Exhibit 3.3
Amended and Restated Articles of Incorporation of American States Water Company
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
AMERICAN STATES WATER COMPANY
(A CALIFORNIA CORPORATION)
AS OF MARCH 4, 1998
The undersigned certifies (i) that he is the incorporator of American
States Water Corporation (the "Corporation"), (ii) that no directors of the
corporation were named in the Articles of Incorporation or have been elected,
and (iii) that no shares of the Corporation have been issued, and hereby takes
the following action as of the above date:
The Articles of Incorporation of the Corporation are hereby amended and
restated in full in the form attached hereto as Exhibit A.
The undersigned also declares under penalty of perjury under the laws of
the State of California that he has read the the foregoing provisions of this
certificate and knows the contents thereof and that the same is true of his own
knowledge.
Dated as of:
March 4, 1998 /s/ Brian Thomas Daly
-------------------------------
Brian Thomas Daly
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
AMERICAN STATES WATER COMPANY
ARTICLE I
The name of this Corporation is American States Water Company.
ARTICLE II
The purpose of this Corporation is to engage in any lawful act or activity
for which a corporation may be organized under the General Corporation Law of
California other than the banking business, the trust company business or the
practice of a profession permitted to be incorporated by the California
Corporations Code.
ARTICLE III
The name and address of this Corporation's initial agent for service of
process is McClellan Harris III, 630 East Foothill Boulevard, San Dimas,
California 91773.
ARTICLE IV
This Corporation is authorized to issue three classes of stock to be
designated, respectively, "New Preferred Shares", "Preferred Shares", and
"Common Shares". The total number of shares which this Corporation is authorized
to issue is 30,233,200; 150,000 shares are to be New Preferred Shares with no
par value and a stated value of $100 per share and an aggregate stated value of
$15,000,000; 83,200 shares are to be Preferred Shares with a par value of $25
per share and an aggregate par value of $2,080,000; and 30,000,000 shares are to
be Common Shares, no par value with a stated value of $2.50 per share and an
aggregate stated value of $75,000,000.
A statement of the preferences, privileges and restrictions granted to or
imposed upon the respective classes or series of shares and/or upon the holders
thereof is as follows:
(1) Subject to the provisions of this Article IV, New Preferred
Shares of any particular series shall be entitled to such voting
rights, if any, as may be specified for shares of such series in the
certificate of determination of preferences of such series filed as
provided below; all Preferred Shares shall be entitled to voting
rights on the basis of one vote per share; and all Common Shares
shall be entitled to voting rights on the basis of one-tenth of one
vote per share.
(2) New Preferred Shares may be issued from time to time in one or
more series. Each such series shall be so designated as to
distinguish it from other series of New Preferred Shares and from
series of Preferred Shares. Such designation may include an
appropriate reference to the dividend rate and/or any other
characteristics of such series. The Board of Directors is hereby
authorized, within the limits of, but to the extent authorized by
applicable law and within the limitations and restrictions, if any,
stated in this Article IV, to fix or alter, from time to time, the
dividend rights, dividend rate, conversion rights, voting rights,
right and terms of redemption (including sinking fund provisions),
redemption price or prices, and liquidation preferences, or any of
them, of any wholly
unissued series of New Preferred Shares, and to fix the number of
shares constituting any such unissued series, by a resolution or
resolutions adopted by the Board of Directors in exercise of the
authority hereby granted.
(3) The Preferred Shares may be issued from time to time in any
number of series. One such series shall (i) be and hereby is
designated the "4 1/4% Series", (ii) consist of 32,000 shares, (iii)
be entitled to dividends as provided in Paragraph (4) hereof at the
rate of 4 1/4% per annum of the par value thereof, and (iv) be
redeemable in the manner and otherwise upon the conditions provided
in Paragraph (6) hereof by payment of a redemption price equal to
the par value thereof and unpaid dividends accrued thereon to and
including the date fixed for such redemption and a premium of $1.50
per share. Another such series of Preferred Shares shall (i) be and
hereby is designated as the "4% Series", (ii) consist of 32,000
shares, (iii) be entitled to dividends as provided in Paragraph (4)
hereof at the rate of 4% per annum of the par value thereof, and
(iv) be redeemable in the manner and otherwise upon the conditions
provided in Paragraph (6) hereof by payment of a redemption price
equal to the par value thereof and unpaid dividends accrued thereon
to and including the date fixed for such redemption and a premium of
$2 per share. Except as to the foregoing particulars no distinction
shall exist between any of the Preferred Shares or any series
thereof, and all Preferred Shares, regardless of series, shall be of
equal rank and priority.
(4) The holders of the outstanding shares of the several and
respective series of Preferred Shares shall be entitled to receive,
out of any funds legally available therefor, dividends at the
respective rates for the shares of said series, payable in cash
quarterly on the first days of March, June, September and December
in each year when and as declared by the Board of Directors of this
Corporation. Such dividends shall accrue on each such share from the
date of its original issuance and shall accrue from day to day
whether or not earned or declared. Such dividends shall be
cumulative so that if such dividends in respect of any quarterly
dividend period at the respective rates fixed therefor shall not
have been paid on, or declared and set apart for, all Preferred
Shares of each series at the time outstanding, the deficiency shall
be fully paid on or declared or set apart for such shares before any
dividend or other distribution shall be paid upon or declared or set
apart for the Common Shares. No such dividend shall be declared or
paid upon or set apart for any outstanding shares of any one of said
series unless at the same time such dividends on all outstanding
Preferred Shares of all of said series shall be declared and paid in
full or set apart for such payment.
(5) In the event of the liquidation, dissolution or winding up of
this Corporation, whether voluntary or involuntary, the holders of
the shares of the several and respective series of Preferred Shares
shall be entitled to receive out of the assets of this Corporation,
whether such assets are capital or surplus of any nature, an amount
equal to the par value thereof plus all unpaid dividends accrued
thereon to the date that such amount is made available for
distribution to the holders thereof, and no more, or ratably from
available assets if such assets are insufficient to permit payment
to said holders of their full preferential amount aforesaid. Such
amount shall be paid upon said shares, or shall be set apart for
such payment, before any distribution is made or set apart for any
Common Shares in any such liquidation, dissolution or winding up. A
consolidation or merger of this Corporation with or into any other
corporation or corporations shall not be deemed to be a liquidation,
dissolution or winding up within the meaning of this Paragraph (5).
(6) This Corporation, at the option of its Board of Directors, may
at any time or from time to time redeem the whole or any part of the
outstanding shares of any one or more series of the Preferred Shares
by paying in cash therefor the amount payable upon the redemption
thereof (such amount being hereinafter referred to as the
"redemption price"). In case of the redemption of a part only of the
outstanding shares of any series of Preferred Shares, this
Corporation shall designate by lot, in such manner as the Board of
Directors may determine, the shares to be redeemed. At least thirty
(30) days' previous notice by mail, postage prepaid, shall be given
to the holders of record of the shares to be redeemed, such notice
to be addressed to each such shareholder at his post office address
as shown by the records of this Corporation at the opening of
business on the day of mailing such notice. If on or before the date
fixed for redemption and specified in such notice funds necessary
for such redemption shall have been set aside at the place
designated in said notice so as to be and continue available
therefor, then notwithstanding that the certificates evidencing any
shares called for such redemption shall not have been surrendered,
the dividends with respect to the shares so called for redemption
shall cease to accrue after the said date fixed for redemption and
all rights with respect to such shares shall forthwith after said
date cease and determine except only the right of the holders
thereof to receive payment of the redemption price, without
interest, upon surrender of their certificates representing the
redeemed shares. In case less than all the shares represented by any
such surrendered certificate shall have been redeemed, a new
certificate shall be issued for the unredeemed shares. Subject to
the provisions hereof, the Board of Directors shall have authority
to prescribe from time to time the manner in which the Preferred
Shares shall be redeemed.
(7) If at any time four (4) quarterly dividends (whether or not
consecutive) which have accrued on the outstanding Preferred Shares
pursuant to Paragraph (4) hereof shall be in arrears, then at the
annual meeting of shareholders next following the fourth such
quarterly dividend default, or, if such next annual meeting is not
to be held within sixty (60) days following such default, at a
special meeting of shareholders called for the purpose on the
written request of the holders of not less than ten percent (10%) of
the then outstanding Preferred Shares, the holders of said
outstanding Preferred Shares shall be entitled, voting separately as
a class (regardless of series), to elect the smallest number of
directors of this Corporation which shall constitute a majority of
the authorized number of such directors and the holders of the New
Preferred Shares and the holders of the Common Shares, in accordance
with their respective voting rights, shall be entitled to elect the
remaining number of such authorized directors; which voting rights
by said respective classes of shares shall continue until, but only
until, all dividends which shall have accrued for any period under
said Paragraph (4) upon the outstanding Preferred Shares shall have
been paid or set apart for payment. At all meetings of shareholders
held for the purpose of electing directors during such time as the
holders of the Preferred Shares have the right, voting separately as
a class, to elect directors pursuant to this Paragraph (7), the
presence in person or by proxy of the holders of a majority of the
outstanding Preferred Shares (regardless of series), shall be
required to constitute a quorum of such class for the election of
directors, and the presence in person or by proxy of the holders of
a majority of the other outstanding shares entitled to vote at such
meeting, as a separate class or classes in accordance with their
respective voting rights, shall be required to constitute a quorum
of such class for the election of directors; provided, however, that
the absence of a quorum of the holders of outstanding shares of
either such class or classes shall not prevent the election at any
such meeting, or adjournment thereof, of directors by the other such
class or classes if the necessary quorum of such other class or
classes is present in person
or by proxy at such meeting or adjournment; and provided further
that in the event that at such meeting or adjournment such a quorum
of the holders of classes other than the Preferred Shares is present
and such quorum of the holders of the Preferred Shares is not
present, then an election of the directors elected at such meeting
or adjournment by the holders of classes other than the Preferred
Shares shall not be effective and any directors so elected by such
holders of classes other than the Preferred Shares shall not assume
office until the holders of the Preferred Shares, with such a quorum
present, shall elect the directors they are entitled to elect. In
the event of an election of directors by holders of Preferred Shares
pursuant to this Paragraph (7), the term of office as directors of
all persons who are directors of this Corporation at the time of the
accrual under this Paragraph (7) of the right of the holders of the
Preferred Shares to elect directors shall terminate when the holders
of the outstanding Preferred Shares shall have so elected directors.
In case any vacancy shall occur among the directors elected as
aforesaid by the holders of the Preferred Shares, or among the
directors elected as aforesaid by the holders of classes other than
the Preferred Shares, during any period for which a majority of the
directors shall have been so elected by the holders of the Preferred
Shares, such vacancy shall be filled by the vote of a majority of
the remaining directors who were so elected by the holders of the
Preferred Shares or by the holders of classes other than the
Preferred Shares, as the case may be.
(8) Without the approval of the holders of at least two-thirds of
the outstanding Preferred Shares, given in person or by proxy,
either by written consent or by vote as provided by law, this
Corporation shall not
(i) alter or amend the preferences, voting powers or other special
rights or the qualifications, limitations and restrictions imposed
in favor of any of the Preferred Shares so as adversely to affect
any of the Preferred Shares then outstanding; or
(ii) authorize or issue any shares of any class, or any securities
convertible into shares of any class, ranking prior to the Preferred
Shares as to dividends or assets; or
(iii) reclassify any shares of any class ranking junior to or on a
parity with the Preferred Shares into shares of any other class
ranking prior to the Preferred Shares; or
(iv) issue any shares of any class ranking on a parity with the
Preferred Shares, unless in either case (a) the aggregate of the par
or stated value of the Common Shares to be outstanding immediately
after such issue, plus the surplus of this Corporation, all
determined in accordance with accepted accounting practice, shall be
at least equal to the par or stated value of all shares which rank
prior to the Common Shares and which are to be outstanding
immediately after such issue; (b) the net earnings of this
Corporation, computed in accordance with accepted accounting
practice (but after provision for all taxes based upon or measured
by income, and after annual interest charges adjusted by provision
for amortization of bond discount and expense or of premium on
indebtedness, and also after deduction of depreciation as reported
in the accounts of this Corporation as filed with the Public
Utilities Commission of the State of California or other public
authority of said State having jurisdiction to establish or approve
the system of accounts of this Corporation), for a period of 12
consecutive calendar months out of the 15 calendar months
immediately preceding the date of such issue shall have been at
least equal to twice the aggregate of the annual dividend
requirements on all shares of this Corporation which rank prior to
the Common
Shares and which are to be outstanding immediately after such issue,
and (c) the net earnings of this Corporation, computed as above (but
before interest charges as aforesaid and after deduction for
depreciation and provision for all taxes as provided above), for
said 12 months period, shall have been at least equal to one and
one-half times the aggregate of all such interest charges and the
annual dividend requirements on all shares of this Corporation which
rank prior to the Common Shares and which are to be outstanding
immediately after such issue.
(9) Without the approval of the holders of a majority of the
outstanding Preferred Shares, given in person or by proxy, by
written consent or by vote as provided by law, this Corporation
shall not (i) issue, assume, or guarantee any unsecured notes or
obligations unless immediately thereafter the total principal amount
of the unsecured indebtedness of this Corporation shall be less than
10% of the aggregate of the total principal amount of outstanding
bonds or other securities representing secured indebtedness issued,
assumed or guaranteed by this Corporation, plus its stated capital
and surplus; provided, however, that the foregoing provisions of
this Paragraph (9) shall not apply to any such notes or obligations
which (a) represent liabilities incurred in the ordinary course of
business or for construction or acquisition of capital assets or
represent tax liability or liability incurred or accrued on account
of customers' deposits, or (b) are issued to extend, renew, redeem
or refund outstanding indebtedness of this Corporation in principal
amount not less than the principal amount of such notes or
obligations, or are issued to redeem or refund then outstanding
Preferred Shares which have an aggregate par or stated value at
least equal to the aggregate principal amount of such notes or
obligations, or (ii) sell, convey, lease or otherwise dispose of all
or substantially all of its assets, property or business, or
consolidate or merge with or into any other corporation.
(10) The approval of the holders of outstanding Preferred Shares
which in any case may be required by the foregoing Paragraphs (8)
and (9) for the taking of any action referred to in any of said
paragraphs shall be in addition to any such approval of shareholders
of this Corporation as may at the time be required by the laws of
the State of California with respect to such action and no such
action shall be taken without compliance with such laws of said
State as are in effect at the time of taking of any such action.
(11) For the purposes of Paragraphs (8)(iv) and (9)(i) hereof, the
certificate or opinion of any independent certified or public
accountant of recognized standing (who may be the accountant
regularly retained by this Corporation), selected in good faith by
the Board of Directors, shall be conclusive with respect to all
questions of fact therein required to be determined.
(12) Subject to the dividend preferences provided for herein for all
shares of each other class at the time outstanding and to the
restrictions set forth above and in this Paragraph (12), the Common
Shares shall be entitled to receive dividends when and as declared
by the Board of Directors out of any funds of this Corporation
legally available therefor. After payment of the full preferential
amounts hereinabove provided for all shares of each other class
outstanding at the time of any liquidation, dissolution or winding
up of this Corporation, whether voluntary or involuntary, all then
remaining assets of this Corporation available for distribution to
its shareholders shall be distributed ratably upon the Common
Shares. No dividend shall be declared on the Common Shares which,
after giving effect to such declaration, would reduce the Common
Stock Equity of this Corporation as of the end of the calendar month
last preceding that in which such dividend was declared to an amount
less than 25% of the Total Capitalization of
this Corporation as of the end of said last preceding month, except
that any such dividend may be declared (a) which would reduce such
Common Stock Equity to less than 25% but not less than 20% of such
Total Capitalization if the amount of such dividend plus all
dividends on the Common Shares declared during the 12 months period
terminating at the end of such last preceding calendar month shall
not exceed 75% of the net income of this Corporation applicable to
its Common Shares for such period, or (b) which would reduce such
Common Stock Equity to less than 20% of such Total Capitalization if
the amount of such dividend plus all dividends on the Common Shares
declared during said 12 months period shall not exceed 50% of the
net income of this Corporation applicable to its Common Shares for
such period; provided, however, that the foregoing restrictions of
this sentence shall not apply to, nor in any way restrict, (a) the
payment of any dividend on the Common Shares which is payable in
shares of stock of this Corporation, or (b) any reclassification,
subdivision, split-up or combination of the Common Shares, or (c)
any transfer between the capital and surplus accounts of this
Corporation in connection with any such reclassification,
subdivisions, split-up or combination or payment of dividend in
shares of stock of this Corporation. Common Stock Equity as herein
used shall mean the aggregate of (i) par value or stated capital of
all outstanding Common Shares, and (ii) the surplus (including
capital surplus, paid-in surplus and earned surplus) as shown by the
books of this Corporation after giving effect to the declaration of
the proposed dividend, and (iii) premium on Common Shares; less the
remaining balance of the amount of organization expenses, as shown
on said books. Total Capitalization as herein used shall mean the
aggregate of (i) Common Stock Equity, (ii) premium on and the par
value or stated capital of all outstanding shares of this
Corporation of any and all classes having preferences over the
Common Shares as to dividends or assets, and (iii) the principal
amount of all outstanding debt maturing more than 12 months after
the close of said 12 months period, all as shown by the books of
this Corporation; less the remaining balance of organization
expenses, as shown on said books. Net Income as herein used shall be
determined in accordance with accepted accounting practice (but
after provision for all taxes based upon or measured by income, and
after annual interest charges adjusted by provision for amortization
of bond discount and expense or of premium on indebtedness, and also
after deduction of depreciation for said 12 months period as
reported in the accounts of this Corporation as filed with the
Public Utilities Commission of the State of California or other
public authority of said state having jurisdiction to establish or
approve the system of accounts of this Corporation). Net Income
applicable to Common Shares as herein used shall mean net income
after deduction therefrom of all dividends payable for the period
involved on all outstanding shares of any and all classes of this
Corporation having preference over the Common Shares as to dividends
or assets.
(13) No Preferred Shares of this Corporation which have been
reacquired in any manner by this Corporation after the original
issue thereof shall ever again be reissued and all such shares so
reacquired shall upon such reacquisition cease to be a part of the
authorized shares of this Corporation.
(14) Unless such action has been approved by the affirmative vote of
at least a majority of the Continuing Directors (as defined below),
without the approval of Common Shares, Preferred Shares and, unless
otherwise provided in the certificate of determination for any
series of New Preferred Shares, the New Preferred Shares
representing in the aggregate at least 66 2/3% of the combined
voting power of this Corporation's outstanding Common Shares,
Preferred Shares and the New Preferred Shares,
voting together as a single class, this Corporation shall not
(i) subject to subparagraph (iii) below, sell, convey, lease
or otherwise dispose of all or substantially all of its
assets, property or business;
(ii) approve the sale, conveyance, lease or other disposition
by any subsidiary of this Corporation of all or
substantially all of such subsidiary's assets, property
or business;
(iii) sell, transfer, convey or otherwise dispose of more than
a majority of the outstanding capital stock of any
subsidiary of the Corporation, if such subsidiary holds
assets accounting for 50% or more of the Corporation's
consolidated assets, other than to an entity the
majority of the voting power of the capital stock or
other equity interest of which is owned and controlled
by this Corporation;
(iv) consolidate or merge with or into any other corporation
or other business entity, except if, immediately after
such consolidation or merger, the shareholders of this
Corporation immediately prior to such consolidation or
merger will own more than 60% of the voting power of the
outstanding capital stock or other equity interest of or
in the surviving entity; or
(v) approve the consolidation or merger of any subsidiary of
this Corporation, if such subsidiary holds assets
accounting for 50% or more of the Corporation's
consolidated assets, with or into any other corporation
or other business entity.
For purposes of this paragraph (14) of Article IV, the term
"Continuing Directors" shall mean any member of the Board of
Directors of the Corporation (while such person is a member of the
Board) who (i) is not an Acquiring Person, or an Affiliate or
Associate of an Acquiring Person, or a representative of an
Acquiring Person or of any such Affiliate or Associate, and (ii)
either (A) was a member of the Board of Directors prior to the time
any person became an Acquiring Person, or (B) became a member of the
Board of Directors subsequent to the time any person became an
Acquiring Person, if such person's nomination for election, or
re-election, to the Board was recommended, or approved, by a
majority of the Continuing Directors then in office. For purposes of
the foregoing definition, (i) "Affiliate" and "Associate" shall have
the respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Exchange Act, as in effect
as of the date hereof; (ii) "Acquiring Person" shall mean any person
or entity which, alone or together with all Affiliates and
Associates of such person or entity, shall be the beneficial owner
of 20% or more of the Corporation's voting stock, but shall not
include (1) an Exempt Person or (2) any person or entity who or
which acquires 20% or more of the Corporation's voting stock in
connection with a transaction or series of transactions approved
prior to such transaction or transactions by the Board of Directors
of the Corporation; provided that no person or entity shall become
an Acquiring Person solely as a result of a reduction in the number
of shares of the Corporation's voting stock outstanding, unless and
until such person or entity shall thereafter become the beneficial
owner of additional shares constituting 1% or more of the general
voting power of the Corporation. "Exempt Person" shall mean the
Corporation, any majority-owned subsidiary of the Corporation, and
any employee benefit plan
or employee stock plan of the Corporation, or any trust or other
entity organized, established or holding Common Shares by, for or
pursuant to, the terms of any such plan.
(15) Another series of Preferred Shares shall have the following
terms and provisions:
(i) Designation. The designation of said series shall be
"Preferred Shares, 5% Series".
(ii) Number of Shares. The authorized number of shares
constituting said Preferred Shares, 5% Series, shall be 19,200
shares.
(iii) Dividend Rate. The dividend rate of said Preferred
Shares, 5% Series, shall be, per share, 5% per annum of the share
par value.
(iv) Optional Redemption. The redemption prices of the shares
of said series, when redeemed by this Corporation at the option of
its Board of Directors, shall be an amount per share equal to the
par value thereof and unpaid dividends accrued thereon to and
including the date fixed for redemption, plus a premium of $.25 per
share.
(v) Sinking Fund for Mandatory Purchases or Redemptions.
(a) So long as any of the Preferred Shares, 5% Series,
shall be outstanding, this Corporation, as a sinking fund for
the purchase or redemption thereof (hereinafter called the
"Sinking Fund"), shall set aside in cash out of any moneys
legally available therefor, after full payment or provision
for payment of dividends on all outstanding Preferred Shares
of all series and all other shares of this Corporation ranking
prior to or on a parity with the Preferred Shares for all
prior periods through the end of the last preceding quarterly
dividend period for such Preferred Shares and such other
shares, on September 5 of each year (hereinafter called the
"Sinking Fund payment date"), a sum equal to two percent (2%)
of the aggregate par value of the total number of Preferred
Shares, 5% Series, theretofore issued. If on any Sinking Fund
payment date the funds of this Corporation legally available
therefor shall be insufficient to discharge in full the
Sinking Fund requirement then accrued, funds to the extent
legally available for such purpose shall be set aside for the
Sinking Fund. Such Sinking Fund requirements shall be
cumulative so that if for any year or years such requirements
shall not be fully discharged as they accrue, funds legally
available therefor, after such payment or provision for
dividends, for each fiscal year thereafter shall be applied
thereto until such requirements are fully discharged.
(b) This Corporation at its option shall be entitled to
use as a credit against its Sinking Fund requirement for any
year, in an amount equal to the par value thereof, Preferred
Shares, 5% Series, which this Corporation shall have
theretofore acquired by purchase or redemption, otherwise than
through the operation of the Sinking Fund, and for which
credit shall not therefore have been taken against any Sinking
Fund requirement.
(c) On or before the 60th day next following each
Sinking Fund payment date, the cash in the Sinking Fund shall
be used to acquire Preferred Shares, 5% Series, by purchase,
at a price or prices not exceeding the par value thereof, or
by redemption at the par value thereof
in the manner provided in Paragraph 6 of Article IV of the
Articles of Incorporation of this Corporation, in each case
plus an additional amount equal to accrued dividends thereon
to the date of such purchase or redemption, which additional
amount shall be paid from general funds of this Corporation
legally available therefor and not from the Sinking Fund, or
by both such purchase and such redemption. Upon retirement of
all Preferred Shares, 5% Series, any cash remaining in the
Sinking Fund in excess of that required to complete payment
for any shares purchased or agreed to be purchased, or to
redeem shares called for redemption through the operation of
the Sinking Fund, shall become a part of the general funds of
this Corporation.
ARTICLE V
The liability of the directors of this Corporation for monetary damages
shall be eliminated to the fullest extent permissible under California law.
This Corporation is authorized to provide indemnification of agents (as
defined in Section 317 of the California Corporations Code) through bylaw
provisions, agreements with agents, vote of shareholders or disinterested
directors, or otherwise, in excess of the indemnification otherwise permitted by
Section 317 of the California Corporations Code, subject only to the applicable
limits set forth in Section 204 of the California Corporations Code.
ARTICLE VI
Notwithstanding any contrary provision of these Articles of Incorporation,
any amendment or repeal of paragraph (14) of Article IV, this Article VI or any
amendment to these Articles of Incorporation providing for a classified board
shall require the affirmative vote of shares representing not less than 66 2/3%
of the combined voting power of the outstanding Common Shares, Preferred Shares
and, unless otherwise provided in the certificate of determination, the New
Preferred Shares, voting together as a single class.
Notwithstanding any contrary provision of these Articles of Incorporation,
and except as otherwise expressly provided in the California Corporations Code,
none of the following provisions of the Bylaws of the Company may be amended or
repealed, except by a majority of the Board or by the shareholders upon the
affirmative vote of shares representing at least 66 2/3% of the combined voting
power of the outstanding Common Shares, Preferred Shares and, unless otherwise
provided in the certificate of determination for any series of New Preferred
Shares, the New Preferred Shares, voting together as a single class: (a) Section
2 of Article II, (b) Section 15 of Article II, and (c) Section 2 of Article III.
ARTICLE VII
In the event that the authorized number of directors shall be fixed with
at least six (6) but less than nine (9) during any period of time that the
Common Shares are listed on the New York Stock Exchange, the Board of Directors
shall be divided into two classes, designated Class I and Class II. Each class
shall consist of one-half of the directors or as close an approximation as
possible. The initial term of office of the directors of Class I shall commence
on the date that the Common Shares are listed on the New York Stock Exchange and
shall expire at the annual meeting to be held during fiscal year 1999 and the
initial term of office of the directors of Class II shall commence on the date
that the Common Shares are listed on the New York Stock Exchange and shall
expire at the annual meeting to be held during fiscal year 2000. At each
subsequent annual meeting, each of the successors to the directors of the class
whose term shall have expired at such annual meeting shall be elected for a term
running until the second annual meeting next succeeding his or her election and
until his or her successor shall have been duly elected and qualified, unless
the Common Shares are no longer listed on the New York Stock Exchange.
In the event that the authorized number of directors shall be fixed at
nine (9) or more during any period of time that the Common Shares are listed on
the New York Stock Exchange, the Board of Directors shall be divided into three
classes, designated Class I, Class II and Class III. Each class shall consist of
one-third of the directors or as close an approximation as possible. At each
subsequent annual meeting, each of the successors to the directors of the class
whose term shall have expired at such annual meeting shall be elected for a term
running until the third annual meeting next succeeding his or her election until
his or her successor shall have been duly elected and qualified, unless the
Common Shares are no longer listed on the New York Stock Exchange.
Notwithstanding the rule that the classes shall be as nearly equal in
number of directors as possible, in the event of any change in the authorized
number of directors, each director then continuing to serve as such shall
nevertheless continue as a director of the class of which he or she is a member
until the expiration of his or her current term, or his or her prior death,
resignation or removal.
At each annual election, the directors chosen to succeed those whose terms
then expire shall be of the same class as the directors they succeed, unless, by
reason of any intervening changes in the authorized number of directors, the
Board of Directors shall designate one or more directorships whose term then
expires as directorships of another class in order more nearly to achieve
equality of number of directors among the classes.
The effective date of the amendment adding this Article VII shall be that
date the Common Shares are first listed on the New York Stock Exchange.
CERTIFICATE OF AMENDMENT
of
AMENDED AND RESTATED ARTICLES OF INCORPORATION
and
CERTIFICATE OF DETERMINATION
of
JUNIOR PARTICIPATING PREFERRED STOCK
of
AMERICAN STATES WATER COMPANY
(A CALIFORNIA CORPORATION)
Floyd E. Wicks and McClellan Harris III certify that:
1. They are the duly acting President and Secretary, respectively, of
American States Water Company (the "Corporation").
2. The Restated Articles of Incorporation of the Corporation shall be
amended by striking in its entirety the first full paragraph of Article IV of
the restated Articles of Incorporation which now reads:
This Corporation is authorized to issue three classes of stock to
be designated, respectively, "New Preferred Shares", "Preferred
Shares", and "Common Shares". The total number of shares which this
Corporation is authorized to issue is 30,233,200; 150,000 shares are
to be New Preferred Shares with no par value and a stated value of
$100 per share and an aggregate stated value of $15,000,000; 83,200
shares are to be Preferred Shares with a par value of $25 per share
and an aggregate par value of $2,080,000; and 30,000,000 shares are
to be Common Shares, no par value with a stated value of $2.50 per
share and an aggregate stated value of $75,000,000.
and substituting therefor the following paragraph to read in full as follows:
This Corporation is authorized to issue three classes of stock to be
designated, respectively, "New Preferred Shares", "Preferred
Shares", and "Common Shares". The total number of shares which this
Corporation is authorized to issue is 30,231,600; 150,000
shares are to be New Preferred Shares with no par value and a stated
value of $100 per share and an aggregate stated value of
$15,000,000; 81,600 shares are to be Preferred Shares with a par
value of $25 per share and an aggregate par value of $2,040,000; and
30,000,000 shares are to be Common Shares, no par value with a
stated value of $2.50 per share and an aggregate stated value of
$75,000,000.
3. The Restated Articles of Incorporation of the Corporation shall be
further amended by striking in its entirety subparagraph (ii) of Paragraph 15 of
Article IV of the Restated Articles of Incorporation which now reads:
(ii) Number of Shares. The authorized number of shares constituting
said Preferred Shares, 5% Series, shall be 19,200 shares.
and substituting therefor the following paragraph to read in full as follows:
(ii) Number of Shares. The authorized number of shares constituting
said Preferred Shares, 5% Series, shall be 17,600 shares.
4. The foregoing amendment set forth in paragraph 3 of this Certificate,
as well as the portion of the amendment in paragraph 2 that relates to the
"Preferred Shares" are each amendments that may be adopted by the Board of
Directors alone (and which were so adopted) because the amendments are required
by Section 510 of the California General Corporation Law to reflect the
reacquisition of a portion of the Corporation's Preferred Shares, 5% Series, $25
par value, in accordance with the sinking fund provisions thereof. Such
reacquired Preferred Shares cannot be reissued.
5. The foregoing amendments have been duly approved by the Board of
Directors as required by Section 905(b) of the California General Corporation
Law.
6. The undersigned officers of the Corporation further certify that the
following resolution has been duly adopted by the Board of Directors of the
Corporation with regards to the Certificate of Determination of Junior
Participating Preferred Stock of the Corporation:
RESOLVED, that pursuant to the authority granted to the Board of Directors
of the Corporation by the Articles of Incorporation, a series of shares of the
New Preferred Shares of the Corporation is hereby established and the number of
shares constituting such series and the designation thereof, and the rights,
preferences, privileges and restrictions of the shares of such series, are fixed
and established as follows:
I. DESIGNATION AND AMOUNT
The shares of such series shall be designated as "Junior Participating
Preferred Stock" (the "Junior Preferred Stock") and the number of shares
constituting the Junior Preferred Stock shall be 8,958. Such number of shares
may be increased or decreased by resolution of the Board
of Directors; PROVIDED, that no decrease shall reduce the number of shares of
Junior Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the conversion of any
outstanding securities issued by the Corporation convertible into Junior
Preferred Stock.
II. DIVIDENDS AND DISTRIBUTIONS
(A) Subject to the rights of the holders of any shares of any series of
Preferred Shares or New Preferred Shares (or any similar stock) ranking
prior and superior to the Junior Preferred Stock with respect to
dividends, the holders of shares of Junior Preferred Stock, in preference
to the holders of Common Shares of the Corporation, 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 Junior 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, 1,000 times the aggregate per share amount of all
cash dividends, and 1,000 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 Shares or a subdivision of the
outstanding shares of Common Shares (by reclassification or otherwise),
declared on the Common Shares 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 Junior Preferred Stock. In the event the Corporation shall at any time
declare or pay any dividend on the Common Shares payable in shares of
Common Shares, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Shares (by reclassification or otherwise
than by payment of a dividend in shares of Common Shares) into a greater
or lesser number of shares of Common Shares, then in each such case the
amount to which holders of shares of Junior Preferred Stock were entitled
immediately prior to such event under clause (b) 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 Shares outstanding immediately
after such event and the denominator of which is the number of shares of
Common Shares that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Junior
Preferred Stock as provided in paragraph (A) of this Section immediately
after it declares a dividend or distribution on the Common Shares (other
than a dividend payable in shares of Common Shares); PROVIDED that, in the
event no dividend or distribution shall have been declared on the Common
Shares 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 Junior Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Junior Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares, 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 unless 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 Junior 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 Junior 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 Junior Preferred Stock
entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to the
date fixed for the payment thereof.
III. VOTING RIGHTS
The holders of shares of Junior Preferred Stock shall have the
following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Junior Preferred Stock shall entitle the holder thereof to 100
votes on all matters submitted to a vote of the shareholders of the
Corporation.
(B) Except as otherwise provided herein, or in any other resolutions of
the Board creating a series of New Preferred Shares or any similar stock,
or by law, the holders of shares of Junior Preferred Stock and the holders
of shares of Common Shares, Preferred Shares and any other capital stock
of the Corporation having general voting rights shall vote together as one
class on all matters submitted to a vote of shareholders of the
Corporation.
(C) Except as set forth herein, in the Corporation's Articles of
Incorporation or as otherwise provided by law, holders of Junior Preferred
Stock shall have no voting rights.
IV. CERTAIN RESTRICTIONS
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Junior Preferred Stock as provided in Section II are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Junior Preferred
Stock outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on
any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Junior Preferred
Stock;
(ii) declare or pay dividends, or make any other distributions, on
any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Junior
Preferred Stock, except dividends paid ratably on the Junior
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 junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Junior Preferred
Stock, provided that the Corporation may at any time redeem,
purchase or otherwise acquire shares of any such junior 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 Junior Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for consideration any
shares of Junior Preferred Stock, or any shares of stock ranking on
a parity with the Junior Preferred Stock, except in 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.
(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 IV purchase or otherwise acquire such shares at such time and in
such manner.
V. REACQUIRED SHARES
Any shares of Junior 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 New Preferred Shares and may be
reissued as part of a new series of New Preferred Shares subject to the
conditions and restrictions on issuance set forth herein, in the Articles of
Incorporation, in any other Certificate of Determination creating a series of
New Preferred Shares or any similar stock or as otherwise required by law.
VI. LIQUIDATION, DISSOLUTION OR WINDING UP
Upon any liquidation, dissolution or winding up of the 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
Junior Preferred Stock unless, prior thereto, the holders of shares of Junior
Preferred Stock shall have received $1,000 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment, provided that the holders of shares of Junior
Preferred Stock shall be
entitled to receive an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 1,000 times the aggregate amount to
be distributed per share to holders of shares of Common Shares, or (2) to the
holders of shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Junior Preferred Stock, except
distributions made ratably on the Junior Preferred Stock and all such parity
stock in proportion to the total amounts to which the holders of all such shares
are entitled upon such liquidation, dissolution or winding up. In the event the
Corporation shall at any time declare or pay any dividend on the Common Shares
payable in shares of Common Shares, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Shares (by reclassification or
otherwise than by payment of a dividend in shares of Common Shares) into a
greater or lesser number of shares of Common Shares, then in each such case the
aggregate amount to which holders of shares of Junior 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 Shares outstanding
immediately after such event and the denominator of which is the number of
shares of Common Shares that were outstanding immediately prior to such event.
VII. CONSOLIDATION, MERGER, ETC.
In case the Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common Shares are
exchanged for or changed into other stock or securities, cash and/or any other
property, then in any such case each share of Junior Preferred Stock shall at
the same time be similarly exchanged or changed into an amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 1,000
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 Shares is changed or exchanged. In the event the Corporation shall at any
time declare or pay any dividend on the Common Shares payable in shares of
Common Shares, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Shares (by reclassification or otherwise than by
payment of a dividend in shares of Common Shares) into a greater or lesser
number of shares of Common Shares, then in each such case the amount set forth
in the preceding sentence with respect to the exchange or change of shares of
Junior Preferred Stock shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common Shares
outstanding immediately after such event and the denominator of which is the
number of shares of Common Shares that were outstanding immediately prior to
such event.
VIII. REDEMPTION
The shares of Junior Preferred Stock shall not be redeemable.
IX. RANK
The Junior Preferred Stock shall rank, with respect to the payment of
dividends and the distribution of assets, junior to all series of any other
class of the Corporation's Preferred Shares and New Preferred Shares.
X. AMENDMENT
The Articles 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 Junior Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of at least two-thirds of the outstanding shares
of Junior Preferred Stock, voting together as a single class.
* * * *
7. The undersigned officers further certify that the number of
shares of New Preferred Shares the Corporation is authorized to issue is 150,000
shares, and that the number of shares constituting the series designated Junior
Participating Preferred Stock, none of which has been issued, is 8,958 shares.
Dated: August 19, 1998
/s/ Floyd E. Wicks
-------------------------------------------
Floyd E. Wicks
President and Chief
Executive Officer
/s/ McClellan Harris III
-------------------------------------------
McClellan Harris III
Vice President - Finance,
Chief Financial Officer,
Treasurer and Corporate
Secretary
Each of the undersigned declares under penalty of perjury that the matters
set forth in the foregoing Certificate of Amendment and Determination are true
and correct. Executed at San Dimas, California this 19th day of August, l998.
/s/ Floyd E. Wicks /s/ McClellan Harris III
- ------------------------------ ------------------------------
Floyd E. Wicks McClellan Harris III
President and Chief Vice President - Finance,
Executive Officer Chief Financial Officer,
Treasurer and Corporate
Secretary
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
AMERICAN STATES WATER COMPANY
(A CALIFORNIA CORPORATION)
Floyd E. Wicks and McClellan Harris III certify that:
1. They are the duly elected and acting President and Secretary,
respectively of American States Water Company (the "Corporation").
2. The Amended and Restated Articles of Incorporation of the Corporation
shall be amended by striking in its entirety the first full paragraph of Article
IV of the Amended and Restated Articles of Incorporation which now reads:
"This Corporation is authorized to issue three classes of stock to
be designated, respectively, "New Preferred Shares", "Preferred
Shares", and "Common Shares". The total number of shares which this
Corporation is authorized to issue is 30,231,600; 150,000 shares are
to be New Preferred Shares with no par value and a stated value of
$100 per share and an aggregate stated value of $15,000,000; 81,600
shares are to be Preferred Shares with a par value of $25 per share
and an aggregate par value of $2,040,000; and 30,000,000 shares are
to be Common Shares with no par value and a stated value of $2.50
per share and an aggregate par value of $75,000,000."
and substituting therefore the following paragraph to read in full as follows:
"This Corporation is authorized to issue three classes of stock to
be designated, respectively, "New Preferred Shares", "Preferred
Shares", and "Common Shares". The total number of shares which this
Corporation is authorized to issue is 30,230,000; 150,000 shares are
to be New Preferred Shares with no par value and a stated value of
$100 per share and an aggregate stated value of $15,000,000; 80,000
shares are to be Preferred Shares with a par value of $25 per share
and an aggregate par value of $2,000,000; and 30,000,000 shares are
to be Common Shares with no par value and a stated value of $2.50
per share and an aggregate par value of $75,000,000."
3. The Restated Articles of Incorporation of the Corporation shall be
further amended by striking in its entirety paragraph (ii) of Paragraph 15 of
Article IV of the Amended and Restated Articles of Incorporation which now
reads:
"(ii) Number of Shares. The authorized number of shares constituting
said Preferred Shares, 5% Series, shall be 17,600."
and substituting therefore the following paragraph to read in full as follows:
"(ii) Number of Shares. The authorized number of shares constituting
said Preferred Shares, 5% Series, shall be 16,000."
4. The foregoing amendments set forth in paragraphs 2 and 3 of this
Certificate are each amendments that may be adopted by the Board of Directors
alone (and which were so adopted) because the amendments are required by Section
510 of the California General Corporation Law to reflect the reacquisition of a
portion of the Corporation's Preferred Shares, 5% Series, $25 par value, in
accordance with the sinking fund provisions thereof. Such reacquired Preferred
Shares cannot be reissued.
5. The foregoing amendments have been duly approved by the Board of
Directors as required by Section 905(b) of the California General Corporation
Law.
We further declare, under penalty of perjury under the laws of the State
of California, that the matters set forth in this Certificate of Amendment are
true and correct.
IN WITNESS WHEREOF, the undersigned have executed this Certificate in San
Dimas, California on this 11th day of August, 1999.
/s/ Floyd E. Wicks
---------------------------------------
FLOYD E. WICKS, President
/s/ McClellan Harris III
---------------------------------------
McCLELLAN HARRIS III, Secretary
CERTIFICATE OF AMENDMENT
OF
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
AMERICAN STATES WATER COMPANY
(A CALIFORNIA CORPORATION)
Floyd E. Wicks and McClellan Harris III certify that:
1. They are the duly elected and acting President and Secretary,
respectively of American States Water Company (the "Corporation").
2. The Amended and Restated Articles of Incorporation of the Corporation
shall be amended by striking in its entirety the first full paragraph of Article
IV of the Amended and Restated Articles of Incorporation which now reads:
"This Corporation is authorized to issue three classes of stock to
be designated, respectively, "New Preferred Shares", "Preferred
Shares", and "Common Shares". The total number of shares which this
Corporation is authorized to issue is 30,230,000; 150,000 shares are
to be New Preferred Shares with no par value and a stated value of
$100 per share and an aggregate stated value of $15,000,000; 80,000
shares are to be Preferred Shares with a par value of $25 per share
and an aggregate par value of $2,000,000; and 30,000,000 shares are
to be Common Shares with no par value and a stated value of $2.50
per share and an aggregate par value of $75,000,000."
and substituting therefore the following paragraph to read in full as follows:
"This Corporation is authorized to issue three classes of stock to
be designated, respectively, "New Preferred Shares", "Preferred
Shares", and "Common Shares". The total number of shares which this
Corporation is authorized to issue is 30,226,800; 150,000 shares are
to be New Preferred Shares with no par value and a stated value of
$100 per share and an aggregate stated value of $15,000,000; 76,800
shares are to be Preferred Shares with a par value of $25 per share
and an aggregate par value of $1,920,000; and 30,000,000 shares are
to be Common Shares with no par value and a stated value of $2.50
per share and an aggregate par value of $75,000,000."
3. The Restated Articles of Incorporation of the Corporation shall be
further amended by striking in its entirety paragraph (ii) of Paragraph 15 of
Article IV of the Amended and Restated Articles of Incorporation which now
reads:
"(ii) Number of Shares. The authorized number of shares constituting
said Preferred Shares, 5% Series, shall be 16,000."
and substituting therefore the following paragraph to read in full as follows:
"(ii) Number of Shares. The authorized number of shares constituting
said Preferred Shares, 5% Series, shall be 12,800."
4. The foregoing amendments set forth in paragraphs 2 and 3 of this
certificate are each amendments that may be adopted by the Board of Directors
along (and which were so adopted) because the amendments are required by Section
510 of the California General Corporation Law to reflect the reacquisition of a
portion of the Corporation's Preferred Shares, 5% Series, $25 par value, in
accordance with the sinking fund provisions thereof. Such reacquired Preferred
Shares cannot be reissued.
5. The foregoing amendments have been duly approved by the Board of
Directors as required by Section 905(b) of the California General Corporation
Law.
We further declare, under penalty of perjury under the laws of the State
of California, that the matters set forth in this Certificate of Amendment are
true and correct.
IN WITNESS WHEREOF, the undersigned have executed this Certificate in San
Dimas, California on this 20th day of November, 2001.
/s/ Floyd E. Wicks
------------------------------------
FLOYD E. WICKS
President and Chief Executive Officer
/s/ McClellan Harris III
------------------------------------
McCLELLAN HARRIS III
Corporate Secretary
CERTIFICATE OF AMENDMENT
TO
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
AMERICAN STATES WATER COMPANY
Floyd E. Wicks and McClellan Harris III certify that:
1. They are the duly elected President and Chief Executive Officer, and
the duly elected Chief Financial Officer, Vice President--Finance, Treasurer and
Corporate Secretary, respectively, of American States Water Company, a
California corporation (the "Company").
2. Article IV of the Company's Amended and Restated Articles of
Incorporation is amended in its entirety to read as follows:
This Corporation is authorized to issue two classes of stock to be
designated, respectively, "New Preferred Shares" and "Common Shares". The
total number of shares which this Corporation is authorized to issue is
30,150,000; 150,000 shares are to be New Preferred Shares with no par
value and a stated value of $100 per share and an aggregate stated value
of $15,000,000, and 30,000,000 shares are to be Common Shares with no par
value with a stated value of $2.50 per share and an aggregate stated value
of $75,000,000.
A statement of the preferences, privileges and restrictions granted
to or imposed upon the respective classes or series of shares and/or upon
the holders thereof is as follows:
(1) Subject to the provisions of this Article IV, New Preferred
Shares of any particular series shall be entitled to such voting
rights, if any, as may be specified for shares of such series in the
certificate of determination of preferences of such series filed as
provided below. All Common Shares shall be entitled to voting rights
on the basis of one-tenth of one vote per share.
(2) New Preferred Shares may be issued from time to time in one or
more series. Each such series shall be so designated as to
distinguish it from other series of New Preferred Shares. Such
designation may include an appropriate reference to the dividend
rate and/or any other characteristics of such series. The Board of
Directors is hereby authorized, within the limits of, but to the
extent authorized by applicable law and within the limitations and
restrictions, if any, stated in this Article IV, to fix or alter,
from time to time, the dividend rights, dividend rate, conversion
rights, voting rights, right and terms of redemption (including
sinking fund provisions), redemption price or prices, and
liquidation preferences, or any
of them, of any wholly unissued series of New Preferred Shares, and
to fix the number of shares constituting any such unissued series,
by a resolution or resolutions adopted by the Board of Directors in
exercise of the authority hereby granted.
(3) Subject to the dividend preferences provided for all shares of
each other class at the time outstanding and to the restrictions set
forth in this Paragraph (3), the Common Shares shall be entitled to
receive dividends when and as declared by the Board of Directors out
of any funds of this Corporation legally available therefor. After
payment of the full preferential amounts hereinabove provided for
all shares of each other class outstanding at the time of any
liquidation, dissolution or winding up of this Corporation, whether
voluntary or involuntary, all then remaining assets of this
Corporation available for distribution to its shareholders shall be
distributed ratably upon the Common Shares. No dividend shall be
declared on the Common Shares which, after giving effect to such
declaration, would reduce the Common Stock Equity of this
Corporation as of the end of the calendar month last preceding that
in which such dividend was declared to an amount less than 25% of
the Total Capitalization of this Corporation as of said last
preceding month, except that any such dividend may be declared (a)
which would reduce such Common Stock Equity to less than 25% but not
less than 20% of such Total Capitalization if the amount of such
dividend plus all dividends on the Common Shares declared during the
12 months period terminating at the end of such last preceding
calendar month shall not exceed 75% of the net income of this
Corporation applicable to its Common Shares for such period, or (b)
which would reduce such Common Stock Equity to less than 20% of such
Total Capitalization if the amount of such dividend plus all
dividends on the Common Shares declared during said 12 months period
shall not exceed 50% of the net income of this Corporation
applicable to its Common Shares for such period; provided, however,
that the foregoing restrictions of this sentence shall not apply to,
nor in any way restrict, (a) the payment of any dividend on the
Common Shares which is payable in shares of stock of this
Corporation, or (b) any reclassification, subdivision, split-up or
combination of the Common Shares, or (c) any transfer between the
capital and surplus accounts of this Corporation in connection with
any such reclassification, subdivisions, split-up or combination or
payment of dividend in shares of stock of this Corporation. Common
Stock Equity as herein used shall mean the aggregate of (i) par
value or stated capital of all outstanding Common Shares, and (ii)
the surplus (including capital surplus, paid-in surplus and earned
surplus) as shown by the books of this Corporation after giving
effect to the declaration of the proposed dividend, and (iii)
premium on Common Shares; less the remaining balance of the amount
of organization expenses, as shown on said books. Total
Capitalization as herein used shall mean the aggregate of (i) Common
Stock Equity, (ii) premium on and the par value or stated capital of
all outstanding shares of this Corporation of any and all classes
having preferences over the Common Shares as to dividends or assets,
and (iii) the principal amount of all outstanding debt maturing more
than 12 months after the close of said 12 months period, all as
shown by the books of this Corporation;
less the remaining balance of organization expenses, as shown on
said books. Net Income as herein used shall be determined in
accordance with accepted accounting practice (but after provision
for all taxes based upon or measured by income, and after annual
interest charges adjusted by provision for amortization of bond
discount and expense or of premium on indebtedness, and also after
deduction of depreciation for said 12 months period as reported in
the accounts of this Corporation as filed with the Public Utilities
Commission of the State of California or other public authority of
said state having jurisdiction to establish or approve the system of
accounts of this Corporation). Net Income applicable to Common
Shares as herein used shall mean net income after deduction
therefrom of all dividends payable for the period involved on all
outstanding shares of any and all classes of this Corporation having
preference over the Common Shares as to dividends or assets.
(4) Unless such action has been approved by the affirmative vote of
at least a majority of the Continuing Directors (as defined below),
without the approval of Common Shares and, unless otherwise provided
in the certificate of determination for any series of New Preferred
Shares, the New Preferred Shares representing in the aggregate at
least 66 2/3% of the combined voting power of this Corporation's
outstanding Common Shares and the New Preferred Shares, voting
together as a single class, this Corporation shall not
(i) subject to subparagraph (iii) below, sell, convey, lease
or otherwise dispose of all or substantially all of its
assets, property or business;
(ii) approve the sale, conveyance, lease or other disposition
by any subsidiary of this Corporation of all or substantially
all of such subsidiary's assets, property or business;
(iii) sell, transfer, convey or otherwise dispose of more than
a majority of the outstanding capital stock of any subsidiary
of the Corporation, if such subsidiary holds assets accounting
for 50% or more of the Corporation's consolidated assets,
other than to an entity the majority of the voting power of
the capital stock or other equity interest of which is owned
and controlled by this Corporation;
(iv) consolidate or merge with or into any other corporation
or other business entity, except if, immediately after such
consolidation or merger, the shareholders of this Corporation
immediately prior to such consolidation or merger will own
more than 60% of the voting power of the outstanding capital
stock or other equity interest of or in the surviving entity;
or
(v) approve the consolidation or merger of any subsidiary of
this Corporation, if such subsidiary holds assets accounting
for 50% or more of
the Corporation's consolidated assets, with or into any other
corporation or other business entity.
For purposes of this paragraph (4) of Article IV, the term
"Continuing Directors" shall mean any member of the Board of
Directors of the Corporation (while such person is a member of the
Board) who (i) is not an Acquiring Person, or an Affiliate or
Associate of an Acquiring Person, or a representative of an
Acquiring Person or of any such Affiliate or Associate, and (ii)
either (A) was a member of the Board of Directors prior to the time
any person became an Acquiring Person, or (B) became a member of the
Board of Directors subsequent to the time any person became an
Acquiring Person, if such person's nomination for election, or
re-election, to the Board was recommended, or approved, by a
majority of the Continuing Directors then in office. For purposes of
the foregoing definition, (i) "Affiliate" and "Associate" shall have
the respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Exchange Act, as in effect
as of the date hereof; (ii) "Acquiring Person" shall mean any person
or entity which, alone or together with all Affiliates and
Associates of such person or entity, shall be the beneficial owner
of 20% or more of the Corporation's voting stock, but shall not
include (1) an Exempt Person or (2) any person or entity who or
which acquires 20% or more of the Corporation's voting stock in
connection with a transaction or series of transactions approved
prior to such transaction or transactions by the Board of Directors
of the Corporation; provided that no person or entity shall become
an Acquiring Person solely as a result of a reduction in the number
of shares of the Corporation's voting stock outstanding, unless and
until such person or entity shall thereafter become the beneficial
owner of additional shares constituting 1% or more of the general
voting power of the Corporation. "Exempt Person" shall mean the
Corporation, any majority-owned subsidiary of the Corporation, and
any employee benefit plan or employee stock plan of the Corporation,
or any trust or other entity organized, established or holding
Common Shares by, for or pursuant to, the terms of any such plan.
3. Article VI of the Company's Amended and Restated Articles of
Incorporation is amended in its entirety to read as follows:
Notwithstanding any contrary provision of these Articles of
Incorporation, any amendment or repeal of paragraph (4) of Article IV,
this Article VI or any amendment to these Articles of Incorporation
providing for a classified board shall require the affirmative vote of
shares representing not less than 66 2/3% of the combined voting power of
the outstanding Common Shares and, unless otherwise provided in the
certificate of determination, the New Preferred Shares, voting together as
a single class.
Notwithstanding any contrary provision of these Articles of
Incorporation, and except as otherwise expressly provided in the
California Corporations Code, none of the following provisions of the
Bylaws of the Company may be amended or repealed, except by a majority of
the Board or by the shareholders upon the affirmative vote of shares
representing at least 66 2/3% of the combined voting power of the
outstanding Common Shares and, unless otherwise provided in the
certificate of determination for any series of New Preferred Shares, the
New Preferred Shares, voting together as a single class: (a) Section 2 of
Article II, (b) Section 15 of Article II, and (c) Section 2 of Article
III.
4. On the effective date of the filing of this Amendment to the Amended
and Restated Articles of Incorporation, the Company's Preferred Stock will be
eliminated in accordance with Section 510(b)(2)(A) of the California General
Corporation Law. The Company has only shares of Common Shares outstanding, and
there will be no effect on the outstanding Common Shares.
5. The foregoing amendments of the Amended and Restated Articles of
Incorporation have been duly approved by the Board of Directors of the Company
alone in accordance with Section 510(b)(2)(A) of the California General
Corporation Law.
We further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of our own knowledge.
DATED: April 29, 2002
/s/ Floyd E. Wicks
------------------------------------
Floyd E. Wicks
/s/ McClellan Harris III
------------------------------------
McClellan Harris III
CERTIFICATE OF AMENDMENT
TO
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
AMERICAN STATES WATER COMPANY
Floyd E. Wicks and McClellan Harris III certify that:
1. They are the duly elected President and Chief Executive Officer, and
the duly elected Chief Financial Officer, Vice President--Finance, Treasurer and
Corporate Secretary, respectively, of American States Water Company, a
California corporation (the "Company").
2. Article IV of the Company's Amended and Restated Articles of
Incorporation is amended to add a new subsection (5) thereto to read in its
entirety as follows:
(5) On May 15, 2002, every two shares of Common Shares of this
Corporation shall be split into three Common Shares of this Corporation
(the "Stock Split"). No certificates evidencing fractional shares will be
issued in connection with this Stock Split, but instead, a certificate or
certificates evidencing the aggregate of all fractional shares that would
be issued (rounded, if necessary, to the next higher whole share) shall be
issued to ChaseMellon Shareholder Services, Inc., or its nominee, as
transfer agent, for the accounts of all holders of Common Shares of this
Corporation otherwise entitled to have a fraction of a share delivered to
them in connection with the Stock Split; and the transfer agent shall sell
those shares as soon as practicable after receiving them at the then
market price and remit the net proceeds to the shareholders entitled
thereto.
4. The Company has only shares of Common Shares outstanding.
5. The foregoing amendments of the Amended and Restated Articles of
Incorporation have been duly approved by the Board of Directors of the Company
alone in accordance with Section 902(c) of the California General Corporation
Law.
We further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of our own knowledge.
DATED: May 3, 2002
/s/ Floyd E. Wicks
------------------------------------
Floyd E. Wicks
/s/ McClellan Harris III
------------------------------------
McClellan Harris III
CERTIFICATE OF AMENDMENT
OF
ARTICLES OF INCORPORATION
OF
AMERICAN STATES WATER COMPANY,
A CALIFORNIA CORPORATION
Floyd E. Wicks and McClellan Harris III certify that:
(1) They are the duly elected and acting President and Senior Vice
President of Finance, Chief Financial Officer, Treasurer and Secretary,
respectively of American States Water Company.
(2) The Articles of Incorporation of American States Water Company are
amended as follows:
(a) The first paragraph of Article IV is amended in its entirety to
read as follows:
"This Corporation is authorized to issue two classes of stock to be
designated, respectively, `New Preferred Shares' and `Common
Shares'. The total number of shares which this Corporation is
authorized to issue is 30,150,000; 150,000 shares are to be New
Preferred Shares with no par value, and 30,000,000 shares are to be
Common Shares with no par value."
(b) Subparagraph (1) of the second paragraph of Article IV is
amended in its entirety to read as follows:
"(1) Subject to the provisions of this Article IV, New
Preferred Shares of any particular series shall be entitled to such
voting rights, if any, as may be specified for shares of such series
in the certificate of determination of preferences of such series
filed as provided below. All Common Shares shall be entitled to
voting rights on the basis of one vote per share."
(c) Subparagraph (3) of the second paragraph of Article IV is
amended in its entirety to read as follows:
(3) Subject to the dividend preferences provided for all
shares of each other class at the time outstanding and to the
restrictions set forth in this Paragraph (3), the Common Shares
shall be entitled to receive dividends when and as declared by the
Board of Directors out of any funds of this Corporation legally
available therefor. After payment of the full preferential amounts
hereinabove provided for all shares of each other class outstanding
at the time of any liquidation, dissolution or winding up of this
Corporation, whether voluntary or involuntary, all then remaining
assets of this Corporation available for distribution to its
shareholders shall be distributed ratably upon the Common Shares."
(3) These amendments have been approved by the Board of Directors of the
corporation.
(4) These amendments were approved by the required vote of the
shareholders of the corporation in accordance with Section 902 of the
Corporations Code; the total number of outstanding shares of each class entitled
to vote with respect to the amendment was 15,180,835 Common Shares and no New
Preferred Shares; and the number of Common Shares voting in favor of each of the
amendments exceeded the vote required, such required vote being a majority of
the outstanding Common Shares.
We further declare under penalty of perjury under the laws of the State of
California that the matters set forth in this certificate are true and correct
of our own knowledge.
Dated: June 2, 2003
/s/ Floyd E. Wicks
------------------------------------
Floyd E. Wicks
President
/s/ McClellan Harris III
------------------------------------
McClellan Harris III
Senior Vice President of Finance,
Chief Financial Officer, Treasurer
and Secretary