Exhibit 4.3
ULTRAMAR CORPORATION
CERTIFICATE OF DESIGNATIONS
5% CUMULATIVE CONVERTIBLE PREFERRED STOCK
(Pursuant to Section 151(g) of the General
Corporation Law of the State of Delaware)
Ultramar Corporation, a corporation organized and
existing under the laws of the State of Delaware, does
hereby certify that:
FIRST: Ultramar Corporation (the "Corporation")
was incorporated in the State of Delaware on April 28, 1992;
SECOND: Pursuant to authority conferred upon the
Board of Directors under the Certificate of Incorporation of
the Corporation ("Certificate") and the provisions of
Sections 141 and 151 of the General Corporation Law of the
State of Delaware, the Board of Directors of the Corporation
acting at the Board of Directors' meeting held on
December 3, 1996, at which a quorum was at all times present
and voting, adopted resolutions, which are in full force and
effect and are not in conflict with any provisions of the
Corporation's Certificate or its By-laws, approving this
certificate of designations and authorizing the undersigned
to execute and deliver this certificate of designations
setting forth the number, terms, designation, relative
rights, preferences and limitations of a series of preferred
stock, $.01 par value, of the Corporation as follows:
(a) Designation. There is hereby created a class
of preferred stock, $.01 par value, of this Corporation to
be known as "5% Cumulative Convertible Preferred Stock" (the
"5% Preferred Stock"). The number of shares of 5% Preferred
Stock authorized for issuance is 1,725,000.
(b) Stated Capital. The amount to be represented
in stated capital at all times for each share of 5%
Preferred Stock shall be $.01.
(c) Rank. All 5% Preferred Stock shall rank
prior to all of the Corporation's Common Stock, $.01 par
value (the "Common Stock"), now or hereafter issued, both as
to payment of dividends and as to distributions of assets
upon liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary.
(d) Dividends. The holders of shares of 5%
Preferred Stock shall be entitled to receive dividends at
the rate of $2.50 per annum per share, and no more, which
shall be fully cumulative and shall accrue without interest.
Dividends will be payable in cash quarterly on March 15,
June 15, September 15, and December 15 of each year
commencing March 15, 1997 (except that if any such date is a
Saturday, Sunday or legal holiday then such dividend shall
be payable on the next day that is not a Saturday, Sunday or
legal holiday) to holders of record as they appear on the
stock books of the Corporation on the applicable record
date, which shall be not more than 60 nor less than 10 days
preceding the payment date for such dividends, as are fixed
by the Board of Directors, but only when, as and if declared
by the Board of Directors out of funds at the time legally
available for the payment of dividends. The amount of
dividends payable per share of 5% Preferred Stock for each
quarterly dividend period shall be computed by dividing the
annual dividend amount per share by four. The amount of
dividends payable for any period shorter than a full
quarterly dividend period shall be computed on the basis of
a 360-day year of twelve 30-day months. No dividends or
other distributions, other than dividends payable solely in
shares of Common Stock or other capital stock of the
Corporation ranking junior as to dividends to the 5%
Preferred Stock ("Junior Dividend Stock"), shall be paid or
set apart for payment on, and no purchase, redemption or
other acquisition shall be made by the Corporation of, any
shares of Common Stock or Junior Dividend Stock unless and
until all accrued and unpaid dividends on the 5% Preferred
Stock shall have been paid or declared and set apart for
payment.
If at any time the Corporation shall have failed
to pay, or declare and set apart for payment, in full any
accrued dividend on any capital stock of the Corporation
ranking senior as to dividends to the 5% Preferred Stock
("Senior Dividend Stock"), in whole or in part, no dividend
shall be paid or declared and set apart for payment on the
5% Preferred Stock unless and until all accrued and unpaid
dividends (plus interest, if required) with respect to the
Senior Dividend Stock shall have been paid or declared and
set apart for payment, without interest. No full cumulative
dividends shall be paid or declared and set apart for
payment on any class or series of the Corporation's capital
stock ranking, as to dividends, on a parity with the 5%
Preferred Stock (the "Parity Dividend Stock") for any period
unless full cumulative dividends have been, or
contemporaneously are, paid or declared and set apart for
such payment on the 5% Preferred Stock for all dividend
payment periods terminating on or prior to the date of
payment of such full cumulative dividends. No dividends
shall be paid or declared and set apart for payment on the
5% Preferred Stock for any period unless full cumulative
dividends have been, or contemporaneously are, paid or
declared and set apart for payment on the Parity Dividend
Stock for all dividend periods terminating on or prior to
the date of payment of such dividends on the 5% Preferred
Stock. When dividends are not paid in full upon the 5%
Preferred Stock and the Parity Dividend Stock, all dividends
paid or declared and set aside for payment upon shares of 5%
Preferred Stock and the Parity Dividend Stock shall be paid
or declared and set aside for payment pro rata so that the
amount of dividends paid or declared and set aside for
payment per share on the 5% Preferred Stock and the Parity
Dividend Stock shall in all cases bear to each other the
same ratio that accrued and unpaid dividends per share on
the shares of 5% Preferred Stock and the Parity Dividend
Stock bear to each other.
Any reference to "distribution" contained in this
Paragraph (d) shall not be deemed to include any stock
dividend or distributions made in connection with any
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary.
(e) Liquidation Preference. In the event of a
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of 5%
Preferred Stock shall be entitled to receive out of the
assets of the Corporation, whether such assets are stated
capital or surplus of any nature, an amount equal to the
dividends accrued and unpaid thereon as of the date of final
distribution to such holders, whether or not declared,
without interest, and a sum equal to $50.00 per share, and
no more, before any payment shall be made or any assets
distributed to the holders of Common Stock or any other
class or series of the Corporation's capital stock ranking
junior as to liquidation rights to the 5% Preferred Stock
(the "Junior Liquidation Stock"); provided, however, that
such rights shall accrue to the holders of 5% Preferred
Stock only in the event that the Corporation's payments with
respect to the liquidation preferences of the holders of
capital stock of the Corporation ranking senior as to
liquidation rights to the 5% Preferred Stock (the "Senior
Liquidation Stock") are fully met. The entire assets of the
Corporation available for distribution after the liquidation
preferences of the Senior Liquidation Stock are fully met
shall be distributed ratably among the holders of the 5%
Preferred Stock and any other class or series of the
Corporation's capital stock which may hereafter be created
having parity as to liquidation rights with the 5% Preferred
Stock in proportion to the respective preferential amounts
to which each is entitled (but only to the extent of such
preferential amounts). Neither a consolidation or merger of
the Corporation with another corporation nor a sale or
transfer of all or part of the Corporation's assets for
cash, securities or other property will be considered a
liquidation, dissolution or winding up of the Corporation.
(f) Redemption at Option of the Corporation. The
Corporation, at its option, may at any time prior to
June 14, 2000, redeem all or any part of the 5% Preferred
Stock on any date set by the Board of Directors of the
Corporation by issuing for each share of 5% Preferred Stock
being redeemed such number of shares of Common Stock as are
equal to $50.00 divided by the Conversion Price (as defined
in Paragraph (h) below), and by paying an amount in cash
equal to accrued and unpaid dividends to the date fixed for
redemption. The Corporation may exercise such option only
if, for 20 of any 30 consecutive trading days, including the
last trading day of such period, the Closing Price (as
defined in Paragraph (h) below) of the Common Stock exceeds
130% of the Conversion Price of the Common Stock in effect
on the last trading day of such 30-trading-day period. To
exercise its redemption right under this Paragraph (f), the
Corporation must issue a press release announcing the
redemption prior to 9:00 a.m. New York City time on the
second trading day after the end of any such 30-consecutive-
trading day period described in the preceding sentence. On
or after June 15, 2000, the 5% Preferred Stock is redeemable
for cash, in whole or in part, at any time at the option of
the Corporation, at a redemption price of $50.00 per share,
plus accrued and unpaid dividends to the date fixed for
redemption.
If the Corporation intends to redeem less than all
of the then-outstanding shares of 5% Preferred Stock, the
Corporation shall designate by lot, or in such other manner
as the Board of Directors may determine, the shares to be
redeemed, or shall effect such redemption pro rata.
Notwithstanding the foregoing, the Corporation shall not
redeem less than all of the 5% Preferred Stock at any time
outstanding until all dividends accrued and in arrears upon
all 5% Preferred Stock then outstanding shall have been
paid.
Not more than 60 nor less than 15 days prior to
the redemption date, and, if the redemption is to occur on
or prior to June 14, 2000, not more than four days after the
Corporation issues the press release required under the
first paragraph of this Paragraph (f), notice by first class
mail, postage prepaid, shall be given to the holders of
record of the 5% Preferred Stock to be redeemed, addressed
to such stockholders at their last addresses as shown on the
stock books of the Corporation. Each such notice of
redemption shall specify the date fixed for redemption; the
redemption price (if the 5% Preferred Stock is to be
redeemed for cash); the number of shares of Common Stock to
be delivered (if the 5% Preferred Stock is to be redeemed
for Common Stock); the place or places for payment or
delivery; that payment or delivery of the Common Stock will
be made upon presentation and surrender of the certificates
representing shares of 5% Preferred Stock being redeemed;
that accrued but unpaid dividends to the date fixed for
redemption will be paid on the date fixed for redemption;
that (if the 5% Preferred Stock is to be redeemed for Common
Stock) a cash adjustment for fractional shares of Common
Stock will be paid on the date fixed for redemption; that
conversion rights with respect to the 5% Preferred Stock
will expire on the close of business on the redemption date;
and that on and after the redemption date, dividends will
cease to accrue on such shares. If a dividend with respect
to the 5% Preferred Stock has been declared by the Board of
Directors of the Corporation and if the redemption date with
respect to a redemption of 5% Preferred Stock for either
cash or Common Stock falls after the dividend record date
established by the Board of Directors of the Corporation
with respect to such dividend, but prior to the related
dividend payment date, the record holders of the 5%
Preferred Stock on such record date will be entitled to
receive the dividend payable on the 5% Preferred Stock,
notwithstanding the redemption thereof.
Any notice which is mailed as herein provided
shall be conclusively presumed to have been duly given,
whether or not the holder of the 5% Preferred Stock receives
such notice; and failure to give such notice by mail, or any
defect in such notice, to the holders of any shares
designated for redemption shall not affect the validity of
the proceedings for the redemption of any other shares of 5%
Preferred Stock. On or after the date fixed for redemption,
as stated in such notice, each holder of the shares of 5%
Preferred Stock called for redemption shall surrender the
certificate evidencing such shares to the Corporation at the
place designated in such notice and shall thereupon be
entitled to receive payment of the redemption price or
delivery of shares of Common Stock deliverable upon
redemption, as the case may be. If less than all shares
represented by any such surrendered certificate are
redeemed, a new certificate shall be issued representing the
unredeemed shares. If on the date fixed for redemption a
sufficient number of shares of Common Stock, if applicable,
and the funds necessary for the redemption shall be
available therefor and shall have been irrevocably deposited
with the transfer agent for the 5% Preferred Stock, then,
notwithstanding that the certificates evidencing any shares
of 5% Preferred Stock so called for redemption shall not
have been surrendered, dividends with respect to the shares
of 5% Preferred Stock so called for redemption shall cease
to accrue after the date fixed for redemption, such shares
shall no longer be deemed outstanding, and all rights
whatsoever with respect to the shares so called for
redemption (except the right of the holders to receive any
Common Stock issuable and any cash payable, without
interest, upon surrender of their certificates therefor)
shall terminate. Shares of 5% Preferred Stock redeemed by
the Corporation will be restored to the status of authorized
but unissued shares of preferred stock, without designation
as to class, and may thereafter be issued, but not as shares
of 5% Preferred Stock.
No fractional shares of Common Stock shall be
issued upon redemption of 5% Preferred Stock for Common
Stock, and in lieu of any fraction of a share of Common
Stock which would otherwise be issuable in respect of the
aggregate number of such shares of 5% Preferred Stock
redeemed at one time from the same record holder, the
Corporation shall pay in cash (rounded to the nearest cent)
an amount equal to the product of (i) the Closing Price of a
share of Common Stock on the last trading day with respect
to the Common Stock before the redemption date, and
(ii) such fraction of a share.
The Corporation shall not be required to pay any
tax which may be payable in respect of any transfer involved
in the issue and delivery upon redemption of shares of 5%
Preferred Stock for shares of Common Stock in a name other
than that of the record holder of the shares of the 5%
Preferred Stock being redeemed and the Corporation shall not
be required to issue or deliver any such shares unless and
until the person or persons requesting the issuance thereof
shall have paid to the Corporation the amount of any such
tax or shall have established to the satisfaction of the
Corporation that such tax has been paid.
(g) No Sinking Fund. The shares of 5% Preferred
Stock shall not be subject to the operation of a purchase,
retirement or sinking fund.
(h) Conversion. The holders of the 5% Preferred
Stock may, upon surrender of the certificates therefor,
convert any or all of their shares of 5% Preferred Stock
into fully paid and nonassessable shares of Common Stock and
such other securities and property as hereafter provided at
any time after issuance thereof, but not later than the
close of business on the date, if any, fixed for the
redemption thereof in any notice of redemption given
pursuant to the provisions of Paragraph (f) hereof unless
there is a default in payment of cash, or the delivery of
Common Stock issuable, in connection with such redemption in
which case such conversion may be effected any time prior to
a subsequent redemption date on which such payment of cash
and/or delivery of Common Stock is made in full. Each share
of 5% Preferred Stock shall be convertible at the office of
the transfer agent for the 5% Preferred Stock, and at such
other office or offices, if any, as the Board of Directors
of the Corporation may designate, into the number of fully
paid and nonassessable shares of Common Stock (calculated as
to each conversion to the nearest 1/100th of a share)
obtained by dividing $50.00 by the Conversion Price in
effect at the time of conversion. Shares of 5% Preferred
Stock may be converted into full shares of Common Stock at
the initial conversion price of $25.98 per share of Common
Stock, subject to adjustment as hereinafter provided (the
"Conversion Price"). No adjustment shall be made in respect
of cash dividends on Common Stock or 5% Preferred Stock that
may be accrued and unpaid at the date of surrender for
conversion. Notwithstanding anything in this Paragraph (h)
to the contrary, no change in the Conversion Price shall
actually be made until the cumulative effect of the
adjustments called for by this Paragraph (h) since the date
of the last change in the Conversion Price would change the
Conversion Price by more than 1%. However, once the
cumulative effect would result in a change of more than 1%,
then the Conversion Price shall actually be changed to
reflect all adjustments called for by this Paragraph (h) and
not previously made. Notwithstanding anything in this
Paragraph (h) to the contrary, no change in the Conversion
Price shall be made which would result in a Conversion Price
of less than the par value of the Common Stock.
The right of the holders of 5% Preferred Stock to
convert their shares shall be exercised by surrendering for
such purpose to the Corporation or its agent, as provided
above, certificates representing all shares to be converted,
duly endorsed in blank or accompanied by proper instruments
of transfer. The Corporation shall not be required to pay
any tax which may be payable in respect of any transfer
involved in the issue and delivery upon conversion of shares
of 5% Preferred Stock for shares of Common Stock or other
securities or property in a name other than that of the
recordholder of the shares of 5% Preferred Stock being
converted and the Corporation shall not be required to
issue or deliver any such shares of Common Stock or other
securities or property unless and until the person or
persons requesting the issuance thereof shall have paid
to the Corporation the amount of any such tax or shall
have established to the satisfaction of the Corporation
that such tax has been paid.
A number of shares of authorized but unissued
Common Stock sufficient to provide for the conversion of the
5% Preferred Stock outstanding upon the basis herein
provided shall at all times be reserved by the Corporation,
free from preemptive rights, for such conversion, subject to
the provisions of the next succeeding paragraph. If the
Corporation shall issue any securities or make any change in
its capital structure which would change the Conversion
Price of the Common Stock into which each share of the 5%
Preferred Stock is convertible as herein provided, the
Corporation shall at the same time also make proper
provision so that thereafter there shall be a sufficient
number of shares of Common Stock authorized and reserved,
free from preemptive rights, for conversion of the
outstanding 5% Preferred Stock at the new Conversion Price.
In case of any consolidation or merger of the
Corporation with any other corporation (other than a wholly
owned subsidiary of the Corporation), or in case of any sale
or transfer of all or substantially all of the assets of the
Corporation, or in the case of any share exchange pursuant
to which all of the outstanding shares of Common Stock are
converted into other securities or property, the Corporation
shall make appropriate provision or cause appropriate
provision to be made so that holders of each share of 5%
Preferred Stock then outstanding shall have the right
thereafter to convert such share of 5% Preferred Stock into
the kind and amount of shares of stock and other securities
and property receivable upon such consolidation, merger,
sale, transfer or share exchange by a holder of the number
of shares of Common Stock into which such share of 5%
Preferred Stock might have been converted immediately prior
to the effective date of such consolidation, merger, sale,
transfer or share exchange. If in connection with any such
consolidation, merger, sale, transfer or share exchange,
each holder of shares of Common Stock is entitled to elect
to receive either securities, cash or other assets upon
completion of such transaction, the Corporation shall
provide or cause to be provided to each holder of 5%
Preferred Stock the right to elect the securities, cash or
other assets into which the 5% Preferred Stock held by such
holder shall be convertible after completion of any such
transaction on the same terms and subject to the same
conditions applicable to holders of the Common Stock
(including, without limitation, notice of the right to
elect, limitations on the period in which such election
shall be made and the effect of failing to exercise the
election). The Corporation shall not effect any such
transaction unless the provisions of this paragraph have
been complied with. The above provisions shall similarly
apply to successive consolidations, mergers, sales,
transfers or share exchanges.
Upon the surrender of certificates representing
shares of 5% Preferred Stock, the person converting such
shares shall be deemed to be the holder of record of the
Common Stock issuable upon such conversion and all rights
with respect to the shares surrendered shall forthwith
terminate except the right to receive the Common Stock or
other securities, cash or other assets as herein provided.
No fractional shares of Common Stock shall be
issued upon conversion of 5% Preferred Stock but, in lieu of
any fraction of a share of Common Stock which would
otherwise be issuable in respect of the aggregate number of
such shares of 5% Preferred Stock surrendered for conversion
at one time by the same holder, the Corporation shall pay in
cash an amount equal to the product of (i) the Closing Price
of a share of Common Stock on the last trading day before
the conversion date and (ii) such fraction of a share.
For the purposes of any computation pursuant to
this Paragraph (h), the "Current Market Price" per share of
the Common Stock shall be deemed to be the average daily
Closing Prices of the Common Stock for the 30 consecutive
trading days commencing 45 trading days before the date to
which reference is made in subparagraphs (1) or (2) below.
The "Closing Price" for each trading day shall be the last
reported sales price regular way or, in case no sale takes
place on such day, the average of the closing bid and asked
prices regular way on such day, in either case as reported
on the New York Stock Exchange ("NYSE") Composite Tape, or
if the Common Stock is not listed or admitted to trading on
the NYSE, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading, or
if not listed or admitted to trading on any national
securities exchange, the average of the high bid and low
asked prices on such day as reported by the National
Association of Securities Dealers, Inc. through NASDAQ, or
if the National Association of Securities Dealers, Inc.
through NASDAQ shall not have reported any bid and asked
prices for the Common Stock on such day, the average of the
bid and asked prices for such day as furnished by any NYSE
member firm selected from time to time by the Corporation
for such purpose, or if no such bid and asked prices can be
obtained from any such firm, the fair market value of one
share of the Common Stock on such day as determined in good
faith by the Board of Directors of the Corporation.
The Conversion Price shall be adjusted from time
to time under certain circumstances, subject to the
provisions of the last three sentences of the first
paragraph of this Paragraph (h) as follows:
(1) In case the Corporation shall (w) pay a
dividend or make a distribution on its Common Stock in
shares of its capital stock, (x) subdivide its
outstanding Common Stock into a greater number of
shares, (y) combine the shares of its outstanding
Common Stock into a smaller number of shares, or
(z) issue by reclassification of its Common Stock any
shares of its capital stock, then in each such case the
Conversion Price in effect immediately prior thereto
shall be proportionately adjusted so that the holder of
any 5% Preferred Stock thereafter surrendered for
conversion shall be entitled to receive, to the extent
permitted by applicable law, the number and kind of
shares of capital stock of the Corporation which he
would have owned or have been entitled to receive after
the happening of such event had the 5% Preferred Stock
held by such holder been converted immediately prior to
the record date (or if no record date has been
established in connection with such event, the
effective date) for such action. An adjustment
pursuant to this subparagraph (1) shall become
effective immediately after the record date in the
case of a stock dividend or distribution and shall
become effective immediately after the effective date
in the case of a subdivision, combination or
reclassification.
(2) In case the Corporation shall issue rights or
warrants to all holders of the Common Stock entitling
such holders to subscribe for or purchase Common Stock
at a price per share less than the Current Market Price
per share of the Common Stock on the record date
referred to below, then in each such case the
Conversion Price in effect on such record date shall be
adjusted in accordance with the formula:
O + N
C' = C divided by O + N x P
M
where
C' = the adjusted Conversion Price.
C = the current Conversion Price.
O = the number of shares of Common Stock outstanding
on the record date.
N = the number of additional shares of Common Stock
offered.
P = the offering price per share of the additional
shares.
M = the Current Market Price per share of Common Stock
on the record date.
Such adjustment shall become effective immediately
after the record date for the determination of
stockholders entitled to receive such rights or
warrants. If any or all such rights or warrants are
not so issued or expire or terminate before being
exercised, the Conversion Price then in effect shall be
appropriately readjusted.
Except as otherwise provided above in this
Paragraph (h), no adjustment in the Conversion Price shall
be made in respect of any conversion for share distributions
or dividends theretofore declared and paid or payable on the
Common Stock.
Whenever the Conversion Price is adjusted as
herein provided, the Corporation shall send to the transfer
agent for the 5% Preferred Stock and to the principal
securities exchange, if any, on which the 5% Preferred Stock
is traded, a statement signed by the Chairman of the Board,
the Vice-Chairman of the Board, the Chief Executive Officer,
the President, the Chief Operating Officer or any Vice
President of the Corporation and by its Treasurer or its
Secretary stating the adjusted Conversion Price determined
as provided in this Paragraph (h) and any adjustment so
evidenced, given in good faith, shall be binding upon all
stockholders of the Corporation and upon the Corporation.
Whenever the Conversion Price is adjusted, the Corporation
will give notice by mail stating the adjustment and the
Conversion Price at the time of, and together with, the next
dividend payment to holders of record of 5% Preferred Stock.
Notwithstanding the foregoing notice provisions, failure of
the Corporation to give such notice or a defect in such
notice shall not affect the Corporation's obligation to
adjust the Conversion Price as provided herein.
Whenever the Corporation shall propose to take any
of the actions specified in the third paragraph or in
subparagraphs (1) or (2) of the eighth paragraph of this
Paragraph (h) which would result in any adjustment in the
Conversion Price under this Paragraph (h), the Corporation
shall cause a notice to be mailed at least 15 days prior to
the date on which the books of the Corporation will close or
on which record will be taken for such action, to the
holders of record of the outstanding 5% Preferred Stock on
the date of such notice. Such notice shall specify the
action proposed to be taken by the Corporation and the date
as of which holders of record of the Common Stock shall
participate in any such actions or be entitled to exchange
their Common Stock for securities or other property, as the
case may be. Failure to mail the notice or defect in it
shall not affect the validity of the transaction.
Notwithstanding any other provision of this
Paragraph (h), no adjustment in the Conversion Price need be
made (i) for a transaction referred to in subparagraphs (1)
or (2) of the eighth paragraph of this Paragraph (h) if
holders of 5% Preferred Stock are to participate in the
transaction on a basis and with notice that the Board of
Directors determines to be fair and appropriate in light of
the basis and notice on which holders of Common Stock
participate in the transaction; (ii) for sales of Common
Stock pursuant to a plan for reinvestment of dividends and
interest or pursuant to any employee benefit plan adopted by
the Corporation; or (iii) for a change in par value of the
Common Stock.
The Corporation from time to time may decrease the
Conversion Price by any amount for any period of time if the
period is at least 20 days and if the decrease is
irrevocable during the period. Whenever the Conversion
Price is decreased, the Corporation shall mail to holders of
record of 5% Preferred Stock a notice of the decrease. The
Corporation shall mail the notice at least 15 days before
the date the decreased Conversion Price takes effect. The
notice shall state the decreased Conversion Price and the
period in which it will be in effect. A decrease of the
Conversion Price does not change or adjust the Conversion
Price otherwise in effect for purposes of subparagraphs (1)
or (2) of the eighth paragraph of this Paragraph (h).
(i) Voting Rights. The holders of 5% Preferred
Stock will not have any voting rights except as set forth
below or as otherwise from time to time required by law.
Whenever dividends on the 5% Preferred Stock or any other
class or series of Parity Dividend Stock shall be in arrears
in an amount equal to at least six quarterly dividends
(whether or not consecutive), the holders of the 5%
Preferred Stock (voting separately as a class with all other
affected classes or series of the Parity Dividend Stock upon
which like voting rights have been conferred and are
exercisable) will be entitled to vote for and elect two
directors of the Corporation (which directors shall be in
addition to those directors then serving on the Board of
Directors to the extent that the number of directors
permitted by the Certificate is greater than the number of
such directors then serving on the Board of Directors) at
any meeting of stockholders of the Corporation at which
directors are to be elected held during the period in which
such dividends remain in arrears. Whenever the right to
elect directors shall have accrued to the holders of 5%
Preferred Stock, the proper officers of the Corporation
shall call a meeting for the election of such directors,
such meeting to be held not less than 45 nor more than 90
days after the accrual of such right. The right of the
holders of the 5% Preferred Stock to vote for two directors
shall terminate when all accrued and unpaid dividends on the
5% Preferred Stock have been declared and paid or set apart
for payment. The term of office of all directors so elected
shall terminate immediately upon the termination of the
right of the holders of the 5% Preferred Stock and such
Parity Dividend Stock to vote for two directors. In
connection with such right to vote, each holder of 5%
Preferred Stock will have one vote for each share held.
Without the consent or affirmative vote of the
holders of at least two-thirds of the outstanding shares of
5% Preferred Stock, voting separately as a class with
holders of any other class of the Corporation's preferred
stock entitled to vote in such circumstances, the
Corporation shall not authorize, create or issue any shares
of any other class or series of Senior Dividend Stock or
Senior Liquidation Stock. The affirmative vote or consent
of the holders of at least two-thirds of the outstanding
shares of the 5% Preferred Stock, voting separately as a
class with holders of any other class of preferred stock
entitled to vote in such circumstances, will be required for
any amendment, alteration or repeal, whether by merger or
consolidation or otherwise, of the Certificate if the
amendment, alteration or repeal would materially and
adversely affect the powers, preferences or special rights
of the 5% Preferred Stock.
(j) Outstanding Shares. For purposes of this
Certificate of Designations, all shares of 5% Preferred
Stock shall be deemed outstanding except (i) from the date
fixed for redemption pursuant to Paragraph (f) hereof, all
shares of 5% Preferred Stock which have been so called for
redemption under Paragraph (f) if the Common Stock or funds
necessary for the redemption of such shares are available;
(ii) from the date of surrender of certificates representing
shares of 5% Preferred Stock, all shares of 5% Preferred
Stock converted into Common Stock; and (iii) from the date
of registration of transfer, all shares of 5% Preferred
Stock held of record by the Corporation or any subsidiary of
the Corporation.
(k) Partial Payments. If at any time the
Corporation does not pay amounts sufficient to redeem all 5%
Preferred Stock called for redemption by the Corporation on
the redemption date set pursuant to Paragraph (f) hereof,
then such funds which are paid shall be applied to redeem
such 5% Preferred Stock as the Corporation may designate by
lot.
(l) Right of Action. Notwithstanding any other
provision of this Certificate of Designations, if the
Corporation shall default in the payment of any amount
required to be paid by it in respect of the 5% Preferred
Stock, each holder of 5% Preferred Stock, individually,
shall have a right to bring an action for payment.
IN WITNESS WHEREOF, Ultramar Corporation has
caused its corporate seal to be hereunto affixed and this
certificate to be signed by Patrick J. Guarino, its Senior
Vice President, General Counsel and Secretary, and attested
by Gregory A. Robbins, its Assistant Secretary, this 3rd day
of December, 1996.
ULTRAMAR CORPORATION
By: /s/ PATRICK J. GUARINO
Patrick J. Guarino
Senior Vice President,
General Counsel and Secretary
Attest:
By: /s/ GREGORY A. ROBBINS
Gregory A. Robbins
Assistant Secretary
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