1993
------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-K/A
(Amendment No. 2)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1993
or
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _____________ to _______________.
Commission file number 1-8483
UNOCAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 95-3825062
------------------------------- ------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1201 West 5th Street, Los Angeles, California 90017
--------------------------------------------- --------
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code: (213) 977-7600
Securities Registered Pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
Common Stock, par value $1.00 per share New York Stock Exchange
Chicago Stock Exchange
Pacific Stock Exchange
Preferred Stock Purchase Rights New York Stock Exchange
Chicago Stock Exchange
Pacific Stock Exchange
Securities Registered Pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes [X] No
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [X]
The aggregate market value of Common Stock held by non-affiliates of the
registrant as of March 15, 1994 (based upon the average of the high and low
prices of these shares on the New York Stock Exchange Composite
Transactions listing) was $6,576 million.
Shares of Common Stock outstanding as of March 15, 1994: 241,841,427
DOCUMENTS INCORPORATED BY REFERENCE
Portions of 1994 Proxy Statement Part III
<PAGE>
PART III
The information required by Items 10 through 12 (except for
information regarding the company's executive officers) is
incorporated by reference from Unocal's Proxy Statement for the 1994
Annual Meeting of Stockholders (File No. 1-8483), as indicated
below.
. . .
ITEM 10 - DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information regarding the Directors of the Registrant and the
Executive Officers of the Registrant can be found on pages 3
through 5 of the 1994 Proxy Statement and page 18 of this Annual
Report on Form 10-K, respectively.
1
<PAGE>
SIGNATURE
Pursuant to the requirement of the Securities Exchange Act of 1934, the
registrant has duly caused this report to amendment to report to be signed
on its behalf by the undersigned, thereunto duly authorized.
UNOCAL CORPORATION
-------------------
(Registrant)
by: /s/CHARLES S. MCDOWELL
--------------------
(Charles S. McDowell,
Vice President and Comptroller)
Dated: June 28, 1994
- - ---------------------
2
<PAGE>
UNOCAL CORPORATION
EXHIBIT INDEX
Exhibit 3.1/*/ Certificate of Incorporation of Unocal, as amended
through July 24, 1992.
Exhibit 3.2 Bylaws of Unocal (incorporated by reference to Exhibit 3
to Unocal's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1992, File No. 1-8483.
Amendments to bylaws to be effective on and after April
25, 1994 are incorporated by reference to Unocal's
Current Report on Form 8-K, dated March 2, 1994, File
No. 1-8483).
Exhibit 4 Instruments Defining the Rights of Security Holders,
Including Indentures.
Exhibit 10.1 Rights Agreement, dated as of January 29, 1990, between
the registrant and Chemical Trust Company of California,
as successor Rights Agent (incorporated by reference to
Exhibit 1 to Unocal's Current Report on Form 8-K dated
January 29, 1990, File No. 1-8483).
The following Exhibits 10.2 through 10.8 are compensatory plans or
agreements required to be filed by Item 601 (b) (10) (iii) (A) of
Regulation S-K.
Exhibit 10.2 The Management Incentive Program (incorporated by
reference to Unocal's Registration Statement on Form S-8,
File No. 33-43231, filed October 8, 1991).
Exhibit 10.3 The Long-Term Incentive Plan of 1985 (incorporated by
reference to Unocal's Registration Statement on Form S-8,
File No. 2-93452, filed September 28, 1984).
Exhibit 10.4 Supplemental Retirement Plan for Key Management
Personnel, as amended and effective January 1, 1989
(incorporated by reference to Exhibit 10.3 to Unocal's
Annual Report on Form 10-K for the year ended December
31, 1990, File No. 1-8483).
Exhibit 10.5 Other Compensatory Arrangements (incorporated by
reference to Exhibit 10.4 to Unocal's Annual Report on
Form 10-K for the year ended December 31, 1990, File No.
1-8483).
Exhibit 10.6 Directors' Restricted Stock Plan of 1991 (incorporated
by reference to Exhibit B to Unocal's Proxy Statement
for its 1991 Annual Meeting of Stockholders, File No. 1-
8483).
Exhibit 10.7 Form of Indemnity Agreement between Unocal and each of
its directors (incorporated by reference to Exhibit A to
Unocal's Proxy Statement for its 1987 Annual Meeting of
Stockholders, File No. 1-8483).
Exhibit 10.8 Consulting Agreement, dated April 26, 1993, between
Union Oil Company of California, dba Unocal, and Claude
S. Brinegar.
Exhibit 11 Computation of Earnings Per Common Share
Exhibit 12 Computation of Ratio of Earnings to Fixed Charges
Exhibit 21 Subsidiaries of Unocal Corporation
Exhibit 23 Consent of Coopers & Lybrand
- - -------------------------------------
* Filed with this amendment.
<PAGE>
EXHIBIT 3.1
FILED MARCH 18, 1983 - 2:00 P.M.
CERTIFICATE OF INCORPORATION OF
UNOCAL CORPORATION
FIRST: The name of this corporation is:
UNOCAL CORPORATION
SECOND: The name and address of the registered agent of the
corporation in the State of Delaware is:
The Corporation Trust Company
100 West Tenth Street
Wilmington, New Castle County, Delaware
THIRD: The purpose of the corporation is to engage in any
lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
FOURTH: The total amount of capital stock which this
corporation has the authority to issue is 260,000,000 shares of
common stock $1.00 par value per share.
FIFTH: The name and mailing address of the incorporator of
the corporation is as follows:
Name Mailing Address
George C. Bond P.O. Box 7600
Los Angeles, California 90051
SIXTH: New bylaws may be adopted or the bylaws may be
amended or repealed by a vote of seventy-five percent of the
outstanding stock of the corporation entitled to vote thereon.
Bylaws may also be adopted, amended or repealed by the Board of
Directors as provided or permitted by law; however, any bylaw
amendment adopted by the Board of Directors increasing or reducing
the authorized number of directors shall require a resolution
adopted by the affirmative vote of not less than seventy-five
percent of the directors.
SEVENTH: The number of directors which shall constitute the
whole Board of Directors of the corporation shall be as specified
in the bylaws of the corporation, subject to the provisions of
Article SIXTH hereof and this Article SEVENTH. The board is
divided into three classes, Class I, Class II and Class III. Such
classes shall be as nearly equal in number of directors as
possible. Each director shall serve for a term ending on the third
annual meeting following the annual meeting at which such director
was elected; provided, however, that the directors first elected to
Class I shall serve for a term ending on the annual meeting next
following the end of the calendar year 1983, the directors first
elected to Class II shall serve for a term ending on the second
annual meeting next following the end of the calendar year 1983,
<PAGE>
and the directors first elected to Class III shall serve for a term
ending on the third annual meeting next following the end of the
calendar year 1983. The foregoing notwithstanding, each director
shall serve until his successor shall have been duly elected and
qualified, unless he shall resign, become disqualified, disabled or
shall otherwise be removed.
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 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.
Notwithstanding the rule that the three 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 is a member until the expiration
of his current term, or his prior death, resignation or removal.
If any newly created directorship may, consistent with the rule
that the three classes shall be as nearly equal in number or
directors as possible, be allocated to one or two or more classes,
the Board shall allocate it to that of the available classes whose
term of office is due to expire at the earliest date following such
allocation.
EIGHTH: The affirmative vote of the holders of not less than
seventy-five percent of the outstanding stock of the corporation
entitled to vote shall be required for approval if (1) this
corporation merges or consolidates with any other corporation if
such other corporation and its affiliates singly or in the
aggregate are directly or indirectly the beneficial owners of more
than ten percent (10%) of the total voting power of all outstanding
shares of the voting stock of this corporation (such other
corporation being herein referred to as a "Related Corporation"),
or if (2) this corporation sells or exchanges all or a substantial
part of its assets to or with such Related Corporation, or if (3)
this corporation issues or delivers any stock or other securities
of its issue in exchange or payment for any properties or assets of
such Related Corporation or securities issued by such Related
Corporation, or in a merger of any affiliate of this corporation
with or into such Related Corporation or any of its affiliates;
provided, however, that the foregoing shall not apply to any such
merger, consolidation, sale or exchange, or issuance or delivery of
stock or other securities which was (i) approved by resolution of
the Board of Directors adopted by the affirmative vote of not less
than seventy-five percent of the directors prior to the acquisition
of the beneficial ownership of more then ten percent (10%) of the
total voting power of all outstanding shares of the voting stock of
the corporation by such Related Corporation and its affiliates, nor
shall it apply to any such transaction solely between this
2
<PAGE>
corporation and another corporation fifty percent (50%) or more of
the voting stock of which is owned by this corporation. For the
purposes hereof, an "affiliate" is any person (including a
corporation, partnership, trust, estate or individual) who
directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, the
person specified. "Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership
of voting securities, by contract, or otherwise; and in computing
the percentage of outstanding voting stock beneficially owned by
any person the shares outstanding and the shares owned shall be
determined as of the record date fixed to determine the
stockholders entitled to vote or express consent with respect to
such proposal. The stockholder vote, if any, required for mergers,
consolidations, sales or exchanges of assets or issuances of stock
or other securities not expressly provided for in this Article,
shall be such as may be required by applicable law. A "substantial
part" of the corporation's assets shall mean assets comprising more
than ten percent of the book value of fair market value of the
total assets of the corporation and its subsidiaries taken as a
whole.
NINTH: No action shall be taken by the stockholders except
at an annual or special meeting of stockholders. No action shall be
taken by stockholders by written consent.
TENTH: Special meetings of the stockholders of the
corporation for any purpose or purposes may be called at any time
by the Board of Directors, or by a majority of the members of the
Board of Directors, or by a committee of the Board of Directors
which has been duly designated by the Board of Directors and whose
powers and authority, as provided in a resolution of the Board of
Directors or in the by-laws of the corporation, include the power
to call such meetings, but such special meetings may not be called
by any other person or persons; provided, however, that, if and to
the extent that any special meeting of stockholders may be called
by any other person or persons specified in any provisions of this
Certificate of Incorporation or any amendment thereto, then such
special meeting may also be called by the person or persons, in the
manner, at the times and for the purposes so specified.
ELEVENTH: The corporation reserves the right to amend,
alter, change or repeal any provision contained in this Certificate
of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred on stockholders herein are
granted subject to this reservation. Notwithstanding the foregoing,
the provisions set forth in Articles SIXTH, SEVENTH, EIGHTH, NINTH,
TENTH and this Article ELEVENTH may not be repealed or amended in
any respect unless such repeal or amendment is approved by the
affirmative vote of the holders of not less than seventy-five
percent of the total voting power of all outstanding shares of
voting stock of this corporation.
3
<PAGE>
THE UNDERSIGNED, being the incorporator hereinbefore named,
for the purpose of forming a corporation to do business both within
and without the State of Delaware, and in pursuance of the Delaware
General Corporation Law, does hereby make and file this
certificate.
/s/ George C. Bond
----------------------------
March 18, 1983
4
<PAGE>
FILED JULY 27, 1984 - 4:30 P.M.
CERTIFICATE OF CHANGE OF ADDRESS OF
REGISTERED OFFICE AND OF REGISTERED AGENT
PURSUANT TO SECTION 134 OF TITLE 8 OF THE DELAWARE CODE
To: DEPARTMENT OF STATE
Division of Corporations
Townsend Building
Federal Street
Dover, Delaware 19903
Pursuant to the provisions of Section 134 of Title 8 of the
Delaware Code, the undersigned Agent for service of process, in
order to change the address of the registered office of the
corporations for which it is registered agent, hereby certifies
that:
1. The name of the agent is: The Corporation Trust Company
2. The address of the old registered office was:
100 West Tenth Street
Wilmington, Delaware 19801
3. The address to which the registered office is to be
changed is:
Corporation Trust Center
1209 Orange Street
Wilmington, Delaware 19801
The new address will be effective July 30, 1984.
4. The names of the corporations represented by said agent
are set forth on the list annexed to this certificate
and made a part hereof by reference.
IN WITNESS WHEREOF, said agent has caused this certificate
to be signed on its behalf by its Vice-President and Assistant
Secretary this 25th day of July, 1984.
THE CORPORATION TRUST COMPANY
-----------------------------
(Name of Registered Agent)
By /s/ Virginia Colvell
---------------------
(Vice President)
Attest:
/s/ Mary Murray
---------------------
(Assistant Secretary)
<PAGE>
PAGE 1041
STATE OF DELAWARE - DIVISION OF CORPORATIONS
CHANGE OF ADDRESS FILING FOR
CORPORATION TRUST AS OF JULY 27, 1984
DOMESTIC
2005071 UNOCAL CORPORATION 03/18/1983 D DE
<PAGE>
FILED MAY 1, 1986 - 10:00 A.M.
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
OF
UNOCAL CORPORATION
a Delaware Corporation
Claude S. Brinegar and R. O. Hedley certify that;
1. They are a duly elected and acting Executive Vice President
and Chief Financial Officer and the duly elected and acting
Secretary respectively, of Unocal corporation.
2. The Certificate of Incorporation of Unocal corporation shall
be amended by revising Article IV to read as follows:
IV: The total number of shares of stock which the
corporation shall have authority to issue is three hundred fifty
million (350,000,000) shares, consisting of two hundred fifty
million (250,000,000) shares of Common Stock, having a par value of
$1.00 per share, and one hundred million (100,000,000) shares of
Preferred Stock, having a par value of $0.10 per share.
The board of directors is authorized, subject to any
limitations prescribed by law, to provide for the issuance of the
shares of Preferred Stock in one or more series, and by filing a
certificate pursuant to the applicable law of the State of
Delaware, to establish from time to time the number of shares to be
included in each such series, and to fix the designation, powers,
preferences, and rights of the shares of each such series and any
qualifications, limitations or restrictions thereof. The number of
authorized shares of Preferred Stock may be increased or decreased
(but not below the number of shares thereof then outstanding) by
the affirmative vote of the holders of a majority of the Common
Stock, without a vote of the holders of the Preferred Stock, or of
any series thereof, unless a vote of any such holders, is required
pursuant to the certificate or certificates establishing the series
of Preferred Stock.
3. The foregoing amendment has been approved by the Board of
Directors and by a vote of the Stockholders pursuant to Section 242
of the Delaware General Corporation Law at the annual meeting of
Stockholders held on April 28, 1986.
IN WITNESS WHEREOF, the undersigned have executed this Certificate
on April 29, 1986.
ATTEST
/s/ Claude S. Brinegar /s/ R. O. Hedley
---------------------- ---------------------
Claude S. Brinegar R. O. Hedley
Executive Vice President Secretary
and Chief Financial Officer
<PAGE>
The undersigned Claude S. Brinegar and R. O. Hedley an Executive
Vice President and Chief Financial Officer and Secretary,
respectively of Unocal Corporation, each declares under penalty of
perjury that the matters set out in the foregoing Certificate are
true of his own knowledge.
Executed at Los Angeles, California, on April 29, 1986.
/s/ Claude S. Brinegar /s/ R. O. Hedley
- - ------------------------ ----------------
Claude S. Brinegar R. O. Hedley
-2-
<PAGE>
FILED MAY 22, 1986 - 10:00 A.M.
CERTIFICATE OF CORRECTION
OF CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
OF
UNOCAL CORPORATION
a Delaware Corporation
Claude S. Brinegar and R. O. Hedley certify that:
1. They are a duly elected and acting Executive Vice President
and Chief Financial Officer and the duly elected and acting
Secretary, respectively, of Unocal Corporation.
2. That a Certificate of Amendment of Certificate of
Incorporation was filed by the Secretary of State of Delaware on
May 1, 1986 and that said Certificate requires correction as
permitted by subsection (f) of Section 103 of The General
Corporation Law of the State of Delaware.
3. The inaccuracy or defect of said Certificate to be corrected
is as follows;
The authorized number of common shares was incorrectly
reduced.
4. Article IV of the Certificate is corrected to read as
follows;
IV: The total number of shares of stock which the
corporation shall have authority to issue is three hundred sixty
million (360,000,000) shares, consisting of two hundred sixty
million (260,000,000) shares of Common Stock, having a par value of
$1.00 per share, and one hundred million (100,000,000) shares of
Preferred Stock, having a par value of $0.10 per share.
The board of directors is authorized, subject to any
limitations prescribed by law, to provide for the issuance of the
shares of Preferred Stock in one or more series, and by filing a
certificate pursuant to the applicable law of the State of
Delaware, to establish from time to time the number of shares to be
included in each such series, and to fix the designation, powers,
preferences, and rights of the shares of each such series and any
qualifications, limitations or restrictions thereof. The number of
authorized shares of Preferred Stock may be increased or decreased
(but not below the number of shares thereof then outstanding) by
the affirmative vote of the holders of a majority of the Common
Stock, without a vote of the holders of the Preferred Stock, or of
<PAGE>
any series thereof, unless a vote of any such holders is required
pursuant to the certificate or certificates establishing the series
of Preferred Stock.
IN WITNESS WHEREOF, the undersigned have executed this
Certificate on May 16, 1986.
/s/ Claude S. Brinegar /s/ R. O. Hedley
- - ----------------------- ---------------
Claude S. Brinegar R. O. Hedley
Executive Vice President and Secretary
Chief Financial Officer
The undersigned Claude S. Brinegar and R. O. Hedley, an Executive
Vice President and Chief Financial Officer and Secretary,
respectively of Unocal Corporation, each declares under penalty of
perjury that the matters set out in the foregoing Certificate are
true of his own knowledge.
Executed at Los Angeles, California, on May 16, 1986.
/s/ Claude S. Brinegar /s/ R. O. Hedley
- - ---------------------- ------------------
Claude S. Brinegar R. O. Hedley
-2-
<PAGE>
FILED MAY 5, 1987 - 10:00 A.M.
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
OF
UNOCAL CORPORATION
a Delaware Corporation
Sam A. Snyder and R. O. Hedley certify that:
1. They are a duly elected and acting Vice President and the duly
elected and acting Secretary respectively, of Unocal Corporation.
2. The Certificate of Incorporation of Unocal Corporation shall
be amended by adding Article Twelfth to read as follows;
TWELFTH: A director of the corporation shall not be
personally liable to the corporation or its shareholders for
monetary damages for breach of fiduciary duty as a director, except
for liability (i) for any breach of the director's duty of loyalty
to the corporation or its shareholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware
General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit. If the Delaware
General Corporation Law is amended after approval by the
shareholders of this article to authorize corporate action further
eliminating or limiting the personal liability of directors, then
the liability of a director of the corporation shall be eliminated
or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
shareholders of the corporation shall not adversely affect any
right or protection of a director of the corporation existing at
the time of such repeal or modification.
3. The foregoing amendment has been approved by the Board of
Directors and by a vote of the Stockholders pursuant to Section 242
of the Delaware General Corporation Law at the Annual Meeting of
Stockholders held on May 4, 1987.
IN WITNESS WHEREOF, the undersigned have executed this Certificate
on May 4, 1987.
ATTEST
/s/ Sam A. Snyder /s/ R. O. Hedley
- - ------------------ ----------------
Vice President Secretary
<PAGE>
The undersigned Sam A. Snyder and R. 0. Hedley, a Vice President
and Secretary, respectively of Unocal Corporation, each declares
under penalty of perjury that the matters set out in the foregoing
Certificate are true of his own knowledge.
Executed at Los Angeles, California, on May 4, 1987.
/s/ Sam A. Snyder /s/ R. O. Hedley
- - ----------------- ------------------
-2-
<PAGE>
FILED FEBRUARY 6, 1990 - 12:00 P.M.
CERTIFICATE OF DESIGNATIONS
SERIES A JUNIOR PARTICIPATING CUMULATIVE PREFERRED STOCK
$.10 Par Value
Of
UNOCAL CORPORATION
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, Sam A. Snyder, Vice President, and R. E. Jenkins,
Assistant Secretary, Of Unocal Corporation, a corporation organized
and existing under the General Corporation of the State of
Delaware, in accordance with the provisions Law Section 103
thereof, DO HEREBY CERTIFY:
That Pursuant to the authority conferred upon the Board
of Directors by the Certificate of Incorporation of the
Corporation, the Board of Directors on January 29, 1990 adopted the
following resolution creating a series of 2,500,000 shares of
Preferred Stock, par value $.10 per share, designated as Series A
Junior Participating Cumulative Preferred Stock:
RESOLVED, that pursuant to the authority vested in the
Board of Directors of this Corporation in accordance with the
provisions of its Certificate of Incorporation, a series of
Preferred Stock of the Corporation be, and it hereby is, created,
and that the designation and amount thereof and the voting powers,
preferences and relative, participating, optional and other special
rights of the shares of such series, and the qualifications,
limitations or restrictions thereof, are as follows:
Section 1. Designation and Amount. The shares of such
series shall be designated as Series A Junior Participating
Cumulative Preferred Stock, par value $.10 per share (the "Series
A Preferred Stock"), and the number of shares constituting such
series shall be 2,500,000.
Section 2. Dividends and Distributions.
(a) The holders of shares of Series A Preferred
Stock, in preference to the holders of shares of Common Stock,
$1.00 per share, of the Corporation (the "Common Stock") and of any
other junior stock of the Corporation that may be outstanding,
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 tenth day of January,
April, July and October in each year (each such date being referred
to herein as a "Quarterly Dividend Payment Date"), commencing on
the first Quarterly Dividend Payment Date after the first issuance
of a share or fraction of a share of Series A Preferred Stock, in
an amount per share (rounded to the nearest cent) equal to the
greater of (i) $0.25 per share ($1.00 per annum), or (ii) subject
<PAGE>
to the provision for adjustment hereinafter set forth, 100 times
the aggregate per share amount of all cash dividends, and 100 times
the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions, other than a dividend payable in
shares of Common Stock, or a subdivision of the outstanding shares
of Common Stock (by reclassification or otherwise), declared on the
Common Stock since the immediately preceding Quarterly Dividend
Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of
a share of Series A Preferred Stock. In the event that the
Corporation shall at any time declare or pay any dividend on Common
Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise) into a greater or lesser
number of shares of Common Stock, then and in each such event, the
amount to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under clause (ii) of the
preceding sentence shall be adjusted by multiplying such amount by
a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event, and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or
distribution on the Series A Preferred Stock as provided in
paragraph (a) of this Section 2 immediately after it declares a
dividend or distribution on the Common Stock (other than a dividend
payable in shares of Common Stock); provided, however, that in the
event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $0.25 per share ($1.00 per annum) on the Series
A 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 Series A Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such
shares of Series A Preferred Stock, unless the date of issue of
such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or 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
Series A Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which
cases such dividends shall begin to accrue and be cumulative from
such Quarterly Dividend Payment Date. Accrued but unpaid dividends
shall cumulate but shall not bear interest. Dividends paid on the
shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis among
all such shares at the time outstanding. The Board of Directors
-2-
<PAGE>
may fix a record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive payment of a dividend
or distribution declared thereon, which record date shall be not
more than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of
Series A Preferred Stock shall have the following voting rights:
(a) Each share of Series A Preferred Stock shall entitle
the holder thereof to 100 votes (and each one one-hundredth of a
share of Series A Preferred Stock shall entitle the holder thereof
to one vote) on all matters submitted to a vote of the stockholders
of the Corporation. In the event that the Corporation shall at any
time declare or pay any dividend on Common Stock payable in shares
of Common Stock or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares
of Common Stock, then and in each such event, the number of votes
per share to which holders of shares of Series A Preferred Stock
were entitled immediately prior to such event shall be adjusted by
multiplying such number by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after
such event, and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
(b) Except as otherwise provided in the Certificate of
Incorporation of the Corporation or herein or by law, the holders
of shares of Series A Preferred Stock and the holders of shares of
Common Stock shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
(c) In addition, the holders of shares of Series A
Preferred Stock shall have the following special voting rights:
In the event that at any time dividends on Series A
Preferred Stock, whenever accrued and whether or not
consecutive, shall not have been paid or declared and a
sum sufficient for the payment thereof set aside, in an
amount equivalent to six quarterly dividends on all
shares of Series A Preferred Stock at the time
outstanding, then and in each such event, the holders of
shares of Series A Preferred Stock and each other series
of preferred stock now or hereafter issued that shall be
accorded such class voting right by the Board of
Directors and that shall have the right to elect three
directors as the result of a prior or subsequent default
in payment or dividends on such series (each such other
series being hereinafter called "Other Series of
Preferred Stock"), voting separately as a class without
regard to series, shall be entitled to elect three
directors at the next annual meeting of stockholders of
the Corporation, in addition to the directors to be
-3-
<PAGE>
elected by the holders of all shares of the Corporation
entitled to vote for the election of directors, and the
holders of all shares (including the Series A Preferred
Stock) otherwise entitled to vote for directors, voting
separately as a class, shall be entitled to elect the
remaining members of the Board of Directors, provided
that the Series A Preferred Stock and each Other Series
of Preferred Stock, voting as a class, shall not have the
right to elect more than three directors. Such special
voting right of the holders of shares of Series A
Preferred Stock may be exercised until all dividends in
default on the Series A Preferred Stock shall have been
paid in full or declared and funds sufficient therefor
set aside, and when so paid or provided for, such special
voting right of the holders of shares of Series A
Preferred Stock shall cease, but subject always to the
same provisions for the vesting of such special voting
rights in the event of any such future dividend default
or defaults. At any time after such special voting
rights shall have so vested in the holders of shares of
Series A Preferred Stock, the Secretary of the
Corporation may, and upon the written request of the
holders of record of 10% or more in number of the shares
of Series A Preferred Stock and each Other Series of
Preferred Stock then outstanding addressed to the
Secretary at the principal executive office of the
Corporation shall, call a special meeting of the holders
of shares of Preferred Stock so entitled to vote, for the
election of the directors to be elected by them as herein
provided, to be held within 60 days after such call and
at the place and upon the notice provided by law and in
the Bylaws for the holding of meetings of stockholders;
provided, however, that the Secretary shall not be
required to call such special meeting in the case of any
such request received less than 90 days before the date
fixed for any annual meeting of stockholders, and if in
such case such special meeting is not called or held, the
holders of shares of Preferred Stock so entitled to vote
shall be entitled to exercise the special voting rights
provided in this paragraph at such annual meeting. If
any such special meeting required to be called as above
provided shall not be called by the Secretary within 30
days after receipt of any such request, then the holders
of record of 10% or more in number of the shares of
Series A Preferred Stock and each Other Series of
Preferred Stock then outstanding may designate in writing
one of their number to call such meeting, and the person
so designated may, at the expense of the Corporation,
call such meeting to be held at the place and upon the
notice given by such person, and for that purpose shall
have access to the stock books of the Corporation. No
such special meeting and no adjournment thereof shall be
held on a date later than 60 days before the annual
-4-
<PAGE>
meeting of stockholders. If, at any meeting so called or
at any annual meeting held while the holders of shares of
Series A Preferred Stock have the special voting rights
provided for in this paragraph, the holders of not less
than 40% of the shares of Series A Preferred Stock and
each Other Series of Preferred Stock then outstanding are
present in person or by proxy, which percentage shall be
sufficient to constitute a quorum for the election of
additional directors as herein provided, the then
authorized number of directors of the Corporation shall
be increased by three, as of the time of such special
meeting or the time of the first such annual meeting held
while such holders have special voting rights and such
quorum is present, and the holders of shares of Series A
Preferred Stock and each Other Series of Preferred Stock,
voting as a class, shall be entitled to elect the
additional directors so provided for. If the directors
of the Corporation are then divided into classes under
provisions of the Certificate of Incorporation of the
Corporation or the Bylaws, the three additional directors
shall be members of those respective classes of directors
in which a vacancy is created as a result of such
increase in the authorized number of directors. If the
foregoing expansion of the size of the Board of Directors
shall not be valid under applicable law, then the holders
of shares of Series A Preferred Stock and of each Other
Series of Preferred Stock, voting as a class, shall be
entitled, at the meeting of stockholders at which they
would otherwise have voted, to elect directors to fill
any then existing vacancies on the Board of Directors,
and shall additionally be entitled, at such meeting and
each subsequent meeting of stockholders at which
directors are elected, to elect all of the directors then
being elected until by such class vote three members of
the Board of Directors have been so elected. Upon the
election at such meeting by the holders of shares of
Series A Preferred Stock and each Other Series of
Preferred Stock, voting as a class, of the directors they
are entitled so to elect, the persons so elected,
together with such persons as may be directors or as may
have been elected as directors by the holders of all
shares (including Series A Preferred Stock) otherwise
entitled to vote for directors, shall constitute the duly
elected directors of the Corporation. The additional
directors so elected by holders of shares of Series A
Preferred Stock and each Other Series of Preferred Stock,
voting as a class, shall serve until the next annual
meeting or until their respective successors shall be
elected and qualified or if any such director is a member
of a class of directors under provisions dividing the
directors into classes, each such director shall serve
until the annual meeting at which the term of office of
such director's class shall expire or until such
-5-
<PAGE>
director's successor shall be elected and shall qualify,
and at each subsequent meeting of stockholders at which
the directorship of any director elected by the vote of
holders of shares of Series A Preferred Stock and each
Other Series of Preferred Stock under the special voting
rights set forth in this paragraph is up for election,
said special class voting rights shall apply in the
reelection of such director or in the election of such
director's successor; provided, however, that whenever
the holders of shares of Series A Preferred Stock and
each Other Series of Preferred Stock shall be divested of
the special rights to elect three directors as above
provided, the terms of office of all persons elected as
directors by the holders of shares of Series A Preferred
Stock and each Other Series of Preferred Stock, voting as
a class, or elected to fill any vacancies resulting from
the death, resignation, or removal of directors so
elected by the holders of shares of Series A Preferred
Stock and each Other Series of Preferred Stock, shall
forthwith terminate and, if applicable, the number of
directors shall be reduced accordingly. If, at any time
after a special meeting of stockholders or an annual
meeting of stockholders at which the holders of shares of
Series A Preferred Stock and each Other Series of
Preferred Stock, voting as a class, have elected
directors as provided above, and while the holders of
shares of Series A Preferred Stock and each Other Series
of Preferred Stock shall be entitled so to elect three
directors, the number of directors who have been elected
by the holders of shares of Series A Preferred Stock and
each Other Series of Preferred Stock (or who by reason of
one or more resignations, deaths or removals have
succeeded an directors so elected) shall by reason of
resignation, death or removal be less than three but at
least one, the vacancy in the directors so elected by the
holders of shares of the Series A Preferred Stock and
each Other Series of Preferred Stock may be filled by the
remaining director elected by such holders, and in the
event that such election shall not occur within 30 days
after such vacancy arises, or in the event that there
shall not be incumbent at least one director so elected
by such holders, the Secretary of the Corporation may,
and upon the written request of he holders of record of
10% or more in number of the shares of Series A Preferred
Stock and each Other Series of Preferred Stock then
outstanding addressed to the Secretary at the principal
office of the Corporation shall, call a special meeting
of the holders of shares of Series A Preferred Stock and
each Other Series of Preferred Stock so entitled to vote,
for an election to fill such vacancy or vacancies, to be
held within 60 days after such call and at the place and
upon the notice provided by law and in the Bylaws for the
holding of meetings of stockholders; provided, however,
-6-
<PAGE>
that the Secretary shall not be required to call such
special meeting in the case of any such request received
less than 90 days before the date fixed for any annual
meeting of stockholders, and if in such case such special
meeting is not called, the holders of shares of Preferred
Stock so entitled to vote shall be entitled to fill such
vacancy or vacancies at such annual meeting. If any such
special meeting required to be called as above provided
shall not be called by the Secretary within 30 day after
receipt of any such request, then the holders of record
of 10% or more in number of the shares of Series A
Preferred Stock and each Other Series of Preferred Stock
the outstanding may designate in writing one of their
number to call such meeting, and the person so designated
may, at the expense of the Corporation, call such meeting
to be held at the place and upon the notice above
provided, and for that Purpose shall have access to the
stock books of the Corporation; no such special meeting
and no adjournment thereof shall be held on a date later
than 60 days before the annual meeting of stockholders.
(d) Nothing herein shall prevent the directors or
stockholders from taking any action to increase the number of
authorized shares of Series A Preferred Stock, or increasing the
number of authorized shares of Preferred Stock of the same class as
the Series A Preferred Stock or the number of authorized shares of
Common Stock, or changing the par value of the Common Stock or
Preferred Stock, or issuing options, warrants or rights to any
class of stock of the Corporation as authorized by the Certificate
of Incorporation of the Corporation, as it may hereafter be
amended.
(e) Except as set forth herein, holders of shares of
Series A Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are
entitled to vote as set forth in the Certificate of Incorporation
of the Corporation or herein or by law) for taking any corporate
action.
Section 4. Certain Restrictions.
(a) Whenever any dividends or other distributions
payable on the Series A Preferred Stock as provided 1 Section 2
hereof are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of
Series A Preferred Stock outstanding shall have been paid in full,
the Corporation shall not and shall cause its subsidiaries not to,
directly or indirectly:
(i) declare or pay dividends on, or make any
other distributions with respect to, any shares of stock
ranking junior (either as to dividends or upon
-7-
<PAGE>
liquidation, dissolution or winding up) to the Series A
Preferred Stock;
(ii) declare or pay dividends on, or make any
other distributions with respect to, any shares of stock
ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series
A Preferred Stock, except dividends paid ratably on
shares of the series A Preferred Stock and all such
parity stock on which dividends are payable or in arrears
in proportion to the total amounts to which the holders
of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either
as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, provided
that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such 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 Series A
Preferred Stock; or
(iv) purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or
any shares of stock ranking on a parity with the Series
A Preferred Stock, except in 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 4, purchase or otherwise
acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A
Preferred Stock purchased or otherwise acquired by the Corporation
in any manner whatsoever shall be retired and cancelled promptly
after the acquisition thereof. All such shares shall upon their
cancellation become authorize but unissued shares of preferred
stock, without designation as to series, and may be reissued as
part of any series of referred stock created by resolution or
resolutions of the Board of Directors (including Series A Preferred
Stock), subject to the conditions and restrictions on issuance set
forth herein.
-8-
<PAGE>
Section 6. Liquidation, Dissolution or Winding Up.
Upon any liquidation, dissolution or winding up of the Corporation,
no distribution shall be made to:
(a) the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock unless, prior thereto, the
holders of shares of Series A Preferred Stock shall have received
the greater of (i) $1.00 per share ($.01 per one one-hundredth of
a share), plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such
payment, or (ii) an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 100 times
the aggregate amount to be distributed per share to holders of
shares of Common Stock; or
(b) the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding
up) with the Series A Preferred Stock, except distributions made
ratably on the Series A Preferred Stock and all other such parity
stock in proportion to the total amounts to which the holders of
all such shares are entitled upon such liquidation, dissolution or
winding up. In the event that the Corporation shall at any time
declare or pay any dividend on Common Stack payable in shares of
Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then and in each such event, the aggregate
amount to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under the proviso in
clause (a) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately after
such event, and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In the event
that the Corporation shall enter into any consolidation, merger
combination or other transaction in which the shares of Common
Stock are exchanged for or changed into other stock or securities,
cash and/or any other property, or otherwise changed, then and in
each such event, the shares of Series A Preferred Stock shall at
the same time be similarly exchanged or changed in an amount per
share (subject to the provision for adjustment hereinafter set
forth) equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as
the case may be, into which or for which each share of Common Stock
is changed or exchanged. In the event that the Corporation shall at
any time declare or pay any dividend on Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then and in each such event, the amount set
-9-
<PAGE>
forth in the preceding sentence with respect to the exchange or
change of shares of Series A Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is
the number of shares of Common stock outstanding immediately after
such event, and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A
Preferred Stock shall not be redeemable. Notwithstanding the
foregoing, the Corporation may acquire shares of Series A Preferred
Stock in any other manner permitted by law, the Certificate of
Incorporation of the Corporation or herein.
Section 9. Rank. Unless otherwise provided in the
Certificate of Incorporation of the Corporation or a Certificate of
Designations relating to a subsequent series of preferred stock of
the Corporation, the Series A Preferred Stock shall rank junior to
all other series of the Corporation's preferred stock as to the
payment of dividends and the distribution of assets on liquidation,
dissolution or winding up, and senior to the Common Stock of the
Corporation.
Section 10. Amendment. The Certificate of Incorporation
of the Corporation shall not be amended in any manner that would
materially and adversely alter or change the powers, preferences or
special rights of the Series A Preferred Stock without the
affirmative vote of the holders of at least two-thirds of the
Outstanding shares of Series A Preferred Stock, voting together as
a single series.
Section 11. Fractional Shares. Series A Preferred Stock
maybe issued in fractions of a share (in one one-hundredths (1/100)
of a share and integral multiples thereof) that shall entitle the
bolder thereof, in proportion to such holder's fractional shares,
to exercise voting rights, receive dividends, participate in
distributions and have the benefit of all other rights of holders
of shares of Series A Preferred Stock.
IN WITNESS WHEREOF, we have executed and subscribed this
Certificate and do affirm the foregoing as true under the penalties
of perjury this 31st day of January, 1990.
/s/ Sam A. Snyder
------------------
Sam A. Snyder
Vice President
Attest:
/s/ R. E. Jenkins
- - ------------------
R. E. Jenkins
Assistant Secretary
-10-
<PAGE>
FILED MAY 4, 1990 - 9:00 A.M.
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF INCORPORATION
OF
UNOCAL CORPORATION
A Delaware Corporation
Sam A. Snyder and R. 0. Hedley certify that:
1. They are a duly elected and acting Vice President and the
duly elected and acting Secretary, respectively, of Unocal
Corporation.
2. The Certificate of Incorporation or Unocal Corporation
shall be amended by revising Article Fourth to read as follows:
FOURTH: The total number of shares of stock which the
corporation shall have authority to issue is eight hundred fifty
million (850,000,000) shares, consisting of seven hundred fifty
million (750,000,000) shares of Common Stock, having a par value of
$1.00 per share, and one hundred million (100,000,000) shares of
Preferred Stock, having a par value of $0.10 per share.
The board of directors is authorized, subject to any
limitations prescribed by law, to provide for the issuance of the
shares of Preferred Stock in one or more series, and by filing a
certificate pursuant to the applicable law of the State of
Delaware, to establish from time to time the number of shares to be
included in each such series, and to fix the distribution, powers,
preferences, and rights of the shares of each such series and any
qualifications, limitations or restrictions thereof. The number of
authorized shares of Preferred Stock may be increased or decreased
(but not below the number of shares thereof then outstanding) by
the affirmative vote of the holders of a majority of the Common
Stock, without a vote of the holders of the Preferred Stock, or of
any series thereof, unless a vote of any such holders is required
pursuant to the certificate or certificates establishing the series
of Preferred Stock.
3. The foregoing amendment has been approved by the Board of
Directors and by a vote of the Stockholders pursuant to Section 242
of the Delaware General Corporation Law at the Annual Meeting of
Stockholders held on April 30, 1990.
IN WITNESS WHEREOF, the undersigned have executed this Certificate
on April 30, 1990.
ATTEST
/s/ Sam A. Snyder /s/ R. O. Hedley
- - ------------------ ----------------
Vice President Secretary
<PAGE>
The undersigned Sam A. Snyder and R. 0. Hedley, Vice President
and the Secretary, respectively, of Unocal Corporation, each
declares under penalty of perjury that the matters set out in the
foregoing Certificate are true of his own knowledge.
Executed at Los Angeles, California, on April 30, 1990.
/s/ Sam A. Snyder /s/ R. O. Hedley
- - ------------------ ------------------
-2-
<PAGE>
State of Delaware
Secretary of State
Division of Corporations
FILED JULY 22, 1992 - 1:40 P.M.
CERTIFICATE OF CORRECTION
TO
CERTIFICATE OF DESIGNATION
OF
UNOCAL CORPORATION
UNOCAL CORPORATION, a Delaware corporation, pursuant to section
103(f) of the General corporation Law of the State of Delaware,
certifies:
FIRST: That the Certificate of Designation which vas filed with the
Secretary of State of Delaware on February 6, 1990 is an inaccurate
record of the corporate action therein referred to.
SECOND: That said Certificate of Designation was inaccurate in that
Section 6(a) states:
"(a) the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock unless, prior thereto, the holders of
shares of Series A Preferred Stock shall have received the greater
of (i) $1.00 per share ($.01 per one one-hundredth of a share),
plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of
such payment, or (ii) an aggregate amount per share, subject to
the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders
of shares of Common Stock; or"
THIRD: That section 6(a) of said Certificate of Designation in
correct form is as follows:
"(a) the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock unless, prior thereto, the holders of shares
of Series A Preferred Stock shall have received the greater of (i)
$100.00 per share ($1.00 per one one-hundredth of a share), plus an
amount equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such payment, or
(ii) an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the aggregate
amount to be distributed per share to holders of shares of Common
Stock; or"
<PAGE>
IN WITNESS WHEREOF, Unocal corporation has caused this Certificate of
Correction to be signed by its President and attested by its
Secretary this 21st day of July, 1992.
ATTEST UNOCAL CORPORATION
/s/ Dennis P. Codon By /s/ Thomas B. Sleeman
- - -------------------------- --------------------------
Dennis P. Codon, Secretary Thomas B. Sleeman,
Senior Vice President
-2-
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 7/22/92 - 1:41 P.M.
CERTIFICATE OF INCREASE
OF
SERIES A JUNIOR PARTICIPATING CUMULATIVE PREFERRED STOCK
OF
UNOCAL CORPORATION
Pursuant to Section 151(g) of the
Delaware General Corporation Law
In accordance with the provisions of Section 151(g) of the General
Corporation Law of the State of Delaware, Unocal Corporation, a
Delaware corporation (the "Corporation") does hereby certify that the
following resolution respecting its Series A Junior Participating
Cumulative Preferred Stock was duly adopted by the Executive Committee
of the Board of Directors of the Corporation, pursuant to authority
conferred on the Executive Committee by the Board of Directors, at a
meeting of the Executive Committee on July 20, 1992:
RESOLVED, that the authorized number of shares of the
Corporation's Series A Junior Participating Cumulative
Preferred Stock, of which the designations, preferences and
rights were set forth in a certificate filed with the
Delaware Secretary of State on February 6, 1990, shall be
increased from 2,500,000 shares to 3,000,000 shares.
IN WITNESS WHEREOF, Unocal Corporation has caused this certificate to
be signed by its President and attested by its Secretary this 21st day
of July, 1992.
/s/ Thomas B. Sleeman
----------------------
Thomas B. Sleeman
Senior Vice President
ATTEST:
/s/ Dennis P. Codon
- - --------------------
Dennis P. Codon
Secretary
<PAGE>
FILED JULY 24, 1992 - 12:00 P.M.
CERTIFICATE OF DESIGNATIONS
OF THE
$3.50 CONVERTIBLE PREFERRED STOCK
(Par Value $0.10 Per Share)
OF
UNOCAL CORPORATION
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
The undersigned DOES HEREBY CERTIFY that the following
resolution was duly adopted by the Executive Committee of the Board
of Directors (the "Board of Directors") of Unocal Corporation, a
Delaware corporation (hereinafter called the "Corporation"), at
meetings duly convened and held at which a quorum was present and
acting throughout, and pursuant to authority duly delegated by the
Board of Directors:
RESOLVED that pursuant to the authority expressly granted
to and vested in the Board of Directors by the Certificate of
Incorporation of the Corporation (the "Certificate of
Incorporation"), and pursuant to the authority conferred on this
Executive Committee by resolutions duly adopted by the Board of
Directors, the Executive Committee authorizes the creation of a
series of $3.50 Convertible Preferred Stock, par value $0.10 per
share, of the Corporation upon the terms and conditions set forth
herein and hereby fixes the designation and number of shares
thereof and ratifies the voting powers (as previously established
by resolution of the Board of Directors, as set forth in Section 7
below) and fixes the other powers, preferences and relative,
participating, optional or other special rights, and the
qualifications, limitations and restrictions thereof (in addition
to those set forth in the Certificate of Incorporation which may be
applicable to the $3.50 Convertible Preferred Stock) as follows:
1. Designation and Amount; Fractional Shares.
There shall be a series of Preferred Stock of the
Corporation designated as "$3.50 Convertible Preferred
Stock" and the number of shares constituting such series
shall be 11,000,000. Such series is referred to herein
as the "Convertible Preferred Stock." The Convertible
Preferred Stock is issuable solely in whole shares which
shall entitle the holder to exercise voting rights, to
participate in distributions and to have the benefit of
all other rights of holders of Convertible Preferred
Stock.
2. Par Value. The par value of each share of
Convertible Preferred Stock shall be $0.10.
3. Dividends.
(a) The holders of Convertible Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of
Directors or, to the extent permitted by applicable law, a
<PAGE>
duly authorized committee thereof, out of funds at the time
legally available therefor, cash dividends at an annual rate
of $3.50 per share, and no more, which shall be fully
cumulative, shall accrue without interest from the date shares
of Convertible Preferred Stock are first issued (the "Date of
Original Issue") and shall be payable in cash quarterly in
arrears on January 15, April 15, July 15 and October 15 of
each year commencing October 15, 1992 (each, a "Dividend
Payment Date") (except that if any such date is a Saturday,
Sunday or legal holiday, then such dividend shall be payable
on the next day that is not a Saturday, Sunday or legal
holiday) to holders of record as they appear upon the stock
transfer books of the Corporation on such record dates, not
more than sixty days nor less than ten days preceding the
payment dates for such dividends, as are fixed by the Board of
Directors or, to the extent permitted by applicable law, a
duly authorized committee thereof (each, a "Record Date").
For purposes hereof, the term "legal holiday" shall mean any
day on which banking institutions are authorized to close in
New York, New York or in Los Angeles, California. Subject to
paragraph (c) of this Section 3, dividends on account of
arrearages for any past Dividend Period (as defined below) may
be declared and paid at any time, without reference to any
regular Dividend Payment Date.
Holders of shares of Convertible Preferred Stock
called for redemption on a redemption date between a
Record Date and the corresponding Dividend Payment Date
shall not be entitled to receive the dividend payable on
such Dividend Payment Date. As used herein, (i) the term
"Initial Dividend Period" shall mean the period from and
including the Date of Original Issue to and excluding
October 15, 1992, (ii) the term "Subsequent Dividend
Period" shall mean the applicable period from January 15
to and excluding the next April 15, from April 15 to and
excluding the next July 15, from July 15 to and excluding
the next October 15 or from October 15 to and excluding
the next January 15, or, in each such case as to
particular shares of the Convertible Preferred Stock,
such shorter period during which such shares of the
Convertible Preferred Stock are outstanding (excluding
the last day of such shorter period), but shall not
include the Initial Dividend Period and (iii) the term
"Dividend Period" shall mean the Initial Dividend Period
or any Subsequent Dividend Period, as the context
requires.
(b) The amount of dividends payable on each share
of the Convertible Preferred Stock for each full
quarterly Dividend Period during which such share was
outstanding shall be $0.875. For the Initial Dividend
Period and any Subsequent Dividend Period during which
such share was not outstanding for a full quarterly
Dividend Period, the amount of dividends payable on each
such share of the Convertible Preferred Stock shall be
computed on the basis of a 360-day year consisting of
-2-
<PAGE>
twelve 30-day months. Unless otherwise provided herein,
dividends on each share of the Convertible Preferred
Stock will be cumulative from the Date of Original Issue
to and excluding the earlier to occur of (A) the date of
redemption of such share of the Convertible Preferred
Stock and (B) the date of final distribution of assets
upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation. Holders of
shares of the Convertible Preferred Stock shall not be
entitled to any interest, or sum of money in lieu of
interest, in respect of any dividend payment or payments
on shares of the Convertible Preferred Stock which may be
in arrears. Any dividend payment made on shares of the
Convertible Preferred Stock shall first be credited
against the earliest accumulated but unpaid dividend with
respect to shares of the Convertible Preferred Stock.
(c) No full dividends shall be declared or paid
or set apart for payment for any period on any class or
series of the Corporation's capital stock hereafter
issued ranking junior to or on a parity with the
Convertible Preferred Stock (including the Corporation's
Series A Junior Participating Cumulative Preferred Stock)
as to dividends unless full cumulative dividends have
been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof is
set apart for such payment on the Convertible Preferred
Stock for all dividend payment periods terminating on or
prior to the date of the payment of such full cumulative
dividends. When dividends are not paid in full on the
Convertible Preferred Stock and on any other series of
the Corporation's preferred stock ranking on a parity as
to dividends with the Convertible Preferred Stock, all
dividends declared upon all outstanding shares of the
Convertible Preferred Stock and shares of such other
series of preferred stock will be declared pro rata so
that the amounts of dividends declared per share on the
Convertible Preferred Stock and such other preferred
stock will in all cases bear to each other the same ratio
that accumulated and unpaid dividends per share on the
shares of the Convertible Preferred Stock and such other
preferred stock bear to each other.
(d) No dividend (other than a dividend in Common
Stock or in any other stock of the Corporation ranking
junior to the Convertible Preferred Stock as to dividends
and upon liquidation and other than as provided in
paragraph (c) of this Section 3) may be declared or paid
or set apart for payment or other distribution declared
or made upon the Common Stock or upon any other stock of
the Corporation ranking junior to or on a parity with the
Convertible Preferred Stock as to dividends or upon
liquidation, nor may any Common Stock or any other stock
of the Corporation ranking junior to or on a parity with
the Convertible Preferred Stock as to dividends or upon
liquidation be redeemed, purchased or otherwise acquired
for any consideration (or any moneys be paid to or
-3-
<PAGE>
made available for a sinking fund for the redemption of any
shares of such stock) by the Corporation (except by
conversion into or in exchange for stock of the
Corporation ranking junior to the Convertible Preferred
Stock as to dividends and upon liquidation) unless full
cumulative dividends on all outstanding shares of the
Convertible Preferred Stock have been paid or declared
and set apart for payment for all dividend payment
periods ending on or prior to the date of declaration,
payment, redemption, purchase or acquisition of the
Common Stock or such other preferred stock referred to
above in this paragraph (d); provided, however, that
notwithstanding the above, the Corporation shall have the
right to redeem the Preferred Stock Purchase Rights, as
defined in Section 6(k), and nothing herein shall prevent
the Corporation from making contributions to its employee
benefit plans.
(e) Any reference to "distribution" contained in
this Section 3 shall not be deemed to include any
distribution made in connection with any liquidation,
dissolution or winding up of the Corporation, whether
voluntary or involuntary.
4. Liquidation Preference. In the event of a
liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, each
holder of a share of Convertible Preferred Stock shall be
entitled to receive, and be paid out of the assets of the
Corporation available for distribution to its
stockholders, a liquidation preference in the amount of
$50.00 per share, plus all accumulated and unpaid
dividends on such share on the date of final distribution
to the holders of shares of Convertible Preferred Stock,
whether or not declared, without interest, and no more,
before any payment shall be made or any assets
distributed to the holders of Common Stock or any other
class of the Corporation's stock ranking junior to the
Convertible Preferred Stock upon liquidation (including
the Corporation's Series A Junior Participating
Cumulative Preferred Stock). If, upon any liquidation,
dissolution or winding up of the Corporation, the amounts
payable with respect to the liquidation preference of the
Convertible Preferred Stock and any other shares of the
Corporation's stock ranking on a parity with the
Convertible Preferred Stock are not paid in full, the
holders of Convertible Preferred Stock and of such other
shares will share ratably in any such distribution of
assets of the Corporation in proportion to the full
distributable amounts to which they are entitled as
measured by the liquidation preferences of the
Convertible Preferred Stock and such other stock. After
payment in full of the preferences of the shares of the
Convertible Preferred Stock upon liquidation, dissolution
or winding up, the holders of such shares in their
capacity as such shall not be entitled to any further
participation in any distribution of assets by the
Corporation. Neither a consolidation or merger of the
Corporation with or into another corporation nor a merger
of any other corporation with or into the Corporation,
nor the sale of all or substantially all of the
-4-
<PAGE>
Corporation's property or business (other than in
connection with a winding up of its business) will be
considered a liquidation, dissolution or winding up of
the Corporation.
5. Redemption at Option of the Corporation. (a)
The Convertible Preferred Stock may not be redeemed by
the Corporation prior to July 15, 1996. On or after July
15, 1996, the Convertible Preferred Stock may be redeemed
by the Corporation, at its option on any date set by the
Board of Directors (or, to the extent permitted by
applicable law, a duly authorized committee thereof), in
whole or in part, out of funds legally available
therefor, at any time or from time to time, at the
following redemption prices per share (expressed as a
percentage of the $50.00 liquidation preference thereof),
if redeemed during the 12-month period beginning July 15
of the year indicated:
Year Redemption Price
---- ----------------
1996 104.2%
1997 103.5%
1998 102.8%
1999 102.1%
2000 101.4%
2001 100.7%
and thereafter at $50.00 per share, plus, in each case,
an amount in cash equal to all accumulated and unpaid
dividends thereon, whether or not declared, to but
excluding the date fixed for redemption, such sum being
hereinafter referred to as the "Redemption Price."
(b) In case of the redemption of less than all of
the then outstanding shares of Convertible Preferred
Stock, the Corporation shall designate by lot, or in such
other manner as the Board of Directors (or, to the extent
permitted by applicable law, a duly authorized committee
thereof) may determine to be equitable, the shares to be
redeemed, or shall effect such redemption pro rata.
Notwithstanding the foregoing, the Corporation shall not
redeem less than all of the Convertible Preferred Stock
at any time outstanding until all dividends accumulated
and in arrears upon all shares of Convertible Preferred
Stock shall have been paid for all Dividend Periods
terminating on or prior to the redemption date.
(c) Not more than sixty nor less than thirty days prior
to the redemption date fixed by the Board of Directors, notice
by first class mail, postage prepaid, shall be given to the
holders of record of shares of the Convertible Preferred Stock
to be redeemed, addressed to such holders at their last
addresses as shown upon the stock transfer books of the
-5-
<PAGE>
Corporation. Each such notice of redemption shall specify (i)
the date fixed for redemption, (ii) the number of shares of
Convertible Preferred Stock to be redeemed, and if less than all the
shares held by such holder are to be redeemed, the number
of such shares to be redeemed from such holder, (iii) the
Redemption Price, (iv) the place or places of payment,
(v) that payment will be made upon presentation and
surrender of the certificates representing shares of
Convertible Preferred Stock, (vi) that on and after the
redemption date dividends will cease to accumulate on
such shares, (vii) the then-effective conversion price
(as defined in Section 6) and (viii) that the right of
holders to convert shares of Convertible Preferred Stock
shall terminate at the close of business on the date
fixed for redemption (unless the Corporation defaults in
the payment of the Redemption Price).
(d) Any notice that is mailed as herein provided
shall be conclusively presumed to have been duly given,
whether or not the holder of shares of Convertible
Preferred Stock receives such notice; and failure to give
such notice by mail, or any defect in such notice to the
holders of any shares designated for redemption shall not
affect the validity of the proceedings for the redemption
of any other shares of Convertible Preferred Stock. On
or after the date fixed for redemption as stated in such
notice, each holder of the shares called for redemption
shall surrender the certificate evidencing such shares to
the Corporation at the place designated in such notice
and shall thereupon be entitled to receive payment of the
Redemption Price for each such share. If less than all
the shares evidenced by any such surrendered certificate
are redeemed, a new certificate shall be issued
evidencing the unredeemed shares. Notice having been
given as aforesaid, if, on the date fixed for redemption,
funds necessary for the redemption shall be available
therefor and shall have been irrevocably deposited or set
aside, then, notwithstanding that the certificates
evidencing any shares so called for redemption shall not
have been surrendered, (i) dividends with respect to the
shares so called shall cease to accrue on the date fixed
for redemption, (ii) such shares shall no longer be
deemed outstanding, (iii) the holders thereof shall cease
to be stockholders of the Corporation and (iv) all rights
whatsoever with respect to the shares so called for
redemption (except the right of the holders to receive
the Redemption Price for each share without interest upon
surrender of their certificates therefor) shall
terminate. If funds legally available for such purpose
are not sufficient for redemption of the shares of
Convertible Preferred Stock which were to be redeemed,
then the certificates evidencing such shares shall be
deemed not to be surrendered, such shares shall remain
outstanding and the right of holders of shares of
Convertible Preferred Stock thereafter shall continue to
be only those of a holder of shares of the Convertible
Preferred Stock.
-6-
<PAGE>
(e) The shares of Convertible Preferred Stock shall not
be subject to the operation of any mandatory redemption,
purchase, retirement or sinking fund.
6. Conversion Privileges.
(a) Rights of Conversion. Each holder of shares of
Convertible Preferred Stock shall have the right, at such
holder's option, to convert all or a portion of the
shares held, at any time after September 6, 1992, and
prior to the close of business on the date fixed for
redemption of such shares as herein provided, into fully
paid and nonassessable shares of Common Stock (calculated
as to each conversion to the nearest 1/100th of a share)
and such other securities and property as hereinafter
provided, at the rate of that number of shares of Common
Stock for each full share of Convertible Preferred Stock
that is equal to $50.00 divided by the conversion price
applicable per share of Common Stock. For purposes of
this resolution, the "conversion price" applicable per
share of Common Stock shall initially be equal to $30.75,
and shall be adjusted from time to time in accordance
with the provisions of this Section 6. Any share of
Convertible Preferred Stock may be converted, at the
request of its holder, in part into Common Stock.
For the purpose of this Section 6, the term "Common
Stock" shall mean the class designated as Common Stock,
par value $1.00 per share, of the Corporation as of July
21, 1992, or such class as it shall be constituted from
time to time.
(b) Conversion Procedures. Any holder of shares
of Convertible Preferred Stock desiring to convert such
shares into Common Stock shall surrender the certificate
or certificates evidencing such shares of Convertible
Preferred Stock at the office of the transfer agent for
the Convertible Preferred Stock, which certificate or
certificates, if the Corporation shall so require, shall
be duly endorsed to the Corporation or in blank, or
accompanied by proper instruments of transfer to the
Corporation or in blank, accompanied by (i) an
irrevocable written notice to the Corporation that the
holder elects to convert such shares of Convertible
Preferred Stock and specifying the name or names (with
address or addresses) in which a certificate or
certificates evidencing shares of Common Stock are to be
issued and (ii) if required pursuant to Section 6(f), an
amount sufficient to pay any transfer or similar tax (or
evidence reasonably satisfactory to the Corporation
demonstrating that such taxes have been paid).
Holders of shares of Convertible Preferred Stock at
the close of business on a Record Date shall be entitled
to receive the dividend payable on those shares (except as
provided in the penultimate sentence of Section 3(a)) on the
-7-
<PAGE>
corresponding Dividend Payment Date notwithstanding the
conversion thereof following such Record Date and prior to the
Dividend Payment Date. However, shares of Convertible Preferred
Stock surrendered for conversion during the period between the
close of business on any Record Date and the opening of
business on the corresponding Dividend Payment Date
(except as provided in the penultimate sentence of
Section 3(a)) must be accompanied by payment of an amount
equal to the dividend payable on such shares on such
Dividend Payment Date. A holder of shares of Convertible
Preferred Stock on a Record Date who tenders any such
shares for conversion into shares of Common Stock on or
after such Dividend Payment Date will receive the
dividend payable by the Corporation on such shares of
Convertible Preferred Stock on such Dividend Payment
Date, and the converting holder need not include payment
of the amount of such dividend upon surrender of shares
of Convertible Preferred Stock for conversion. Except as
provided for above, no payments or adjustments in respect
of dividends on shares of Convertible Preferred Stock
surrendered for conversion (whether or not in arrears) or
on account of any dividend on the Common Stock issued
upon conversion shall be made upon the conversion of any
shares of Convertible Preferred Stock.
The Corporation shall, as soon as practicable after
such deposit of certificates evidencing shares of
Convertible Preferred Stock accompanied by the written
notice and compliance with any other conditions herein
contained, deliver at such offices of such transfer agent
to the person for whom such shares of Convertible
Preferred Stock are so surrendered, or to the nominee or
nominees of such person, certificates evidencing the
number of full shares of Common Stock to which such
person shall be entitled as aforesaid, together with a
cash adjustment in respect of any fraction of a share of
Common Stock as hereinafter provided. Subject to the
following provisions of this paragraph, each conversion
shall be deemed to have been effected immediately prior
to the close of business on the date on which the
certificates for shares of Convertible Preferred Stock to
be converted shall have been surrendered together with
the irrevocable written notice and payment of taxes (if
applicable) as provided for in clauses (i) and (ii) above
and an amount equal to the dividend payable (if
appropriate) as provided in the second paragraph of this
Section 6(b), and the person or persons entitled to
receive the Common Stock deliverable upon conversion of
such Convertible Preferred Stock shall be treated for all
purposes as the record holder or holders of such Common Stock at
such time on such date, unless the stock transfer books of the
Corporation shall be closed on such date, in which event such
person or persons shall be deemed to have become such holder
or holders of record at the close of business on the next
succeeding day on which such stock transfer books are open,
but such conversion shall be at the conversion price in effect
-8-
<PAGE>
on the date on which such shares shall have been surrendered
and such notice (and, if applicable, payments) received by the
Corporation.
(c) Adjustment of Conversion Price. The
conversion price at which a share of Convertible
Preferred Stock is convertible into Common Stock shall be
subject to adjustment from time to time as follows:
(i) In case the Corporation shall pay or
make a dividend or other distribution on its Common
Stock exclusively in Common Stock or shall pay or
make a dividend or other distribution on any other
class of capital stock of the Corporation which
dividend or distribution includes Common Stock, the
conversion price in effect at the opening of
business on the day following the date fixed for
the determination of stockholders entitled to
receive such dividend or other distribution shall
be reduced by multiplying such conversion price by
a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the
close of business on the date fixed for such
determination and the denominator shall be the sum
of such number of shares and the total number of
shares constituting such dividend or other
distribution, such reduction to become effective
immediately after the opening of business on the
day following the date fixed for such
determination. In the event that such dividend or
distribution is not so paid or made, the conversion
price shall again be adjusted to be the conversion
price which would then be in effect if such date
fixed for the determination of stockholders
entitled to receive such dividend or other
distribution had not been fixed.
(ii) In case the Corporation shall pay or
make a dividend or other distribution on its Common
Stock consisting exclusively of rights or warrants
entitling the holders thereof to subscribe for or
purchase, during a period not exceeding 45 days
from the date of such dividend or other
distribution, shares of Common Stock at a price per
share less than the current market price per share
(determined as provided in subparagraph (v) of this
Section 6(c)) of the Common Stock on the date fixed
for the determination of stockholders entitled to
receive such rights or warrants, the conversion
price in effect at the opening of business on the
day following the date fixed for such determination
shall be reduced by multiplying such conversion
price by a fraction of which the numerator shall be
the number of shares of Common Stock outstanding at
the close of business on the date fixed for such
determination plus the number of shares of Common
Stock which the aggregate of the offering price of
the total number of shares of Common Stock so offered for
-9-
<PAGE>
subscription or purchase would purchase at such current
market price and the denominator shall be the number of
shares of Common Stock outstanding at the close of business
on the date fixed for such determination plus the number of
shares of Common Stock so offered for subscription
or purchase, such reduction to become effective
immediately after the opening of business on the
day following the date fixed for such
determination. To the extent that shares of Common
Stock are not delivered after the expiration of
such rights or warrants, the conversion price shall
be readjusted to the conversion price which would
then be in effect had the adjustments made upon the
issuance of such rights or warrants been made on
the basis of delivery of only the number of shares
of Common Stock actually delivered. In the event
that such rights or warrants are not so issued, the
conversion price shall again be adjusted to be the
conversion price which would then be in effect if
such date fixed for the determination of
stockholders entitled to receive such rights or
warrants had not been fixed.
(iii) In case outstanding shares of Common
Stock shall be subdivided into a greater number of
shares of Common Stock, the conversion price in
effect at the opening of business on the day
following the day upon which such subdivision
becomes effective shall be proportionately reduced,
and conversely, in case outstanding shares of
Common Stock shall each be combined into a smaller
number of shares of Common Stock, the conversion
price in effect at the opening of business on the
day following the day upon which such combination
becomes effective shall be proportionately
increased, such reduction or increase, as the case
may be, to become effective immediately after the
opening of business on the day following the day
upon which such subdivision or combination becomes
effective.
(iv) Subject to the last sentence of this
subparagraph (iv), in case the Corporation shall
pay or make a dividend or other distribution on its
Common Stock consisting of evidences of its
indebtedness, shares of any class of capital stock
or assets (including securities, but excluding any
rights or warrants referred to in subparagraph (ii)
of this Section 6(c), and excluding any dividend or
distribution (x) in connection with the
liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary,
(y) paid exclusively in cash or (z) referred to in
subparagraph (i) of this Section 6(c)) (any of the
foregoing being hereinafter in this subparagraph (iv) called
the "Securities"), then, in each such case, unless the
Corporation elects to reserve such Securities for
distribution to the holders of the Convertible Preferred
-10-
<PAGE>
Stock upon the conversion of the shares of Convertible
Preferred Stock so that any such holder converting shares
of Convertible Preferred Stock will receive upon such
conversion, in addition to the shares of the Common Stock to
which such holder is entitled, the amount and kind
of such Securities which such holder would have
received if such holder had, immediately prior to
the record date for the determination of
stockholders entitled to receive such distribution
of the Securities, converted its shares of
Convertible Preferred Stock into Common Stock, the
conversion price shall be reduced so that the same
shall equal the price determined by multiplying the
conversion price in effect on the date fixed for
determination of stockholders of record entitled to
receive such Securities by a fraction of which the
numerator shall be the current market price per
share (determined as provided in subparagraph (v)
of this Section 6(c)) of the Common Stock on the
date fixed for such determination less the fair
market value (as determined by the Board of
Directors or, to the extent permitted by applicable
law, a duly authorized committee thereof, whose
determination shall be conclusive and described in
a resolution of the Board of Directors or such duly
authorized committee thereof, as the case may be),
on the date fixed for such determination, of the
portion of the Securities so distributed applicable
to one share of Common Stock and the denominator
shall be such current market price per share of the
Common Stock on the date fixed for such
determination, such reduction to become effective
immediately prior to the opening of business on the
day following the date fixed for such
determination; provided, however, that in the event
the then fair market value (as so determined) of
the portion of the Securities so distributed
applicable to one share of Common Stock is equal to
or greater than the current market price per share
(as defined in subparagraph (v) of this
Section 6(c)) of the Common Stock on the date fixed
for such determination, in lieu of the foregoing
adjustment, adequate provision shall be made so
that each holder of shares of Convertible Preferred
Stock shall have the right to receive upon
conversion the amount and kind of Securities such
holder would have received had he converted each
such share of Convertible Preferred Stock on the
date fixed for determination of stockholders
entitled to receive such Securities. In the event
that such dividend or distribution is not so paid
or made, the conversion price shall again be
adjusted to be the conversion price which would
then be in effect if such dividend or distribution
had not occurred. To the extent that such
Securities consist of any rights or warrants (other
than those referred to in subparagraph (ii) of this
Section 6(c)) and the evidences of indebtedness,
shares or assets issuable on exercise thereof are not
-11-
<PAGE>
delivered after the expiration of such rights or
warrants, the conversion price shall be readjusted to the
conversion price which would then be in effect had the
adjustments made upon the issuance of such rights or warrants
been made on the basis of delivery of only the evidences of
indebtedness, shares or assets actually delivered.
If the Board of Directors (or, to the extent
permitted by applicable law, a duly authorized
committee thereof) determines the fair market value
of any distribution for purposes of this
subparagraph (iv) by reference to the actual or
when issued trading market for any securities
comprising such distribution, it must in doing so
consider the prices in such market over the same
period used in computing the current market price
per share of Common Stock pursuant to subparagraph
(v) of this Section 6(c).
(v) For the purpose of any computation
under subparagraphs (ii) and (iv) of this
Section 6(c) and under Section 6(h), the current
market price per share of Common Stock on any date
shall be deemed to be the average of the daily
Closing Prices (as defined in Section 6(i)) for the
ten consecutive Trading Days prior to and including
the date in question; provided, however, that
(1) if the "ex" date (as hereinafter defined) for
any event (other than the issuance, distribution or
Fundamental Change requiring such computation) that
requires an adjustment to the conversion price
pursuant to subparagraph (i), (ii), (iii) or (iv)
above or Section 6(h) occurs during such ten
consecutive Trading Days and prior to the "ex" date
for the issuance, distribution or Fundamental
Change requiring such computation, the Closing
Price for each Trading Day prior to the "ex" date
for such other event shall be adjusted by
multiplying such Closing Price by the same fraction
by which the conversion price is so required to be
adjusted as a result of such other event, (2) if
the "ex" date for any event (other than the
issuance, distribution or Fundamental Change
requiring such computation) that requires an
adjustment to the conversion price pursuant to
subparagraph (i), (ii), (iii) or (iv) above or
Section 6(h) occurs on or after the "ex" date for
the issuance, distribution or Fundamental Change
requiring such computation and on or prior to the
date in question, the Closing Price for each
Trading Day on and after the "ex" date for such
other event shall be adjusted by multiplying such
Closing Price by the reciprocal of the fraction by
which the conversion price is so required to be
adjusted as a result of such other event (provided
that in the event that such fraction is required to
be determined at a date subsequent to the date in question
and with reference to events taking place subsequent to
the date in question, the Board of Directors or, to the
-12-
<PAGE>
extent permitted by applicable law, a duly authorized
committee thereof, whose determination shall be conclusive and
described in a resolution of the Board of Directors or such
duly authorized committee thereof, as the case may be,
shall estimate such fraction based on assumptions
it deems reasonable regarding such events taking
place subsequent to the date in question, and such
estimated fraction shall be used for purposes of
such adjustment until such time as the actual
<PAGE>
fraction by which the conversion price is so
required to be adjusted as a result of such other
event is determined), and (3) if the "ex" date for
the issuance, distribution or Fundamental Change
requiring such computation is on or prior to the
date in question, after taking into account any
adjustment required pursuant to clause (1) or (2)
of this proviso, the Closing Price for each Trading
Day on or after such "ex" date shall be adjusted by
adding thereto the amount of any cash and the fair
market value (as determined by the Board of
Directors or, to the extent permitted by applicable
law, a duly authorized committee thereof in a
manner consistent with any determination of such
value for purposes of paragraph (iv) of this
Section 6(c), whose determination shall be
conclusive and described in a resolution of the
Board of Directors or such duly authorized
committee thereof, as the case may be) of the
evidence of indebtedness, shares of capital stock
or assets being distributed applicable to one share
of Common Stock as of the close of business on the
day before such "ex" date. For purposes of this
paragraph, the term "ex" date, (1) when used with
respect to any issuance, distribution or
Fundamental Change, means the first date on which
the Common Stock trades regular way on the relevant
exchange or in the relevant market from which the
Closing Price was obtained without the right to
receive such issuance, such distribution or the
cash, securities, property or other assets
distributable in such Fundamental Change to holders
of the Common Stock, and (2) when used with respect
to any subdivision or combination of shares of
Common Stock, means the first date on which the
Common Stock trades regular way on such exchange or
in such market after the time at which such
subdivision or combination becomes effective.
(vi) The Corporation may make such
reduction in the conversion price, in addition to
those required by subparagraphs (i), (ii), (iii)
and (iv) of this Section 6(c) or by Section 6(h),
as it considers to be advisable to avoid or
diminish any income tax to holders of Common Stock
or rights to purchase Common Stock resulting from
any dividend or distribution of stock (or rights to
acquire stock) or from any event treated as
such for income tax purposes. To the extent permitted by
-13-
<PAGE>
law, the Corporation from time to time may reduce the
conversion price by any amount for any period of
time if the period is at least twenty days, the reduction
is irrevocable during the period and the Board of Directors
(or, to the extent permitted by applicable law, a duly
authorized committee thereof) shall have made a
determination that such reduction would be in the
best interests of the Corporation, which
determination shall be conclusive. Whenever the
conversion price is reduced pursuant to the
preceding sentence, the Corporation shall mail to
holders of record of the Convertible Preferred
Stock a notice of the reduction at least fifteen
days prior to the date the reduced conversion price
takes effect, and such notice shall state the
reduced conversion price and the period it will be
in effect.
(vii) No adjustment in the conversion price
shall be required unless such adjustment would
require an increase or decrease of at least 1% in
the conversion price; provided, however, that any
adjustments which by reason of this subparagraph
(vii) are not required to be made shall be carried
forward and taken into account in determining
whether any subsequent adjustment shall be
required.
(viii) Notwithstanding any other provision
of this Section 6, no adjustment to the conversion
price shall reduce the conversion price below the
then par value per share of the Common Stock, and
any such purported adjustment shall instead reduce
the conversion price to such par value. The
Corporation hereby covenants not to take any action
(1) to increase the par value per share of the
Common Stock or (2) that would or does result in
any adjustment in the conversion price that, if
made without giving effect to the previous
sentence, would cause the conversion price to be
less than the then par value per share of the
Common Stock; provided however, that the covenant
in this sentence shall be suspended if within ten
days of determining in good faith that such action
would result in such adjustment (but not later than
the business day following the effectiveness of
such adjustment), the Corporation gives notice of
redemption of all outstanding shares of the
Convertible Preferred Stock, and effects the
redemption referred to in such notice on the
redemption date referred to therein in compliance
with Section 5, but the covenant in this sentence
shall be retroactively reinstated if such notice or
redemption does not occur.
(ix) Whenever the conversion price is
adjusted as herein provided:
-14-
<PAGE>
(1) the Corporation shall compute the adjusted
conversion price and shall prepare a certificate
signed by the Treasurer of the Corporation setting forth
the adjusted conversion price and showing in reasonable
detail the facts upon which such adjustment
is based, and such certificate shall
forthwith be filed with the transfer agent
for the Convertible Preferred Stock; and
(2) a notice stating the conversion price
has been adjusted and setting forth the
adjusted conversion price shall as soon as
practicable be mailed by the Corporation to
all record holders of shares of Convertible
Preferred Stock at their last addresses as
they shall appear upon the stock transfer
books of the Corporation.
(x) In any case in which this subparagraph
(c) provides that an adjustment shall become
effective immediately after a record date for an
event, the Corporation may defer until the
occurrence of such event (y) issuing to the holder
of any share of Convertible Preferred Stock
converted after such record date and before the
occurrence of such event the additional shares of
Common Stock issuable upon such conversion by
reason of the adjustment required by such event
over and above the Common Stock issuable upon such
conversion before giving effect to such adjustment
and (z) paying to such holder any amount in cash in
lieu of any fractional share of Common Stock
pursuant to subparagraph (d) of this Section 6.
(d) No Fractional Shares. No fractional shares
or scrip representing fractional shares of Common Stock
shall be issued upon conversion of Convertible Preferred
Stock. If more than one certificate evidencing shares of
Convertible Preferred Stock shall be surrendered for
conversion at one time by the same holder, the number of
full shares issuable upon conversion thereof shall be
computed on the basis of the aggregate number of shares
of Convertible Preferred Stock so surrendered. Instead
of any fractional share of Common Stock that would
otherwise be issuable upon conversion of any shares of
Convertible Preferred Stock, the Corporation shall pay a
cash adjustment in respect of such fractional interest in
an amount equal to the same fraction of the market price
per share of Common Stock (as determined or prescribed by
the Board of Directors or, to the extent permitted by applicable
law, a duly authorized committee thereof), which, so long
as the Common Stock is listed on the New York Stock Exchange,
shall be the Closing Price on the New York Stock Exchange at
the close of business on the Trading Day immediately preceding
the date of conversion.
-15-
<PAGE>
(e) Reclassification, Consolidation, Merger or
Sale of Assets. In the event that the Corporation shall
be a party to any transaction constituting a
recapitalization, reclassification, consolidation,
merger, sale or transfer of all or substantially all of
its assets or share exchange (including without
limitation any (i) recapitalization or reclassification
of the Common Stock (other than a change in par value, or
from par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination
of the Common Stock)), (ii) any consolidation of the
Corporation with, or merger of the Corporation into, any
other person, any merger of another person into the
Corporation (other than a merger which does not result in
a reclassification, conversion, exchange or cancellation
of outstanding shares of Common Stock of the
Corporation), (iii) any sale or transfer of all or
substantially all of the assets of the Corporation, or
(iv) any compulsory share exchange pursuant to which the
Common Stock is converted into the right to receive other
securities, cash or other property), then lawful
provision shall be made as part of the terms of such
transaction whereby the holder of each share of
Convertible Preferred Stock then outstanding shall have
the right thereafter, to convert such share only into
(1) in the case of a Non-Stock Fundamental Change (as
defined in Section 6(i)) and subject to funds being
legally available for such purpose under applicable law
at the time of such conversion, the kind and amount of
securities, cash and other property receivable upon such
recapitalization, reclassification, consolidation,
merger, sale, transfer or share exchange by a holder of
the number of shares of Common Stock into which such
share of Convertible Preferred Stock might have been
converted immediately prior to such recapitalization,
reclassification, consolidation, merger, sale, transfer
or share exchange, after giving effect, in the case of
any Non-Stock Fundamental Change, to any adjustment in
the conversion price required by the provisions of
Section 6(h), and (2) in the case of a Common Stock
Fundamental Change (as defined in Section 6(i)), into
common stock of the kind received by holders of Common
Stock as a result of such Common Stock Fundamental Change
in an amount determined pursuant to the provisions of
Section 6(h). The Corporation or the person formed by
such consolidation or resulting from such merger or which
acquires such assets or which acquires the Corporation's
shares, as the case may be, shall make provisions in its
certificate or articles of incorporation or other
constituent document to establish such right. Such
certificate or articles of incorporation or other
constituent document shall provide for adjustments which,
for events subsequent to the effective date of such
certificate or articles of incorporation or other constituent
document, shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 6. The above
provisions shall similarly apply to successive
-16-
<PAGE>
recapitalizations, reclassifications, consolidations, mergers,
sales, transfer or share exchanges.
(f) Reservation of Shares; Transfer Taxes; Etc.
The Corporation shall at all times reserve and keep
available, out of its authorized and unissued stock,
solely for the purpose of effecting the conversion of the
Convertible Preferred Stock, such number of shares of its
Common Stock (and associated Preferred Stock Purchase
Rights) free of preemptive rights as shall from time to
time be sufficient to effect the conversion of all shares
of Convertible Preferred Stock from time to time
outstanding. The Corporation shall from time to time, in
accordance with the laws of the State of Delaware, use
its best efforts to increase the authorized number of
shares of Common Stock (and associated Preferred Stock
Purchase Rights) if at any time the number of shares of
authorized and unissued Common Stock (and associated
Preferred Stock Purchase Rights) shall not be sufficient
to permit the conversion of all the then outstanding
shares of Convertible Preferred Stock.
If any shares of Common Stock required to be
reserved for purposes of conversion of the Convertible
Preferred Stock hereunder require registration with or
approval of any governmental authority under any federal
or state law before such shares may be issued upon
conversion, the Corporation will in good faith and as
expeditiously as possible endeavor to cause such shares
to be duly registered or approved, as the case may be.
If the Common Stock is listed on the New York Stock
Exchange or any other national securities exchange, the
Corporation will, in good faith and as expeditiously as
possible, endeavor, if permitted by the rules of such
exchange, to list and keep listed on such exchange, upon
official notice of issuance, all shares of Common Stock
issuable upon conversion of the Convertible Preferred
Stock.
The Corporation shall pay any and all issue or other
taxes that may be payable in respect of any issue or
delivery of shares of Common Stock upon conversion of the
Convertible Preferred Stock. The Corporation shall not,
however, be required to pay any tax which may be payable
in respect of any transfer involved in the issue or
delivery of Common Stock (or other securities or assets)
in a name other than that in which the shares of
Convertible Preferred Stock so converted were registered,
and no such issue or delivery shall be made unless and
until the person requesting such issue has paid to the
Corporation the amount of such tax or has established, to
the satisfaction of the Corporation, that such tax has
been paid.
(g) Prior Notice of Certain Events. In case:
(i) the Corporation shall (1) declare any dividend
(or any other distribution) on its Common Stock, other
-17-
<PAGE>
than (A) a dividend payable in shares of Common Stock or
(B) a dividend payable in cash out of its retained
earnings other than any special or nonrecurring or other
extraordinary dividend or (2) declare or authorize a
redemption or repurchase of in excess of 10% of the then
outstanding shares of Common Stock; or
(ii) the Corporation shall authorize the
granting to all holders of Common Stock of rights
or warrants to subscribe for or purchase any shares
of stock of any class or of any other rights or
warrants (other than Preferred Stock Purchase
Rights); or
(iii) of any reclassification of Common
Stock (other than a subdivision or combination of
the outstanding Common Stock, or a change in par
value, or from par value to no par value, or from
no par value to par value), or of any consolidation
or merger to which the Corporation is a party and
for which approval of any stockholders of the
Corporation shall be required, or of the sale or
transfer of all or substantially all of the assets
of the Corporation or of any compulsory share
exchange whereby the Common Stock is converted into
other securities, cash or other property; or
(iv) of the voluntary or involuntary
dissolution, liquidation or winding up of the
Corporation;
then the Corporation shall cause to be filed with the
transfer agent for the Convertible Preferred Stock and
shall cause to be mailed to the holders of record of the
Convertible Preferred Stock, at their last addresses as
they shall appear upon the stock transfer books of the
Corporation, at least fifteen days prior to the
applicable record date hereinafter specified, a notice
stating (x) the date on which a record (if any) is to be
taken for the purpose of such dividend, distribution,
redemption, repurchase or granting of rights or warrants
or, if a record is not be taken, the date as of which the
holders of Common Stock of record to be entitled to such
dividend, distribution, redemption, rights or warrants
are to be determined or (y) the date on which such
reclassification, consolidation, merger, sale, transfer,
share exchange, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it
is expected that holders of Common Stock of record shall
be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution,
liquidation or winding up (but no failure to mail
such notice or any defect therein or in the mailing thereof
shall affect the validity of the corporate action required to
be specified in such notice).
-18-
<PAGE>
(h) Adjustments in Case of Fundamental Changes.
Notwithstanding any other provision in this Section 6 to the
contrary, if any Fundamental Change (as defined in Section 6(i))
occurs, then the conversion price in effect will be adjusted
immediately after such Fundamental Change as described below. In
addition, in the event of a Common Stock Fundamental Change, each
share of Convertible Preferred Stock shall be convertible solely
into common stock of the kind received by holders of Common Stock
as the result of such Common Stock Fundamental Change.
For purposes of calculating any adjustment to be made
pursuant to this Section 6(h) in the event of a Fundamental Change,
immediately after such Fundamental Change (and for such purposes a
Fundamental Change shall be deemed to occur on the earlier of (a)
the occurrence of such Fundamental Change and (b) the date, if any,
fixed for determination of stockholders entitled to receive the
cash, securities, property or other assets distributable in such
Fundamental Change to holders of the Common Stock):
(i) in the case of a Non-Stock Fundamental Change,
the conversion price of the Convertible Preferred Stock
shall become the lower of (A) the conversion price in
effect immediately prior to such Non-Stock Fundamental
Change, but after giving effect to any other adjustments
effected pursuant to this Section 6, and (B) the product
of (1) the greater of the Applicable Price (as defined in
Section 6(i)) or the then applicable Reference Market
Price (as defined in Section 6(i)) and (2) a fraction the
numerator of which shall be $50.00 and the denominator of
which shall be the then current Redemption Price per
share of Convertible Preferred Stock if the redemption
date were the date of such Non-Stock Fundamental Change
(such denominator being the sum of (x) the product of
$50.00 and the percentage (expressed as a decimal) set
forth in the table contained in Section 5(a) above, or
the percentage determined as follows: if the Non-Stock
Fundamental Change occurs during the period commencing on
the Date of Original Issue of the Convertible Preferred
Stock and ending July 14, 1993, 107.0% and for the
12-month periods commencing July 15, 1993, 1994, and
1995, 106.3%, 105.6%, and 104.9%, respectively, and
(y) any accrued and unpaid dividends thereon, whether or
not declared, to but excluding the date of such Non-Stock
Fundamental Change); and
(ii) in the case of a Common Stock Fundamental
Change, the conversion price of the Convertible Preferred
Stock shall be the conversion price in effect immediately
prior to such Common Stock Fundamental Change, but after
giving effect to any other adjustments effected pursuant
to this Section 6, multiplied by a fraction, the
-19-
<PAGE>
numerator of which is the Purchaser Stock Price (as
defined in Section 6(i)) and the denominator of which is
the Applicable Price; provided, however, that in the
event of a Common Stock Fundamental Change in which
(A) 100% by value of the consideration received by a
holder of Common Stock is common stock of the successor,
acquiror or other third party (except for cash, if any,
paid with respect to any fractional interests in such
common stock resulting from such Common Stock Fundamental
Change) and (B) all of the Common Stock shall have been
exchanged for, converted into or acquired for common
stock (and cash, if any, with respect to fractional
interests) of the successor, acquiror or other third
party, the conversion price of the shares of Convertible
Preferred Stock immediately following such Common Stock
Fundamental Change shall be the conversion price in
effect immediately prior to such Common Stock Fundamental
Change multiplied by a fraction, the numerator of which
is one (1) and the denominator of which is the number of
shares of common stock of the successor, acquiror, or
other third party received by a holder of one share of
Common Stock as a result of such Common Stock Fundamental
Change.
(i) Definitions. The following definitions shall apply
to terms used in this Section 6:
(1) "Applicable Price" shall mean (i) in the event
of a Non-Stock Fundamental Change in which the holders of
the Common Stock receive only cash, the amount of cash
received by the holder of one share of Common Stock and
(ii) in the event of any other Non-Stock Fundamental
Change or any Common Stock Fundamental Change, the
average of the Closing Prices for one share of the Common
Stock during the ten Trading Days immediately prior to
the record date for the determination of the holders of
Common Stock entitled to receive cash, securities,
property or other assets in connection with such
Non-Stock Fundamental Change or Common Stock Fundamental
Change or, if there is no such record date, prior to the
date upon which the holders of the Common Stock shall
have the right to receive such cash, securities, property
or other assets. The Closing Price on any Trading Day
may be subject to adjustment as provided in Section
6(c)(v).
(2) "Closing Price" with respect to any securities
on any day shall mean the closing sale price, regular
way, on such day or, in case no such sale takes place on
such day, the average of the reported closing bid and
asked prices, regular way, in each case on the New York
Stock Exchange or, if such security is not listed or
admitted to trading on such Exchange, on the principal
-20-
<PAGE>
national securities exchange or quotation system on which
such security is quoted or listed or admitted to trading
or, if not quoted or listed or admitted to trading on any
national securities exchange or quotation system, the
average of the closing bid and asked prices of such
security on the over-the-counter market on the date in
question as reported by the National Quotation Bureau
Incorporated, or a similarly generally accepted reporting
service, or if not so available, in such manner as
furnished by any New York Stock Exchange member firm
selected from time to time by the Board of Directors for
that purpose or a price determined in good faith by the
Board of Directors. The Closing Price on any Trading Day
may be subject to adjustment as provided in Section
6(c)(v).
(3) "Common Stock Fundamental Change" shall mean
any Fundamental Change in which more than 50% by value
(as determined in good faith by the Board of Directors of
the Corporation or, to the extent permitted by applicable
law, a duly authorized committee thereof) of the
consideration received by the holders of Common Stock
pursuant to such transaction consists of common stock
that, for the consecutive ten Trading Days immediately
prior to such Fundamental Change, has been admitted for
listing or admitted for listing subject to notice of
issuance on a national securities exchange or quoted on
the National Association of Securities Dealers, Inc.
("NASDAQ") National Market System; provided, however,
that a Fundamental Change shall not be a Common Stock
Fundamental Change unless either (i) the Corporation
continues to exist after the occurrence of such
Fundamental Change and the outstanding shares of
Convertible Preferred Stock continue to exist as
outstanding shares of Convertible Preferred Stock, or
(ii) not later than the occurrence of such Fundamental
Change, the outstanding shares of Convertible Preferred
Stock are converted into or exchanged for shares of
convertible preferred stock of a corporation succeeding
to the business of the Corporation, which convertible
preferred stock has powers, preferences and relative,
participating, optional or other rights, and
qualifications, limitations and restrictions
substantially similar to those of the Convertible
Preferred Stock.
(4) "Fundamental Change" shall mean the occurrence
of any transaction or event or series of transactions or
events pursuant to which all or substantially all of the
Common Stock shall be exchanged for, converted into,
acquired for or constitute solely the right to receive
cash, securities, property or other assets (whether by
means of an exchange offer, liquidation, tender offer,
-21-
<PAGE>
consolidation, merger, combination, reclassification,
recapitalization or otherwise); provided, however, in the
case of any series of transactions or events, for
purposes of adjustment of the conversion price such
Fundamental Change shall be deemed to have occurred when
substantially all of the Common Stock of the Corporation
shall be exchanged for, converted into, or acquired for
or constitute solely the right to receive cash,
securities, property or other assets, but the adjustment
shall be based upon the consideration which the holders
of Common Stock received in such transaction or event as
a result of which more than 50% of the Common Stock of
the Corporation shall have been exchanged for, converted
into, or acquired for or constitute solely the right to
receive cash, securities, property or other assets;
provided, further, that such term does not include
(i) any such transaction or event in which the
Corporation and/or any of its subsidiaries are the
issuers of all the cash, securities, property or other
assets exchanged, acquired or otherwise issued in such
transaction or event, or (ii) any such transaction or
event in which the holders of Common Stock receive
securities of an issuer other than the Corporation if,
immediately following such transaction or event, such
holders hold a majority of the securities having the
power to vote normally in the election of directors of
such other issuer outstanding immediately following such
transaction or other event.
(5) "Non-Stock Fundamental Change" shall mean any
Fundamental Change other than a Common Stock Fundamental
Change.
(6) "Purchaser Stock Price" shall mean, with
respect to any Common Stock Fundamental Change, the
average of the Closing Prices for one share of the common
stock received in such Common Stock Fundamental Change
during the ten Trading Days immediately prior to the
record date for the determination of the holders of
Common Stock entitled to receive such common stock, or if
there is no such record date, the date upon which the
holders of the Common Stock shall have the right to
receive such common stock. The Closing Price on any
Trading Day may be subject to adjustment as provided in
Section 6(c)(v).
(7) "Reference Market Price" shall initially mean
$17.00 (which is an amount equal to 66 2/3% of the
reported last sales price for the Common Stock on the New
York Stock Exchange on July 20, 1992), and in the event
of any adjustment to the conversion price other than as
a result of a Fundamental Change, the Reference Market
Price shall also be adjusted so that the ratio of the
-22-
<PAGE>
Reference Market Price to the conversion price after
giving effect to any such adjustment shall always be the
same as the ratio of $17.00 to the initial conversion
price set forth in Section 6(a) above.
(8) "Trading Day" shall mean (x) if the applicable
security is listed or admitted for trading on the New
York Stock Exchange or another national securities
exchange, a day on which the New York Stock Exchange or
such other national securities exchange is open for
business or (y) if the applicable security is quoted on
the National Market System of the NASDAQ, a day on which
trade may be made on such National Market System or
(z) if the applicable security is not otherwise listed,
admitted for trading or quoted, any day other than a
Saturday or Sunday or a day on which banking institutions
in the State of New York are authorized or obligated by
law or executive order to close.
(j) Dividend or Interest Reinvestment Plans: Other.
Notwithstanding the foregoing provisions, the issuance of any
shares of Common Stock pursuant to any plan providing for the
reinvestment of dividends or interest payable on securities of the
Corporation and the investment of additional optional amounts in
shares of Common Stock under any such plan, and the issuance of any
shares of Common Stock or options or rights to purchase such shares
pursuant to any employee benefit plan or program of the Corporation
or pursuant to any option, warrant, right or exercisable,
exchangeable or convertible security outstanding as of the date the
Convertible Preferred Stock was first designated (except as
expressly provided in Section 6(c)(ii) with respect to certain
events under the Rights Agreement, dated as of January 29, 1990,
between the Corporation and Manufacturers Hanover Trust Company of
California (the "Rights Agreement")), and any issuance of Preferred
Stock Purchase Rights, shall not be deemed to constitute an
issuance of Common Stock or exercisable, exchangeable or
convertible securities by the Corporation to which any of the
adjustment provisions described above applies. There shall also be
no adjustment of the conversion price in case of the issuance of
any stock (or securities convertible into exchangeable for stock)
of the Corporation except as specifically described in this
Section 6. Except as expressly set forth above, if any action
would require adjustment of the conversion price pursuant to more
than one of the provisions described above, only one adjustment
shall be made and such adjustment shall be the amount of adjustment
which has the highest absolute value.
(k) Preferred Stock Purchase Rights.
(i) So long as Preferred Stock Purchase Rights of
a kind similar to those declared and distributed by the
-23-
<PAGE>
Corporation's Board of Directors in January 1990, as the
same may hereafter be amended or reissued ("Preferred
Stock Purchase Rights"), are attached to the outstanding
shares of Common Stock of the Corporation, each share of
Common Stock issued upon conversion of the shares of
Convertible Preferred Stock prior to the earliest of any
Distribution Date (as defined in the Rights Agreement),
the date of redemption of the Preferred Stock Purchase
Rights or the date of expiration of the Preferred Stock
Purchase Rights shall be issued with Preferred Stock
Purchase Rights in a number equal to the number of
Preferred Stock Purchase Rights then attached to each
such outstanding share of Common Stock.
(ii) For the purposes of Section 6(c)(ii), upon the
earlier to occur of (x) the eleventh Business Day (as
such term is defined in the Rights Agreement) following
a 15% Ownership Date (as such term is defined in the
Rights Agreement) and (y) a Section 13(a) Event (as such
term is defined in the Rights Agreement), then an
issuance of rights to purchase shares of Common Stock
during a period not exceeding 45 days from the date of
such dividend or other distribution shall be deemed to
have occurred, unless a Redemption Date or an Expiration
Date (as such terms are defined in the Rights Agreement)
has occurred prior to such eleventh Business Day or such
Section 13(a) Event, as the case may be, or unless the
Company has taken action pursuant to Section 7(e) of the
Rights Agreement to substitute other consideration for
all or any portion of the Series A Junior Participating
Cumulative Preferred Stock otherwise issuable upon
exercise of a Preferred Stock Purchase Right. For
purposes of the reduction of the conversion price
provided for in Section 6(c)(ii) upon such deemed
issuance of rights, each share of Series A Junior
Participating Cumulative Preferred Stock shall be deemed
to constitute 100 shares of Common Stock (subject to
adjustment as provided in the Rights Plan), and the date
fixed for determination of stockholders entitled to
receive such rights shall be the close of business on the
tenth such Business Day following such 15% Ownership Date
or the date of such Section 13(a) Event, as the case may
be; provided, however, that the current market price per
share of the Common Stock shall be determined based on
the ten consecutive trading days prior to and including
the Distribution Date.
(iii) For the purposes of Section 6(c)(iv), if the
Company has taken action pursuant to Section 7(e) of the
Rights Agreement to substitute other consideration for
all or any portion of the Series A Junior Participating
Cumulative Preferred Stock otherwise issuable upon
exercise of a Preferred Stock Purchase Right, upon the
-24-
<PAGE>
earlier to occur of (x) the eleventh Business Day
following a 15% Ownership Date and (y) a Section 13(a)
Event, then an issuance of Securities shall be deemed to
have occurred, unless a Redemption Date or an Expiration
Date has occurred prior to such eleventh Business Day or
such Section 13(a) Event, as the case may be. For
purposes of the reduction of the conversion price
provided for in Section 6(c)(iv) upon such deemed
issuance of Securities, the date fixed for determination
of stockholders entitled to receive such rights shall be
the close of business on the tenth such Business Day
following such 15% Ownership Date or the date of such
Section 13(a) Event, as the case may be; provided,
however, that the current market price per share of the
Common Stock shall be determined based on the ten
consecutive trading days prior to and including the
Distribution Date.
(iv) For purposes of Section 6(c)(ii) and Section
6(c)(iv), the redemption by the Corporation of Preferred
Stock Purchase Rights shall be deemed to be an expiration
of such rights.
(v) If any Convertible Preferred Stock has been
converted on or after the Distribution Date and on or
before the tenth Business Day following such 15%
Ownership Date or the date of such Section 13(a) Event,
as the case may be, then as soon as practicable following
the date on which the adjustment required by subsection
(ii) or (iii) of this Section 6(k) is made, the
Corporation shall issue to the holder of the Convertible
Preferred Stock so converted a number of additional
shares of Common Stock (and cash in lieu of any
fractional share) that would have been issuable upon such
conversion had such adjustment been made immediately
prior to such conversion.
(l) Exclusion of Treasury Shares. For purposes of this
Section 6, the number of shares of Common Stock at any time
outstanding shall not include any shares of Common Stock then owned
or held by or for the account of the Corporation.
(m) Special Provisions Regarding Adjustment of
Conversion Price. In the event that the provisions hereof
specifying the methods by which the conversion price is adjusted
would require a conversion price adjustment that is determined in
good faith by the Board of Directors of the Corporation or, to the
extent permitted by applicable law, a duly authorized committee
thereof to be inconsistent with the purposes of the provisions
hereof providing for conversion price adjustments (generally, to place the
holders of the Convertible Preferred Stock in a position equivalent to the
position they were in prior to the event requiring an
-25-
<PAGE>
adjustment to the conversion price), the Board of Directors of
the Corporation or, to the extent permitted by applicable law,
a duly authorized committee thereof may determine
an adjustment (in lieu of that required pursuant to such
provisions) that it determines in good faith to be consistent with
such purposes, which determination shall be conclusive and
described in a resolution of the Board of Directors or such duly
authorized committee thereof, as the case may be.
7. Voting Rights
(a) General. The holders of Convertible Preferred Stock
will not have any voting rights except as set forth below or as
otherwise from time to time required by law. In connection with
any right to vote, each holder of Convertible Preferred Stock will
have one vote for each such share held. Any shares of Convertible
Preferred Stock held by the Corporation or any entity controlled by
the Corporation shall not have voting rights hereunder and shall
not be counted in determining the presence of a quorum.
(b) Default Voting Rights. Whenever dividends on the
Convertible Preferred Stock or any other class or series of the
Corporation's preferred stock hereafter issued ranking, as to
dividends, on a parity with the Convertible Preferred Stock shall
be in arrears in an aggregate amount equal to at least six
quarterly dividends (whether or not consecutive), (i) the number of
members of the Board of Directors shall be increased by two,
effective as of the time of election of such directors and (ii) the
holders of the Convertible Preferred Stock (voting separately as a
class with all other affected classes or series of preferred stock
upon which like voting rights have been conferred and are
exercisable) will have the exclusive right to vote for and elect
such two additional directors of the Corporation. The right of the
holders of the Convertible Preferred Stock to vote for such two
additional directors shall terminate when all accrued and unpaid
dividends on the Convertible Preferred Stock have been declared and
paid or set apart for payment. The term of office of all directors
so elected shall terminate immediately upon the termination of the
right of the holders of the Convertible Preferred Stock and such
other preferred stock to vote for such two additional directors.
Each such director so elected shall serve until the next annual
meeting and until his successor is elected, unless his term of
office is terminated earlier as provided in the preceding sentence.
The foregoing right of the holders of the Convertible
Preferred Stock with respect to the election of two directors may be exercised
at the next annual meeting of stockholders following the default or at any
special meeting of stockholders held for such purpose. If the right to elect
directors shall have accrued to the holders of the Convertible
-26-
<PAGE>
Preferred Stock more than ninety days preceding the date
established for the next annual meeting of stockholders,
the President of the Corporation shall, within twenty
days after the delivery to the Corporation at its principal office
of a written request for a special meeting signed by the holders of
at least 10% of all outstanding shares of the Convertible Preferred
Stock, call a special meeting of the holders of the Convertible
Preferred Stock to be held within sixty days after the delivery of
such request for the purpose of electing such additional directors.
The holders of the Convertible Preferred Stock and such
other preferred stock referred to above voting as a class shall
have the exclusive right to remove without cause at any time and
replace any directors such holders shall have elected pursuant to
this Section 7.
(c) Class Voting Rights. So long as the Convertible
Preferred Stock is outstanding, the Corporation shall not, without
the affirmative vote or consent of the holders of at least 66-2/3%
(or such higher percentage, if any, as may then be required by
applicable law) (i) of all outstanding shares of the Convertible
Preferred Stock, voting separately as a class, amend, alter or
repeal any provision of the Certificate of Incorporation or the By-
Laws of the Corporation, so as to affect adversely the relative
rights, preferences, qualifications, limitations or restrictions of
the Convertible Preferred Stock or (ii) of all outstanding shares
of the Convertible Preferred Stock and any other series of
preferred stock of the Corporation ranking on a parity with the
Convertible Preferred Stock either as to dividends or upon
liquidation, voting as a single class without regard to series,
create, authorize or issue, or reclassify any authorized stock of
the Corporation into, or increase the authorized amount of, any
preferred stock of the Corporation ranking senior to the
Convertible Preferred Stock as to dividend or liquidation rights,
or any security convertible into such stock. A class vote on the
part of the Convertible Preferred Stock shall, without limitation,
specifically not be required (except as otherwise required by law
or resolution of the Board of Directors) in connection with: (a)
the authorization, issuance or increase in the authorized amount of
any shares of any other class or series of stock which ranks junior
to, or on a parity with, the Convertible Preferred Stock in respect
of the payment of dividends and distributions upon liquidation,
dissolution or winding up of the Corporation; or (b) the
authorization, issuance or increase in the amount of any notes,
commercial paper, bonds, mortgages, debentures or other obligations
of the Corporation.
8. Ranking. Any class or classes of stock of the
Corporation shall be deemed to rank:
-27-
<PAGE>
(i) prior to the Convertible Preferred Stock, as to
dividends or as to distribution of assets upon liquidation,
dissolution or winding up, if the holders of such class shall be
entitled to the receipt of dividends or of amounts distributable
upon liquidation, dissolution or winding up, as the case may be, in
preference or priority to the holders of Convertible Preferred
Stock.
(ii) on a parity with the Convertible Preferred Stock,
as to dividends or as to distribution of assets upon liquidation,
dissolution or winding up, whether or not the dividend rates,
dividend payment dates or redemption or liquidation prices per
share thereof are different from those of the Convertible Preferred
Stock, if the holders of such class of stock and the Convertible
Preferred Stock shall be entitled to the receipt of dividends or of
amounts distributable upon liquidation, dissolution or winding up,
as the case may be, in proportion to their respective amounts of
accrued and unpaid dividends per share or liquidation prices,
without preference or priority one over the other, and
(iii) junior to the Convertible Preferred Stock, as to
dividends or as to the distribution of assets upon liquidation,
dissolution or winding up, if such stock shall be Common Stock or
Series A Junior Participating Cumulative Preferred Stock or any
other class or series of capital stock of the Corporation if the
holders of Convertible Preferred Stock shall be entitled to receipt
of dividends or of amounts distributable upon liquidation,
dissolution or winding up, as the case may be, in preference or
priority to the holders of shares of such stock.
9. Outstanding Shares. For purposes of this
Certificate of the Designations, Powers, Preferences and Rights,
all shares of Convertible Preferred Stock issued by the Corporation
shall be deemed outstanding except (i) from the date fixed for
redemption pursuant to Section 6 hereof, all shares of Convertible
Preferred Stock that have been so called for redemption under
Section 6, to the extent provided thereunder, (ii) from the date of
surrender of a certificate evidencing shares of Convertible
Preferred Stock, all shares of Convertible Preferred Stock
represented by such certificate and converted into Common Stock;
and (iii) from the date of registration of transfer, all shares of
Convertible Preferred Stock held of record by the Corporation or
any majority-owned subsidiary of the Corporation.
10. Status of Acquired Shares. Shares of Convertible
Preferred Stock redeemed by the Corporation, received upon
conversion pursuant to Section 6 or otherwise acquired by the
Corporation will be restored to the status of authorized but
unissued shares of Preferred Stock, without designation as to
class, and may thereafter be issued, but not as shares of
Convertible Preferred Stock.
-28-
<PAGE>
11. Preemptive Rights. The Convertible Preferred Stock
is not entitled to any preemptive or subscription rights in respect
of any securities of the Corporation.
12. Severability of Provisions. Whenever possible, each
provision hereof shall be interpreted in a manner as to be
effective and valid under applicable law, but if any provision
hereof is held to be prohibited by or invalid under applicable law,
such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating or otherwise
adversely affecting the remaining provisions hereof. If a court of
competent jurisdiction should determine that a provision hereof
would be valid or enforceable if a period of time were extended or
shortened or a particular percentage were increased or decreased,
then such court may make such change as shall be necessary to
render the provision in question effective and valid under
applicable law.
IN WITNESS WHEREOF, Unocal Corporation has caused this
Certificate to be made under the seal of the Corporation and signed
by Thomas B. Sleeman, its Senior Vice President, and attested by
Dennis P. Coon, its Secretary, on the 23rd day of July, 1992.
UNOCAL CORPORATION
By: /s/ Thomas B. Sleeman
--------------------------
Name: Thomas B. Sleeman
Title: Senior Vice President
Attest:
/s/ Dennis P. Codon
- - ----------------------
Name: Dennis P. Codon
Title: Secretary
-29-
<PAGE>
