PROPOSAL NO. 4AMEND VALEROS RESTATED CERTIFICATE OF INCORPORATION
TO REMOVE SUPERMAJORITY VOTE REQUIREMENTS
Incorporation in the
manner now or hereafter prescribed by law, and all rights and powers conferred herein on stockholders, the Directors and officers are subject to this reserved power.
ARTICLE VIII.
(1)
Vote Required for Certain Business Combinations.
(a)
In addition to any affirmative vote required by law or this Restated Certificate of Incorporation, and except
as otherwise expressly provided in Paragraph
(2) of this Article VIII:
(i)
any merger or consolidation of the corporation or any Subsidiary (as hereinafter defined) with
(A)
any Interested Stockholder (as hereinafter defined), or (B)
any other corporation (whether or not itself an Interested Stockholder) which is, or after such merger or
consolidation would be, an Affiliate (as hereinafter defined) of an Interested Stockholder; or
(ii)
any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions) to or with any Interested Stockholder, including all Affiliates of the Interested Stockholder, of any assets of the
corporation or any Subsidiary having an aggregate Fair Market Value (as hereinafter defined) of $10,000,000 or more; or
(iii)
the issuance or transfer by the corporation or any Subsidiary (in one transaction or a series of
transactions) of any securities of the corporation or any Subsidiary to any Interested Stockholder, including all Affiliates of the Interested Stockholder, in exchange for cash, securities or other property (or a combination thereof) having an
aggregate Fair Market Value of $10,000,000 or more; or
(iv)
the adoption of any plan or proposal
for the liquidation or dissolution of the corporation proposed by or on behalf of an Interested Stockholder or any Affiliates of an Interested Stockholder; or
(v)
any reclassification of securities (including any reverse stock split), or recapitalization of the
corporation, or any merger or consolidation of the corporation with any of its Subsidiaries or any other transaction (whether or not an Interested Stockholder is a party thereto) which has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of equity or convertible securities of the corporation or any Subsidiary which are directly or indirectly owned by any Interested Stockholder or one or more Affiliates of the Interested
Stockholder;
shall require the affirmative vote of the holders of at least
66-2/3%
of the
voting power of the then outstanding voting stock, voting together as a single class, including the affirmative vote of the holders of at least
66-2/3%
of the voting power of the then outstanding voting stock
not owned directly or indirectly by an Interested Stockholder or any Affiliate of any Interested Stockholder. Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that a lesser percentage may be
permitted, by law or in any agreement with any national securities exchange or otherwise.
(b)
The
term Business Combination as used in this Article
VIII shall mean any transaction described in any one or more of clauses (i)
through (v) of
paragraph
(a) of this Paragraph (1).
(2)
When Higher Vote is Not
Required.
The provisions of Paragraph (1)
of this Article
VIII shall not be applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote as is required by law or any other provision of this Restated Certificate of Incorporation, if the conditions specified in either of the following paragraphs
(a)
or (b) are met:
(a)
The Business Combination shall have
been approved by a majority of the Continuing Directors (as hereinafter defined).
(b)
Price and
Procedure Requirements. All of the following conditions shall have been met:
(i)
The aggregate
amount of the cash and the Fair Market Value (as hereinafter defined) as of the date of the consummation of the Business Combination of consideration other than cash, to be received per share by holders of Common Stock in such Business Combination,
shall be at least equal to the highest of the following:
(A)
(if applicable) the highest per share
price (including any brokerage commissions, transfer taxes and soliciting dealers fees) paid by the Interested Stockholder for any shares of Common Stock acquired by it (I)
within the
two-year
period immediately prior to the first public announcement of the proposal of such Business Combination (the Announcement Date), or (II)
in the transaction
in which it became an Interested Stockholder, whichever is higher;
(B)
the Fair Market Value per
share of Common Stock on the Announcement Date or on the date on which the Interested Stockholder became an Interested Stockholder (the Determination Date), whichever is higher; and
(C)
(if applicable) the price per share equal to the Fair Market Value per share of Common Stock determined
pursuant to paragraph
(b)(i)(B) above, multiplied by the ratio of (I)
the highest per share price (including any brokerage