<PAGE>
EXHIBIT 4.8
CERTIFICATE OF INCORPORATION
OF
LSS MERGING CORPORATION
FIRST: The name of the Corporation is:
LSS Merging Corporation
SECOND: The address of the Corporation's registered office in the
State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City
of Wilmington, County of New Castle. The name of the Corporation's registered
agent at such address is The Corporation Trust Company.
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 number of shares of all classes of stock which the
Corporation shall have the authority to issue is 1,000 shares of Common Stock,
$1.00 par value.
FIFTH: The name and mailing address of the incorporator of the
Corporation are as follows:
<TABLE>
<CAPTION>
NAME ADDRESS
---- -------
<S> <C>
Sherry S. Treston One First National Plaza
Chicago, Illinois 60603
</TABLE>
SIXTH: The number of directors constituting the Board of Directors
shall be the number as shall from time to time be fixed by the By-Laws of the
Corporation.
SEVENTH: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized to make,
alter or repeal the By-Laws of the Corporation.
EIGHTH: The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation, the
manner now or hereafter prescribed by statute, and all rights conferred upon
the stockholders herein are granted subject to this reservation.
NINTH: Each person who is or was a director or officer of the
Corporation, and each person who serves or served at the request of the
Corporation as a director or officer of another enterprise, shall be
indemnified by the Corporation in accordance with, and to the fullest
<PAGE>
extent authorized by, the General Corporation Law of the State of Delaware as
it may be in effect from time to time.
THE UNDERSIGNED, being incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the General Corporation Law of
the State of Delaware, makes this Certificate, hereby declaring and certifying
that the facts herein stated are true, and accordingly has hereunto set the
hand and seal of the undersigned this 6th day of March, 1986.
/s/ Sherry S. Treston
---------------------------------
Sherry S. Treston
2
<PAGE>
CERTIFICATE OF MERGER
of
LONE STAR STEEL COMPANY
A Texas Corporation
into
LSS MERGING CORPORATION
A Delaware Corporation
UNDER SECTION 252 OF THE
DELAWARE GENERAL CORPORATION LAW
The undersigned corporation does hereby certify:
FIRST: That the name and state of incorporation of each of the
constituent corporations of the merger is as follows:
<TABLE>
<CAPTION>
NAME STATE OF INCORPORATION
---- ----------------------
<S> <C>
Lone Star Steel Company Texas
LSS Merging Corporation Delaware
</TABLE>
SECOND: That an Agreement and Plan of Merger ("Agreement of Merger")
between the parties to the merger has been approved, adopted, certified,
executed and acknowledged by each of the constituent corporations in
accordance with the requirements of subsection (c) of section 252 of the
General Corporation Law of the State of Delaware.
THIRD: The name of the surviving corporation of the merger is LSS
Merging Corporation, which shall herewith be changed to Lone Star Steel
Company, a Delaware corporation.
FOURTH: That the amendments or changes in the Certificate of
Incorporation of LSS Merging Corporation, a Delaware corporation, which is the
surviving corporation, that are to be effected by the merger are as follows:
Article FIRST of the Certificate of Incorporation of LSS Merging
Corporation shall be amended to read as follows:
"The name of this Corporation is Lone Star Steel Company."
FIFTH: That the executed Agreement of Merger is on file at the
principal place of business of the surviving corporation. The address of said
principal place of business is 2200 West Mockingbird Lane, Dallas, Texas 75235.
<PAGE>
SIXTH: That a copy of the Agreement of Merger will be furnished on
request and without cost to any stockholder of any constituent corporation.
SEVENTH: The authorized capital stock of each foreign corporation
which is a party to the merger is as follows:
<TABLE>
<CAPTION>
NUMBER OF PAR VALUE
--------- ---------
CORPORATION CLASS SHARES PER SHARE
----------- ----- ------ ---------
<S> <C> <C> <C>
Lone Star Steel Company Common 40,000,000 $1.00
Preferred 10,000,000 none
</TABLE>
Dated: May ___, 1986.
LSS MERGING CORPORATION
By: /s/ James E. Chenault, Jr.
-----------------------------------
James E. Chenault, Jr., President
ATTEST:
By: /s/ Ellis A. Brock
-------------------------------------
Ellis A. Brock, Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
TO THE CERTIFICATE OF INCORPORATION OF
LONE STAR STEEL COMPANY
Pursuant to the General Corporation Law of the State of Delaware, LONE
STAR STEEL COMPANY (the "Corporation"), a corporation organized and existing
under and by virtue of the General Corporation Law of Delaware, DOES HEREBY
CERTIFY THAT:
FIRST: The Board of Directors of the Corporation, in accordance with
Section 242 of the General Corporation Law of the State of Delaware, on
September 30, 1986 adopted the following resolutions:
RESOLVED, that this Board of Directors deems it
advisable that Article Ninth of the Certificate of
Incorporation of the Corporation be amended (i) to define
the scope of personal liability of the Corporation's
Directors to the Corporation and to (ii) to define and
clarify the rights of certain individuals, including the
Corporation's directors and officers, to indemnification by
the Corporation in the event of personal liability or
expenses incurred by them as a result of certain litigation
against them by amending, changing and altering Article Ninth
to read as follows:
NINTH:
A. LIMITATION OF CERTAIN LIABILITY OF DIRECTORS.
The personal liability of a director of the Corporation to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, shall be limited to a total of $25,000
for all liabilities for all claims, except for liability (i) for any
breach of the director's duty of loyalty to the Corporation or its
stockholders, (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 stockholders of this Article NINTH to authorize
corporate action further eliminating or limiting the personal liability
of directors, then, other than the personal liability limitation of
$25,000 for all claims, 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
stockholders 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.
B. INDEMNIFICATION AND INSURANCE.
<PAGE>
-Page 2-
1. RIGHT TO INDEMNIFICATION. Each person who
was or is made a party or is threatened to be made a party to or is
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason
of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Corporation or is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to
employee benefit plans, whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee
or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent authorized by the Delaware General Corporation Law,
as the same exists or may hereafter be amended (but, in the case of any
such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against
all expense, liability and loss (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such person in connection
therewith and such indemnification shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to
the benefit of his or her heirs, executors and administrators; PROVIDED,
HOWEVER, that, except as provided in paragraph (2) hereof, the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. The right to indemnification conferred in
this Section B shall be a contract right and shall include the right to
be paid by the Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition; PROVIDED, HOWEVER, that,
if the Delaware General Corporation Law requires, the payment of such
expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was
or is rendered by such person while a director or officer, including,
without limitation, service to an employee benefit plan) in advance of
the final disposition of a proceeding, shall be made only upon delivery
to the Corporation of an undertaking, by or on behalf of such director
or officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be
indemnified under this Section B or otherwise. The Corporation may, by
action of its Board of Directors, provide indemnification to employees
and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
2. RIGHT OF CLAIMANT TO BRING SUIT. If a claim under
paragraph 1 of this Section B is not paid in full by the Corporation
within thirty days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be
paid also the expense of prosecuting such claim. It shall be a defense
to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards
of conduct which make it permissible under the Delaware General
Corporation Law for the Corporation to indemnify the claimant for the
amount claimed, but the burden of proving such defense shall be on the
Corporation. Neither the
<PAGE>
-Page 3-
failure of the Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) to have made a determination prior to
the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable
standard of conduct set forth in the Delaware General Corporation Law,
nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the
claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not
met the applicable standard of conduct.
3. NON-EXCLUSIVITY OF RIGHTS. The right to indemnification
and the payment of expenses incurred in defending a proceeding in advance
of its final disposition conferred in this Section B shall not be
exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation,
by-law, agreement, vote of stockholders or disinterested directors or
otherwise.
4. INSURANCE. The Corporation may maintain insurance, at
its expense, to protect itself and any director, officer, employee or
agent of the Corporation or another corporation, partnership, joint
venture, trust or other enterprise against any such expense, liability or
loss, whether or not the Corporation would have the power to indemnify
such person against such expense, liability or loss under the Delaware
General Corporation Law.
FURTHER RESOLVED, that the amendment to the Certificate of
Incorporation of the Corporation be submitted to the sole stockholder
of the Corporation for approval.
SECOND: The sole stockholder of the Corporation, by written
consent, on September 30, 1986 approved and adopted the amendment to the
Certificate of Incorporation of the Corporation.
THIRD: Such amendment to the Certificate of Incorporation of the
Corporation was duly adopted in accordance with the applicable provisions of
Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, LONE STAR STEEL COMPANY has caused this Certificate
to be signed by Wm. Howard Beasley III, Chairman of the Board and Chief
Executive officer, and attested to by its Assistant Secretary this 30th day of
September, 1986.
LONE STAR STEEL COMPANY
By: /s/ Wm. Howard Beasley III
--------------------------------------
Wm. Howard Beasley III
Chairman of the Board and
Chief Executive Officer
<PAGE>
-Page 4-
ATTEST:
By: /s/ Ellis A. Brock
------------------------------------
Ellis A. Brock
Assistant Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
LONE STAR STEEL COMPANY
Pursuant to provisions of Section 242 of the Delaware General
Corporation Act, the undersigned corporation adopts the following Certificate of
Amendment to its Certificate of Incorporation:
ARTICLE ONE
The name of the corporation is LONE STAR STEEL COMPANY.
ARTICLE TWO
Article First of the Certificate of Incorporation, as amended, is
hereby further amended to read as follows:
"The name of the corporation is
EAST TEXAS STEEL FACILITIES, INC."
ARTICLE THREE
The holder of all of the shares outstanding and entitled to vote on
said amendment has signed a consent in writing adopting said amendment.
The number of shares of the corporation outstanding at the time of such
adoption was 1,000, and the number of shares entitled to vote thereon was 1,000.
<PAGE>
DATED: January 31, 1989
LONE STAR STEEL COMPANY
By: /s/ Wm. Howard Beasley III
--------------------------------------
Wm. Howard Beasley III
Chairman of the Board,
Chief Executive Officer and President
ATTEST:
By: /s/ Ellis A. Brock
------------------------------------
Ellis A. Brock
Secretary
2
<PAGE>
THE STATE OF TEXAS )
COUNTY OF DALLAS )
I, G. Janelle Howard, a Notary Public, do hereby certify that on this
the 31st day of January, 1989, personally appeared before me Wm. Howard Beasley
III and Ellis A. Brock, who being by me first duly sworn, declared that they are
the Chairman of the Board, Chief Executive Officer and President and Secretary,
respectively, of EAST TEXAS STEEL FACILITIES, INC., that they signed the
foregoing document as Chairman of the Board, Chief Executive Officer and
President and as Secretary of the Corporation, and that the statements therein
contained are true.
------------------------------
Notary Public, State of Texas
My commission Expires: June 11, 1990
<PAGE>
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
PROJECT RESOURCES COMPANY
INTO
EAST TEXAS STEEL FACILITIES, INC.
EAST TEXAS STEEL FACILITIES, INC., a Delaware corporation (the
"Corporation"), does hereby certify:
FIRST: That the Corporation is incorporated pursuant to the
Delaware General Corporation Law.
SECOND: That the Corporation owns all of the outstanding shares of
each class of capital stock of Project Resources Company, a Delaware
corporation.
THIRD: That the Corporation, by the resolutions of its Board of
Directors annexed hereto as Exhibit A, duly adopted as of February 23, 1989,
determined to merge Project Resources Company with and into the Corporation on
the terms and conditions set forth in such resolutions.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed by William J. Magnuson, its Group Vice President, and Ellis A. Brock, its
Secretary, on this the 23rd day of February, 1989.
EAST TEXAS STEEL FACILITIES, INC.
By: /s/ William J. Magnuson
-------------------------------------
William J. Magnuson,
Group Vice President
ATTEST:
By: /s/ Ellis A. Brock
-------------------------------------
Ellis A. Brock
Secretary
<PAGE>
THE STATE OF TEXAS )
COUNTY OF DALLAS )
The foregoing instrument was acknowledged before me this 23rd day of
February, 1989 by William J. Magnuson and Ellis A. Brock, Group Vice President
and Secretary, respectively, of EAST TEXAS STEEL FACILITIES, INC., a Delaware
corporation, on behalf of such Corporation.
/s/ G. Janelle Howard
-------------------------------------------
G. Janelle Howard
Notary Public in and for the State of Texas
My commission Expires: June 11, 1990
<PAGE>
EXHIBIT A
WHEREAS, the Corporation is the owner and holder of all of the issued
and outstanding shares of each class of the capital stock of Project Resources
Company, a Delaware corporation (the "Subsidiary"); and
WHEREAS, the Board of Directors of the Corporation in its best business
judgment deems it advisable and in the best interests of the Corporation and its
sole stockholder that the Subsidiary be merged with and into the Corporation in
accordance with Section 253 of the General Corporation Law of the State of
Delaware;
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors of the
Corporation hereby authorizes the Corporation to merge the Subsidiary with and
into the Corporation in accordance with and pursuant to Section 253 of the
General Corporation Law of the State of Delaware, and to assume all of the
Subsidiary's liabilities and obligations.
RESOLVED FURTHER, that the Board of Directors of the Corporation hereby
authorizes the President or a Vice President and the Secretary or an Assistant
Secretary of the Corporation to execute and acknowledge a Certificate of
Ownership and Merger setting forth a copy of these resolutions and the date of
the adoption hereof, and to file, or cause to be filed, such Certificate of
Ownership and Merger in the office of the Secretary of State of the State of
Delaware and a certified copy thereof in the Office of the Recorder of Deeds of
New Castle County.
RESOLVED FURTHER, that upon the filing of the Certificate of Ownership
and Merger in the manner provided above the separate existence of the Subsidiary
will cease, and the Corporation, as the surviving corporation, will succeed to
all the rights, privileges, immunities, franchises and property of the
Subsidiary, and assume all the liabilities, duties and obligations of the
Subsidiary.
RESOLVED FURTHER, that the Certificate of Incorporation, as amended,
and the By-laws of the Corporation shall remain unchanged by the merger of the
Subsidiary into the Corporation.
RESOLVED FURTHER, that the proper officers of the Corporation are
hereby authorized and directed to take or cause to be taken all such further
action and to sign, execute, acknowledge, certify, deliver, accept, record and
file all such further instruments in their name and on behalf of the Corporation
as in their judgment shall be necessary, desirable or advisable in order to
carry out the intent, and to accomplish the purposes, of the foregoing
resolutions.
<PAGE>
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
EAST TEXAS STEEL FACILITIES, INC.
Pursuant to provisions of Section 242 of the Delaware General
Corporation Act, the undersigned corporation adopts the following Certificate of
Amendment to its Certificate of Incorporation:
ARTICLE ONE
The name of the corporation is LONE STAR STEEL COMPANY.
ARTICLE TWO
Article First of the Certificate of Incorporation, as amended, is
hereby further amended to read as follows:
"The name of the corporation is
LONE STAR STEEL COMPANY."
ARTICLE THREE
The holder of all of the shares outstanding and entitled to vote on
said amendment has signed a consent in writing adopting said amendment.
The number of shares of the corporation outstanding at the time of such
adoption was 1,000, and the number of shares entitled to vote thereon was 1,000.
<PAGE>
DATED: August 10, 1989
EAST TEXAS STEEL FACILITIES, INC.
By: /s/ Lawrence W. Hicks
------------------------------------
Lawrence W. Hicks
President and
Chief Executive Officer
ATTEST:
By: /s/ Ellis A. Brock
-------------------------------------
Ellis A. Brock
Secretary
2
<PAGE>
THE STATE OF TEXAS )
COUNTY OF DALLAS )
I, Nancy M. Scott, a Notary Public, do hereby certify that on this the
10th day of August, 1989, personally appeared before me Lawrence W. Hicks and
Ellis A. Brock, who being by me first duly sworn, declared that they are the
President and Chief Executive Officer and Secretary, respectively, of EAST TEXAS
STEEL FACILITIES, INC., that they signed the foregoing document as President and
Chief Executive Officer and as Secretary of the Corporation, and that statements
therein contained are true.
/s/ Nancy M. Scott
----------------------------------
Notary Public, State of Texas
My commission Expires: May 31, 1992
<PAGE>
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
TEXAS & NORTHERN INDUSTRIES, INC.
LSSCO TRADING COMPANY, INC.
LSSCO, INC.
AND
TUBULAR INNOVATIONS, INC.
WITH AND INTO
LONE STAR STEEL COMPANY
LONE STAR STEEL COMPANY, a Delaware corporation (the "Company"), does
hereby certify:
FIRST: That the Company is incorporated pursuant to the General
Corporation Law of the State of Delaware.
SECOND: That the Corporation owns all of the outstanding shares of
each class of capital stock of the following corporations:
TEXAS & NORTHERN INDUSTRIES, INC. and LSSCO TRADING COMPANY,
INC., each of which is a corporation organized and existing
under the statutes of the State of Texas; LSSCO, INC., a
corporation organized and existing under the statutes of the
State of Illinois; and TUBULAR INNOVATIONS, INC., a
corporation organized and existing under the statutes of the
State of Delaware (hereinafter the "SUBSIDIARIES").
THIRD: That the Company, by resolutions of its Board of Directors
duly adopted by unanimous written consent as of April 10,
19__ (a copy of which is annexed hereto as Exhibit A),
determine to merge the SUBSIDIARIES with and into the Company
on terms and conditions set forth in said resolutions.
IN WITNESS WHEREOF, the Company has caused this Certificate of
Ownership and Merger to be executed by its President and attested by its
Secretary on the 10th day of April 1991.
<PAGE>
LONE STAR STEEL COMPANY
By: /s/ Rhys J. Best
-------------------------------
Rhys J. Best, President
ATTEST:
By: /s/ James T. Dougherty
-------------------------------------
James T. Dougherty,
Secretary
<PAGE>
PLAN OF MERGER
MERGING
TUBULAR INNOVATIONS, INC.
LSSCO, INC.
LSSCO TRADING COMPANY, INC.
TEXAS & NORTHERN INDUSTRIES, INC.
WITH AND INTO
LONE STAR STEEL COMPANY
FIRST: LONE STAR STEEL COMPANY, a corporation organized and existing
under the laws of the state of Delaware, (the "Company");
TUBULAR INNOVATIONS, INC., a corporation organized and
existing under the laws of the State of Delaware; LSSCO,
INC., a corporation organized and existing under the laws of
the State of Illinois; and LSSCO TRADING COMPANY, INC., and
TEXAS & NORTHERN INDUSTRIES, INC., corporations organized and
existing under the laws of the State of Texas (the
"Subsidiaries") are parties to this Plan of Merger (the
"Plan").
SECOND: The effective date of the merger (the "Effective Date") shall
be the earliest date permitted under the applicable statutes
of the states of domicile of the respective corporations
which are parties to the Plan and shall be the date upon
which all actions required to be taken by such laws to effect
the merger have been completed.
THIRD: On the Effective Date each of the Subsidiaries shall be
merged with and into the Company, and all of the issued and
outstanding shares of the Subsidiaries' stock, which is
presently wholly owned by the Company, shall be canceled.
FOURTH: On the Effective Date the Company shall assume all
liabilities, duties and obligations of each of the
Subsidiaries and shall succeed to all the rights, privileges,
immunities, franchises, real estate and other property of each
of the Subsidiaries.
FIFTH: The Company shall be the sole surviving corporation of the
merger, retaining the name, LONE STAR STEEL COMPANY; no new
corporation or other entity shall be created by the terms of
the Plan.
SIXTH: On and after the Effective Date and until thereafter
amended in accordance with the Delaware General
Corporation Law, the Certificate of LONE STAR STEEL
COMPANY as in effect immediately prior to the Effective
Date shall be and continue to be the Certificate of
Incorporation of the surviving corporation. The By-Laws of
LONE STAR STEEL COMPANY, as existing immediately prior to
the Effective Date, will continue in full force and effect
as the By-Laws of the surviving corporation, until such
By-Laws are thereafter modified, amended or repealed in
accordance with the laws of the State of Delaware and the
applicable provisions of such By-Laws.
EXHIBIT "A"
<PAGE>
FURTHER RESOLVED, that the Certificate of Incorporation and the Bylaws
of the Company shall remain unchanged by the merger of the Subsidiaries into the
Company.
FURTHER RESOLVED, that the proper officers of the Company are hereby
authorized and directed to take or cause to be taken all such further action and
to sign, execute, acknowledge, certify, deliver, accept, record and file all
such further instruments, in the name and on behalf of the Company, as in their
judgment shall be necessary, desirable or advisable in order to carry out the
intent and to accomplish the purposes of the foregoing resolutions.
Dated as of April 10, 1991.
/s/ John P. Harbin /s/ Rhys J. Best /s/ David E. Blackwell
-------------------------- ------------------------ ----------------------
John P. Harbin Rhys J. Best David E. Blackwell
/s/ James E. Chenault, Jr. /s/ R.W. Arp /s/ W. Byron Dunn
-------------------------- ------------------------ ----------------------
James E. Chenault, Jr. R.W. Arp W. Byron Dunn
/s/ William J. Magnuson
------------------------
William J. Magnuson
<PAGE>
CERTIFICATE OF AMENDMENT
TO THE CERTIFICATE OF INCORPORATION OF
LONE STAR STEEL COMPANY
In accordance with provisions of Section 303 of the Delaware General
Corporation Act, the undersigned, LONE STAR STEEL COMPANY, a corporation
organized and existing under the statutes of the State of Delaware (the
"Corporation"), adopts the following Certificate of Amendment to its
Certificate of Incorporation and hereby certifies that provision for this
Certificate of Amendment is contained in the Amended Order Confirming Seventh
Amended Plan of Reorganization Per Oral Motion of Debtor Pursuant to Federal
Rule 59(e) executed by the Honorable Harold C. Abramson, United States
Bankruptcy Judge, pursuant to Chapter 11 of the United States Bankruptcy
Code, and entered April 12, 1991 in the United States Bankruptcy Court,
Northern District of Texas, Dallas, Texas.
ARTICLE ONE
Article Fourth of the Corporation's Certificate of Incorporation is
hereby amended to read in its entirety as follows:
"The total number of shares of all classes of capital stock
which the Corporation shall have the authority to issue is
30,000,000 shares of Common Stock, $0.10 par value. All
classes of capital stock issued shall be voting stock.
Dated: April 16, 1991
LONE STAR STEEL COMPANY
By: /s/ Rhys J. Best
--------------------------------------
Rhys J. Best,
President
ATTEST:
By: /s/ James T. Dougherty
-----------------------------------
James T. Dougherty, Seceretary
<PAGE>
STATE OF TEXAS )
)
COUNTY OF DALLAS )
Before me, the undersigned, a Notary Public, on this day personally
appeared Rhys J. Best and James T. Dougherty known to me to be the persons
and officers whose names are subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said LONE STAR STEEL
COMPANY, a Delaware corporation, and that each of them has executed the same
as the act of such corporation for the purposes and consideration therein
expressed, and in the capacity therein stated.
Given under my hand and seal of office this 16th day of April, 1991.
-----------------------------------------
Notary Public, State of Texas
-----------------------------------------
Printed Name of Notary Public
My commission expires the 31st day of August, 1991.
<PAGE>
CERTIFICATE OF AMENDMENT
TO THE CERTIFICATE OF INCORPORATION OF
LONE STAR STEEL COMPANY
Pursuant to provisions of Section 242 of the Delaware General
Corporation Act, the undersigned, LONE STAR STEEL COMPANY, a corporation
organized and existing under the statutes of the State of Delaware (the
"Corporation"), adopts the following Certificate of Amendment to its
Certificate of Incorporation:
ARTICLE ONE
Article Fourth of the Certificate of Incorporation is hereby amended
to read in its entirety as follows:
"The total number of shares of all classes of capital stock
which the Corporation shall have the authority to issue is
3,000 shares of Common Stock, $1.00 par value. All classes of
capital stock issued shall be voting stock."
ARTICLE TWO
The holders of all of the outstanding shares of stock entitled to
vote on said amendment have been given the opportunity to do so, and a
majority of the outstanding stock entitled to vote thereon has voted to adopt
said amendment.
The number of shares outstanding at the time of such adoption was
10,000,000; the number of shares entitled to vote thereon was 10,000,000.
Dated: January 10, 1992
LONE STAR STEEL COMPANY
By: /s/ Rhys J. Best
--------------------------------------
Rhys J. Best,
President
ATTEST:
By: /s/ James T. Dougherty
------------------------------------
James T. Dougherty, Secretary
<PAGE>
STATE OF TEXAS )
)
COUNTY OF DALLAS )
Before me, the undersigned, a Notary Public, on this day personally
appeared Rhys J. Best and James T. Dougherty known to me to be the persons
and officers whose names are subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said LONE STAR STEEL
COMPANY, a Delaware corporation, and that each of them has executed the same
as the act of such corporation for the purposes and consideration therein
expressed, and in the capacity therein stated.
Given under my hand and seal of office this 10th day of January,
1992.
-----------------------------------------
Notary Public, State of Texas
-----------------------------------------
Printed Name of Notary Public
My commission expires the 31st day of August, 1992.
<PAGE>
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
LONE STAR STEEL COMPANY
Pursuant to the provisions of Section 242 of the Delaware General
Corporation Law, the undersigned, LONE STAR STEEL COMPANY, a corporation
organized and existing under the statutes of the State of Delaware (the
"Corporation"), adopts the following Certificate of Amendment to its Certificate
of Incorporation:
ARTICLE ONE
Article Fourth of the Certificate of Incorporation is hereby amended to
read in its entirety as follows:
FOURTH: The aggregate number of shares of capital stock which the
Corporation shall have authority to issue is 20,000, consisting of 15,000 shares
of common stock, with a par value of $1.00 per share ("Common Stock"), and five
thousand (5,000) shares of preferred stock with a par value of $1.00 per share
("Preferred Stock").
A. Common Stock.
At any meeting of stockholders of the Corporation each holder of Common
Stock shall be entitled to one vote for each share of Common Stock held by such
holder.
B. Preferred Stock.
1. Shares of Preferred Stock may be issued from time to time
in one or more series, the shares of each series to have such designations,
powers, preferences, rights, qualifications, limitations, and restrictions as
are stated and expressed herein and in the resolution or resolutions providing
for the issuance of such series adopted by the Board of Directors as hereinafter
provided. Unless otherwise provided by any resolution or resolutions adopted by
the Board of Directors providing for the issuance of Preferred Stock, Preferred
Stock shall be nonparticipating and dividends on Preferred Stock shall be
cumulative from date of issue and shall not bear interest.
2. Authority is hereby expressly granted to the Board of
Directors to authorize the issuance of Preferred Stock from time to time in
one or more series, and with respect to each series of Preferred Stock, to fix
and determine by the resolution or resolutions from time to time adopted
providing for the issuance thereof, the number of shares to constitute the
series, the designation thereof and any powers, preferences, rights,
qualifications, limitations and restrictions not prohibited by law, including,
but not limited to, one or more of the following rights and preferences: (A)
the rate of dividend, (B) the price at and the terms and conditions on which
shares may be redeemed, (C) the amount payable upon shares in the event of
involuntary liquidation, (D) the amount payable upon shares in the event of
voluntary liquidation, (E) sinking fund provisions (if any) for the redemption
or purchase of shares, (F) the terms and conditions on
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which shares may be converted if the shares of any series are issued with the
privilege of conversion, and (G) voting rights (including the number of votes
per share, the matters on which the shares can vote and the contingencies, if
any, which make the voting rights effective). The shares of each series of
Preferred Stock may vary from the shares of any other series thereof in any
or all of the foregoing respects. The Board of Directors may increase the
number of shares designated for any existing series by adding to such series
authorized and unissued shares not designated for any other series. The Board
of Directors may decrease the number of shares designated for any existing
series by subtracting from such series unissued shares designated for such
series and the shares so subtracted shall become authorized and unissued
shares of Preferred Stock.
3. All or any part of any series of Preferred Stock may be
redeemed at any time or times at the option of the Corporation by resolution
of the Board of Directors, in accordance with the terms and conditions fixed
by the Board of Directors in the resolution or resolutions providing for the
issuance of such series. The Corporation may redeem shares of any one or more
series of Preferred Stock without redeeming shares of any other series.
ARTICLE TWO
The holders of all of the outstanding shares of stock entitled to give
written consent to said amendment without a stockholders meeting have been given
the opportunity to do so, and a majority of the outstanding stock entitled to
consent thereto has given written consent to the adoption of said amendment, and
written notice that such consent, which was not unanimous, has been given to the
stockholder that did not consent in writing.
The number of shares outstanding at the time of such adoption was one
thousand (1,000); the number of shares entitled to vote or consent thereon was
one thousand (1,000).
November 9, 1994.
LONE STAR STEEL COMPANY
By: /s/ Rhys J. Best
-----------------------------
Rhys J. Best, President
ATTEST:
By: /s/ James T. Dougherty
-----------------------------
James T. Dougherty,
Secretary
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CERTIFICATE OF THE POWERS, DESIGNATIONS, PREFERENCES, AND RELATIVE,
PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS, AND THE QUALIFICATIONS,
LIMITATIONS OR RESTRICTIONS THEREOF, WHICH HAVE NOT BEEN SET FORTH IN THE
CERTIFICATE OF INCORPORATION OR IN ANY AMENDMENT THERETO, OF THE
PREFERRED STOCK, SERIES A
(PAR VALUE $1.00 PER SHARE)
LONE STAR STEEL COMPANY
-------------------------------------------------
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 on October 7, 1994, by the Board of Directors of Lone Star Steel
Company (the "Board of Directors"), a Delaware corporation (hereinafter called
the "Corporation"), to become effective upon the next business day following the
date the amendment to its Certificate of Incorporation as set forth in the
attached form of Certificate of Amendment (attachment 1 hereto) becomes
effective, pursuant to authority conferred upon the Board of Directors by the
provisions of the Certificate of Incorporation, as amended (the "Certificate of
Incorporation"), of the Corporation:
RESOLVED, that pursuant to the authority vested in the Board of
Directors by Article Fourth of the Certificate of Incorporation, a series of
preferred stock of the Corporation be, and hereby is, created out of the
authorized but unissued shares of the preferred stock of the Corporation, such
series to be designated Preferred Stock, Series A (the "preferred stock"), to
consist of three hundred seventy-five (375) shares, par value $1.00 per share,
of which the preferences and relative and other rights, and the qualifications,
limitations or restrictions thereof, shall be (in addition to those set forth in
the Certificate of Incorporation) as follows:
1. AMOUNT OF ISSUANCE. To the extent the common stockholders of the
Corporation identified below, who have expressed their willingness to assist
in the financing of the acquisition and as necessary the installation of
certain equipment and production facilities for the Corporation (the "First
Capital Project"), advance funds towards that project, those common
stockholder, to wit: Lone Star Technologies, Inc. ("LST"), and TCW Special
Credits Fund, TCW Special Credits Fund II, TCW Special Credits Fund IIb,
Weyerhaeuser Company Master Pension Trust, and Inland Steel Industries
Pension Trust (the "TCW Holders"), will receive, each time that funds are
advanced to the Corporation for the First Capital Project, and the
Corporation will issue, each such time, in total to LST and the TCW Holders
on the date each advance is made, that number of shares (and/or fractions of
shares) of preferred stock as equal the number derived, when the total
advance is divided by One Hundred Thousand and No/100 Dollars ($100,000.00),
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such that, for each One Hundred Thousand and No/100 Dollars ($100,000.00)
advanced, one (1) whole share will be issued. OF the total shares of the
preferred stock to be issued each time shares are to be issued as provided
above, 90.84% of the total shares to be issued will be issued to LST and
9.16% of the total shares to be issued will be issued to the TCW Holders. The
total shares issuable to the TCW Holders, each time shares are to be issued
to them, shall be issued individually among them as the TCW Holders shall
direct. The "Dollar Value" of the shares of preferred stock shall be One
Hundred Thousand and No/100 Dollars ($100,000.00) per share, and as
proportionately adjusted downward shall be the "Dollar Value" of fractional
shares. Each share of preferred stock shall have a par value of One and
No/100 Dollar ($1.00) per whole share, and the entire series of preferred
stock shall consist of three hundred seventy-five (375) authorized shares.
Fractional shares may be issued. The foregoing provisions of this paragraph
will inure to the benefit of the respective successors to LST and each of the
TCW Holders so that such successors upon advances of funds being made for the
First Capital Project will be entitled to receive the preferred stock which
the party they succeeded otherwise would have been entitled to receive under
the foregoing provisions. Unless the context indicates otherwise, herein the
references to "preferred stock" refer to this Preferred Stock, Series A, and
not to any other preferred stock.
2. ISSUANCE DATE. The preferred stock will be issued in the number of
shares (or fractions of shares) to LST and the TCW Holders as provided above,
as and when each advance is made by any of them to fund the First Capital
Project. While the shares of the preferred stock will be issued by the
Corporation when the advances are made, certificates for the shares of such
preferred stock will be delivered to the shareholders entitled thereto for
the preceding calendar quarter based upon the advances to fund the First
Capital Project made during that quarter each January 1, April 1, July 1, and
October 1 after September 30, 1994. In addition, shares of the preferred
stock may be issued in payment of dividends as provided under paragraph 3
below, and the shares of preferred stock to be issued as dividends will be
issued, in each case, when the dividend that the stock is to pay, is, pursuant
to action of the Board of Directors, to be paid, and the share certificates
for such stock will be furnished at the same time by the Corporation to the
holders entitled thereto.
3. DIVIDENDS.
(a) The holders of preferred stock will be entitled to a cumulative
dividend at the rate of six percent (6%) per annum on the
Dollar Value of the shares of preferred stock issued and
outstanding accruing from the date of issuance. No dividends of
any kind or other distributions are permitted to be paid or
made on Corporation's common stock at any time while any
preferred stock is outstanding.
(b) As to any share of preferred stock, commencing on the January
1, April 1, July 1, or October 1 first to occur after such
stock is issued, and for each succeeding quarterly period
ending immediately prior to each succeeding January 1, April 1,
July 1, and October 1, the holder of such stock shall be
entitled to receive, when and as declared as hereinafter
provided, out of funds legally available for that purpose,
cash dividends of one and one-half percent (1.5%) of the Dollar
Value of each share or fractional share held (prorated for the
first such dividend period at the rate of one and one-half
percent (1.5%) per quarter accruing from the actual
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issue date to the end of that dividend period), and no more.
All dividends shall be payable in arrears, when and as declared
by the Board of Directors. Each such dividend shall be paid to
the holders of record of the preferred stock as their names
appear on the share register of the Corporation on the date set
as the record date for such dividend. Dividends on account of
arrears for any past dividend periods may be declared and paid
at any time without reference to any dividend payment date, to
holders of record on a date, not exceeding thirty (30) calendar
days preceding the payment date thereof, as may be fixed by the
Board of Directors.
(c) To the extent, on any dividend payment date, the holders of the
preferred stock shall not have received the full dividends for
all periods ended up to that date provided for in the other
provisions of this paragraph 3, then such dividends shall
cumulate, whether or not declared and irrespective of whether
such dividends could have been paid for such periods under
applicable law. It is understood that no dividends may be paid
in respect of the preferred stock prior to January 1, 1995
(although dividends will accrue on the preferred stock
outstanding prior to that date).
(d) If at any time the Corporation pays less than the total amount
of dividends then accrued and payable with respect to the
preferred stock, such payment shall be distributed ratably
among the holders of the preferred stock. Any payment made by
the Corporation on the unpaid cumulative dividends, if less
than the total amount of such dividends, shall be applied first
to those dividends that have been accrued for the longest time.
(e) The Corporation may at any time to the extent it so elects,
declare that dividends on the preferred stock which have
accrued will be payable in shares of preferred stock of a
Dollar Value equal to the dividends to be paid with such stock.
Any holder of preferred stock on which a cash dividend has been
declared and before it is paid may elect to similarly have the
Corporation pay any such dividend to the holder, to the extent
the holder elects, in preferred stock of the Dollar Value equal
to the dividend the holder has elected to be so paid.
4. REDEMPTION.
(a) The Corporation may, provided the Board of Directors has
adopted a resolution approving such action, redeem the
preferred stock, in whole or in part, in cash, at any time by
paying the holder or holders of the shares to be redeemed (i)
the Dollar Value of such stock and (ii) all accrued and unpaid
dividends through the date of redemption on the shares to be
redeemed (including a pro rated dividend based on the number
of days elapsed from the last day of the most recent completed
quarterly dividend period through the redemption date). Each
holder of stock redeemed shall be entitled to payment of that
part of the total amount described above for all the redeemed
stock as is attributable to his redeemed stock. If the Board of
Directors has authorized a redemption which, when authorized,
was of less than all of the outstanding shares of the preferred
stock,
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and because of subsequent conversions of the preferred stock
since then, amounts to more than the actual outstanding shares
on the Redemption Date or, if applicable, the Final Redemption
Date, the Board of Directors' authorization shall be deemed
amended to the number of such outstanding shares on the
Redemption Date of, if applicable, the Final Redemption date
which shall be the number authorized for redemption. Any
redemption of the preferred stock outstanding shall be
accomplished by redeeming from each holder of record all or
a fraction of each holder's shares, the numerator of which is
the total number of shares to be redeemed as authorized by the
Board of Directors or as deemed amended as provided above, and
the denominator of which is the total number of shares of
preferred stock outstanding on the Redemption Date or, if
applicable, the Final Redemption Date.
(b) On January 3, 2002, the Corporation shall be obligated to
redeem the preferred stock outstanding as a mandatory
redemption in whole for cash. The redemption price shall be
equal to the Dollar Value of the shares redeemed together
with any accrued but unpaid dividends on such shares to and
including the date of redemption, as specified in clauses (i)
and (ii) of paragraph 4(a). If less than all of the outstanding
shares of the preferred stock can be redeemed under applicable
law, such shares shall be redeemed pro rata or by lot as
determined by the Board of Directors in its sole discretion to
the maximum extent permitted by applicable law, and the
remaining shares shall be redeemed as and when they can be
redeemed under law.
(c) Notice of every proposed redemption of the preferred stock
shall be sent by or on behalf of the Corporation, by first
class mail, postage prepaid, to the holders of record of the
shares to be redeemed at their respective addresses as they
shall appear on the records of the Corporation, not less than
thirty (30) days nor more than sixty (60) days prior to the
date fixed for redemption (the "Redemption Date") (i) notifying
such holders of the election of the Corporation to redeem such
shares and of the Redemption Date and (ii) stating the place or
places at which the shares called for redemption shall, upon
presentation and surrender of the certificates evidencing such
shares, be redeemed, and the redemption price therefor, and
(iii) stating the name and address of any redemption agent
selected by the Corporation if other than the Corporation, and
the name and address of the Corporation's transfer agent for
the preferred stock. The Corporation may act as the transfer
agent for the preferred stock.
(d) The Corporation may act as the redemption agent to redeem the
preferred stock or appoint as its agent for such purpose a bank
or trust company in good standing, organized under the law of
the United States of America or any jurisdiction thereof, and
having capital, surplus and undivided profits aggregating at
least Twenty Million and No/100 Dollar ($20,000,000.00), and
may appoint any one or more additional such agents which shall
in each case be a bank or trust company in good standing
organized under the laws of the United States of America or of
any jurisdiction thereof, having an office or offices in the
City of Dallas, Texas, or such other place as shall have been
designated by the Corporation, and having
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capital, surplus, and undivided profits aggregating at least
Twenty Million and No/100 Dollars ($20,000,000.00). The
Corporation or such bank or trust company is hereinafter
referred to as the "Redemption Agent." Following such
appointment and prior to any redemption, the Corporation shall
deliver to the Redemption Agent irrevocable written
instructions authorizing the Redemption Agent, on behalf and
at the expense of the Corporation, to cause such notice of
redemption to be duly mailed as herein provided as soon as
practicable after receipt of such irrevocable instructions and
in accordance with the above provisions. All funds necessary
for the redemption shall be deposited with the Redemption Agent
in trust at least one (1) business day prior to the Redemption
Date, for the pro rata benefit of the holders of the shares so
called for redemption, so as to be and continue to be available
therefor. Neither failure to mail any such notice to one (1) or
more such holders nor any defect in any notice shall affect the
sufficiency of the proceedings for redemption as to other
holders.
(e) If notice of redemption shall have been given as hereinbefore
provided, and the Corporation shall not default in the payment
of the redemption price, then each holder of shares called for
redemption shall be entitled to all preferences and relative
and other rights accorded by this resolution until and
including the day immediately prior to the Redemption Date. If
the Corporation shall default in making payment or delivery as
aforesaid on the Redemption Date, then each holder of the
shares called for redemption shall be entitled to all
preferences and relative and other rights accorded by this
resolution until and including the day immediately prior to the
date (the "Final Redemption Date") when the Corporation makes
payment as aforesaid to the holders of the preferred stock.
From and after the Redemption Date or, if the Corporation shall
default in making payment or delivery as aforesaid, the Final
Redemption Date, the shares called for redemption shall no
longer be deemed to be outstanding, and all rights of the
holders of such shares shall cease and terminate, except the
right of the holders of such shares, upon surrender of
certificates therefor, to receive amounts to be paid hereunder.
The deposit of monies in trust with the Redemption Agent shall
be irrevocable except that the Corporation shall be entitled
to receive from the Redemption Agent the interest of other
earnings, if any, earned on any monies so deposited in trust,
and the holders of any shares redeemed shall have no claim
to such interest or other earnings, and any balance of monies
so deposited by the Corporation and unclaimed by the holders
of the preferred stock entitled thereto at the expiration of
two (2) years from the Redemption Date (or the Final Redemption
Date, as applicable) shall be repaid, together with any
interest or other earnings thereon, to the Corporation, and
after any such repayment, the holders of the shares entitled
to the funds so repaid to the corporation shall look only to
the Corporation for such payment, without interest.
5. VOTING RIGHTS. The preferred stock issued and outstanding will possess
voting rights only to the extent required by law and as provided herein. If and
to the extent the preferred stock may be entitled to vote on any matter, each
whole share of the preferred stock voting shall be counted as one (1) vote and
the fractional shares voting will be counted as fractional votes, in each case
the fractional vote will be the same as the fraction of a share that is voting,
except that
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in any case when the preferred stock is voting on any matter with the common
stock, each share or fractional share of the preferred stock voting will be
counted as having the same vote as the shares of common stock into which that
preferred stock could be converted at the time of voting.
6. LIQUIDATION PREFERENCE AND MERGER.
(a) In the event of the voluntary or involuntary liquidation,
dissolution, or other winding up of the affairs of the
Corporation, prior to any payment or distribution to the
holders of the Corporation's common stock or with respect
to any other stock which is not to receive assets of the
Corporation before receipt by the holders of the preferred
stock of the full amount they are to receive as provided in
this subparagraph the holders of the preferred stock shall
be entitled to receive for the preferred stock an amount
equal to (with each holder entitled to that part of such
amount as is attributable to his shares) (i) the Dollar Value
of the preferred stock outstanding and (ii) all accrued and
unpaid dividends through the date of liquidation, dissolution
or other winding up of the affairs of the Corporation
(including a pro rated dividend based on the number of days
elapsed from the last day of the most recent completed
quarterly dividend period through the date of liquidation,
dissolution or winding up of the affairs of the Corporation).
(b) The amount payable pursuant to paragraph 6(a) shall be paid
in cash to the extent available to the Corporation and to the
extent not so in property taken at its fair value as
determined by the Board of Directors. If such payment shall
have been made in full to the holders of the preferred stock,
the remaining assets and funds of the Corporation shall be
distributed among the holders of common or other stock
remaining outstanding of the Corporation according to their
respective shares and priorities.
(c) In the event of the liquidation, dissolution, or winding up
of the affairs of the Corporation as described in paragraph
6(a), the holders of the preferred stock will share in the
assets, funds, and property of the Corporation on a parity
with or junior to, as the case may be, any other stock of the
Corporation which is to share on a parity with or prior to the
preferred stock under such circumstances in accordance with the
provisions of the Certificate of Incorporation or Certificate
of Designation related to that other stock.
(d) The Corporation will not, without first obtaining the
affirmative vote or written consent of the holders of not less
than 92% of the shares of preferred stock outstanding at the
time, consolidate or merge with another corporation or
corporations (other than any mergers or consolidations of the
Corporation with any of its subsidiaries, whether owned
directly or indirectly by the Corporation, which mergers and
consolidations this paragraph 6(d) will not apply to) or sell,
lease, transfer or otherwise dispose of, in one transaction
or a series of related transactions, all or substantially all
of its assets without first paying the holders of the preferred
stock outstanding the same amount through the date of the
merger, consolidation, sale, lease, transfer, or other
disposition as is provided in clauses (i)
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and (ii) of paragraph 6(a) through the date of liquidation,
dissolution, or winding up and in accordance with paragraph
6(b).
7. CONVERSION.
(a) Each whole share of preferred stock will be convertible at
any time after issuance by the holder into 10 shares of
common stock of the Corporation, or as such number is adjusted
pursuant to the following provisions, such number as stated
above and as it may be adjusted to be ratably reduced downward
for fractional shares outstanding of the preferred stock. The
number of shares of common stock into which the preferred stock
is convertible is based on a conversion price of $10,000 per
share of common stock. Such price shall be ratably adjusted to
reflect any change in the number of shares of common stock into
which the preferred stock is convertible pursuant to the
provisions of paragraph 7(b). In addition, if after the date
hereof the Corporation shall, at any time while the preferred
stock remains outstanding, otherwise than as a result of any of
the events as described in paragraph 7(b) issue any (i) shares
of common stock, or (ii) securities that are convertible into
or exchangeable for common stock, or (iii) options, warrants or
other rights to acquire common stock, in any case described
under clause (i), (ii), or (iii), at a price of less than
$10,000 per share of common stock or, after such price has been
adjusted from $10,000 per share pursuant to the foregoing
provisions or the following provisions of this paragraph 7(a),
at a price less than the amount to which such $10,000 may
previously have been appropriately adjusted pursuant to the
foregoing provisions or the following provisions of this
paragraph 7(a), then each whole share of preferred stock will
be convertible at any time thereafter by the holder into the
number of shares of common stock of the Corporation based upon
a new conversion price equal to the lowest issuance,
conversion, exchange, or exercise price, as the case may be,
for the common stock pursuant to clause (i), (ii), or (iii)
above, adjusting such price appropriately for any events
described in paragraph 7(b). Fractional shares of preferred
stock may be converted on a ratable basis at such new adjusted
conversion price. Each holder may convert his preferred stock
in whole or in such part (including fractional shares) as he
chooses when he converts the stock.
(b) If at any time after September 30, 1994 and prior to the
conversion of the preferred stock the Corporation shall have
effected a common stock split or the outstanding common stock
of the Corporation shall have been subdivided or combined into
a greater or lesser number of shares or shares of its common
stock shall have been distributed as a dividend on any class
of its stock, and after giving effect to any prior adjustments
under paragraph 7(a) and this paragraph 7(b), the number of
shares of common stock into which each share of preferred
stock can be converted shall be increased or decreased to
reflect proportionately the increase or decrease in the number
of shares of common stock outstanding.
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(c) Upon the occurrence of any event which requires any of the
adjustments provided for above, then and in each such case the
Corporation shall give notice thereof to the holders of the
preferred stock, which notice shall state the increase or
decrease, if any, in the number of shares of common stock
into which the preferred stock shall be convertible, setting
forth in reasonable detail the method of calculation and the
facts upon which such calculation is based.
(d) In case after September 30, 1994, at any time:
(i) the Corporation shall offer for subscription pro
rata to the holders of the common stock any additional shares
of stock of any class or other rights;
(ii) there shall be any capital reorganization of the
Corporation, or reclassification of the common stock, or
consolidation or merger of the Corporation with or into
(other than with a wholly owned subsidiary), or sale of all
or substantially all of its assets to, another corporation or
entity; or
(iii) there shall be a voluntary or involuntary
dissolution, liquidation, or winding-up of the Corporation;
then, in each such case, the Corporation shall give to the
holders the preferred stock (a) notice of the date on which
the books of the Corporation shall close or a record shall
be taken for determining the holders of common stock
entitled to receive any such subscription rights or for
determining the holders of common stock entitled to vote in
respect of any such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation, or
winding-up and (b) in the case of any such reorganization,
reclassification, consolidation, merger, sale, dissolution,
liquidation or winding-up, notice of the date (or, if not
then known, a reasonable approximation thereof by the
Corporation) when the same shall take place. Such notice
shall also specify the date on which the holders of common
stock shall be entitled to receive such subscription rights
or to exchange their common stock for stock or other
securities or property deliverable upon such reorganization,
reclassification, consolidation, merger, sale, dissolution,
liquidation, or winding-up, as the case may be. Such notice
shall be given at least twenty (20) days prior to the record
date or the date on which the Corporation's books are closed
in respect thereof. Failure to give any such notice or any
defect therein shall not affect the validity of the
proceedings referred to in clause (i), (ii), and (iii) above.
(e) Any accrued and unpaid dividends on the preferred stock being
converted (with the current quarterly dividend for the quarter
during which the conversion occurs being paid in an amount
prorated to the date of conversion) shall either be paid within
five (5) days of the conversion to the converting preferred
stock holder in cash or in an additional number of whole and/or
fractional shares of common stock equal to the number of common
shares that would have been issued had the total amount of
those dividends which were not paid in cash represented an
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equivalent Dollar Value of additional preferred stock converted
along with the preferred stock that was actually converted by
the holder.
(f) The certificate for the shares of the preferred stock being
converted will be surrendered to the Corporation, and if less
than all shares of the preferred stock represented by a
certificate are converted, a certificate for the number of
shares not converted, which shall have a Dollar Value
commensurate with that number of shares, shall be returned to
the holder.
8. RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The Corporation
shall at all times reserve and keep available out of its authorized, but
unissued, shares of common stock, solely for the purpose of effecting the
conversion of the shares of the preferred stock, such number of its shares of
common stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of the preferred stock and to effect the
exercise of all rights, warrants, and options to purchase common stock; and
if at any time the number of authorized, but unissued, shares of common stock
shall not be sufficient to effect the conversion of all then outstanding
shares of the stock, and such other convertible stock or securities and
rights, warrants, and options, the Corporation will take such corporate
action as may, in the opinion of its counsel, be necessary to increase its
authorized but unissued shares of common stock to such number of shares as
shall be sufficient for such purpose.
9. NOTICES. Any notice required by the provisions hereof to be given
to any holders of shares of the preferred stock shall be deemed given upon
the earlier of actual receipt, or seventy-two (72) hours after the same has
been deposited in the United States mail, by certified or registered mail,
return receipt requested, postage prepaid, and addressed to the holder of
record at his address appearing on the books of the Corporation.
10. ISSUANCE TAX. The issuance of certificates for common stock upon
the conversion of preferred stock shall be made without charge to the
converting holder of the preferred stock for any issuance tax in respect
thereof, provided that the Corporation shall not be required to pay any tax
which may be payable in respect of any transfer involved in the issuance and
delivery of any certificate in a name other than the holder of the preferred
stock converted therefor.
11. EXCLUSION OF OTHER RIGHTS. Except as may otherwise be required by
law, the shares of preferred stock shall not have any preferences or
relative, participating, optional or other special rights, other than those
specifically set forth herein and in the Corporation's Certificate of
Incorporation. The shares of preferred stock shall have no preemptive or
subscription rights.
12. AMENDMENT, ETC. In addition to any other rights provided by law,
so long as any preferred stock is outstanding, the Corporation, without first
obtaining the affirmative vote or written consent of the holders of not less
than ninety two percent (92%) of the shares of preferred stock outstanding at
the time, will not:
(a) amend or repeal any provision of, or add any provision to,
the Certificate of Incorporation, the Certificate of
Designations related to the preferred stock, or By-Laws if
such action would materially adversely change the preferences,
rights, privileges or powers of, or the restrictions provided
for the benefit of, the
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preferred stock, or increase or decrease the number of shares
of preferred stock authorized hereby; or
(b). authorize or increase the authorized number of shares of any
series or class of stock, which would be entitled to receive
dividends or other distributions at any time in preference to
the preferred stock before any of the dividends under
paragraph 3 hereof for that period and all past quarterly
dividend periods prior to such time have been paid on the
preferred stock, or would be entitled to receive assets upon
the liquidation, dissolution, or winding up of the affairs of
the Corporation in preference to the preferred stock before any
of the assets the preferred stock is to receive under those
circumstances have been received, except that a merger or
consolidation of the Corporation into another corporation or
corporations pursuant to which the holders of the preferred
stock are to receive stock of the surviving corporation or
corporations with substantially the same preferences, rights,
privileges, powers, and restrictions for the benefit of such
holders as the preferred stock of the Corporation will not be
deemed an event that falls within this subparagraph or
subparagraph (a) immediately above.
13. HEADINGS OF SUBDIVISIONS. The headings of the various paragraphs
hereof are for convenience of reference only and shall not affect the
interpretation of any of the provisions hereof.
14. SEVERABILITY OF PROVISIONS. If any right, preference, or limitation
of the preferred stock set forth herein is invalid, unlawful or incapable of
being enforced by reason or any rule of law or public policy, all other rights,
preferences, and limitations set forth herein which can be given effect without
the invalid, unlawful or unenforceable right, preference or limitation shall,
nevertheless, remain in full force and effect, and no right, preference or
limitation herein set forth shall be deemed dependent upon any other such right,
preference or limitation unless so expressed herein.
15. STATUS OF REACQUIRED SHARES. Share of preferred stock which have been
issued and reacquired by the Corporation in any manner or converted shall be
canceled, and will no longer have the status of authorized shares of preferred
stock or be capable of being issued.
16. SINGULAR, PLURAL, ETC. Herein, unless the context is to the contrary,
references to the singular shall include the plural, to the masculine shall
include the feminine and the neuter, and to shares of stock shall include
fractional shares, and VICE VERSA, and, unless the context is otherwise,
references to the holder of stock shall mean the record holder and references
to the voting or the consent of the holders of such stock shall mean the record
holders of the stock as of the record date set by the Board of Directors for
such vote or consent.
IN WITNESS WHEREOF, Lone Star Steel Company has caused this
Certificate to be duly executed this 9th date of November, 1994.
LONE STAR STEEL COMPANY
By:
------------------------
---------------------------
10
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---------------------------
ATTEST:
------------------------
SECRETARY
11
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ATTACHMENT 1
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
LONE STAR STEEL COMPANY
Pursuant to provisions of Section 242 of the Delaware General
Corporation Law, the undersigned, LONE STAR STEEL COMPANY, a corporation
organized and existing under the statutes of the State of Delaware (the
"Corporation"), adopts the following Certificate of Amendment to its Certificate
of Incorporation:
ARTICLE ONE
Article Fourth of the Certificate of Incorporation is hereby amended to
read in its entirety as follows:
FOURTH: The aggregate number of shares of capital stock which the
Corporation shall have authority to issue is 20,000, consisting of 15,000 shares
of common stock, with a par value of $1.00 per share ("Common Stock"), and five
thousand (5,000) shares of preferred stock with a par value of $1.00 per share
("Preferred Stock").
A. Common Stock.
At any meeting of stockholders of the Corporation each holder of Common
Stock shall be entitled to one vote for each share of Common Stock held by such
holder.
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B. Preferred Stock.
1. Shares of Preferred Stock may be issued from time to time
in one or more series, the shares of each series to have such designations,
powers, preferences, rights, qualifications, limitations, and restrictions as
are stated and expressed herein and in the resolution or resolutions
providing for the issuance of such series adopted by the Board of Directors
as hereinafter provided. Unless otherwise provided by any resolution or
resolutions adopted by the Board of Directors providing for the issuance of
Preferred Stock, Preferred Stock shall be nonparticipating and dividends on
Preferred Stock shall be cumulative from date of issues and shall not bear
interest.
2. Authority is hereby expressly granted to the Board of
Directors to authorize the issuance of Preferred Stock from time to time in
one or more series, and with respect to each series of Preferred Stock, to
fix and determine by the resolution or resolutions from time to time adopted
providing for the issuance thereof, the number of shares to constitute the
series, the designation thereof and any powers, preferences, rights,
qualifications, limitations and restrictions not prohibited by law,
including, but not limited to, one or more of the following rights and
preferences: (A) the rate of dividend, (B) the price at and the terms and
conditions on which shares may be redeemed, (C) the amount payable upon
shares in the event of involuntary liquidation, (D) the amount payable upon
shares in the event of voluntary liquidation, (E) sinking fund provisions (if
any) for the redemption or purchase of shares, (F) the terms and conditions
on which shares may be converted if the shares of any series are issued with
the privilege of conversion, and (G) voting rights (including the number of
votes per share, the matters on which the shares can vote and the
contingencies, if any, which make the voting rights effective). The shares of
each series of Preferred Stock may vary from the shares of any other series
thereof in any or all of the foregoing respects. The Board of Directors may
increase the number of shares designated for any existing series by adding to
such series authorized and unissued shares not designated for any other
series. The Board of Directors may decrease the number of shares designated
for any existing series by subtracting from such series unissued shares
designated for such series and the shares so subtracted shall become
authorized and unissued shares of Preferred Stock.
3. All or any part of any series of Preferred Stock may be
redeemed at any time or times at the option of the Corporation by resolution
of the Board of Directors, in accordance with the terms and conditions fixed
by the Board of Directors in the resolution or resolutions providing for the
issuance of such series. The Corporation may redeem shares of any one of more
series of Preferred Stock without redeeming shares of any other series.
ARTICLE TWO
The holders of all of the outstanding shares of stock entitled to give
written consent to said amendment without a stockholders meeting have been given
the opportunity to do so, and a majority of the outstanding stock entitled to
consent thereto has given written consent to the adoption of said amendment, and
written notice that such consent, which was not unanimous, has been given to the
stockholder that did not consent in writing.
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The number of shares outstanding at the time of such adoption was one
thousand (1,000); the number of shares entitled to vote or consent thereon was
one thousand (1,000).
DATED NOVEMBER 9, 1994.
LONE STAR STEEL COMPANY
By: Rhys J. Best
------------------------------
Rhys J. Best
ATTEST:
James T. Dougherty
------------------------------
James T. Dougherty, Secretary
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CERTIFICATE OF AMENDMENT
PREFERRED STOCK, SERIES A
(PAR VALUE $1.00 PER SHARE)
LONE STAR STEEL COMPANY
------------------------------------------------
PURSUANT TO SECTION 242 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
------------------------------------------------
The Undersigned DOES HEREBY CERTIFY that the amendments to the
original Certificate of Designations of the Preferred Stock, Series A, of
Lone Star Steel Company (hereinafter called the "Corporation") included in
this Certificate of Amendment (herein sometimes called the "Certificate of
Amendment Amending the Certificate of Designations"), which includes those
amendments and is also a complete restatement of the original Certificate of
Designations as so amended, were, to the extent required, duly adopted,
including in accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware (the "GCL of Delaware"), by written
consent of the stockholders of the Corporation approving such amendments as
of October 30, 1995, pursuant to Section 228 of the GCL of Delaware and the
written notice as provided in said section has been given, and that the
following resolution was duly adopted as of October 10, 1995, by the Board of
Directors (the "Board of Directors"), of the Corporation pursuant to
authority conferred upon them by the Certificate of Incorporation, as amended
(the "Certificate of Incorporation"), of the Corporation and the amendments
to the original Certificate of Designations included in that resolution are
to become effective upon the filing of this Certificate of Amendment Amending
the Certificate of Designations with the Secretary of State of Delaware:
RESOLVED, that pursuant to the authority vested in the Board of
Directors by Article Fourth of the Certificate of Incorporation, and subject
to the receipt of such approval as is required of the stockholders of the
Corporation, the series of preferred stock of the Corporation designated
Preferred Stock, Series A (the "preferred stock") and the original
Certificate of Designations with respect thereto, be, and the same hereby
are, amended, including, but not limited to, in the number of shares that
comprise the series, which shall be increased out of the authorized but
unissued shares of the preferred stock of the Corporation by 75 shares to 450
shares, par value $1.00 per share, and in the powers, designations,
preferences and relative and other rights, and the qualifications,
limitations or restrictions of the preferred stock (in addition to those set
forth in the Certificate of Incorporation), and as amended the original
Certificate of Designations with respect to the preferred stock shall be as
set forth hereinabove and as follows in this Certificate of Amendment
Amending the Certificate of Designations (which is a complete restatement of
the original Certificate of Designations as amended hereby, and is referred
to below as the "Amended Certificate of Designations"):
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1. AMOUNT OF ISSUANCE.
(a) To the extent the common stockholders of the Corporation identified
in this paragraph 1(a) below, who have expressed their willingness to
assist in the financing of the acquisition and as necessary the
installation of certain equipment and production facilities for the
Corporation (the "First Capital Project"), advance funds towards that
project, those common stockholders, to wit: Lone Star Technologies,
Inc. ("LST"), and TCW Special Credits Fund, TCW Special Credits Fund
II, TCW Special Credits Fund IIb, Weyerhaeuser Company Master Pension
Trust, and Inland Steel Industries Pension Trust (the "TCW Holders"),
except as stated in paragraph 1(b), will receive, each time that
funds are advanced to the Corporation for the First Capital Project,
and the Corporation will issue, each such time, in total to LST and
the TCW Holders on the date each advance is made, that number of
shares (and/or fractions of shares) of preferred stock as equal the
number derived, when the total advance is divided by One Hundred
Thousand and No/100 Dollars ($100,000.00), such that, for each One
Hundred Thousand and No/100 Dollars ($100,000.00) advanced, one (1)
whole share will be issued. Of the total shares of the preferred
stock to be issued each time shares are to be issued as provided
above, 90.84% of the total shares to be issued will be issued to LST,
9.16% of the total shares to be issued will be issued to the TCW
Holders. Merced Partners Limited Partnership ("Merced") is also
participating in the aforesaid financing contemplated under this
paragraph 1(a) to the extent of 1.087% of the funds advanced, but
acquires the shares of preferred stock it is entitled to from LST
upon the basis of that percentage participation. The total share
issuable to the TCW Holders, each time shares are to be issued to
them, shall be issued individually among them as the TCW Holders
shall direct. Funds were advanced towards the First Capital Project
and shares of the preferred stock were issued in return therefor,
prior to this Amended Certificate of Designations becoming
effective, and all of that is acknowledged and confirmed.
(b) After a total of $23,000,000.00 has been advanced to the Corporation
under paragraph 1(a) above for the First Capital Project, including
amounts advanced prior to this restatement and amounts advanced on
and hereafter, as additional advances are made to the Corporation
for the First Capital Project in excess of $23,000,000.00, the
preferred stock, each time an advance is made, shall be issued to
LST, the TCW Holders, Merced and Cargill Financial Services
Corporation ("Cargill") in the following respective percentages:
83.62% to LST; 12.72% to the TCW Holders; 0.90% to Merced; and 2.76%
to Cargill. In all other respects the shares will be issued upon
advances toward the First Capital Project under this paragraph 1(b)
in the same manner as provided in paragraph 1(a).
(c) The "Dollar Value" of the shares of preferred stock shall be One
Hundred Thousand and No/100 Dollars ($100,000.00) per share, and as
proportionately adjusted downward shall be the "Dollar Value" of
fractional shares. Each share of preferred stock shall have a par
value of One and No/100 Dollar ($1.00) per whole share, and the
entire series of preferred stock shall consist of four hundred fifty
(450) authorized shares. Fractional shares may be issued.
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<PAGE>
(d) The foregoing provisions of this paragraph 1 will inure to the
benefit of the respective successors to LST, each of the TCW Holders,
Merced and Cargill so that such successors upon advances of funds
being made for the First Capital Project will be entitled to receive
the preferred stock which the party they succeeded otherwise would
have been entitled to receive under the foregoing provisions. Unless
the context indicates otherwise, herein the references to "preferred
stock" refer to this Preferred Stock, Series A, and not to any other
preferred stock.
2. ISSUANCE DATE. The preferred stock will be issued in the number of
shares (or fractions of shares) to LST, the TCW Holders and as stated to
Merced and Cargill, as provided in paragraphs 1(a) and 1(b) above, as and
when each advance is made by any of them to fund the First Capital Project.
While the shares of the preferred stock will be issued by the Corporation
when the advances are made, certificates for the shares of such preferred
stock will be delivered to the shareholders entitled thereto for the
preceding calendar quarter based upon the advances to fund the First Capital
Project made during that quarter each January 1, April 1, July 1, and October
1 after September 30, 1994. In addition, shares of the preferred stock may be
issued in payment of dividends as provided under paragraph 3 below, and the
shares of preferred stock to be issued as dividends will be issued, in each
case, when the dividend that the stock is to pay, is, pursuant to action of
the Board of Directors, to be paid, and the share certificates for such stock
will be furnished at the same time by the Corporation to the holders entitled
thereto.
3. DIVIDENDS.
(a) The holders of preferred stock will be entitled to a cumulative
dividend at the rate of six percent (6%) per annum on the Dollar
Value of the shares of preferred stock issued and outstanding
accruing from the date of issuance. No dividends of any kind or
other distributions are permitted to be paid or made on Corporation's
common stock at any time while any preferred stock is outstanding.
(b) As to any share of preferred stock, commencing on the January 1,
April 1, July 1, or October 1 first to occur after such stock is
issued, and for each succeeding quarterly period ending immediately
prior to each succeeding January 1, April 1 July 1, and October 1,
the holder of such stock shall be entitled to receive, when and as
declared as hereinafter provided, out of funds legally available for
that purpose, cash dividends of one and one-half percent (1.5%) of
the Dollar Value of each share or fractional share held (prorated
for the first such dividend period at the rate of one and one-half
percent (1.5%) per quarter accruing from the actual issue date to the
end of that dividend period), and no more. All dividends shall be
payable in arrears, when and as declared by the Board of Directors.
Each such dividend shall be paid to the holders of record of the
preferred stock as their names appear on the share register of the
Corporation on the date set as the record date for such dividend.
Dividends on account of arrears for any past dividend periods may be
declared and paid at any time without reference to any dividend
payment date, to holders of record on a date, not exceeding thirty
(30) calendar days preceding the payment date thereof, as may be
fixed by the Board of Directors.
3
<PAGE>
(c) To the extent, on any dividend payment date, the holders of the
preferred stock shall not have received the full dividends for all
periods ended up to that date provided for in the other provisions of
this paragraph 3, then such dividends shall cumulate, whether or not
declared and irrespective of whether such dividends could have been
paid for such periods under applicable law. It is understood that no
dividends may be paid in respect of the preferred stock prior to
January 1, 1995 (although dividends will accrue on the preferred
stock outstanding prior to that date).
(d) If at any time the Corporation pays less than the total amount of
dividends then accrued and payable with respect to the preferred
stock, such payment shall be distributed ratably among the holders
of the preferred stock. Any payment made by the Corporation on the
unpaid cumulative dividends, if less than the total amount of such
dividends, shall be applied first to those dividends that have been
accrued for the longest time.
(e) The Corporation may at any time to the extent it so elects, declare
that dividends on the preferred stock which have accrued will be
payable in shares of preferred stock of a Dollar Value equal to the
dividends to be paid with such stock. Any holder of preferred stock
on which a cash dividend has been declared and before it is paid may
elect to similarly have the Corporation pay any such dividend to the
holder, to the extent the holder elects, in preferred stock of the
Dollar Value equal to the dividend the holder has elected to be so
paid.
4. REDEMPTION.
(a) The Corporation may, provided the Board of Directors has adopted a
resolution approving such action, redeem the preferred stock, in
whole or in part, in cash, at any time by paying the holder or
holders of the shares to be redeemed (i) the Dollar Value of such
stock and (ii) all accrued and unpaid dividends through the date of
redemption on the shares to be redeemed (including a pro rated
dividend based on the number of days elapsed from the last day of the
most recent completed quarterly dividend period through the
redemption date). Each holder of stock redeemed shall be entitled to
payment of that part of the total amount described above for all the
redeemed stock as is attributable to his redeemed stock. If the Board
of Directors has authorized a redemption which, when authorized, was
of less than all of the outstanding shares of the preferred stock,
and because of subsequent conversions of the preferred stock since
then, amounts to more than the actual outstanding shares on the
Redemption Date or, if applicable, the Final Redemption Date, the
Board of Directors' authorization shall be deemed amended to the
number of such outstanding shares on the Redemption Date or, if
applicable, the Final Redemption date which shall be the number
authorized for redemption. Any redemption of the preferred stock
outstanding shall be accomplished by redeeming from each holder of
record all or a fraction of each holder's shares, the numerator of
which is the total number of shares to be redeemed as authorized by
the Board of Directors or as deemed amended as provided above, and
the denominator of which is the total number of shares of
4
<PAGE>
preferred stock outstanding on the Redemption Date or, if applicable,
the Final Redemption Date.
(b) On January 3, 2002, the Corporation shall be obligated to redeem the
preferred stock outstanding as a mandatory redemption in whole for
cash. The redemption price shall be equal to the Dollar Value of the
shares redeemed together with any accrued but unpaid dividends on
such shares to and including the date of redemption, as specified in
clauses (i) and (ii) of paragraph 4(a). If less than all of the
outstanding shares of the preferred stock can be redeemed under
applicable law, such shares shall be redeemed pro rata or by lot as
determined by the Board of Directors in its sole discretion to the
maximum extent permitted by applicable law, and the remaining shares
shall be redeemed as and when they can be redeemed under law.
(c) Notice of every proposed redemption of the preferred stock shall be
sent by or on behalf of the Corporation, by first class mail, postage
prepaid, to the holders of record of the shares to be redeemed at
their respective addresses as they shall appear on the records of the
Corporation, not less than thirty (30) days nor more than sixty (60)
days prior to the date fixed for redemption (the "Redemption Date")
(i) notifying such holders of the election of the Corporation to
redeem such shares and of the Redemption Date and (ii) stating the
place or places at which the shares called for redemption shall, upon
presentation and surrender of the certificates evidencing such
shares, be redeemed, and the redemption price therefor, and (iii)
stating the name and address of any redemption agent selected by the
Corporation if other than the Corporation, and the name and address
of the Corporation's transfer agent for the preferred stock. The
Corporation may act as the transfer agent for the preferred stock.
(d) The Corporation may act as the redemption agent to redeem the
preferred stock or appoint as its agent for such purpose a bank or
trust company in good standing, organized under the law of the United
States of America or any jurisdiction thereof, and having capital,
surplus and undivided profits aggregating at least Twenty Million and
No/100 Dollar ($20,000,000.00), and may appoint any one or more
additional such agents which shall in each case be a bank or trust
company in good standing organized under the laws of the United
States of America or of any jurisdiction thereof, having an office or
offices in the City of Dallas, Texas, or such other place as shall
have been designated by the Corporation, and having capital, surplus,
and undivided profits aggregating at least Twenty Million and No/100
Dollars ($20,000,000.00). The Corporation or such bank or trust
company is hereinafter referred to as the "Redemption Agent."
Following such appointment and prior to any redemption, the
Corporation shall deliver to the Redemption Agent irrevocable
written instructions authorizing the Redemption Agent, on behalf and
at the expense of the Corporation, to cause such notice of redemption
to be duly mailed as herein provided as soon as practicable after
receipt of such irrevocable instructions and in accordance with the
above provisions. All funds necessary for the redemption shall be
deposited with the Redemption Agent in trust at least one (1)
business day prior to the Redemption
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Date, for the pro rata benefit of the holders of the shares so called
for redemption, so as to be and continue to be available therefor.
Neither failure to mail any such notice to one (1) or more such
holders nor any defect in any notice shall affect the sufficiency of
the proceedings for redemption as to the other holders.
(e) If notice of redemption shall have been given as hereinbefore
provided, and the Corporation shall not default in the payment of the
redemption price, then each holder of shares called for redemption
shall be entitled to all preferences and relative and other rights
accorded by this resolution until and including the day immediately
prior to the Redemption Date. If the Corporation shall default in
making payment or delivery as aforesaid on the Redemption Date, then
each holder of the shares called for redemption shall be entitled to
all preferences and relative and other rights accorded by this
resolution until and including the day immediately prior to the date
(the "Final Redemption Date") when the Corporation makes payment as
aforesaid to the holders of the preferred stock. From and after the
Redemption Date or, if the Corporation shall default in making
payment or delivery as aforesaid, the Final Redemption Date, the
shares called for redemption shall no longer be deemed to be
outstanding, and all rights of the holders of such shares shall
cease and terminate, except the right of the holders of such shares,
upon surrender of certificates therefor, to receive amounts to be
paid hereunder. The deposit of monies in trust with the Redemption
Agent shall be irrevocable except that the Corporation shall be
entitled to receive from the Redemption Agent the interest of other
earnings, if any, earned on any monies so deposited in trust, and the
holders of any shares redeemed shall have no claim to such interest
or other earnings, and any balance of monies so deposited by the
Corporation and unclaimed by the holders of the preferred stock
entitled thereto at the expiration of two (2) years from the
Redemption Date (or the Final Redemption Date, as applicable) shall
be repaid, together with any interest or other earning thereon, to
the Corporation, and after such repayment, the holders of the shares
entitled to the funds so repaid to the Corporation shall look only to
the Corporation for such payment, without interest.
5. VOTING RIGHTS. The preferred stock issued and outstanding will possess
voting rights only to the extent required by law and as provided herein. If
and to the extent the preferred stock may be entitled to vote on any matter,
each whole share of the preferred stock voting shall be counted as one (1)
vote and the fractional shares voting will be counted as fractional votes,
in each case the fractional vote will be the same as the fraction of a share
that is voting, except that in any case when the preferred stock is voting on
any matter with the common stock, each share or fractional share of the
preferred stock voting will be counted as having the same vote as the shares
of common stock into which that preferred stock could be converted at the
time of voting.
6. LIQUIDATION PREFERENCE AND MERGER.
(a) In the event of the voluntary or involuntary liquidation,
dissolution, or other winding up of the affairs of the Corporation,
prior to any payment or distribution to the holders of the
Corporation's common stock or with respect to any other
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stock which is not to receive assets of the Corporation before
receipt by the holders of the preferred stock of the full amount they
are to receive as provided in this subparagraph the holders of the
preferred stock shall be entitled to receive for the preferred stock
an amount equal to (with each holder entitled to that part of such
amount as is attributable to his shares) (i) the Dollar Value of the
preferred stock outstanding and (ii) all accrued and unpaid dividends
through the date of liquidation, dissolution or other winding up of
the affairs of the Corporation (including a pro rated dividend based
on the number of days elapsed from the last day of the most recent
completed quarterly dividend period through the date of liquidation,
dissolution or winding up of the affairs of the Corporation).
(b) The amount payable pursuant to paragraph 6(a) shall be paid in cash
to the extent available to the Corporation and to the extent not so
in property taken at its fair value as determined by the Board of
Directors. If such payment shall have been made in full to the
holders of the preferred stock, the remaining assets and funds of the
Corporation shall be distributed among the holders of common or other
stock remaining outstanding of the Corporation according to their
respective shares and priorities.
(c) In the event of the liquidation, dissolution, or winding up of the
affairs of the Corporation as described in paragraph 6(a), the
holders of the preferred stock will share in the assets, funds, and
property of the Corporation on a parity with or junior to, as the
case may be, any other stock of the Corporation which is to share on
a parity with or prior to the preferred stock under such
circumstances in accordance with the provisions of the Certificate of
Incorporation or Certificate of Designation related to that other
stock.
(d) The Corporation will not, without first obtaining the affirmative
vote or written consent of the holders of not less than 92% of the
shares of preferred stock outstanding at the time, consolidate or
merge with another corporation or corporations (other than any
mergers or consolidations or the Corporation with any of its
subsidiaries, whether owned directly or indirectly by the
Corporation, which mergers and consolidations this paragraph 6(d)
will not apply to) or sell, lease, transfer or otherwise dispose of,
in one transaction or a series of related transactions, all or
substantially all of its assets without first paying the holders of
the preferred stock outstanding the same amount through the date of
the merger, consolidation, sale, lease, transfer, or other
disposition as is provided in clauses (i) and (ii) of paragraph 6(a)
through the date of liquidation, dissolution, or winding up and in
accordance with paragraph 6(b).
7. CONVERSION.
(a) Each whole share of preferred stock will be convertible at any time
after issuance by the holder into 10 shares of common stock of the
Corporation, or as such number is adjusted pursuant to the following
provisions, such number as stated above and as it may be adjusted to
be ratably reduced downward for fractional shares outstanding of the
preferred stock. The number of shares of common stock
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into which the preferred stock is convertible is based on a
conversion price of $10,000 per share of common stock. Such price
shall be ratably adjusted to reflect any change in the number of
shares of common stock into which the preferred stock is convertible
pursuant to the provisions of paragraph 7(b). In addition, if after
the date hereof the Corporation shall, at any time while the
preferred stock remains outstanding, otherwise than as a result of
any of the events as described in paragraph 7(b) issue any (i) shares
of common stock, or (ii) securities that are convertible into or
exchangeable for common stock, or (iii) options, warrants or other
rights to acquire common stock, in any case described under clause
(i), (ii), or (iii), at a price of less than $10,000 per share of
common stock or, after such price has been adjusted from $10,000 per
share pursuant to the foregoing provisions or the following
provisions of this paragraph 7(a), at a price less than the amount to
which such $10,000 may previously have been appropriately adjusted
pursuant to the foregoing provisions or the following provisions of
this paragraph 7(a), then each whole share of preferred stock will be
convertible at any time thereafter by the holder into the number of
shares of common stock of the Corporation based upon a new conversion
price equal to the lowest issuance, conversion, exchange, or exercise
price, as the case may be, for the common stock pursuant to clause
(i), (ii), or (iii) above, adjusting such price appropriately for any
events described in paragraph 7(b). Fractional shares of preferred
stock may be converted on a ratable basis at such new adjusted
conversion price. Each holder may convert his preferred stock in
whole or in such part (including fractional shares) as he chooses
when he converts the stock.
(b) If at any time after September 30, 1994 and prior to the conversion
of the preferred stock the Corporation shall have effected a common
stock split or the outstanding common stock of the Corporation shall
have been subdivided or combined into a greater or lesser number of
shares or shares of its common stock shall have been distributed as a
dividend on any class of its stock, and after giving effect to any
prior adjustments under paragraph 7(a) and this paragraph 7(b), the
number of shares of common stock into which each share of preferred
stock can be converted shall be increased or decreased to reflect
proportionately the increase or decrease in the number of shares of
common stock outstanding.
(c) Upon the occurrence of any event which requires any of the
adjustments provided for above, then and in each such case the
Corporation shall give notice thereof to the holders of the preferred
stock, which notice shall state the increase or decrease, if any, in
the number of shares of common stock into which the preferred stock
shall be convertible, setting forth in reasonable detail the method
of calculation and the facts upon which such calculation is based.
(d) In case after September 30, 1994, at any time:
(i) the Corporation shall offer for subscription pro rata to
the holders of the common stock any additional shares of stock of any
class or other rights;
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(ii) there shall be any capital reorganization of the
Corporation, or reclassification of the common stock, or
consolidation or merger of the Corporation with or into (other than
with a wholly owned subsidiary), or sale of all or substantially all
of its assets to, another corporation or entity; or
(iii) there shall be a voluntary or involuntary dissolution,
liquidation, or winding-up of the Corporation;
then, in each such case, the Corporation shall give to the holders
of the preferred stock (a) notice of the date on which the books of
the Corporation shall close or a record shall be taken for
determining the holders of common stock entitled to receive any such
subscription rights or for determining the holders of common stock
entitled to vote in respect of any such reorganization,
reclassification, consolidation, merger, sale, dissolution,
liquidation, or winding-up and (b) in the case of any such
reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation, or winding-up, notice of the date (or, if
not then known, a reasonable approximation thereof by the
Corporation) when the same shall take place. Such notice shall also
specify the date on which the holders of common stock shall be
entitled to receive such subscription rights or to exchange their
common stock for stock or other securities or property deliverable
upon such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation, or winding-up, as the case may be.
Such notice shall be given at least twenty (20) days prior to the
record date or the date on which the Corporation's books are closed
in respect thereof. Failure to give any such notice or any defect
therein shall not affect the validity of the proceedings referred to
in clause (i), (ii), and (iii) above.
(e) Any accrued and unpaid dividends on the preferred stock being
converted (with the current quarterly dividend for the quarter during
which the conversion occurs being paid in an amount prorated to the
date of conversion) shall either be paid within five (5) days of the
conversion to the converting preferred stock holder in cash or in an
additional number of whole and/or fractional shares of common stock
equal to the number of common shares that would have been issued had
the total amount of those dividends which were not paid in cash
represented an equivalent Dollar Value of additional preferred stock
converted along with the preferred stock that was actually converted
by the holder.
(f) The certificate for the shares of the preferred stock being converted
will be surrendered to the Corporation, and if less than all shares
of the preferred stock represented by a certificate are converted, a
certificate for the number of shares not converted, which shall have
a Dollar Value commensurate with that number of shares, shall be
returned to the holder.
8. RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The Corporation shall at all
times reserve and keep available out of its authorized, but unissued, shares of
common stock, solely for the purpose of effecting the conversion of the shares
of the preferred stock, such number of its shares of common stock as shall from
time to time be sufficient to effect the conversion of all
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outstanding shares of the preferred stock and to effect the exercise of all
rights, warrants, and options to purchase common stock; and if at any time
the number of authorized, but unissued, shares of common stock shall not be
sufficient to effect the conversion of all then outstanding shares of the
stock, and such other convertible stock or securities and rights, warrants,
and options, the Corporation will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued
shares of common stock to such number of shares as shall be sufficient for
such purpose.
9. NOTICES. Any notice required by the provisions hereof to be given to any
holders of shares of the preferred stock shall be deemed given upon the
earlier of actual receipt, or seventy-two (72) hours after the same has been
deposited in the United States mail, by certified or registered mail, return
receipt requested, postage prepaid, and addressed to the holder of record at
his address appearing on the books of the Corporation.
10. ISSUANCE TAX. The issuance of certificates for common stock upon the
conversion of preferred stock shall be made without charge to the converting
holder of the preferred stock for any issuance tax in respect thereof,
provided that the Corporation shall not be required to pay any tax which may
be payable in respect of any transfer involved in the issuance and delivery
of any certificate in a name other than the holder of the preferred stock
converted therefor.
11. EXCLUSION OF OTHER RIGHTS. Except as may otherwise be required by law,
the shares of preferred stock shall not have any preferences or relative,
participating, optional or other special rights, other than those
specifically set forth herein and in the Corporation's Certificate of
Incorporation. The shares of preferred stock shall have no preemptive or
subscription rights.
12. AMENDMENT, ETC. In addition to any other rights provided by law, so long
as any preferred stock is outstanding, the Corporation, without first
obtaining the affirmative vote or written consent of the holders of not less
than ninety two percent (92%) of the shares of preferred stock outstanding at
the time, will not:
(a) amend or repeal any provision of, or add any provision to, the
Certificate of Incorporation, the Amended Certificate of Designations
related to the preferred stock, or By-Laws if such action would
materially adversely change the preferences, rights, privileges or
powers of, or the restrictions provided for the benefit of, the
preferred stock, or increase or decrease the number of shares of
preferred stock authorized hereby; or
(b) authorize or increase the authorized number of shares of any series
or class of stock, which would be entitled to receive dividends or
other distributions at any time in preference to the preferred stock
before any of the dividends under paragraph 3 hereof for that period
and all past quarterly dividend periods prior to such time have been
paid on the preferred stock, or would be entitled to receive assets
upon the liquidation, dissolution, or winding-up of the affairs of
the Corporation in preference to the preferred stock before any of
the assets the preferred stock is to receive under those
circumstances have been received, except that a merger or
consolidation of the Corporation into another corporation or
corporations pursuant to which the holders of the preferred stock are
to receive
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stock of the surviving corporation or corporations with substantially
the same preferences, rights, privileges, powers, and restrictions
for the benefit of such holders as the preferred stock of the
Corporation will not be deemed an event that falls within this
subparagraph or subparagraph (a) immediately above.
13. HEADINGS OF SUBDIVISIONS. The headings of the various paragraphs hereof
are for convenience of reference only and shall not affect the interpretation
of any of the provisions hereof.
14. SEVERABILITY OF PROVISIONS. If any right, preference, or limitation of
the preferred stock set forth herein in invalid, unlawful or incapable of
being enforced by reason or any rule of law or public policy, all other
rights, preferences, and limitations set forth herein which can be given
effect without the invalid, unlawful or unenforceable right, preference or
limitation shall, nevertheless, remain in full force and effect, and no
right, preference or limitation herein set forth shall be deemed dependent
upon any other such right, preference or limitation unless so expressed
herein.
15. STATUS OF REACQUIRED SHARES. Share of preferred stock which have been
issued and reacquired by the Corporation in any manner or converted shall be
canceled, and will no longer have the status of authorized shares of
preferred stock or be capable of being issued.
16. SINGULAR, PLURAL, ETC. Herein, unless the context is to the contrary,
references to the singular shall include the plural, to the masculine shall
include the feminine and the neuter, and to shares of stock shall include
fractional shares, and VICE VERSA, and, unless the context is otherwise,
references to the holder of stock shall mean the record holder and references
to the voting or the consent of the holders of such stock shall mean the
record holders of the stock as of the record date set by the Board of
Directors for such vote or consent.
IN WITNESS WHEREOF, Lone Star Steel Company has caused this Certificate
to be duly executed this 18th day of December, 1995.
LONE STAR STEEL COMPANY
By:
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ATTEST:
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SECRETARY
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