EXHIBIT 3(d)
CERTIFICATE OF DESIGNATION,
PREFERENCES AND RIGHTS OF SERIES A
PARTICIPATING PREFERRED STOCK
OF
TESORO PETROLEUM CORPORATION
PURSUANT TO SECTION 151 OF THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE
We, Robert V. West, Jr., Chairman of the Board and Chief Executive Officer,
and John H. Whitworth, Jr., Assistant Secretary, of Tesoro Petroleum
Corporation, a corporation organized and existing under the General Corporation
Law of the State of Delaware, in accordance with the provisions of Section 103
thereof DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by the
Certificate of Incorporation of said Corporation, the said Board of Directors on
November 27, 1985 adopted the following resolutions creating a series of 250,000
shares of the Preferred Stock without par value classified as Series A
Participating Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of Directors of
this Corporation in accordance with the provisions of its Certificate of
Incorporation, a series of Preferred Stock of the Corporation be and is hereby
created, and that the designation and amount thereof and the voting powers,
preferences and relative, participating, optional and other special rights of
the shares of such series, and the qualifications, limitations or restrictions
thereof are as follows:
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated as 'Series A Participating Preferred Stock' (the 'Series A Preferred
Stock') and the number of shares constituting such series shall be 250,000.
Section 2. DIVIDENDS AND DISTRIBUTIONS. The holders of shares of Series A
Preferred Stock shall be entitled to receive, when, as and if declared by the
Board of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June, September and
December in each year (each such date being referred to herein as a 'Quarterly
Dividend Payment Date'), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share of Series A Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the greater
of (a) $1.00 or (b) subject to the provision for adjustment hereinafter set
forth, 100 times the aggregate per share amount of all cash dividends, and 100
times the aggregate per share amount (payable in kind) of all non-cash dividends
or other distributions other than a dividend payable in shares of Common Stock
or a subdivision of the outstanding shares of Common Stock (by reclassification
or otherwise), declared on the Common Stock, par value $.16 2/3 per share, of
the Corporation (the 'Common Stock') since the immediately preceding Quarterly
Dividend Payment Date or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of Series A
Preferred Stock. If on any Quarterly Dividend Payment Date the Corporation's
Certificate of Incorporation shall limit the amount of dividends which may be
paid on the Series A Preferred Stock to an amount less than that provided above,
such dividends will be paid in the maximum permissible amount and the shortfall
from the amount provided above shall be a cumulative dividend requirement and be
carried forward to subsequent Quarterly Dividend Payment Dates.
In the event the Corporation shall at any time declare or pay any dividend
on Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
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such case the amount to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under the second preceding sentence
shall be adjusted by multiplying such amount by a fraction, the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
When, as and if the Corporation shall declare a dividend or distribution on
the Common Stock (other than a dividend payable in shares of Common Stock), the
Corporation shall at the same time declare a dividend or distribution on the
Series A Preferred Stock as provided in this paragraph (A); provided that, in
the event no dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on the
Series A Preferred Stock shall nevertheless be payable, when, as and if declared
by the Board of Directors, on such subsequent Quarterly Dividend Payment Date.
Dividends shall begin to accrue and be cumulative on outstanding shares of
Series A Preferred Stock from the Quarterly Dividend Payment Date next preceding
the date of issue of such shares of Series A Preferred Stock, unless the date of
issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or if the date of issue is a
Quarterly Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Series A Preferred Stock in
an amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Series A Preferred
Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be no more than 60 days prior to the relevant
Quarterly Dividend Payment Date.
Section 3. VOTING RIGHTS. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Preferred Stock shall entitle the holder thereof to 100
votes on all matters submitted to a vote of the stockholders of the
Corporation. In the event the Corporation shall at any time (i) declare or
pay any dividend on Common Stock payable in shares of Common Stock, (ii)
effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of
a dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock or (iii) increase by 20% or more, other than through
the methods referred to in subclauses (i) and (ii) above, the shares of
Common Stock outstanding as compared with the shares of Common Stock
outstanding on the date hereof, then in each such case the number of votes
per share to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event shall be adjusted by multiplying
such number by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Preferred Stock, the holders of shares of Common Stock
and the holders of any other capital stock of the Corporation at the time
entitled thereto shall vote together as one class on all matters submitted
to a vote of stockholders of the Corporation and notwithstanding that the
holders of Series A Preferred Stock, voting as a class, may be entitled to
elect two directors as hereinafter
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provided, they shall be entitled to participate with the Common Stock (or
any other capital stock as aforesaid), in the election of any other
directors.
(C) In case at any time six or more full quarterly dividends (whether
consecutive or not) on the Series A Preferred Stock shall be in arrears,
then during the period (hereinafter in this Section 3(C) called the 'Voting
Period') commencing with such time and ending with the time when all arrears
in dividends on the Series A Preferred Stock shall have been paid and the
full dividend on the Series A Preferred Stock for the then current quarterly
dividend period shall have been declared and paid or set aside for payment,
at any meeting of the stockholders of the Corporation held for the election
of directors during the Voting Period, the holders of Series A Preferred
Stock present in person or represented by proxy at said meeting, shall be
entitled, as a class, to the exclusion of the holders of all other classes
of stock of the Corporation, to elect two directors of the Corporation, each
share of Series A Preferred Stock entitling the holder to one vote.
Any director who shall have been elected by holders of Series A
Preferred Stock or by any director so elected as herein contemplated, may be
removed at any time during a Voting Period, either for or without cause, by,
and only by, the affirmative votes of the holders of record of a majority of
the outstanding shares of Series A Preferred Stock given at a special
meeting of such stockholders called for the purpose, and any vacancy thereby
created may be filled during such Voting Period by the holders of Series A
Preferred Stock present in person or represented by proxy at such meeting.
Any director to be elected by the Board of Directors of the Corporation to
replace a director elected by holders of Series A Preferred Stock or elected
by a director as in this sentence provided shall be elected by the remaining
director theretofore elected by the holders of Series A Preferred Stock. At
the end of the Voting Period the holders of Series A Preferred Stock shall
be automatically divested of all voting power vested in them under this
Section 3(C) but subject always to the subsequent vesting hereunder of
voting power in the holders of Series A Preferred Stock in the event of any
similar default or defaults thereafter.
(D) Except as set forth herein, holders of Series A Preferred Stock
shall have no special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of Common Stock
or holders of any other class of capital stock as set forth herein) for
taking any corporate action.
Section 4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on shares of Series A Preferred Stock outstanding shall have
been paid in full, the Corporation shall not
(i) declare or pay dividends on, make any other distributions
on, or redeem or purchase or otherwise acquire for consideration any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred
Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with
the Series A Preferred Stock, except dividends paid ratably on the
Series A Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total
amounts to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such parity
stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or
winding up) to the Series A Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares
of Series A Preferred Stock, or any shares of stock ranking on a
parity with the Series A Preferred Stock, except in
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accordance with a purchase offer made in writing or by publication
(as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes, provided
that the Corporation may at any time purchase or otherwise acquire
shares of any such parity stock in exchange for shares of any stock
of the Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Preferred
Stock.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of
the Corporation unless the Corporation could, under paragraph (A) of this
Section 4, purchase or otherwise acquire shares at such time and in such
manner.
Section 5. REACQUIRED SHARES. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All
such shares shall upon their cancellation become authorized but unissued
shares of preferred stock and may be reissued as part of a new series of
preferred stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any voluntary
liquidation, dissolution or winding up of the Corporation, no distribution
shall be made (1) to the holders of shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock unless, prior thereto, the holders of shares of
Series A Preferred Stock shall have received an aggregate amount equal to
(a) $35.00 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such
payment plus (b) an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate amount to
be distributed per share to holders of Common Stock, or (2) to the holders
of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except
distributions made ratably on the Series A Preferred Stock and all other
such parity stock in proportion to the total amounts to which the holders of
all such shares are entitled upon such liquidation, dissolution or winding
up, disregarding for this purpose the amounts referred to in clause (b) of
the preceding sentence. In the event the Corporation shall at any time
declare or pay any dividend on Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the aggregate
amount to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under the proviso in clause (1) of the
preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
7. CONSOLIDATION, MERGER, ETC. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case proper
provision shall be made so that the shares of Series A Preferred Stock shall
at the same time be similarly exchanged or changed in an amount per share
(subject to the provision for adjustment hereinafter set forth) equal to 100
times the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which each
share of Common Stock is changed or exchanged. The Company shall not
consummate any such consolidation, merger, combination or other transaction
unless prior thereto the Company
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and the other party or parties to such transaction shall have so provided in
any agreement relating thereto. In the event the Corporation shall at any
time declare or pay any dividend on Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or change of
shares of Series A Preferred Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
Section 8. NO REDEMPTION. The shares of Series A Preferred Stock shall
not be redeemable.
Section 9. RANKING. The Series A Preferred Stock shall rank on a
parity with all other series of the Corporation's preferred stock
outstanding as of December 16, 1985, as to the payment of dividends and the
distribution of assets.
Section 10. AMENDMENT. The Restated Certificate of Incorporation of
the Corporation shall not be amended in any manner which would alter or
change the powers, preferences or special rights of the Series A Preferred
Stock so as to affect them adversely without the affirmative vote of the
holders of two-thirds or more of the outstanding shares of Series A
Preferred Stock, voting together as a single class.
IN WITNESS WHEREOF, we have executed and subscribed this Certificate and
do affirm the foregoing as true under the penalties of perjury this 16th day
of December 1985.
/s/ ROBERT V. WEST, JR.
Robert V. West, Jr., Chairman
and Chief Executive Officer
Attest:
/s/ JOHN H. WHITWORTH, JR.
John H. Whitworth, Jr.,
Assistant Secretary
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