EXHIBIT 3
RESTATED CERTIFICATE OF INCORPORATION
OF
TESORO PETROLEUM CORPORATION
The undersigned, having filed its original Certificate of Incorporation,
under the name of TSO Corp., with the Secretary of State of the State of
Delaware on December 26, 1968, thereby forming a corporation under and pursuant
to the provisions of the General Corporation Law of the State of Delaware, does
hereby restate its Certificate of Incorporation and certify as follows:
ARTICLE I
The name of the Corporation is Tesoro Petroleum Corporation (hereinafter
called the 'Corporation').
ARTICLE II
The registered office of the Corporation in the State of Delaware is located
at No. 100 West 10th Street, in the City of Wilmington, County of New Castle.
The name and address of the Corporation's registered agent is The Corporation
Trust Company, No. 100 West 10th Street, Wilmington, Delaware.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
Delaware.
ARTICLE IV
The total number of shares of all classes of stock which the Corporation
shall have authority to issue is Fifty-Five Million (55,000,000) shares,
consisting of
Fifty Million (50,000,000) shares of the par value of $.16 2/3 per share;
and
Five Million (5,000,000) shares with no par value.
(A) DESIGNATION OF EACH CLASS OF SHARES.
(1) The Fifty Million (50,000,000) authorized shares of a par value of
$.16 2/3 per share and an aggregate par value of $8,333,333.33 shall be
designated Common Stock; and
(2) The Five Million (5,000,000) authorized shares with no par value
shall be designated Preferred Stock.
(B) STATEMENT OF PREFERENCES, LIMITATIONS AND RELATIVE RIGHTS IN RESPECT OF
SHARES OF PREFERRED STOCK AND AUTHORITY OF BOARD OF DIRECTORS TO FIX
DESIGNATIONS, POWERS, PREFERENCES, RIGHTS, QUALIFICATIONS, LIMITATIONS AND
RESTRICTIONS THEREOF NOT FIXED HEREBY.
Shares of Preferred Stock may be issued from time to time in one or more
series, as may be determined from time to time by the Board of Directors, each
of said series to be distinctly designated. All shares of any one series of
Preferred Stock shall be alike in every particular. The Board of Directors is
hereby authorized to fix or alter the dividend rights, dividend rate,
conversion rights, voting rights, rights and terms of redemption (including
sinking fund provisions), the redemption price or prices, and the liquidation
preferences of any wholly unissued series of preferred shares, and the number of
shares constituting any such series and the designation thereof, or any of them;
and to increase or decrease the number of shares of any series subsequent to the
issue of shares of that series, but not below the number of shares of such
series then outstanding. In case the number of shares of
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any series shall be so decreased, the shares constituting such decrease shall
resume the status which they had prior to the adoption of the resolution
originally fixing the number of shares of such series.
INITIAL SERIES OF PREFERRED STOCK DESIGNATED
'8% CONVERTIBLE PREFERRED STOCK'
1. DESIGNATION OF SERIES AND NUMBER OF SHARES.
The initial series of preferred stock is designated '8% Convertible
Preferred Stock' (hereinafter referred to as '8% Preferred Stock'), and the
number of shares which shall constitute such series shall be 40,000 shares of a
stated value of $100 per share, which number may be increased or decreased (but
not below the number thereof then outstanding) from time to time by the Board of
Directors.
2. DIVIDENDS.
Holders of 8% Preferred Stock shall be entitled to receive, as and when
declared by the Board of Directors and out of assets of the Corporation which
are by law available for payment of dividends, cash dividends at, but not
exceeding, the rate of $8.00 per share per annum, payable quarterly on April 1,
July 1, October 1 and January 1 in each year, accruing from the date on which
respective shares of 8% Preferred Stock shall be issued. Dividends upon 8%
Preferred Stock shall be cumulative quarterly, so that no dividend whatsoever
shall be declared or paid upon or set apart for any class of stock or series
thereof ranking junior to 8% Preferred Stock in the payment of dividends nor
shall any shares of any class of stock or series thereof ranking junior to 8%
Preferred Stock in payment of dividends be redeemed or purchased by the
Corporation or any subsidiary thereof nor shall any moneys be paid to or made
available for a sinking fund for redemption or purchase of any shares of any
class of stock or series thereof ranking junior to 8% Preferred Stock in payment
of dividends, unless in each instance dividends on all outstanding shares of 8%
Preferred Stock for all past dividend periods shall have been paid and the
dividend on all outstanding shares of 8% Preferred Stock for the then current
quarterly dividend period shall have been paid or declared and sufficient funds
set aside for payment thereof. Accumulations of dividends on any shares of 8%
Preferred Stock shall not bear interest.
No dividend shall be declared on any shares of any other class of stock or
series thereof ranking on a parity with 8% Preferred Stock in respect of payment
of dividends for any dividend period unless there shall have been declared on
all shares then outstanding of 8% Preferred Stock, for the same dividend period,
or for the dividend period of 8% Preferred Stock terminating within the dividend
period of said parity stock, dividends in proportion to the respective dividend
rates fixed for 8% Preferred Stock and said parity stock.
3. LIQUIDATION.
In the event of voluntary or involuntary liquidation, dissolution or winding
up of the Corporation, holders of 8% Preferred Stock shall be entitled to
receive $100 per share, together with accrued and unpaid dividends thereon,
before any distribution of assets shall be made to holders of common stock or
any other class of stock or series thereof ranking junior to 8% Preferred Stock
with respect to distribution of assets. Holders of 8% Preferred Stock shall be
entitled to no further participation in any such distribution. If, upon any such
liquidation, dissolution or winding up of the Corporation, assets of the
Corporation available for distribution to holders of 8% Preferred Stock shall be
insufficient to permit payment in full to such holders of the preferential
amounts aforesaid, then all such assets of the Corporation shall be distributed
ratably among holders of 8% Preferred Stock and any other ranking on a parity
therewith then outstanding, in proportion to the full preferential amounts to
which they shall be entitled respectively. Neither merger nor consolidation of
the Corporation into or with any other corporation, nor the merger or
consolidation of any other corporation into or with the Corporation, nor a sale,
transfer or lease of all or any part of the assets of
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the Corporation, shall be deemed to be a liquidation, dissolution or winding up
of the Corporation within the meaning of this paragraph 3.
No payment on account of such dissolution, liquidation or winding up of the
Corporation shall be made to holders of any other class or series of stock
ranking on a parity with 8% Preferred Stock with respect to preferential
distribution of assets unless a payment on account of such dissolution,
liquidation or winding up shall be made at the same time to holders of 8%
Preferred Stock in proportion to the full distributive amounts to which they and
holders of such parity stock are respectively entitled.
Written notice of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation, stating the payment date and the
place where the distributable amounts shall be payable and containing a
reference to the conversion right set forth in paragraph 5 below, shall be given
by mail, postage prepaid, not less than 30 days prior to the payment date stated
therein, to the holders of record of 8% Preferred Stock at their respective
addresses as the same shall appear on the books of the Corporation.
4. REDEMPTION.
The Corporation at its option may, at any time or from time to time, after
February 1, 1978, redeem the whole or any part of this issue of 8% Preferred
Stock at the applicable redemption price plus in each case accrued and unpaid
dividends thereon to the date fixed for redemption.
The applicable redemption prices for the 8% Preferred Stock shall be as
follows:
IF REDEEMED DURING
12 MONTHS BEGINNING REDEMPTION
FEBRUARY 1 PRICE PER SHARE
1978--------------------------- $ 108.00
1979--------------------------- 106.40
1980--------------------------- 104.80
1981--------------------------- 103.20
1982--------------------------- 101.60
and thereafter at $100 per share.
In the event the Corporation shall determine to redeem less than the entire
issue of 8% Preferred Stock then outstanding, (i) the shares to be redeemed
shall be selected pro rata (as nearly as may be) so that the number of shares
redeemed from each holder shall be the same proportion of all the shares to be
redeemed that the total number of shares then held by such holder bears to the
total number of shares then outstanding or (ii) the shares shall be selected by
lot, as the Board of Directors of the Corporation may determine.
Notice of every such redemption shall be mailed, first class postage
prepaid, not less than 30 nor more than 50 days prior to the date fixed for
redemption ('redemption date'), to each holder of record of shares to be
redeemed, at his address as it appears on the books of the Corporation. Each
such notice shall state the redemption date; the number of shares of 8%
Preferred Stock to be redeemed, and, if less than all shares of 8% Preferred
Stock held by such holder are to be redeemed, the number of such shares to be
redeemed from him; the redemption price applicable to the shares to be redeemed;
the place or places where such shares are to be surrendered; that dividends on
shares to be redeemed will cease to accrue on the redemption date; and that
shares to be redeemed may be converted on or before the redemption date in
accordance with paragraph 5 below.
Notice having been mailed, from and after the redemption date (unless the
Corporation defaults in providing money for the payment of the redemption price)
the right to receive dividends on shares called for redemption shall cease to
accrue, said shares shall no longer be deemed to be outstanding, all rights of
holders thereof as shareholders of the Corporation (except the right to receive
the redemption price) shall terminate, and, upon surrender in accordance with
said notice of the
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certificates for any such shares (properly endorsed or assigned for transfer, if
the Board of Directors of the Corporation shall so require) such shares shall be
redeemed by the Corporation at the applicable redemption price; provided,
however, that the Corporation may include in such notice a statement that the
money required for the payment of the redemption price will be deposited on a
specified date, prior to the redemption date, with a specified bank or trust
company (which shall have an office in the City of New York) in trust for the
benefit of holders of shares called for redemption, and, notice having been
given, from and after such deposit shares called for redemption shall no longer
be deemed to be outstanding, all rights with respect to shares of 8% Preferred
Stock shall forthwith upon such deposit cease and terminate, except only the
right of the holders thereof to convert such shares in accordance with the
provisions of paragraph 5 below at any time prior to the close of business on
the redemption date, and holders of such shares shall look for payment of the
redemption price only to funds so deposited and in no event to the Corporation
unless said funds shall be repaid to the Corporation as hereinafter provided.
Holders of such shares shall not be entitled to any interest allowed by such
depositary on money so deposited, but any such interest shall be paid to the
Corporation. Any moneys deposited as aforesaid for redemption of any shares and
remaining unclaimed for four years after the date of such deposit shall then be
repaid to the Corporation upon its request, and holders of such shares shall
thereafter look only to the Corporation for payment.
Any shares of 8% Preferred Stock so redeemed or purchased shall be
permanently retired, shall no longer be deemed outstanding, and shall not under
any circumstances be reissued and the Corporation may from time to time take
such appropriate corporate action as may be necessary to reduce the number of
authorized 8% Preferred Stock accordingly.
5. CONVERSION.
Shares of 8% Preferred Stock shall be deemed to have a conversion value of
$100 per share and may be converted at the option of the holder thereof at any
time prior to the close of business on the date fixed for redemption of such
shares pursuant to paragraph 4 above into shares of fully paid and nonassessable
common stock of the Corporation at a price equivalent to $25.00 (the 'conversion
price') for one whole share of common stock as now constituted, subject to the
following provisions:
(A) The conversion price shall be subject to adjustment from time to
time as follows:
(1) In case the Corporation shall (i) pay a dividend or make a
distribution in shares of its capital stock (whether shares of common
stock or of capital stock of any other class), (ii) subdivide its
outstanding shares of common stock, (iii) combine its outstanding shares
of common stock into a smaller number of shares, or (iv) issue by
reclassification of its shares of common stock any shares of capital
stock of the Corporation, the conversion privilege and the conversion
price in effect immediately prior to such action shall be adjusted so
that the holder of any share of 8% Preferred Stock thereafter surrendered
for conversion shall be entitled to receive the number of shares of
capital stock of the Corporation which he would have owned immediately
following such action had such share of 8% Preferred Stock been converted
immediately prior thereto. An adjustment made pursuant to this
subparagraph (1) shall become effective immediately after the record date
in the case of a dividend and shall become effective immediately after
the effective date in the case of a subdivision, combination or
reclassification. If, as a result of an adjustment made pursuant to this
subparagraph (1), the holder of any shares of 8% Preferred Stock
thereafter surrendered for conversion shall become entitled to receive
shares of two or more classes of capital stock of the Corporation, the
Board of Directors (whose determination shall be conclusive) shall
determine the allocation of the adjusted conversion price between or
among shares of such classes of capital stock.
(2) In case the Corporation shall hereafter issue rights or warrants
to all holders of its common stock entitling them (for a period expiring
within forty-five days after the record date mentioned below) to
subscribe for or purchase shares of common stock at a price per
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share less than the current market price per share (as determined
pursuant to subparagraph (4) below) on the record date mentioned below,
the conversion price of the common stock shall be adjusted so that the
same shall equal the price determined by multiplying the conversion price
in effect immediately prior to the date of issuance of such rights or
warrants by a fraction of which the numerator shall be the number of
shares of common stock outstanding (excluding treasury shares) on the
date of issuance of such rights or warrants plus the number of shares
which the aggregate offering price of the total number of shares
purchased pursuant to such offer would purchase at such current market
price, and of which the denominator shall be the number of shares of
common stock outstanding on the date of issuance of such rights or
warrants plus the number of additional shares of common stock so
purchased pursuant to such offer for subscription or purchase.
(3) In case the Corporation shall distribute to all holders of its
common stock evidences of its indebtedness or assets (excluding any cash
dividend) or rights to subscribe (excluding those referred to in
subparagraph (2) above), then in each such case the conversion price
shall be adjusted so that the same shall equal the price determined by
multiplying the conversion price in effect immediately prior to the date
of such distribution by a fraction of which the numerator shall be the
current market price per share (determined as provided in subparagraph
(4) below) of the common stock on the record date mentioned below less
the then fair market value (as determined by the Board of Directors,
whose determination shall be conclusive) of the portion of the assets or
evidences of indebtedness so distributed or of such subscription rights
applicable to one share of common stock, and the denominator shall be
such current market price per share of common stock. Such adjustment
shall become effective immediately after the record date for
determination of stockholders entitled to receive such distribution.
(4) For the purpose of any computation under subparagraphs (2) and
(3) above, the current market price per share of common stock on any date
shall be deemed to be the average of daily closing prices for thirty
consecutive business days commencing forty-five business days before the
day in question. The closing price for each day shall be the last
reported sale price regular way or, in case no such reported sale takes
place on such day, the average of the reported closing bid and asked
prices regular way, in either case on the American Stock Exchange or, if
the common stock is not listed or admitted to trading on such Exchange,
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 closing bid and
asked prices as furnished by any New York Stock Exchange firm selected
from time to time by the Corporation for that purpose.
(5) In any case in which this paragraph 5 shall require that an
adjustment be made immediately following a record date, the Corporation
may elect to defer (but only until five business days following the
filing by the Corporation of the statement required by subparagraph (7)
below) issuing to the holder of any share of 8% Preferred Stock converted
after such record date shares of common stock and other capital stock of
the Corporation issuable upon such conversion over and above the number
of shares of common stock and other capital stock of the Corporation
issuable upon such conversion as computed on the basis of the conversion
price prior to adjustment.
(6) No adjustment in the conversion price shall be required unless
such adjustment would require an increase or decrease of at least one
percent in such price; provided, however, that any adjustments which by
reason of this subparagraph are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this paragraph 5 shall be made to the nearest cent or
to the nearest one-hundredth of a share, as the case may be.
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(7) Whenever the conversion price is adjusted as herein provided,
the Corporation shall (i) file at its principal office and with each
conversion agent for 8% Preferred Stock and each transfer agent for such
common stock a statement, signed by the President or one of the
Vice-Presidents of the Corporation and by its Treasurer or one of its
Assistant Treasurers, stating the adjusted conversion price and the
resulting number of shares of common stock purchasable on conversion of
one share of 8% Preferred Stock and setting forth the method of
calculation and the facts requiring such adjustment and upon which such
calculation is based, and (ii) mail or cause to be mailed a copy of such
statement setting forth the adjusted conversion price to each person who
is a registered holder of 8% Preferred Stock at such person's last
address as the same appears on the books of the Corporation. Each
adjustment shall remain in effect until a subsequent adjustment is
required hereunder.
(8) For the purposes of this paragraph 5, the term 'common stock'
shall mean (i) the Corporation's common stock, $.16 2/3 par value per
share, or (ii) any other class of stock resulting from successive changes
or reclassifications of such common stock consisting solely of changes in
par value, or from par value to no par value, or from no par value to par
value. In the event that at any time as a result of an adjustment made
pursuant to subparagraph (1) above, the holder of any share of 8%
Preferred Stock thereafter surrendered for conversion shall become
entitled to receive any stock of the Corporation other than shares of its
common stock, thereafter the conversion price of such other shares so
receivable upon conversion of any share of 8% Preferred Stock shall be
subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to common
stock contained in this paragraph 5.
(B) In case of a merger or consolidation of the Corporation with or
into another corporation, or the sale of the Corporation's property or
assets as, or substantially as, an entirety, to another corporation, or the
reclassification of the Corporation's common stock (other than through a
subdivision or combination thereof, or change in par value), holders of
shares of 8% Preferred Stock shall thereafter have the right to convert each
of such shares into the kind and amount of shares of stock and other
securities and property receivable upon such merger, consolidation, sale or
reclassification by a holder of the number of shares of common stock
(whether whole or fractional) of the Corporation into which such shares of
8% Preferred Stock might have been converted immediately prior to such a
merger, consolidation, sale or reclassification, and shall have no other
conversion rights under these provisions; and effective provision shall be
made in the charter of the resulting or surviving corporation or otherwise,
so that the provisions set forth herein for the protection of conversion
rights of 8% Preferred Stock shall thereafter be applicable, as nearly as
reasonably may be, to any such other shares of stock and other securities
and property deliverable upon conversion of 8% Preferred Stock remaining
outstanding or other convertible preferred stock received by the holders in
place therof. Any such resulting or surviving corporation shall expressly
assume the obligation to deliver, upon the exercise of the conversion
privilege, such shares, securities or property as holders of 8% Preferred
Stock remaining outstanding, or other convertible preferred stock received
by such holders in place thereof, shall be entitled to receive pursuant to
the provisions hereof, and to make provision for protection of conversion
rights as above provided.
(C) If, at any time while shares of 8% Preferred Stock are outstanding,
the Corporation shall (i) declare a dividend (or any other distribution) on
its common stock, other than in cash out of earned surplus; or (ii)
authorize the issuance to all holders of its common stock of rights or
warrants to subscribe for or purchase shares of its common stock or of any
other subscription rights or warrants; or (iii) reclassify its common stock
(other than through a subdivision or combination thereof) or become a party
to any consolidation or merger for which approval of any stockholders of the
Corporation is required, or sell or transfer all or substantially all of the
assets of the Corporation; then the Corporation shall cause to be mailed to
registered holders of 8% Preferred Stock, at their last addresses as they
shall appear upon the Corporation's stock transfer
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record, at least ten days prior to the applicable record date hereinafter
specified, a notice stating (i) the date on which a record is to be taken
for the purpose of such dividend, distribution, rights or warrants, or, if a
record is not to be taken, the date as of which holders of common stock of
record to be entitled to such dividend, distribution rights or warrants are
to be determined, or (ii) the date on which any such reclassification,
consolidation, merger, sale or transfer is expected to become effective, and
the date as of which it is expected that holders of common stock of record
shall be entitled to exchange their common stock for securities or other
property, if any, deliverable upon such reclassification, consolidation,
merger, sale or transfer. Failure to give or receive the notice required by
this subparagraph (C) or any defect therein shall not affect the legality or
validity of any such dividend, distribution, right or warrant or other
action.
(D) The holder of any shares of 8% Preferred Stock may exercise his
option to convert such shares into shares of common stock only by
surrendering for such purpose to the Corporation at the principal office of
the Corporation certificates representing the shares to be converted,
accompanied by written notice that such holder elects to convert such shares
in accordance with this paragraph 5. Said notice shall also state the name
or names (with addresses) in which the certificate or certificates for
shares of common stock which shall be issuable on such conversion shall be
issued. Each certificate or certificates surrendered for conversion shall,
unless the shares issuable on conversion are to be issued in the same name
as that in which such certificate or certificates are registered, be
accompanied by instruments of transfer, in form satisfactory to the
Corporation, duly executed by the holder or his duly authorized attorney.
Each conversion shall be deemed to have been effected on the date on which
such certificate or certificates shall have been surrendered and such notice
received by the Corporation as aforesaid, and the person or persons in whose
name or names any certificate or certificates for shares of common stock
shall be issuable upon such conversion shall be deemed to have become on
said date the holder or holders of record of the shares represented thereby
notwithstanding that the transfer books of the Corporation may then be
closed or that certificates representing such shares of common stock shall
not then be actually delivered to such person.
(E) Upon any such conversion of shares of 8% Preferred Stock, no
allowance, adjustment or payment shall be made with respect to dividends
upon either class of stock.
(F) In connection with the conversion of shares of 8% Preferred Stock
into common stock, no fractions of shares of 8% Preferred Stock or of common
stock shall be issued, but the Corporation shall pay a cash adjustment in
respect of such fractional interest in an amount equal to the market value
of such fractional interest. In such event, the market value of a share of
common stock shall be the last recorded sale price of such a share on the
American Stock Exchange on the business day immediately preceding the date
upon which such shares of 8% Preferred Stock are deemed to have been
converted, or, if there be no such recorded sale price on such day, the last
quoted bid price per share of common stock on such exchange at the close of
trading on such business day. If the common stock shall not at the time be
listed or admitted to trading on the American Stock Exchange, such market
value shall be the average of the reported closing bid-and-asked prices
regular way on such day 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
closing bid-and-asked prices on such day as furnished by any New York Stock
Exchange firm selected from time to time by the Corporation for that
purpose. The issue of stock certificates on conversions of shares of 8%
Preferred Stock shall be made without charge to converting holders of shares
of 8% Preferred Stock for any tax in respect of the issue thereof. The
Corporation shall not, however, be required to pay any tax which may be
payable in respect of any registration of transfer involved in the issue and
delivery of stock in any name other than that of the holder of any shares
of 8% Preferred Stock converted, and the Corporation shall not be required
to so issue or deliver any stock certificate unless and until the person or
persons requesting the registration or transfer shall
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have paid to the Corporation the amount of such tax or shall have
established to the satisfaction of the Corporation that such tax has been
paid.
(G) The Corporation shall at all times reserve and keep available out
of its authorized common stock the full number of shares of common stock
deliverable upon the conversion of all outstanding shares of 8% Preferred
Stock.
(H) Shares of 8% Preferred Stock converted shall be cancelled and shall
not be reissued.
6. VOTING RIGHTS.
(A) Holders of 8% Preferred Stock shall be entitled to two votes per share,
voting with the holders of any other class of stock entitled to vote, without
regard to class, on all matters to be voted on by stockholders of the
Corporation, in addition to their rights set forth in subparagraphs (B) and (C)
below and otherwise provided by law. Every provision in the Certificate of
Incorporation and By-Laws of the Corporation which requires the affirmative
vote, consent, presence, request or other action of a majority or other
proportion of the stock of the Corporation, or any class of such stock or series
thereof, or which refers to a majority or other proposition of such stock, class
or series, shall be deemed to require or refer to such majority or other
proportion of the votes of such stock, class or series.
(B) If the Corporation shall be in default in the payment of dividends on
8% Preferred Stock of an amount equivalent to or exceeding eight full quarterly
dividends (whether or not consecutive), the number of directors constituting the
Board of Directors shall be increased by one and holders of 8% Preferred Stock,
voting separately as one class, shall be entitled at the next annual meeting of
stockholders or the next special meeting of stockholders, or at a special
meeting of holders of 8% Preferred Stock called as hereinafter provided,
to fill such newly created directorship, and in addition thereto,
such holders shall be entitled to participate with holders of
common stock and holders, if any, of any other capital stock of the
Corporation entitled to vote for the election of directors in the election of
any other directors; provided, however, that when all arrears in dividends on 8%
Preferred Stock then outstanding shall have been paid and dividends thereon for
the current quarterly period shall have been paid or declared and a sum
sufficient for the payment thereof set aside, then (i) the right of holders of
8% Preferred Stock to participate in the election of one director shall cease
but subject always to the same provisions for vesting of such voting rights in
the case of any similar future arrearages in dividends; (ii) the term of the
director then in office elected by holders of 8% Preferred Stock as a class
shall terminate; and (iii) the number of directors constituting the Board of
Directors shall be reduced by one.
Whenever such voting right shall vest, it may be exercised initially either
at a special meeting of holders of 8% Preferred Stock or at any annual or
special stockholders' meeting, but thereafter it shall be exercised only at
annual stockholders' meetings. A special meeting for the exercise of such right
shall be called by the Secretary of the Corporation within ten days after
receipt of a written request signed by the holders of record of at least 10% of
the outstanding shares of 8% Preferred Stock; however, no such special meeting
shall be held during the 90-day period preceding the date fixed for the annual
meeting of stockholders.
Any director who shall have been elected by holders of 8% Preferred Stock as
a class shall hold office for a term expiring (subject to the earlier payment of
arrears in dividends) at the next annual meeting of stockholders, and during
such term may be removed at any time, either for or without cause only by the
affirmative votes of holders of record of a majority of the outstanding shares
of 8% Preferred Stock given at a special meeting of such stockholders called for
the purpose. Any vacancy created by such removal may also be filled at such
meeting. A meeting for the removal of a director elected by holders of 8%
Preferred Stock as a class and the filling of the vacancy created thereby shall
be called by the Secretary of the Corporation within ten days after receipt of a
request therefor, signed by holders of not less than 25% of the then outstanding
shares of 8% Preferred Stock. Such meeting shall be held at the earliest
practicable date thereafter.
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Any vacancy caused by the death or resignation of a director who shall have
been elected by holders of 8% Preferred Stock as a class may be filled only by
holders of 8% Preferred Stock at a meeting called for such purpose. Such meeting
of holders of 8% Preferred Stock shall be called by the Secretary of the
Corporation at the earliest practicable date after any such death or resignation
and in any event within ten days after receipt of a written request signed by
the holders of record of at least 10% of the outstanding shares of 8% Preferred
Stock.
If any meeting of holders of 8% Preferred Stock required by this
subparagraph (B) to be called shall not have been called within ten days after
personal service of a written request therefor upon the Secretary of the
Corporation or within 15 days after mailing the same within the United States of
America by registered mail addressed to the Secretary of the Corporation at its
principal office, then holders of record of at least 10% of the outstanding
shares of 8% Preferred Stock may designate in writing one of their number to
call such a meeting at the expense of the Corporation and such meeting may be
called by such person so designated upon the notice required for annual meetings
of stockholders. Any holder of 8% Preferred Stock so designated shall have
access to the stock books of the Corporation for the purpose of causing meetings
of stockholders to be called pursuant to these provisions.
Any meeting of holders of 8% Preferred Stock to vote as a class for the
election or removal of directors shall be held at the place for the holding of
the annual meeting of stockholders of the Corporation. At such meeting, the
presence in person or by proxy of holders of a majority of the outstanding
shares of 8% Preferred Stock shall be required to constitute a quorum; in the
absence of a quorum, a majority of the holders present in person or by proxy
shall have power to adjourn the meeting from time to time without notice, other
than announcement at the meeting, until a quorum shall be present.
(C) So long as any shares of 8% Preferred Stock are outstanding, the
Corporation shall not, without the written consent or the affirmative vote at a
meeting called for that purpose of holders of at least two-thirds of the total
number of shares of 8% Preferred Stock then outstanding, in any manner, whether
by amendment to the Certificate of Incorporation or By-Laws of the Corporation,
by merger (whether or not the Corporation is a surviving corporation in such
merger), by consolidation, or otherwise:
(1) change or abolish the relative rights, preferences or limitations of
the 8% Preferred Stock; or
(2) authorize, or increase the authorized amount of, any class or series
of stock ranking prior to the 8% Preferred Stock in the payment of dividends
or the preferential distribution of assets;
and so long as any shares of 8% Preferred Stock are outstanding, the Corporation
shall not, without the written consent or the affirmative vote at meeting called
for that purpose of holders of at least a majority of the total number of shares
of 8% Preferred Stock then outstanding in any such manner as aforesaid:
(3) increase the amount of the Preferred Stock authorized by the
provisions of Article IV of the Certificate of Incorporation of the
Corporation; or
(4) authorize, or increase the authorized amount of, any class or series
of stock ranking on a parity with 8% Preferred Stock in the payment of
dividends or the preferential distribution of assets other than any series
of Preferred Stock which may be issued from time to time pursuant to the
authorization contained in Article IV of the Certificate of Incorporation of
the Corporation;
PROVIDED, HOWEVER, that the foregoing shall not require the consent or vote of
holders of 8% Preferred Stock for the authorization, or an increase in the
authorized amount of, any class or series of stock except to the extent
specifically provided in sections (2), (3) and (4) of this subparagraph (C); AND
PROVIDED FURTHER, that, except as otherwise required by law, no such consent or
vote shall be required for any merger or consolidation:
9
(5) in which (i) the Corporation is the surviving corporation; (ii) no
change is made in the rights, preferences or limitations of 8% Preferred
Stock; and (iii) no authorization is granted for any class or series of
stock, or any increase in the authorized amount of any class or series of
stock, if such consent or vote would have been required for such
authorization, or increase in authorized amount, immediately prior to such
merger or consolidation; or
(6) in which (i) the Corporation is a party but is not the surviving
corporation; (ii) the surviving corporation shall, in connection with and at
the same time as such merger or consolidation, issue in exchange for each
share of 8% Preferred Stock then outstanding a share of preferred stock of
the surviving corporation with the same rights, preferences and limitations
as the 8% Preferred Stock; and (iii) the authorized capital stock of the
surviving corporation immediately after such merger or consolidation shall
include only classes or series of stock for which no such consent or vote
would have been required if such class or series had been authorized by the
Corporation immediately prior to such merger or consolidation or which have
the same rights, preferences and limitations and authorized amount as a
class or series of stock of the Corporation authorized (with such consent or
vote) prior to such merger or consolidation and continuing as an authorized
class or series at the time thereof.
SECOND SERIES OF PREFERRED STOCK DESIGNATED
'$2.16 CUMULATIVE CONVERTIBLE PREFERRED STOCK'
1. DESIGNATION OF SERIES AND NUMBER OF SHARES.
The series of Preferred Stock is designated '$2.16 Cumulative Convertible
Preferred Stock' (hereinafter referred to as '$2.16 Preferred Stock'), and the
number of shares which shall constitute such series shall be 4,600,000 shares of
a stated value of $1.00 per share, which number may be increased or decreased
(but not below the number thereof then outstanding) from time to time by the
Board of Directors.
2. DIVIDENDS.
Shares of $2.16 Preferred Stock shall rank on a parity as to dividends with
shares of 8% Convertible Preferred Stock of the Corporation (hereinafter
referred to as '8% Preferred Stock'). The holders of $2.16 Preferred Stock shall
be entitled to receive, as and when declared by the Board of Directors and out
of assets of the Corporation which are by law available for payment of
dividends, cumulative preferential cash dividends, at, but not exceeding, the
rate of $2.16 per share per annum, payable quarterly on March 15, June 15,
September 15 and December 15 in each year, accruing from the date on which
respective shares of $2.16 Preferred Stock shall be issued. So long as any $2.16
Preferred Stock shall remain outstanding, no dividend whatsoever shall be
declared or paid upon or set apart for any class of stock or series thereof
ranking junior to $2.16 Preferred Stock in the payment of dividends nor shall
any shares of any class of stock or series thereof ranking junior to or on a
parity with $2.16 Preferred Stock in payment of dividends be redeemed or
purchased by the Corporation or any subsidiary thereof nor shall any moneys be
paid to or made available for a sinking fund for redemption or purchase of any
shares of any class of stock or series thereof ranking junior to or on a parity
with $2.16 Preferred Stock in payment of dividends, unless in each instance full
dividends on all outstanding shares of $2.16 Preferred Stock for all past
dividend periods shall have been paid at the rate fixed therefor and the
dividends on all outstanding shares of $2.16 Preferred Stock for the then
current quarterly dividend period shall have been paid or declared and
sufficient funds set aside for payment thereof. Accumulations of dividends on
any shares of $2.16 Preferred Stock shall not bear interest.
No dividend shall be paid upon or declared or set apart for (a) any share of
$2.16 Preferred Stock for any dividend period unless at the same time (i) a like
proportionate dividend for the same dividend period shall be paid upon or
declared or set apart for all shares of $2.16 Preferred Stock then outstanding
and entitled to receive such dividend and (ii) there shall have been paid upon
10
or declared or set aside for all shares of 8% Preferred Stock and for all shares
of Preferred Stock of all other series or of any other class of stock or series
thereof, if any, then outstanding and ranking on a parity with $2.16 Preferred
Stock in respect of payment of dividends, for the same dividend period as the
dividend period of the $2.16 Preferred Stock, or for the respective dividend
periods of the 8% Preferred Stock and said parity stock terminating within the
dividend period of the $2.16 Preferred Stock, dividends in proportion to the
respective dividend rates fixed for the 8% Preferred Stock and said parity
stock; and (b) any shares of 8% Preferred Stock or other series of Preferred
Stock or other class of stock or series thereof, if any, ranking on a parity
with $2.16 Preferred Stock in respect of payment of dividends for any dividend
period unless there shall have been paid upon or declared or set apart for all
shares then outstanding of $2.16 Preferred Stock, for the same dividend period,
or for the dividend period of the $2.16 Preferred Stock terminating within the
dividend period of said parity stock, dividends in proportion to the respective
dividend rates fixed for $2.16 Preferred Stock and said parity stock.
3. LIQUIDATION.
Shares of $2.16 Preferred Stock shall rank on a parity with shares of 8%
Preferred Stock as to distribution of assets in the event of any liquidation,
dissolution or winding up of the affairs of the Corporation. In the event of any
such liquidation, dissolution or winding up, after payment or provision for
payment of the debts and other liabilities of the Corporation, the holders of
$2.16 Preferred Stock shall be entitled to receive, out of the net assets of the
Corporation, (i) if such liquidation, dissolution or winding up is voluntary,
the applicable redemption price per share determined as provided in paragraph 4
below, or (ii) if such liquidation, dissolution or winding up is involuntary,
$25 per share plus, in either case, an amount equal to all dividends accrued and
unpaid on each share of $2.16 Preferred Stock to the date fixed for
distribution, and no more, before any distribution of assets shall be made to
the holders of Common Stock or any other class of stock or series thereof
ranking junior to $2.16 Preferred Stock with respect to the distribution of
assets; provided, however, that no distribution as aforesaid shall be made to
the holders of $2.16 Preferred Stock unless at the same time a like
proportionate distribution shall be made, ratably in proportion to the
respective amounts payable upon liquidation, dissolution or winding up of the
affairs of the Corporation, to the holders of all shares of 8% Preferred Stock
and Preferred Stock of all other series or of any other class of stock or series
thereof, if any, then outstanding and ranking as to distribution of assets on a
parity with $2.16 Preferred Stock.
Nothing herein contained shall be deemed to prevent redemption of $2.16
Preferred Stock by the Corporation in the manner provided in paragraph 4 below.
Neither the merger or consolidation of the Corporation into or with any other
corporation, nor the merger or consolidation of any other corporation into or
with the Corporation, nor a sale, transfer or lease of all or any part of the
assets of the Corporation, shall be deemed to be a liquidation, dissolution or
winding up of the affairs of the Corporation within the meaning of this
paragraph 3.
No payment on account of such liquidation, dissolution or winding up of the
affairs of the Corporation shall be made to the holders of any other class or
series of stock ranking on a parity with $2.16 Preferred Stock with respect to
preferential distribution of assets unless a payment on account of such
liquidation, dissolution or winding up shall be made at the same time to the
holders of $2.16 Preferred Stock in proportion to the full distributive amounts
to which they and the holders of such parity stock are respectively entitled.
Written notice of any voluntary or involuntary liquidation, dissolution or
winding up of the affairs of the Corporation, stating the payment date and the
place where the distributable amounts shall be payable and containing a
statement of or reference to the conversion right set forth in paragraph 5
below, shall be given by mail, postage prepaid, not less than 30 days prior to
the payment date stated therein, to the holders of record of $2.16 Preferred
Stock at their respective addresses as the same shall appear on the books of the
Corporation.
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4. REDEMPTION.
The Corporation at its option may, at any time or from time to time, on or
after January 1, 1980, redeem the whole or any part of this issue of $2.16
Preferred Stock at the applicable redemption price plus in each case accrued and
unpaid dividends thereon to the date fixed for redemption.
The applicable redemption prices for the $2.16 Preferred Stock shall be as
follows:
IF REDEEMED DURING 12 MONTHS REDEMPTION PRICE
BEGINNING JANUARY 1 PER SHARE
1980------------------------- $ 27.50
1981------------------------- 27.00
1982------------------------- 26.50
1983------------------------- 26.00
1984------------------------- 25.50
and thereafter at $25 per share.
In the event the Corporation shall determine to redeem less than the entire
issue of $2.16 Preferred Stock then outstanding, (i) the shares to be redeemed
shall be selected pro rata (as nearly as may be) so that the number of shares
redeemed from each holder shall be the same proportion of all the shares to be
redeemed that the total number of shares then held by such holder bears to the
total number of shares then outstanding or (ii) the shares shall be selected by
lot, as the Board of Directors of the Corporation may determine.
Notice of every such redemption shall be mailed, first class postage
prepaid, not less than 45 nor more than 60 days prior to the date fixed for
redemption ('redemption date'), to each holder of record of shares to be
redeemed, at his address as it appears on the books of the Corporation. Each
such notice shall state the redemption date; the number of shares of $2.16
Preferred Stock to be redeemed, and, if less than all shares of $2.16 Preferred
Stock held by such holder are to be redeemed, the number of such shares to be
redeemed from him; the redemption price applicable to the shares to be redeemed;
the place or places where such shares are to be surrendered; that dividends on
shares to be redeemed will cease to accrue on the redemption date; and that
shares to be redeemed may be converted at any time prior to the close of
business on the business day next preceding the redemption date in accordance
with paragraph 5 below.
Notice having been mailed, from and after the redemption date (unless the
Corporation defaults in providing money for the payment of the redemption price)
the right to receive dividends on shares called for redemption shall cease to
accrue, said shares shall no longer be deemed to be outstanding, all rights of
holders thereof as shareholders of the Corporation (except the right to receive
the redemption price thereof, but without interest) shall terminate, and, upon
surrender, in accordance with said notice, of the certificates for any such
shares (properly endorsed or assigned for transfer, if the Board of Directors of
the Corporation shall so require), such shares shall be redeemed by the
Corporation at the applicable redemption price; provided, however, that the
Corporation may include in such notice a statement that the money required for
the payment of the redemption price will be deposited on a specified date, prior
to the redemption date, with a specified bank or trust company (which shall have
an office in The City of New York) in trust for the benefit of holders of shares
called for redemption, and, notice having been given, from and after such
deposit shares called for redemption shall no longer be deemed to be
outstanding, all rights with respect to shares of $2.16 Preferred Stock shall
forthwith upon such deposit cease and terminate, except only the right of the
holders thereof to convert such shares in accordance with the provisions of
paragraph 5 below at any time prior to the close of business on the business day
next preceding the redemption date, and holders of such shares shall look for
payment of the redemption price only to funds so deposited and in no event to
the Corporation unless said funds shall be repaid to the Corporation as
hereinafter provided. Holders of such shares shall not be entitled to any
interest allowed by such depositary on money so deposited but any such interest
shall be paid to the Corporation. Any moneys deposited as
12
aforesaid for redemption of any shares and remaining unclaimed for four years
after the date of such deposit shall then be repaid to the Corporation upon its
request, and the holders of such shares shall thereafter look only to the
Corporation for payment of the redemption price thereof, but without interest.
Any provision of this paragraph 4 to the contrary notwithstanding, in the
event that any quarterly dividend due on $2.16 Preferred Stock shall be in
default, and until all such defaults shall have been cured, the Corporation
shall not redeem any shares of $2.16 Preferred Stock unless all outstanding
shares of $2.16 Preferred Stock are simultaneously redeemed and shall not
purchase or otherwise acquire any shares of $2.16 Preferred Stock except in
accordance with a purchase offer made by the Corporation on the same terms to
all holders of record of $2.16 Preferred Stock.
Any shares of $2.16 Preferred Stock redeemed or otherwise purchased or
acquired by the Corporation shall be retired, shall no longer be deemed
outstanding, and shall assume the status of authorized but unissued Preferred
Stock, with no par value, undesignated as to series, subject to reissuance by
the Corporation as shares of Preferred Stock of any one or more series, as may
be determined from time to time by the Board of Directors.
5. CONVERSION.
Shares of $2.16 Preferred Stock may be converted at the option of the holder
thereof, at any time prior to the close of business on the date fixed for
redemption of such shares pursuant to paragraph 4 above, into shares of fully
paid and non-assessable shares of Common Stock of the Corporation at the rate of
1.7241 shares of Common Stock as now constituted for each share of $2.16
Preferred Stock surrendered for conversion (the 'conversion rate'), subject to
the following provisions:
(A) The conversion rate shall be subject to adjustment from time to
time as follows:
(1) In case the Corporation shall (i) pay a dividend, or make a
distribution, to all holders of its Common Stock in shares of its capital
stock (whether shares of Common Stock or of capital stock of any other
class), (ii) subdivide its outstanding shares of Common Stock into a
greater number of shares, (iii) combine its outstanding shares of Common
Stock into a smaller number of shares, or (iv) issue by reclassification
of its shares of Common Stock any shares of capital stock of the
Corporation, the conversion rate in effect immediately prior to such
action shall be adjusted so that the holder of any share of $2.16
Preferred Stock thereafter surrendered for conversion shall be entitled
to receive the number of shares of capital stock of the Corporation which
he would have owned immediately following such action had such share of
$2.16 Preferred Stock been converted immediately prior thereto. An
adjustment made pursuant to this subparagraph (1) shall become effective
immediately after the record date in the case of a dividend and shall
become effective immediately after the effective date in the case of a
subdivision, combination or reclassification. If, as a result of an
adjustment made pursuant to this subparagraph (1), the holder of any
shares of $2.16 Preferred Stock thereafter surrendered for conversion
shall become entitled to receive shares of two or more classes of capital
stock of the Corporation, the Board of Directors (whose determination
shall be conclusive) shall determine the allocation of the conversion
price of the $2.16 Preferred Stock (determined by dividing the adjusted
conversion rate into $25) between or among shares of such classes of
capital stock.
(2) In case the Corporation shall hereafter issue rights or warrants
to all holders of its Common Stock entitling them (for a period expiring
within 45 days after the record date mentioned below) to subscribe for or
purchase shares of Common Stock at a price per share less than the
current market price per share of Common Stock (as determined pursuant to
subparagraph (4) below) on the record date mentioned below, the
conversion rate shall be adjusted effective immediately after the
expiration date of such rights or warrants so that the same shall equal
the rate determined by multiplying the conversion rate in effect
immediately prior to the date of issuance of such rights or warrants by a
fraction of which the
13
numerator shall be the number of shares of Common Stock outstanding
(excluding treasury shares) on the date of issuance of such rights or
warrants plus the number of additional shares of Common Stock purchased
pursuant to such offer for subscription or purchase and of which the
denominator shall be the number of shares of Common Stock outstanding
(excluding treasury shares) on the date of issuance of such rights or
warrants plus the number of shares of Common Stock which the aggregate
subscription or purchase price of the total number of shares so purchased
would purchase at such current market price (determined as provided in
subparagraph (4) below).
(3) In case the Corporation shall distribute to all holders of its
Common Stock evidences of its indebtedness or assets (excluding cash
distributions made out of current or retained earnings) or rights to
subscribe (excluding those referred to in subparagraph (2) above), then
in each such case the conversion rate shall be adjusted so that the same
shall equal the rate determined by multiplying the conversion rate in
effect immediately prior to the date of such distribution by a fraction
of which the numerator shall be the current market price per share of
Common Stock (determined as provided in subparagraph (4) below) at the
record date mentioned below, and the denominator of which shall be such
current market price per share of the Common Stock, less the then fair
market value (as determined by the Board of Directors of the Corporation,
whose determination shall be conclusive) of the portion of the assets or
evidences of indebtedness so distributed or of such subscription rights
applicable to one share of Common Stock. Such adjustment shall become
effective immediately after the record date for determination of
stockholders entitled to receive such distribution.
(4) For the purpose of any computation under subparagraphs (2) and
(3) above, the current market price per share of Common Stock on any date
shall be deemed to be the average of the daily closing prices for 30
consecutive business days commencing 45 business days before the day in
question. The closing price for each day shall be the last reported sale
price regular way or, in case no such reported sale takes place on such
day, the average of the reported closing bid and asked prices regular
way, in either case on the New York Stock Exchange or, if the Common
Stock is not listed or admitted to trading on such Exchange, 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 closing bid and
asked prices as furnished by any New York Stock Exchange member firm
selected from time to time by the Corporation for that purpose.
(5) In any case in which this paragraph 5 shall require that an
adjustment be made immediately following a record date, the Corporation
may elect to defer (but only until five business days following the
filing by the Corporation of the statement required by subparagraph (7)
below) issuing to the holder of any share of $2.16 Preferred Stock
converted after such record date shares of Common Stock and other capital
stock of the Corporation issuable upon such conversion over and above the
number of shares of Common Stock and other capital stock of the
Corporation issuable upon such conversion as computed on the basis of
the conversion rate prior to adjustment.
(6) All calculations under this paragraph 5 shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may
be.
(7) Whenever the conversion rate is adjusted as herein provided, the
Corporation shall (i) file at the office or agency in the Borough of
Manhattan in The City of New York maintained by the Corporation pursuant
to subparagraph (D) of this paragraph 5 and with each transfer agent for
its Common Stock a statement, signed by the Chairman of the Board of
Directors, the President or one of the Vice Presidents of the Corporation
and by its Treasurer or one of its Assistant Treasurers, stating the
adjusted conversion rate determined as provided herein and setting forth
the method of calculation and the facts requiring such
14
adjustment and upon which such calculation is based, and (ii) mail or
cause to be mailed a copy of such statement setting forth the adjusted
conversion rate to each person who is a registered holder of $2.16
Preferred Stock at such person's last address as the same appears on the
books of the Corporation. Each adjustment shall remain in effect until a
subsequent adjustment is required hereunder.
(B) In case of a merger or consolidation of the Corporation with or
into another corporation, or the sale of the Corporation's property or
assets as, or substantially as, an entirety, to another corporation, or the
reclassification of the Corporation's Common Stock (other than through a
subdivision or combination thereof, or change in par value), holders of
shares of $2.16 Preferred Stock shall thereafter have the right to convert
each of such shares into the kind and amount of shares of stock and other
securities and property receivable upon such merger, consolidation, sale or
reclassification by a holder of the number of shares of Common Stock
(whether whole or fractional) of the Corporation into which such shares of
$2.16 Preferred Stock might have been converted immediately prior to such a
merger, consolidation, sale or reclassification, and shall have no other
conversion rights under these provisions; and effective provision shall be
made in the charter of the resulting or surviving corporation or otherwise,
so that the provisions set forth herein for the protection of conversion
rights of $2.16 Preferred Stock shall thereafter be applicable, as nearly as
reasonably may be, to any such other shares of stock and other securities
and property deliverable upon conversion of $2.16 Preferred Stock remaining
outstanding or other convertible preferred stock received by the holders in
place thereof. Any such resulting or surviving corporation shall expressly
assume the obligation to deliver, upon the exercise of the conversion right,
such shares, securities or property as holders of $2.16 Preferred Stock
remaining outstanding, or other convertible preferred stock received by such
holders in place thereof, shall be entitled to receive pursuant to the
provisions hereof, and to make provision for protection of conversion rights
as above provided.
(C) If, at any time while shares of $2.16 Preferred Stock are
outstanding, the Corporation shall (i) declare a dividend (or any other
distribution) on its Common Stock, other than in cash out of current or
retained earnings; or (ii) authorize the issuance to all holders of its
Common Stock of rights or warrants to subscribe for or purchase shares of
its Common Stock or of any other subscription rights or warrants; or (iii)
reclassify its Common Stock (other than through a subdivision or combination
thereof) or become a party to any consolidation or merger for which approval
of the holders of its Common Stock is required, or sell or transfer all or
substantially all of the assets of the Corporation; then the Corporation
shall cause to be mailed to registered holders of $2.16 Preferred Stock, at
their last addresses as they shall appear upon the Corporation's stock
transfer record, at least ten days prior to the applicable record date
hereinafter specified, a notice stating (i) the date on which a record is to
be taken for the purpose of such dividend, distribution, rights or warrants,
or, if a record is not to be taken, the date as of which holders of Common
Stock of record to be entitled to such dividend, distribution, rights or
warrants are to be determined, or (ii) the date on which any such
reclassification, consolidation, merger, sale or transfer is expected to
become effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their Common Stock for
securities or other property, if any, deliverable upon such
reclassification, consolidation, merger, sale or transfer. Failure to give
or receive the notice required by this subparagraph (C) or any defect
therein shall not affect the legality or validity of any such dividend,
distribution, right or warrant or other action.
(D) The holder of any shares of $2.16 Preferred Stock may exercise his
option to convert such shares into shares of Common Stock only by
surrendering for such purpose to the Corporation at the office or agency in
the Borough of Manhattan in The City of New York maintained by the
Corporation for that purpose certificates representing the shares to be
converted, accompanied by written notice that such holder elects to convert
such shares in accordance with the provisions of this paragraph 5. Said
notice shall also state the name or names (with addresses) in
15
which the certificate or certificates for shares of Common Stock which shall
be issuable on such conversion shall be issued. Each certificate or
certificates surrendered for conversion shall, unless the shares issuable on
conversion are to be issued in the same name as that in which such
certificate or certificates are registered, be accompanied by instruments of
transfer, in form satisfactory to the Corporation, duly executed by the
holder or his duly authorized attorney. Each conversion shall be deemed to
have been effected on the date on which such certificate or certificates
shall have been surrendered and such notice received by the Corporation as
aforesaid, and the person or persons in whose name or names any certificate
or certificates for shares of Common Stock shall be issuable upon such
conversion shall be deemed to have become on said date the holder or holders
of record of the shares represented thereby notwithstanding that the
transfer books of the Corporation may then be closed or that certificates
representing such shares of Common Stock shall not then be actually
delivered to such person.
(E) Upon any such conversion of shares of $2.16 Preferred Stock, no
allowance, adjustment or payment shall be made with respect to dividends
upon either class of stock.
(F) In connection with the conversion of shares of $2.16 Preferred
Stock into Common Stock, no fractions of shares of $2.16 Preferred Stock or
of Common Stock shall be issued, but the Corporation shall pay a cash
adjustment in respect of such fractional interest in an amount equal to the
market value of such fractional interest. In such event, the market value of
a share of Common Stock shall be the last recorded sale price of such a
share on the New York Stock Exchange on the business day immediately
preceding the date upon which such shares of $2.16 Preferred Stock are
deemed to have been converted, or, if there be no such recorded sale price
on such day, the last quoted bid price per share of Common Stock on such
exchange at the close of trading on such business day. If the Common Stock
shall not at the time be listed or admitted to trading on the New York Stock
Exchange, such market value shall be the average of the reported closing bid
and asked prices regular way on such day 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 closing bid and asked prices on such day as
furnished by any New York Stock Exchange member firm selected from time to
time by the Corporation for that purpose. The issue of stock certificates on
conversions of shares of $2.16 Preferred Stock shall be made without charge
to converting holders of shares of $2.16 Preferred Stock for any tax in
respect of the issue thereof. The Corporation shall not, however, be
required to pay any tax which may be payable in respect of any registration
of transfer involved in the issue and delivery of stock in any name other
than that of the holder of any shares of $2.16 Preferred Stock converted,
and the Corporation shall not be required to so issue or deliver any stock
certificate unless and until the person or persons requesting the
registration of transfer shall have paid to the Corporation the amount of
such tax or shall have established to the satisfaction of the Corporation
that such tax has been paid.
(G) The Corporation shall at all times reserve and keep available out
of its authorized Common Stock the full number of shares of Common Stock
deliverable upon the conversion of all outstanding shares of $2.16 Preferred
Stock.
(H) Any shares of $2.16 Preferred Stock converted shall no longer be
deemed outstanding and shall assume the status of authorized but unissued
shares of Preferred Stock, with no par value, undesignated as to series,
subject to reissuance by the Corporation as shares of Preferred Stock of any
one or more series, as may be determined from time to time by the Board of
Directors.
(I) For purposes of this paragraph (5):
(1) 'business day' shall mean a day on which the New York Stock
Exchange (or a successor or an equivalent or substitute organization or
facility) is open for the trading of securities in the Borough of
Manhattan in The City of New York; and
16
(2) 'Common Stock' shall mean (a) the Corporation's Common Stock,
$.16 2/3 par value per share, or (b) any other class of stock resulting
from successive changes or reclassifications of such Common Stock
consisting solely of changes in par value, or from par value to no par
value, or from no par value to par value; provided, however, that in the
event that at any time as a result of an adjustment made pursuant to
subparagraph (A) (1) above, the holder of any share of $2.16 Preferred
Stock thereafter surrendered for conversion would become entitled to
receive any stock of the Corporation other than shares of its Common
Stock, thereafter the conversion rate with respect to such other shares
so receivable upon conversion of any share of $2.16 Preferred Stock shall
be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to Common
Stock contained in this paragraph 5.
6. VOTING RIGHTS.
(A) The holders of $2.16 Preferred Stock shall be entitled to one vote per
share, voting together as one class with the holders of Common Stock and 8%
Preferred Stock and any other series of Preferred Stock entitled to vote, on all
matters to be voted by stockholders of the Corporation, in addition to their
rights set forth in subparagraphs (B) and (C) below and otherwise provided by
law.
(B) If at any time the Corporation shall be in default in the payment of
dividends on the $2.16 Preferred Stock of an amount equivalent to or exceeding
six full quarterly dividends (whether or not consecutive), the number of
directors constituting the Board of Directors of the Corporation shall be
increased by two, and the holders of $2.16 Preferred Stock, voting as a separate
class together with the holders of all other series of Preferred Stock
outstanding (other than 8% Preferred Stock) having similar voting rights (such
other series of Preferred Stock and the $2.16 Preferred Stock being hereinafter
collectively referred to as 'Special Preferred Stock'), whether or not the
payment of quarterly dividends shall be in default on all Special Preferred
Stock outstanding, shall be entitled at the next annual meeting of stockholders
or the next special meeting of stockholders, or at a special meeting of holders
of Special Preferred Stock called as hereinafter provided, to elect two
directors to fill such newly created directorships, and in addition thereto,
such holders shall be entitled to participate with holders of Common Stock and
holders, if any, of any other capital stock of the Corporation entitled to vote
for the election of directors in the election of any other directors; provided,
however, that when all arrears in dividends on Special Preferred Stock then
outstanding shall have been paid and dividends thereon for the current quarterly
period shall have been paid or declared and a sum sufficient for the payment
thereof set aside, then (i) the right of holders of Special Preferred Stock to
participate in the election of two directors shall cease but subject always to
the same provisions for vesting of such voting rights in the case of any similar
future arrearages in dividends; (ii) the term of the directors then in office
elected by holders of Special Preferred Stock as a class shall terminate; and
(iii) the number of directors constituting the Board of Directors shall be
reduced by two.
Whenever such voting right shall vest, it may be exercised initially either
at a special meeting of holders of Special Preferred Stock or at any annual or
special stockholders' meeting, but thereafter it shall be exercised only at
annual stockholders' meetings. A special meeting for the exercise of such right
shall be called by the Secretary of the Corporation within ten days after
receipt of a written request therefor, signed by the holders of record of at
least 10% of the votes of the then outstanding shares of Special Preferred
Stock; however, no such special meeting shall be held during the 90-day period
preceding the date fixed for the annual meeting of stockholders.
Any director who shall have been elected by holders of Special Preferred
Stock as a class pursuant to this subparagraph (B) shall hold office for a term
expiring (subject to the earlier termination of the default in dividends) at the
next annual meeting of stockholders, and during such term may be removed at any
time, either for or without cause, only by the affirmative votes of holders of
record of a majority of the votes of the then outstanding shares of Special
Preferred Stock given at a special meeting of such stockholders called for the
purpose. Any vacancy created by such removal may also
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be filled at such meeting. A meeting for the removal of a director elected by
holders of Special Preferred Stock as a class and the filling of the vacancy
created thereby shall be called by the Secretary of the Corporation within ten
days after receipt of a written request therefor, signed by the holders of not
less than 25% of the votes of the then outstanding shares of Special Preferred
Stock. Such meeting shall be held at the earliest practicable date thereafter.
Any vacancy caused by the death or resignation of a director who shall have
been elected by the holders of Special Preferred Stock as a class pursuant to
this subparagraph (B) may be filled only by the holders of Special Preferred
Stock at a meeting called for such purpose. Such meeting of the holders of
Special Preferred Stock shall be called by the Secretary of the Corporation at
the earliest practicable date after any such death or resignation and in any
event within ten days after receipt of a written request therefor, signed by the
holders of record of at least 10% of the votes of the then outstanding shares of
Special Preferred Stock.
If any meeting of the holders of Special Preferred Stock required by this
subparagraph (B) to be called shall not have been called within ten days after
personal service of a written request therefor upon the Secretary of the
Corporation or within 15 days after mailing the same within the United States of
America by registered mail addressed to the Secretary of the Corporation at its
principal office, then holders of record of at least 10% of the votes of the
then outstanding shares of Special Preferred Stock may designate in writing one
of their number to call such a meeting at the expense of the Corporation and
such meeting may be called by such person so designated upon the notice required
for annual meetings of stockholders. Any holder of Special Preferred Stock so
designated shall have access to the stock books of the Corporation for the
purpose of causing meetings of stockholders to be called pursuant to these
provisions.
Any meeting of holders of Special Preferred Stock to vote as a class for the
election or removal of directors shall be held at the place for the holding of
the annual meeting of stockholders of the Corporation. At such meeting, the
presence in person or by proxy of holders of a majority of the votes of the then
outstanding shares of Special Preferred Stock shall be required to constitute a
quorum; in the absence of a quorum, a majority of the holders present in person
or by proxy shall have power to adjourn the meeting from time to time without
notice, other than announcement at the meeting, until a quorum shall be present.
(C) So long as any shares of $2.16 Preferred Stock are outstanding, the
Corporation shall not, in any manner, whether by amendment to the Certificate of
Incorporation or By-Laws of the Corporation, by merger (whether or not the
Corporation is a surviving corporation in such merger), by consolidation, or
otherwise:
(1) without the written consent or the affirmative vote at a meeting
called for that purpose of the holders of a least two-thirds of the votes of
the shares of $2.16 Preferred Stock then outstanding, voting separately as a
class, (a) amend, alter or repeal any of the provisions of Article IV of the
Certificate of Incorporation of the Corporation, or of any resolution or
resolutions establishing the $2.16 Preferred Stock, so as to affect
adversely the powers, preferences or special rights of the $2.16 Preferred
Stock; or (b) authorize or increase the authorized amount of, or authorize
any obligation or security convertible into or evidencing the right to
purchase shares of, any additional class or series of stock ranking prior to
the $2.16 Preferred Stock in the payment of dividends or the preferential
distribution of assets; or
(2) without the written consent or the affirmative vote at a meeting
called for that purpose of the holders of at least a majority of the
aggregate number of the votes of the shares of Preferred Stock of all series
(including $2.16 Preferred Stock) then outstanding, voting separately as a
class, (a) increase the number of shares of Preferred Stock authorized by
the provisions of Article IV of the Certificate of Incorporation; or (b)
authorize or increase the authorized amount of, or authorize any obligation
or security convertible into or evidencing the right to purchase shares of,
any additional class of stock ranking on a parity with the $2.16 Preferred
Stock in the payment of dividends or the preferential distribution of
assets;
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PROVIDED, HOWEVER, that the foregoing provisions of this subparagraph (C) shall
not require the consent or vote of the holders of $2.16 Preferred Stock or
Preferred Stock for the authorization or an increase in the authorized amount of
any class or series of stock, or for the authorization of any obligation or
security convertible into or evidencing the right to purchase shares of any
class or series of stock, except to the extent specifically provided in sections
(1)(b), (2)(a) and (2)(b) of this subparagraph (C); and PROVIDED further, that,
except as otherwise required by law, no such consent or vote shall be required
for any merger or consolidation:
(i) in which (x) the Corporation is the surviving corporation; (y) no
adverse change is made in the powers, preferences or special rights of the
$2.16 Preferred Stock; and (z) no additional class or series of stock is
authorized or the authorized amount thereof increased, and no obligation or
security convertible into or evidencing the right to purchase shares of any
additional class or series of stock is authorized, if such consent or vote
would have been required for any such authorization, or increase in
authorized amount, immediately prior to such merger or consolidation; or
(ii) in which (x) the Corporation is a party but is not the surviving
corporation; (y) the surviving corporation shall, in connection with and at
the same time as such merger or consolidation, issue in exchange for each
share of $2.16 Preferred Stock then outstanding a share of preferred stock
of the surviving corporation with the same powers, preferences and special
rights as the $2.16 Preferred Stock; and (z) immediately after such merger
or consolidation only classes or series of stock of the surviving
corporation and obligations or securities convertible into or evidencing the
right to purchase shares of a class or series of stock of the surviving
corporation shall be authorized or outstanding, for which no such consent or
vote would have been required if such classes or series of stock and
obligations or securities had been authorized by the Corporation immediately
prior to such merger or consolidation, or which have, or are convertible
into or evidence the right to purchase shares of a class or series of stock
of the surviving corporation which have, the same powers, preferences and
special rights and authorized amount as a class or series of stock of the
Corporation which was authorized (with such consent or vote) prior to such
merger or consolidation and is continuing as an authorized class or series
of stock at the time thereof.
(C) STATEMENT OF LIMITATIONS, RELATIVE RIGHTS AND POWERS IN RESPECT TO COMMON
STOCK.
Subject to any rights and privileges granted to the holders of Preferred
Stock by resolution of the Board of Directors pursuant to the provisions of
Section (B) of this Article IV, the holders of Common Stock shall exercise one
vote in respect to each share of stock held by them on all matters voted upon by
the stockholders; shall be entitled to receive such dividends as may be declared
from time to time by the Board of Directors; shall be entitled, upon liquidation
or dissolution, to receive all the remaining assets of the Corporation, tangible
and intangible, of whatever kind available for distribution ratably in
proportion to the number of shares of Common Stock held by them; and shall have
such other rights and privileges as may be allowed to them by the laws of the
State of Delaware.
(D) INCREASE OR DECREASE OF AUTHORIZED STOCK.
The amount of the authorized stock of the Corporation of any class or
classes may be increased or decreased by the affirmative vote of the holders of
a majority of the stock of the Corporation entitled to vote.
ARTICLE V
The Board of Directors shall be divided into three classes as nearly equal
in number as possible, with the term of office of one class expiring each year.
At the annual meeting of stockholders in 1970, directors of the first class
shall be elected to hold office for a term expiring at the next succeeding
annual meeting, directors of the second class shall be elected to hold office
for a term expiring at the second succeeding annual meeting and directors of the
third class shall be elected to hold office for a
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term expiring at the third succeeding annual meeting. During the intervals
between annual meetings of stockholders, any vacancy occurring in the Board of
Directors caused by resignation, removal, death or other incapacity and any
newly created directorships resulting from an increase in the number of
directors shall be filled by a majority vote of the directors then in office,
whether or not a quorum. Each director chosen to fill a vacancy shall hold
office for the unexpired term in respect of which such vacancy occurred. Each
director chosen to fill a newly created directorship shall hold office until the
next election of the class for which such director shall have been chosen. When
the number of directors is changed, any newly created directorships or any
decrease in directorships shall be so apportioned among the classes as to make
all classes as nearly equal in number as possible.
Any director may be removed from office at any time, for cause, by the
affirmative vote of stockholders of record holding a majority of the outstanding
shares of stock of the Corporation entitled to vote in elections of directors
given at a meeting of the stockholders called for that purpose.
Election of directors need not be by ballot unless the By-Laws of the
Corporation shall so provide.
ARTICLE VI
In furtherance and not in limitation of the power conferred upon the Board
of Directors by law, the Board of Directors shall have the power to make, adopt,
alter, amend and repeal from time to time By-Laws of the Corporation, subject to
the right of the stockholders entitled to vote with respect thereto to alter and
repeal By-Laws made by the Board of Directors.
ARTICLE VII
(A) Except as set forth in paragraph (B) of this Article, the affirmative
vote or consent of the holders of not less than four-fifths of the outstanding
shares of stock of the Corporation entitled to vote in elections of directors,
voting for the purposes of this Article as one class, shall be required:
(1) to adopt any agreement for the merger or consolidation of the
Corporation or any subsidiary (as hereinafter defined) with or into any
other person (as hereinafter defined),
(2) to authorize any sale, lease, transfer, exchange, mortgage, pledge
or other disposition to any other person of all or substantially all of the
assets of the Corporation or any subsidiary, or any part of such assets
having a then fair market value equal to or greater than 50 per cent of the
then fair market value of the total assets of the Corporation or such
subsidiary, or
(3) to authorize the issuance or transfer by the Corporation or any
subsidiary of any voting securities of the Corporation or any subsidiary in
exchange or payment for the securities or assets of any other person,
if, in any such case, as of the record date for the determination of
stockholders entitled to notice thereof and to vote thereon, or consent thereto,
such other person is, or at any time within the preceding twelve months has
been, the beneficial owner (as hereinafter defined) of 10 per cent or more of
the outstanding shares of stock of the Corporation entitled to vote in elections
of directors.
(B) The provisions of paragraph (A) of this Article shall not apply to any
transaction described therein if the Board of Directors by resolution shall have
approved a memorandum of understanding with such other person setting forth the
principal terms of such transaction and such transaction is substantially
consistent therewith, PROVIDED that a majority of those members of the Board of
Directors voting in favor of such resolution were duly elected and acting
members of the Board of Directors prior to the time such other person became the
beneficial owner of 10 per cent or more of the outstanding shares of stock of
the Corporation entitled to vote in elections of directors.
(C) The affirmative vote or consent of the holders of not less than
four-fifths of the outstanding shares of stock of the Corporation entitled to
vote in elections of directors, voting for purposes of this Article as one
class, shall be required for the adoption of any plan for the dissolution of
the
20
Corporation if the Board of Directors shall not have, by resolution, recommended
to the stockholders the adoption of such plan for dissolution of the Company.
(D) For purposes of this Article,
(1) any specified person shall be deemed to be the 'beneficial owner' of
shares of stock of the Corporation (a) which such specified person or any of
its affiliates or associates (as such terms are hereinafter defined) owns,
directly or indirectly, whether of record or not, (b) which such specified
person or any of its affiliates or associates has the right to acquire
pursuant to any agreement, upon exercise of conversion rights, warrants or
options, or otherwise, or (c) which are beneficially owned, directly or
indirectly (including shares deemed owned through application of clauses (a)
and (b) above), by any other person with which such specified person or any
of its affiliates or associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or disposing of
stock of the Corporation;
(2) a 'subsidiary' is any corporation more than 49 per cent of the
voting securities of which are owned, directly or indirectly, by the
Corporation;
(3) a 'person' is any individual, corporation or other entity;
(4) an 'affiliate' of a specified person is any person that directly, or
indirectly through one or more intermediaries, controls, or is controlled
by, or is under common control with, the specified person; and
(5) an 'associate' of a specified person is (a) any person of which such
specified person is an officer or partner or is, directly or indirectly, the
beneficial owner of 10 per cent or more of any class of equity securities,
(b) any trust or other estate in which such specified person has a
substantial beneficial interest or as to which such specified person serves
as trustee or in a similar fiduciary capacity, or (c) any relative or spouse
of such specified person, or any relative of such spouse, who has the same
home as such specified person or who is a director or officer of such
specified person or any corporation which controls or is controlled by such
specified person.
(E) For purposes of determining whether a person owns beneficially 10 per
cent or more of the outstanding shares of stock of the Corporation entitled to
vote in elections of directors, the outstanding shares of stock of the
Corporation shall include shares deemed owned through application of clause (a),
(b) or (c) of paragraph (D)(1) above but shall not include any other shares
which may be issuable pursuant to any agreement or upon exercise of conversion
rights, warrants or options, or otherwise.
(F) The Board of Directors shall have the power and duty to determine, for
purposes of this Article, on the basis of information known to such Board,
(1) the fair market value of any assets of the Corporation or any
subsidiary proposed to be disposed of in a transaction of the character
referred to in paragraph (A)(2) of this Article, and the fair market value
of the total assets of the Corporation or such subsidiary;
(2) whether any person referred to in paragraph (A) of this Article owns
beneficially 10 per cent or more of the outstanding shares of stock of the
Corporation entitled to vote in elections of directors; and
(3) whether a proposed transaction is substantially consistent with any
memorandum of understanding of the character referred to in paragraph (B) of
this Article.
Any such determination shall be conclusive and binding for all purposes of this
Article.
ARTICLE VIII
Notwithstanding the provisions of Article VI of this Certificate of
Incorporation and any provisions of the By-Laws of the Corporation, no amendment
to this Certificate of Incorporation or to the By-Laws shall amend, modify or
repeal any or all of the provisions of Article V, Article VII or
21
this Article VIII of this Certificate of Incorporation or Section 2.1 of the
By-Laws of the Corporation unless adopted by the affirmative vote or consent of
the holders of not less than four-fifths of the outstanding shares of stock of
the Corporation entitled to vote in elections of directors, considered for
purposes of this Article as a class; PROVIDED, HOWEVER, that in the event the
Board of Directors of the Corporation shall by resolution unanimously recommend
to the stockholders the adoption of any such amendment, the stockholders of
record holding a majority of the outstanding shares of stock of the Corporation
entitled to vote in elections of directors may amend, modify or repeal any or
all of such provisions.
This restated Certificate of Incorporation was duly adopted by the directors
of the Corporation in accordance with the provisions of Section 245 of the
General Corporation Law of the State of Delaware. It only restates and
integrates and does not further amend the provisions of the Corporation's
Certificate of Incorporation as heretofore amended or supplemented. There is no
discrepency between those provisions and the provisions of this restated
Certificate of Incorporation.
IN WITNESS WHEREOF, Tesoro Petroleum Corporation has caused this restated
Certificate of Incorporation to be signed in its corporate name by its Chairman
of the Board of Directors and its corporate seal to be affixed hereto and
attested by its Secretary this 23rd day of June, 1978.
***************************************
* * TESORO PETROLEUM CORPORATION
* TESORO PETROLEUM CORPORATION *
* Incorporated Dec. 26, 1968 * By /s/ ROBERT V. WEST, JR.
* Delaware * Chairman of the Board of Directors
* *
***************************************
ATTEST:
By /s/ CHARLES R. ROBERTS
Secretary
TESORO PETROLEUM CORPORATION
INCORPORATED DEC. 26, 1968
DELAWARE
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