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EX-3.2 - EXHIBIT 3.2 - DTE ENERGY CO | c00908exv3w2.htm |
8-K - FORM 8-K - DTE ENERGY CO | c00908e8vk.htm |
Exhibit 3.1
CONFORMED COPY
As amended May 6, 2010,
effective May 11, 2010
AMENDED AND RESTATED ARTICLES OF INCORPORATION
Pursuant to the provisions of Act 284, Public Acts of 1972, the undersigned corporation
executes the following Articles:
ARTICLE I
The name of the Corporation is DTE ENERGY COMPANY.
ARTICLE II
The purposes for which the corporation (the Company) is formed are to engage in any activity
within the purposes for which corporations may be formed under the Michigan Business Corporation
Act (the Act).
ARTICLE III
The location and post office address of the principal office of the Company at the time of
filing these Articles is 2000 2nd Avenue, Detroit, Wayne County, Michigan 48226-1279 and it is
hereby designated as the location and post office address of the registered office of the Company
in Michigan under these Articles.
ARTICLE IV
The name of the Companys resident agent in Michigan at the time of filing these Articles is
Susan M. Beale and she is hereby designated as the resident agent of the Company in Michigan under
these Articles.
ARTICLE V
A. The aggregate number of shares which the Company is authorized to issue is four hundred and
five million (405,000,000) shares, divided into and consisting of (a) four hundred million
(400,000,000) shares of common stock, without par value, and (b) five million (5,000,000) shares of
preferred stock, without par value, issuable in one or more series as hereinafter provided.
B. The authorized preferred stock may be issued, in one or more series, from time to time as
the Board of Directors may determine. Each series of preferred stock shall bear a distinctive
designation, shall be issued in such number of shares and shall have such relative voting,
distribution, dividend, liquidation and other rights, preferences and limitations and redemption
and/or conversion provisions (including provisions for the redemption or conversion of shares at
the option of the shareholder or the Company or upon the happening of a specified event) as shall
be prescribed, and the Board of Directors is expressly authorized to fix such terms, by a
resolution of the Board of Directors. Such resolutions, when filed, shall constitute amendments to
these Articles of Incorporation to the extent provided by the Act.
C. Each holder of common stock of the Company shall be entitled to one vote for each share of
such stock standing in such shareholders name on the books of the Company and each holder of
preferred stock of the Company shall be entitled to such voting rights as shall be established by
the Board of Directors pursuant to paragraph B of this Article V; provided that no share of
preferred stock may be entitled to more than one vote per share.
D. [Repealed]
E. No shareholder shall have any preemptive or preferential right to subscribe for or purchase
any part of any new or additional issue of stock of any class whatsoever, or of securities
convertible into or exchangeable for any stock of any class whatsoever, or of securities carrying
options, warrants or other rights to purchase or otherwise acquire stock of any class whatsoever,
whether now or hereafter authorized and whether issued for cash or other consideration or by way of
dividend or otherwise, or to have any other preemptive or preferential right as now or hereafter
defined by the laws of the State of Michigan.
ARTICLE VI
To the full extent permitted by the Act or any other applicable laws presently or hereafter in
effect no director of the Company shall be personally liable to the Company or its shareholders for
or with respect to any acts or omissions in the performance of his or her duties as a director of
the Company. Any repeal or modification of this Article VI shall not adversely affect any right or
protection of a director of the Company existing hereunder immediately prior to such repeal or
modification.
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ARTICLE VII
Each person who is or was or had agreed to become a director of officer of the Company, or
each such person who is or was serving or who had agreed to serve at the request of the Board of
Directors as an employee or agent of the Company or as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise (including the heirs,
executors, administrators or estate of such person), shall be indemnified by the Company to the
full extent permitted by the Act or any other applicable laws as presently or hereafter in effect.
Without limiting the generality or the effect of the foregoing, the Company may enter into one or
more agreements with any person which provides for indemnification greater or different than that
provided in this Article. Any repeal or modification of this Article VII shall not adversely
affect any right or protection existing hereunder immediately prior to such repeal or modification.
ARTICLE VIII
The term of the corporate existence of the Company is perpetual.
ARTICLE IX
The name and address of the sole incorporator is as follows:
Susan M. Beale
2000 2nd Avenue
Detroit, Michigan 48226
2000 2nd Avenue
Detroit, Michigan 48226
Dated this 13th day of December, 1995.
/s/ John E. Lobbia | ||||
John E. Lobbia | ||||
Chairman of the Board | ||||
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CONFORMED COPY
CERTIFICATE OF DESIGNATION
of
SERIES A JUNIOR PARTICIPATING
PREFERRED STOCK
PREFERRED STOCK
of
DTE ENERGY COMPANY
(Pursuant to Section 450.1302 of the
Business Corporation Act of the State of Michigan)
Business Corporation Act of the State of Michigan)
DTE Energy Company, a Michigan corporation (the Company), DOES HEREBY CERTIFY:
That, pursuant to authority vested in the Board of Directors of the Company by its Amended and
Restated Articles of Incorporation, and pursuant to the provisions of Section 450.1302 of the
Michigan Business Corporation Act, the Board of Directors of the Company has adopted the following
resolution providing for the issuance of a series of Preferred Stock:
RESOLVED, that pursuant to the authority expressly granted to and vested in the Board of
Directors of the Company (hereinafter called the Board of Directors or the Board) by the
Amended and Restated Articles of Incorporation of the Company, a series of Preferred Stock, without
par value (the Preferred Stock), of the Company be, and it hereby is, created, and that the
designation and amount thereof and the powers, designations, preferences and relative,
participating, optional and other special rights of the shares of such series, and the
qualifications, limitations or restrictions thereof are as follows:
I. Designation and Amount
The shares of such series will be designated as Series A Junior Participating Preferred Stock
(the Series A Preferred) and the number of shares constituting the Series A Preferred is
1,500,000.
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II. Dividends and Distributions
(a) Subject to the rights of the holders of any shares of any series of Preferred Stock
ranking prior to the Series A Preferred with respect to dividends, the holders of shares of Series
A Preferred, in preference to the holders of Common Stock, without par value (the Common Stock),
of the Company, and of any other junior stock, will be entitled to receive, when, as and if
declared by the Board out of funds legally available for the purpose, dividends payable in cash
(except as otherwise provided below) on such dates as are from time to time established for the
payment of dividends on the Common Stock (each such date being referred to herein as a Dividend
Payment Date), commencing on the first Dividend Payment Date after the first issuance of a share
or fraction of a share of Series A Preferred (the First Dividend Payment Date), in an amount per
share (rounded to the nearest cent) equal to the greater of (i) $1.00 or (ii) subject to the
provision for adjustment hereinafter set forth, one hundred times the aggregate per share amount of
all cash dividends, and one hundred times the aggregate per share amount (payable in kind) of all
non-cash dividends, other than a dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock
since the immediately preceding Dividend Payment Date or, with respect to the First Dividend
Payment Date, since the first issuance of any share or fraction of a share of Series A Preferred.
In the event that the Company at any time (i) declares a dividend on the outstanding shares of
Common Stock payable in shares of Common Stock, (ii) subdivides the outstanding shares of Common
Stock, (iii) combines the outstanding shares of Common Stock into a smaller number of shares, or
(iv) issues any shares of its capital stock in a reclassification of the outstanding shares of
Common Stock (including any such reclassification in connection with a consolidation or merger in
which the Company is the continuing or surviving corporation), then, in each such case and
regardless of whether any shares of Series A Preferred are then issued or outstanding, the amount
to which holders of shares of Series A Preferred would otherwise be entitled immediately prior to
such event under clause (ii) of the preceding sentence will be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
(b) The Company will declare a dividend on the Series A Preferred as provided in the
immediately preceding paragraph immediately after it declares a dividend on the Common Stock (other
than a dividend payable in shares of Common
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Stock). Each such dividend on the Series A Preferred will be payable immediately prior to the
time at which the related dividend on the Common Stock is payable.
(c) Dividends will accrue on outstanding shares of Series A Preferred from the Dividend
Payment Date next preceding the date of issue of such shares, unless (i) the date of issue of such
shares is prior to the record date for the First Dividend Payment Date, in which case dividends on
such shares will accrue from the date of the first issuance of a share of Series A Preferred or
(ii) the date of issue is a Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred entitled to receive a dividend and before
such Dividend Payment Date, in either of which events such dividends will accrue from such Dividend
Payment Date. Accrued but unpaid dividends will cumulate from the applicable Dividend Payment Date
but will not bear interest. Dividends paid on the shares of Series A Preferred in an amount less
than the total amount of such dividends at the time accrued and payable on such shares will be
allocated pro rata on a share-by-share basis among all such shares at the time outstanding. The
Board may fix a record date for the determination of holders of shares of Series A Preferred
entitled to receive payment of a dividend or distribution declared thereon, which record date will
be not more than 60 calendar days prior to the date fixed for the payment thereof.
III. Voting Rights
The holders of shares of Series A Preferred will have the following voting rights:
(a) Subject to the provision for adjustment hereinafter set forth, each share of Series
A Preferred will entitle the holder thereof to one vote on all matters submitted to a vote
of the stockholders of the Company.
(b) Except as otherwise provided herein, in any other Preferred Stock Designation
creating a series of Preferred Stock or any similar stock, or by law, the holders of shares
of Series A Preferred and the holders of shares of Common Stock and any other capital stock
of the Company having general voting rights will vote together as one class on all matters
submitted to a vote of stockholders of the Company.
(c) Except as set forth in the Amended and Restated Articles of Incorporation or
herein, or as otherwise provided by law, holders of shares of Series A Preferred will have
no voting rights.
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IV. Certain Restrictions
(a) Whenever dividends or other dividends or distributions payable on the Series A Preferred
are in arrears, thereafter and until all accrued and unpaid dividends and distributions, whether or
not declared, on shares of Series A Preferred outstanding have been paid in full, the Company will
not:
(i) Declare or pay dividends, or make any other distributions, on any shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to
the shares of Series A Preferred;
(ii) Declare or pay dividends, or make any other distributions, on any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution, or winding up)
with the shares of Series A Preferred, except dividends paid ratably on the shares of Series
A Preferred and all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares are then entitled;
(iii) Redeem, purchase or otherwise acquire for consideration shares of any stock
ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to
the shares of Series A Preferred; provided, however, that the Company may at
any time redeem, purchase or otherwise acquire shares of any such junior stock in exchange
for shares of any stock of the Company ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the shares of Series A Preferred; or
(iv) Redeem, purchase or otherwise acquire for consideration any shares of Series A
Preferred, or any shares of stock ranking on a parity with the shares of Series A Preferred,
except in accordance with a purchase offer made in writing or by publication (as determined
by the Board) to all holders of such shares upon such terms as the Board, after
consideration of the respective annual dividend rates and other relative rights and
preferences of the respective series and classes, may determine in good faith will result in
fair and equitable treatment among the respective series or classes.
(b) The Company will not permit any majority-owned subsidiary of the Company to purchase or
otherwise acquire for consideration any shares of stock of the Company unless the Company could,
under paragraph (a) of this Article IV, purchase or otherwise acquire such shares at such time and
in such manner.
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V. Reacquired Shares
Any shares of Series A Preferred purchased or otherwise acquired by the Company in any manner
whatsoever will be retired and canceled promptly after the acquisition thereof. All such shares
will upon their cancellation become authorized but unissued shares of Preferred Stock and may be
reissued as part of a new series of Preferred Stock subject to the conditions and restrictions on
issuance set forth herein, in the Amended and Restated Articles of Incorporation of the Company, or
in any other Preferred Stock Designation creating a series of Preferred Stock or any similar stock
or as otherwise required by law.
VI. Liquidation, Dissolution or Winding Up
Upon any liquidation, dissolution or winding up of the Company, no distribution will be made
(a) to the holders of shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution, or winding up) to the shares of Series A Preferred unless, prior thereto, the holders
of shares of Series A Preferred have received $100 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the date of such payment;
provided, however, that the holders of shares of Series A Preferred will be
entitled to receive an aggregate amount per share, subject to the provision for adjustment
hereinafter set forth, equal to one hundred times the aggregate amount to be distributed per share
to holders of shares of Common Stock or (b) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution, or winding up) with the shares of Series
A Preferred, except distributions made ratably on the shares of Series A Preferred and all such
parity stock in proportion to the total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution, or winding up. In the event the Company at any time
(i) declares a dividend on the outstanding shares of Common Stock payable in shares of Common
Stock, (ii) subdivides the outstanding shares of Common Stock, (iii) combines the outstanding
shares of Common Stock into a smaller number of shares, or (iv) issues any shares of its capital
stock in a reclassification of the outstanding shares of Common Stock (including any such
reclassification in connection with a consolidation or merger in which the Company is the
continuing or surviving corporation), then, in each such case and regardless of whether any shares
of Series A Preferred are then issued or outstanding, the aggregate amount to which each holder of
shares of Series A Preferred would otherwise be entitled immediately prior to such event under the
proviso in clause (a) of the preceding sentence will be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Stock outstanding immediately
after such
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event and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
VII. Consolidation, Merger, Etc.
In the event that the Company enters into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then, in each such case, each share of Series A
Preferred will at the same time be similarly exchanged for or changed into an amount per share,
subject to the provision for adjustment hereinafter set forth, equal to one hundred times the
aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each share of Common Stock is changed or exchanged. In the
event the Company at any time (a) declares a dividend on the outstanding shares of Common Stock
payable in shares of Common Stock, (b) subdivides the outstanding shares of Common Stock, (c)
combines the outstanding shares of Common Stock in a smaller number of shares, or (d) issues any
shares of its capital stock in a reclassification of the outstanding shares of Common Stock
(including any such reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), then, in each such case and regardless of
whether any shares of Series A Preferred are then issued or outstanding, the amount set forth in
the preceding sentence with respect to the exchange or change of shares of Series A Preferred will
be adjusted by multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such event.
VIII. Redemption
The shares of Series A Preferred are not redeemable.
IX. Rank
The Series A Preferred rank, with respect to the payment of dividends and the distribution of
assets, junior to all other series of the Companys Preferred Stock.
X. Amendment
Notwithstanding anything contained in the Amended and Restated Articles of Incorporation of
the Company to the contrary and in addition to any other vote required
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by applicable law, the Amended and Restated Articles of Incorporation of the Company may not
be amended in any manner that would materially alter or change the powers, preferences or special
rights of the Series A Preferred so as to affect them adversely without the affirmative vote of the
holders of at least 80% of the outstanding shares of Series A Preferred, voting together as a
single series.
IN WITNESS WHEREOF, this Certificate of Designation is executed on behalf of the Company by
its Chairman and Chief Executive Officer and attested by its Vice President and Secretary this 23rd
day of September, 1997.
/s/ John E. Lobbia | ||||
John E. Lobbia | ||||
Chairman and Chief Executive Officer | ||||
Attest:
/s/ Susan M. Beale | ||||
Susan M. Beale | ||||
Vice President and Secretary | ||||
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