Exhibit 3.5
PAGE 1
State of Delaware
Office of the Secretary of State
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I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "CLARK USA, INC.", FILED IN THIS OFFICE ON THE FIRST DAY OF OCTOBER, A.D.
1997, AT 11:15 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ Edward J. Freel
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Edward J. Freel, Secretary of State
[SEAL]
AUTHENTICATION: 8680762
DATE: 10-01-97
Certificate of Amendment
of
Certificate of Incorporation
of
Clark USA, Inc.
_____________________________________________
Adopted in accordance with the provisions
of Section 242 of the General Corporation
Law of the State of Delaware
_____________________________________________
I, Maura Clark, Executive Vice President of CLARK USA, INC., a corporation
organized and existing under the laws of the State of Delaware (the
"Corporation"), hereby certify as follows:
FIRST: That the Restated Certificate of Incorporation of the Corporation
was filed with the Secretary of State of the State of Delaware on the 28th day
of December, 1994 and that Certificates of Amendment thereto were filed with the
Secretary of State of the State of Delaware on the 23rd day of February, 1995,
the 3rd day of November, 1995 and on two occasions on the 1st day of October,
1997 (as so amended, the "Certificate of Incorporation").
SECOND: That Article 4 of the Certificate of Incorporation of the
Corporation has been amended to read in its entirety as follows:
ARTICLE 4. The total number of shares of capital stock which the
Corporation shall have the authority to issue is 68,554,552 shares,
consisting of (a)63,554,552 shares of common stock, par value $.01 per
share, of which (i) 54,164,597 shares shall be designated "Common Stock,"
(ii) 3,389,955 shares shall be designated "Class D Common Stock," and (iii)
6,000,000 shares shall be designated "Class F Common Stock", and (b)
5,000,000 shares of "Preferred Stock," par value $.01 per share.
A. Preferred Stock.
---------------
1. Issuance. The Board of Directors is authorized, subject to
limitations prescribed by law, to provide for the issuance of shares of
Preferred Stock in one or more Classes, to establish the number of shares
to be included in each such Class, and to fix the designations, powers,
preferences and rights of the shares of each such Class, and any
qualifications, limitations or restrictions thereof.
B. Common Stock.
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1. Dividends. Subject to the preferential rights, if any, of the
Preferred Stock, the holders of Common Stock shall be entitled to receive,
when, as and if declared by the Board of Directors, out of the assets of
the Corporation which are by law available therefor, dividends payable
either in cash, in property or in shares of capital stock. The Board of
Directors may not declare or pay any dividend or distribution with respect
to the Common Stock unless the same dividend or distribution per share has
been declared or paid, as the case may be, with respect to the Class D
Common Stock and the Class F Common Stock; provided, that with respect to
dividends payable only in shares of common stock, each of the Common Stock,
the Class D Common Stock and the Class F Common Stock shall receive an
equivalent dividend per share payable in common stock of the corresponding
class.
2. Voting Rights. At every annual or special meeting of stockholders
of the Corporation, every share of Common Stock shall entitle the holder
thereof to one vote, voting together with the holders of Class F Common
Stock, in person or by proxy, for each share of Common Stock standing in
his or her name on the books of the Corporation; provided that the holders
of Common Stock shall have no voting rights with respect to matters
reserved (by law or by agreement with the Corporation) solely for any other
class of capital stock.
3. Liquidation, Dissolution or Winding Up. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation (a "Liquidation"), after payment or provision
for payment of the debts and other liabilities of the Corporation and of
the preferential amounts, if any, to which the holders of Preferred Stock
shall be entitled, the holders of all outstanding shares of Common Stock
shall be entitled to share ratably, on a share-for-share basis, with the
holders of Class D Common Stock and Class F Common Stock in the remaining
assets of the Corporation.
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C. Class D Common Stock
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1. Dividends. Subject to the preferential rights, if any, of the
Preferred Stock, the holders of Class D Common Stock shall be entitled to
receive the same dividends or distributions per share, whether payable in
cash, in property or in shares of capital stock, as may be declared and
paid on the Common Stock and the Class F Common Stock, and the Board of
Directors may not declare or pay any dividend or distribution with respect
to the Class D Common Stock unless the same dividend or distribution per
share has been declared or paid, as the case may be, with respect to the
Common Stock and the Class F Common Stock; provided, that with respect to
dividends payable only in shares of common stock, each of the Common Stock,
the Class D Common Stock and the Class F Common Stock shall receive an
equivalent dividend per share payable in common stock of the corresponding
class.
2. Voting Rights. Holders of shares of Class D Common Stock shall
not be accorded any voting rights in respect thereof and such shares shall
not be deemed to be outstanding for purposes of determining the vote
required on any matter properly brought before the stockholders of the
Corporation for a vote thereon.
3. Conversion. (a) The Company shall have the right, at any time and
from time to time, to convert any or all of the shares of Class D Common
Stock into an equal number of shares of Common Stock. The method of
selection of such shares shall be determined by the Board of Directors of
the Company in its sole discretion.
(b) Following an initial public offering of Common Stock, any
person who is not an affiliate of Occidental Petroleum Corporation to whom
shares of Class D Common Stock have been directly or indirectly transferred
by Occidental Petroleum Corporation in an arm's-length transaction shall
have the right, at any time and from time to time, to convert any or all of
such shares of Class D Common Stock into an equal number of shares of
Common Stock.
(c) Following an initial public offering of Common Stock, any
person who is not an affiliate of Gulf Resources Corporation to whom shares
of Class D Common Stock have been directly or indirectly transferred by
Gulf Resources Corporation in an arm's-length transaction shall have the
right, at any time and from time to time, to convert any or all of such
shares of Class D Common Stock into an equal number of shares of Common
Stock.
4. Liquidation, Dissolution or Winding Up. In the event of any
voluntary or involuntary liquidation, dissolution or winding up of the
affairs of the Corporation (a "Liquidation"), after payment or provision
for payment of the debts and other liabilities of the Corporation and of
the preferential amounts, if any, to which the holders of Preferred Stock
shall be entitled, the holders of all outstanding shares of Class D Common
Stock shall be entitled to share ratably, on a share-for-share basis, with
the
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holders of Common Stock and Class F Common Stock in the remaining assets of
the Corporation.
5. Anti-Dilution. In the event the Company shall at any time (a)
declare a dividend on any shares of capital stock of the Company or any
securities issued in respect thereof, or in substitution therefor, in
connection with any stock split, dividend or combination, or any
recapitalization, merger, consolidation, exchange or other similar
reorganization (a "Recapitalization"), such dividend being payable in
shares of capital stock of the Company, (b) subdivide the outstanding
capital stock of the Company, (c) combine the outstanding capital stock of
the Company into a smaller number of shares, or (d) issue any shares of
capital stock in a Recapitalization, the number of shares of Class D Common
Stock then outstanding shall be proportionately adjusted so that the
relative equity percentage ownership of the Company and the relative voting
power represented by each such share shall be preserved as nearly as
practicable.
D. Class F Common Stock
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1. Dividends. Subject to the preferential rights, if any, of the
Preferred Stock, the holders of Class F Common Stock shall be entitled to
receive the same dividends or distributions per share, whether payable in
cash, in property or in shares of capital stock, as may be declared and
paid on the Common Stock and the Class D Common Stock, and the Board of
Directors may not declare or pay any dividend or distribution with respect
to the Class F Common Stock unless the same dividend or distribution per
share has been declared or paid, as the case may be, with respect to the
Common Stock and the Class D Common Stock; provided, that with respect to
dividends payable only in shares of common stock, each of the Common Stock,
the Class D Common Stock and the Class F Common Stock shall receive an
equivalent dividend per share payable in common stock of the corresponding
class.
2. Voting Rights. At every annual or special meeting of stockholders
of the Corporation, every share of Class F Common Stock shall entitle the
holder thereof to one vote (subject to adjustment as provided below),
voting together with the holders of Common Stock, on all matters submitted
to a vote of the holders of Common Stock or Class F Common Stock, in person
or by proxy, in the same manner and with the same effect as the holders of
Common Stock; provided that the holders of Class F Common Stock shall have
no voting rights with respect to matters reserved (by law or by agreement
with the Corporation) solely for any other class of capital stock; and
provided further, that if the holders of the Class F Common Stock would
otherwise be entitled to cast votes representing, in the aggregate, more
than 19.9% of the total voting power of all classes of capital stock of the
Corporation entitled to vote, then the vote allotted to each share of Class
F Common Stock shall be proportionately reduced so that all outstanding
shares of Class F Common Stock shall be entitled to cast votes
representing, in the aggregate, 19.9% of the total voting power of all
classes of capital stock of the Corporation entitled to vote.
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3. Conversion. Any shares of Class F Common Stock that are owned
beneficially or of record by Occidental Petroleum Corporation and its
affiliates shall have no conversion rights. Any holder of any shares of
Class F Common Stock other than Occidental Petroleum Corporation and its
affiliates shall have the right, at any time and from time to time, to
convert any or all of such other holder's shares of Class F Common Stock
into an equal number of shares of Common Stock.
4. Antidilution. In the event the Corporation shall at any time (a)
declare a dividend on any shares of capital stock of the Corporation or any
securities issued in respect thereof, or in substitution therefor, such
dividend being payable in shares of capital stock of the Corporation, (b)
subdivide the outstanding capital stock of the Corporation, or (c) combine
the outstanding capital stock of the Corporation into a smaller number of
shares, the provisions relating to the conversion of shares of Class F
Common Stock into Common Stock shall be equitably and proportionately
adjusted.
5. Liquidation, Dissolution or Winding Up. In the event of any
Liquidation, after payment or provision for payment of the debts and other
liabilities of the Corporation and of the preferential amounts, if any, to
which the holders of Preferred Stock shall be entitled, the holders of all
outstanding shares of Class F Common Stock shall be entitled to share
ratably, on a share-for-share basis, with the holders of Common Stock and
Class D Common Stock in the remaining assets of the Corporation.
D. Reclassification. All shares of Class E Common Stock issued and
outstanding immediately prior to the filing of this Certificate of
Amendment with the Secretary of State of the State of Delaware are hereby
reclassified and, without any further action on the part of the Corporation
or the holder of such shares, shall hereafter be deemed to have become an
aggregate of 63,000 shares of Preferred Stock to be known as "Exchangeable
Preferred Stock," the terms of which shall be set forth in the Certificate
of Designations with respect to the Exchangeable Preferred Stock in the
form of Exhibit A hereto.
E. Amendment of this Article. The Corporation may not amend, alter,
change or repeal in any manner adverse to the holders of the Class D Common
Stock or Class F Common Stock the rights or preferences of the holders of
the Class D Common Stock or Class F Common Stock contained in this Article
4 without the consent of the holders of 95% of the Class D Common Stock or
the Class F Common Stock, as the case may be.
THIRD: That such amendment has been duly adopted in accordance with the
provisions of the General Corporation Law of the State of Delaware by the
written consent of the holders of
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a majority of all outstanding shares of each class entitled to vote thereon in
accordance with the provisions of Section 228 of the General Corporation Law.
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IN WITNESS WHEREOF, the undersigned has signed this Certificate this 1st
day of October, 1997.
CLARK USA, INC.
/s/ Maura J. Clark
By:_________________________________
Name: Maura J. Clark
Title: Executive Vice President &
Chief Financial Officer
Attested By:
/s/ Katherine D. Knocke
__________________________
Name: Katherine D. Knocke
Title: Secretary
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