contained in the Corporation’s mortgage indentures relating to
minimum depreciation provisions” referred to above shall be computed without
regard, for the period prior to the merger, of property acquired in the merger,
and the “cumulative amount charged to depreciation expense on the books of the
Corporation” shall be exclusive of amounts provided for such property prior to
the merger.
(9) Dividends
may be paid upon the Common Stock only when (i) dividends have been paid or
declared and funds set apart for the payment of dividends as aforesaid on the
Preferred Stock from the date(s) after which dividends thereon became
cumulative, to the beginning of the period then current, with respect to which
such dividends on the Preferred Stock are usually declared, and (ii) all
payments have been made or funds have been set aside for payments then or
theretofore due under the terms of sinking fund requirements (if any) for the
purchase or redemption of shares of any series of the Preferred Stock, but
whenever (a) there shall have been paid or declared and funds shall have been
set apart for the payment of all such dividends upon the Preferred Stock as
aforesaid and (b) all payments shall have been made or funds shall have been set
aside for payments then or theretofore due under the terms of sinking fund
requirements (if any) for the purchase or redemption of shares of any series of
the Preferred Stock, then, subject to the limitations above set forth, dividends
upon the Common Stock may be declared payable then or thereafter, out of funds
legally available for payment of dividends. After the payment of the
limited dividends and/or shares in distribution of assets to which the Preferred
Stock is expressly entitled in preference to the Common Stock, the Common Stock
(subject to the rights of any class of stock hereafter authorized) shall receive
all further dividends and shares in distribution.
(10) Subject
to the limitations hereinabove set forth, the Corporation, from time to time,
may resell any of its own stock, purchased or otherwise acquired by it as
hereinafter provided for, at such price as may be fixed by its Board of
Directors.
(11) Subject
to the limitations hereinabove set forth, the Corporation, in order to acquire
funds with which to redeem any outstanding Preferred Stock of any class, may
issue and sell stock of any class then authorized but unissued, bonds, notes,
evidences of indebtedness, or other securities.
(12) Subject
to the limitations hereinabove set forth, and except to the extent that
conversions, participations or other special rights are established with respect
to any series of Preferred Stock by the Board of Directors as hereinabove
provided, the Board of Directors of the Corporation may at any time authorize
the conversion or exchange of the whole or any particular part of the
outstanding Preferred Stock of any class, with the consent of the holders
thereof, into or for stock of any other class at the time of such consent
authorized but unissued and may fix the terms and conditions upon which such
conversion or exchange may be made; provided that without the consent of the
holders of record of two-thirds (2/3) of the votes represented by shares of
Common Stock outstanding given at a meeting of the holders of the Common Stock
called and held as provided by the Bylaws or given in writing without a meeting,
the Board of Directors shall not authorize the conversion or exchange of any
Preferred Stock of any class into or for Common Stock or authorize the
conversion or exchange of any Preferred Stock of any class into or for Preferred
Stock of any other class if by such conversion or exchange the amount which the
holders of the shares of stock so converted or exchanged would be entitled to
receive either as dividends or shares in distribution of assets in preference to
the Common Stock would be increased.
(13) A
consolidation, merger or amalgamation of the Corporation with or into any other
corporation or corporations shall not be deemed a distribution of assets of the
Corporation within the meaning of any provisions of these Second Amended and
Restated Articles of Incorporation.
(14) If
any provision in this Article FIFTH shall be in conflict or inconsistent with
any other provision of these Second Amended and Restated Articles of
Incorporation, the provisions of this Article FIFTH shall prevail and
govern.
(15) No
holder of any stock of the Corporation shall be entitled as of right to purchase
or subscribe for any part of any stock of the Corporation authorized by these
Second Amended and Restated Articles of Incorporation or of any additional stock
of any class to be issued by reason of any increase of the authorized capital
stock of the Corporation or of any bonds, certificates of indebtedness,
debentures or other securities convertible into stock of the
Corporation.
(16) 70,000
shares of the Corporation’s $100 Preferred Stock authorized in paragraph (a) of
this Article FIFTH shall consist of a series of the $100 Preferred Stock of the
Corporation which shall:
(A) be
designated “4.32% Preferred Stock, Cumulative, $100 Par Value”;
(B) have
a dividend rate of $4.32 per share per annum payable quarterly on January 1,
April 1, July 1, and October 1 of each year, the first dividend date to be July
1, 1954 and such dividend date to be July 1, 1954 and such dividends to be
cumulative from April 1, 1954; and
(C) be
subject to redemption in the manner provided with respect to the Corporation’s
Preferred Stock, Cumulative, $100 par value, in these Second Amended and
Restated Articles of Incorporation, as may be amended, at the price of $106.147
per share if redeemed on or before April 1, 1959 and on or before April 1, 1964,
and of $103.647 per share if redeemed after April 1, 1964, in each case plus an
amount equivalent to the accumulated and unpaid dividends thereon, if any, to
the date fixed for redemption.
(17) 93,500
shares of the Corporation’s $100 Preferred Stock authorized in paragraph (a) of
this Article FIFTH shall consist of a series of the $100 Preferred Stock of the
Corporation which shall:
(A) be
designated “4.72% Preferred Stock, Cumulative, $100 par value”;
(B) have
a dividend rate of $4.72 per share per annum payable quarterly on January 1,
April 1, July 1 and October 1 of each year, the first dividend date to be July
1, 1955 and such dividends to be cumulative from April 1, 1955;
(C) be
subject to redemption in the manner provided with respect to the Corporation’s
Preferred Stock, Cumulative, $100 par value, in these Second Amended and
Restated Articles of Incorporation, as may be amended, at the price of $109.50
per share if redeemed on or before April 1, 1960, of $108.50 per share if
redeemed after April 1, 1960 and on or before April 1, 1965, in each case plus
an amount equivalent to the accumulated and unpaid dividends thereon, if any, to
the date fixed for redemption; and
(D) be
issued for cash or on a share for share basis for shares of the $7 Preferred
Stock and $6 Preferred Stock of the Corporation which may be converted into or
exchanged for such shares of 4.72% Preferred Stock, Cumulative, $100 par value,
with a cash adjustment of $5.36 per share to be given to the holders of the $7
Preferred Stock and a cash adjustment of $5.20 per share to be given to the
holders of $6 Preferred Stock so converting or exchanging.
(18) 75,000
shares of the Corporation’s $100 Preferred Stock authorized in paragraph (a) of
this Article FIFTH shall consist of a series of the $100 Preferred Stock of the
Corporation which shall:
(A) be
designated “4.56% Preferred Stock, Cumulative, $100 par value”;
(B) have
a dividend rate of $4.56 per share per annum payable quarterly on January 1,
April 1, July 1 and October 1 of each year, the first dividend date to be
January 1, 1965 and such dividends to be cumulative from October 1, 1964;
and
(C) be
subject to redemption in the manner provided with respect to the Corporation’s
Preferred Stock, Cumulative, $100 par value, in these Second Amended and
Restated Articles of Incorporation, as may be amended, at the price of $105.89
per share if redeemed on or before October 1, 1969, or $104.33 per share if
redeemed after October 1, 1969 and on or before October 1, 1974, and of $102.83
per share if redeemed after October 1, 1974, in each case plus an amount
equivalent to the accumulated and unpaid dividends thereon, if any, to the date
fixed for redemption.
(19) 75,000
shares of the Corporation’s $100 Preferred Stock authorized in paragraph (a) of
this Article FIFTH shall consist of a series of the $100 Preferred Stock of the
Corporation which shall:
(
A) consist
of 75,000 shares to be designated “4.56% Preferred Stock, Cumulative, $100 par
value (1965 Series)”;
(B) have
a dividend rate of $4.56 per share per annum payable quarterly on January 1,
April 1, July 1 and October 1 of each year, the first dividend date to be July
1, 1965, and such dividends to be cumulative from April 1, 1965;
and
(C) be
subject to redemption in the manner provided with respect to the Company’s
Preferred Stock, cumulative, $100 par value, in these Second Amended and
Restated Articles of Incorporation, as may be amended, at the price of $105.56
per share if redeemed on or before April 1, 1970, of $104.00 per share if
redeemed after April 1, 1970 and on or before April 1, 1975, and of $102.50 per
share if redeemed after April 1, 1975, in each case plus an amount equivalent to
the accumulated and unpaid dividends thereon, if any, to the date fixed for
redemption.
(20) 100,000
shares of the Corporation’s $100 Preferred Stock authorized in paragraph (a) of
this Article FIFTH shall consist of a series of the $100 Preferred Stock of the
Corporation which shall:
(A) be
designated “6.08% Preferred Stock, cumulative, $100 par value”;
(B) have
a dividend rate of $6.08 per share per annum payable quarterly on January 1,
April 1, July 1 and October 1 of each year, the first dividend date to be
January 1, 1967 and such dividends to be cumulative from October 1, 1966;
and
(C) be
subject to redemption in the manner provided with respect to the Company’s
Preferred Stock, cumulative $100 par value, in these Second Amended and Restated
Articles of Incorporation, as may be amended, at the price of $107.41 per share
if redeemed on or before October 1, 1971, of $104.33 per share if redeemed after
October 1, 1971 and on or before October 1, 1976, and of $102.83 per share if
redeemed after October 1, 1976 in each case plus an amount equivalent to the
accumulated and unpaid dividends thereon, if any, to the date fixed for
redemption.
(21) 3,000,000
shares of the Corporation’s $25 Preferred Stock authorized in paragraph (a) of
this Article FIFTH shall consist of a series of the $25 Preferred Stock of the
Corporation which shall:
(A) be
designated “6.45% Preferred Stock, Cumulative, $25 Par Value”;
(B) have
a dividend rate of $1.6125 per share per annum payable quarterly on January 1,
April 1, July 1 and October 1 of each year, the first dividend date to be July
1, 2006, and such dividends to be cumulative from the date of issuance;
and
(C) be
subject to redemption at the price of $25 per share plus an amount equivalent to
the accumulated and unpaid dividends thereon, if any, to the date fixed for
redemption (except that no share of the 6.45% Preferred Stock, Cumulative, $25
Par Value, shall be redeemed on or before April 1, 2011).
SIXTH:
Director Conflict of
Interest
.
(a) A
conflict of interest transaction is a transaction with the Corporation in which
a director of the Corporation has a direct or indirect interest. A
conflict of interest transaction is not voidable by the Corporation solely
because of the director’s interest in the transaction if any one of the
following is true:
(1) The
material facts of the transaction and the director’s interest were disclosed or
known to the Board of Directors or a committee of the Board of Directors and the
Board of Directors or committee authorized, approved, or ratified the
transaction;
(2) The
material facts of the transaction and the director’s interest were disclosed or
known to the holders of Common Stock and the transaction was authorized,
approved, or ratified by the vote of the holders of a majority of the votes
entitled to be cast by the Common Stock; or
(3) The
transaction was fair to the Corporation.
(b) For
purposes of this Article SIXTH, a director of the Corporation has an indirect
interest in a transaction and the transaction should be considered by the Board
of Directors of the Corporation if:
(1) Another
entity in which the director has a material financial interest or in which the
director is a general partner is a party to the transaction; or
(2) Another
entity of which the director is a director, officer, or trustee is a party to
the transaction.
|
|
SEVENTH:
Board of
Directors
.
|
(a) The
affairs and business of the Corporation shall be conducted and controlled by a
Board of Directors, and the number of directors which shall constitute the whole
Board shall be such as from time to time shall be fixed by resolution adopted by
the holders of Common Stock or by the Board of Directors, but in no case shall
the number of directors be less than three (3) nor more than fifteen
(15). Directors shall be elected by the holders of Common Stock
except as provided in Article FIFTH (c) (2) at each annual meeting of the
stockholders and each director so elected shall hold office until the next
annual meeting of the stockholders or until his successor is elected and
qualified, except as herein provided. All stockholders entitled to
vote for the election of directors may cumulate their votes for
directors. Any or all directors elected by the holders of Common
Stock may at any time be removed without cause by the vote of the holders of a
majority of the votes entitled to be cast by the Common Stock given at a meeting
called for the purpose of considering such action, and the successor of any
director so removed shall be elected by the holders of Common Stock at such
meeting or at a later meeting. Any or all directors elected by the
holders of Preferred Stock may at any time be removed without cause by the vote
of the holders of a majority of the votes entitled to be cast by the Preferred
Stock given at a meeting called for the purpose of considering such action, and
the successor of any director so removed shall be elected by the holders of
Preferred Stock at such meeting or at a later meeting; provided, however, a
director may not be removed without cause if the number of votes sufficient to
elect him under cumulative voting is voted against his
removal. Except as provided in Article FIFTH (c) (2), vacancies and
newly created directorships resulting from any increase in the authorized number
of directors may be filled as provided in the By-Laws. If the vacant
office was held by a director elected by a voting group of shareholders, only
the holders of shares of that voting group shall be entitled to participate in
the filling of such vacancy. If the number of directors is decreased
then to the extent that the decrease does not exceed the number of vacancies in
the Board then existing, such resolution may provide that it shall become
effective forthwith, and to the extent that the decrease does exceed such number
of vacancies, such resolution shall provide that it shall not become effective
until the next election of directors by the stockholders. The Board
of Directors shall have power to hold their meetings, to have one or more
offices and to keep the corporate books (except such books as are required by
law to be kept within the state of Arkansas) outside of the State of Arkansas at
such places as may from time to time be designated by them. The Board
of Directors shall elect individuals to occupy executive offices as provided in
the By-Laws.
(b) The
Board of Directors shall have power to authorize and cause to be executed
mortgages or deeds of trust which shall cover and create a lien upon, or
otherwise encumber, all or any part of the property of the Corporation of
whatsoever kind and wheresoever situated whether then owned or thereafter
acquired and to provide in any such mortgage or deed of trust that the amount of
bonds or other evidences of indebtedness to be issued thereunder and to be
secured thereby shall be limited to a definite amount or limited only by the
conditions therein specified and to issue or cause to be issued by the
Corporation the bonds or other evidences of indebtedness to be secured
thereby.
EIGHTH:
Limitation of Director
Liability
.
(a) To
the fullest extent permitted by the Arkansas Business Corporation Act, as
currently in effect or as hereafter may be amended or modified, or any other
applicable law presently or hereafter in effect, no director of the Corporation
shall be personally liable to the Corporation or its shareholders for monetary
damages for or with respect to any acts or omissions in the performance of his
duties.
(b) Any
repeal or modification of the foregoing subparagraph 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.
NINTH:
Indemnification
.
(a) Every
person who is or was an officer, director or employee of the Corporation and who
also is or was a party or is threatened to be made a party to or is involved in
any threatened, pending, or completed action, suit or proceeding, whether civil,
criminal, administrative, or investigative or by or in the right of the
Corporation, by reason of the fact that he is or was a director, officer or
employee of the Corporation or is or was serving at the request of the
Corporation as a director or officer of another corporation, or as its
representative in a partnership, joint venture, trust, or other enterprise,
shall be indemnified and held harmless to the fullest extent legally permissible
under and pursuant to the Arkansas Business Corporation Act, as currently in
effect or as hereafter may be amended or modified, but in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
give broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment. Such right of indemnification shall
be a contract right that may be enforced in any lawful manner by such
person. Such right of indemnification shall not be exclusive of any
other right which such director, officer or employee may have or hereafter
acquire and, without limiting the generality of such statement, he shall be
entitled to his rights of indemnification under any agreement, vote of
shareholders, provision of law, or otherwise, as well as his rights under this
Article NINTH.
(b) Expenses
incurred by any person who is or was an officer, director or employee of the
Corporation in defending a civil, criminal, administrative, or investigative
action, suit or proceeding by reason of the fact that he is or was a director,
officer or employee of the Corporation or was serving at the Corporation’s
request as a director or officer of another corporation or as its representative
in a partnership, joint venture, trust or other enterprise shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding to the fullest extent legally permissible under and pursuant to the
Arkansas Business Corporation Act, as currently in effect or as hereafter may be
amended or modified, but in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader rights to payment
of expenses than said law permitted the Corporation to provide prior to such
amendment. Such right to payment of expenses shall be a contract
right that may be enforced in any lawful manner by such person.
(c) If
any provision of this Article NINTH or the application thereof to any person or
circumstance is adjudicated invalid, such invalidity shall not affect other
provisions or applications of this Article NINTH which lawfully can be given
without the invalid provision or application.
TENTH:
By-Laws
. The
present by-laws of the Corporation shall continue to be the by-laws of the
Corporation until changed or amended as therein or herein or by law
provided.
ELEVENTH:
Incorporators
. The
names of the incorporators of the Corporation, as set forth in the Agreement of
Consolidation or Merger dated October 13, 1926, which information is provided
herein for informational purposes only, are as follows:
C.D.
Cherry
W.H.
Holmes
Ray
Gibson
DATED: August 19, 2009
|
|
|
ENTERGY
ARKANSAS, INC.
|
|
|
|
By:
/s/ Dawn A.
Abuso
|
|
|
|
Dawn A. Abuso
Assistant
Secretary
|