Exhibit 4.6
ULTRAMAR CORPORATION
SECRETARY'S CERTIFICATE
I, Patrick J. Guarino, Senior Vice President, General Counsel
and Secretary of Ultramar Corporation, a Delaware corporation (the
"Corporation"), hereby certify that meetings of the Board of
Directors of the Corporation were duly called and held on
September 22, 1996, and December 3, 1996, at each of which a quorum
was present and voting throughout, and that at such meetings
resolutions on motions duly made and seconded were unanimously
adopted and are now in full force and effect which approved the
following amendments to the By-laws of the Corporation.
The By-laws of the Corporation are hereby amended so that they
read in their entirety as they exist on the date hereof except
that:
(i) Section 1 of Article IV of such by-laws reads in its
entirety as follows:
"SECTION 1. General. The officers of the Corporation
shall be chosen by the Board of Directors and shall be a
Chairman of the Board of Directors (who must be a director),
a Vice Chairman of the Board of Directors (who also must be a
director), a Chief Executive Officer, a President and Chief
Operating Officer, a Secretary and a Treasurer. The Board of
Directors, in its discretion, may also choose one or more Vice
Presidents (including, without limitation, Assistant,
Executive, Senior and Group), Assistant Secretaries, Assistant
Treasurers and other officers. Any number of offices may be
held by the same person, unless otherwise prohibited by law,
the Certificate of Incorporation or these By-laws. The
officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the
Board of Directors and the Vice Chairman of the Board of
Directors, need such officers be directors of the
Corporation.";
(ii) Sections 4, 5 and 6 of Article IV of such by-laws read in
their entirety as follows:
"SECTION 4. Chairman and Vice Chairman of the Board of
Directors. The Chairman of the Board of Directors shall
preside at all meetings of the stockholders and of the Board
of Directors. Except where by law the signature of the Chief
Executive Officer or the President and Chief Operating Officer
is required, the Chairman of the Board of Directors shall
possess the same power as the Chief Executive Officer or the
President and Chief Operating Officer to sign all contracts,
certificates and other instruments of the Corporation which
may be authorized by the Board of Directors. During the
absence or disability of the Chief Executive Officer or
President and Chief Operating Officer, the Chairman of the
Board of Directors shall exercise all the powers and discharge
all the duties of the Chief Executive Officer or President and
Chief Operating Officer, as applicable. The Chairman of the
Board of Directors shall also perform such other duties and
may exercise such other powers as from time to time may be
assigned to him by these By-laws or by the Board of Directors.
The Vice Chairman of the Board of Directors shall, during the
absence or disability of the Chairman of the Board of
Directors, have the powers and perform the duties of the
Chairman of the Board of Directors and shall also perform such
other duties and may exercise such other powers as from time
to time may be assigned to him by the Board of Directors.
Notwithstanding anything in these By-laws to the contrary, the
Chairman of the Board of Directors and the Vice Chairman of
the Board of Directors may only be removed from such offices
(but not as directors) by an affirmative vote of the majority
of the entire Board of Directors.
"SECTION 5. Chief Executive Officer and President and
Chief Operating Officer. The Chief Executive Officer shall,
subject to the control of the Board of Directors and the
Chairman of the Board of Directors (or during his absence or
disability, the Vice Chairman of the Board of Directors), have
general supervision of the business and affairs of the
Corporation and shall see that all orders and resolutions of
the Board of Directors are carried into effect. He shall
possess the power to execute all bonds, mortgages, contracts
and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or
permitted by law to be otherwise signed and executed and
except that the other officers of the Corporation may sign and
execute documents when so authorized by these By-laws, the
Board of Directors or the Chief Executive Officer. In the
absence or disability of both the Chairman of the Board of
Directors and the Vice Chairman of the Board of Directors, the
Chief Executive Officer shall preside at all meetings of the
stockholders and the Board of Directors. The Chief Executive
Officer shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him
by these By-laws or by the Board of Directors and,
notwithstanding any other provision of these By-laws, the
Chief Executive Officer may appoint officers of the
Corporation pursuant to and in accordance with authority
granted to him from time to time by the Board of Directors.
The President and Chief Operating Officer (hereinafter
sometimes referred to only as the "President") shall, subject
to the direction and control of the Board of Directors, and
the supervision of the Chairman of the Board of Directors (or
during his absence or disability, the Vice Chairman of the
Board of Directors) and the Chief Executive Officer, have
general supervision of the business operations of the
Corporation. The President and Chief Operating Officer shall,
during the absence or disability of the Chief Executive
Officer, have the powers and perform the duties of the Chief
Executive Officer and shall also perform such other duties and
may exercise such other powers as from time to time may be
assigned to him by these By-laws or the Board of Directors.
Notwithstanding anything in these By-laws to the contrary, the
Chief Executive Officer and the President and Chief Operating
Officer may only be removed from such offices by an
affirmative vote of the majority of the entire Board of
Directors.
"SECTION 6. Vice Presidents. At the request of the
Chief Executive Officer or in his absence or in the event of
his inability or refusal to act (and only in the absence of
the Chairman of the Board of Directors, Vice Chairman of the
Board of Directors and President and Chief Operating Officer
who would otherwise have the powers and perform the duties of
the Chief Executive Officer), the Vice President or the Vice
Presidents if there is more than one (in the order designated
by the Board of Directors) shall perform the duties of the
Chief Executive Officer, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the
Chief Executive Officer. Each Vice President shall perform
such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there be no
Chairman of the Board of Directors, no Vice Chairman of the
Board of Directors, no President and Chief Operating Officer
and no Vice President, the Board of Directors shall designate
the officer of the Corporation who, in the absence of the
Chief Executive Officer or in the event of the inability or
refusal of the Chief Executive Officer to act, shall perform
the duties of the Chief Executive Officer, and when so acting,
shall have all the powers of and be subject to all the
restrictions upon the Chief Executive Officer."; and
(iii) Article VIII of such by-laws reads in its entirety as
follows:
ARTICLE VIII
Indemnification
"SECTION 1. Right to Indemnification. Each person who was or
is made a party or is threatened to be made a party to or is
otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she is or was a
director or an officer of the Corporation or is or was serving at
the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the
basis of such proceeding is alleged action in an official capacity
as a director, officer, employee or agent or in any other capacity
while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest
extent permitted or required by the Delaware General Corporation
Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights
than such law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by
such indemnitee in connection therewith; provided, however, that,
except as provided in Section 3 of this Article VIII with respect
to proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such indemnitee in connection with
a proceeding (or part thereof) initiated by such indemnitee only if
such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation.
"SECTION 2. Right to Advancement of Expenses. The right to
indemnification conferred in Section 1 of this Article VIII shall
include the right to be advanced by the Corporation the expenses
(including, without limitation, attorneys' fees and expenses)
incurred in defending any such proceeding in advance of its final
disposition (hereinafter an "advancement of expenses"); provided,
however, that, if the Delaware General Corporation Law so requires,
an advancement of expenses incurred by an indemnitee in his or her
capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such indemnitee, including,
without limitation, service to an employee benefit plan) shall be
made only upon delivery to the Corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee,
to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that
such indemnitee is not entitled to be indemnified for such expenses
under this Section 2 or otherwise. The rights to indemnification
and to the advancement of expenses conferred in Sections 1 and 2 of
this Article VIII shall be contract rights and such rights shall
continue as to an indemnitee who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators.
"SECTION 3. Right of Indemnitee to Bring Suit. If a claim
under Section 1 or 2 of this Article VIII is not paid in full by
the Corporation within 60 calendar days after a written claim has
been received by the Corporation, except in the case of a claim for
an advancement of expenses, in which case the applicable period
shall be 20 calendar days, the indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid
amount of the claim. If successful in whole or in part in any such
suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking,
the indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not
in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) any
suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the Corporation
shall be entitled to recover such expenses upon a final
adjudication that, the indemnitee has not met any applicable
standard for indemnification set forth in the Delaware General
Corporation Law. Neither the failure of the Corporation (including
its Board of Directors, independent legal counsel or stockholders)
to have made a determination prior to the commencement of such suit
that indemnification of the indemnitee is proper in the circum-
stances because the indemnitee has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an
actual determination by the Corporation (including its Board of
Directors, independent legal counsel or stockholders) that the
indemnitee has not met such applicable standard of conduct, shall
create a presumption that the indemnitee has not met the applicable
standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the indemnitee is not enti-
tled to be indemnified, or to such advancement of expenses, under
this Article VIII or otherwise shall be on the Corporation.
"SECTION 4. Non-Exclusivity of Rights. The rights to
indemnification and to the advancement of expenses conferred in
this Article VIII shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, the
Corporation's Certificate of Incorporation, By-laws, agreement,
vote of stockholders or disinterested directors or otherwise.
"SECTION 5. Insurance. The Corporation may maintain
insurance, at its expense, to protect itself and any director,
officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against
such expense, liability or loss under the Delaware General Corpora-
tion Law.
"SECTION 6. Indemnification of Employees and Agents of the
Corporation. The Corporation may, to the extent authorized from
time to time by the Board of Directors, grant rights to indem-
nification and to the advancement of expenses to any employee or
agent of the Corporation to the fullest extent of the provisions of
this Article with respect to the indemnification and advancement of
expenses of directors and officers of the Corporation."
IN WITNESS WHEREOF, the undersigned has caused this
Certificate to be duly executed as of December 3, 1996.
/s/ PATRICK J. GUARINO
Patrick J. Guarino
Senior Vice President,
General Counsel and Secretary
W5018.TW