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
/s/_________________________
McClellan Harris III