-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GoaiOo2ggaXCYlTaM+L6++UX3trZMQ/UhQuxM9l5G/yMdV/dPI/xraZtnld+0gCX ot2l1BRJzIg6PIX+v4xDMw== 0000950129-01-504491.txt : 20020413 0000950129-01-504491.hdr.sgml : 20020413 ACCESSION NUMBER: 0000950129-01-504491 CONFORMED SUBMISSION TYPE: S-4 PUBLIC DOCUMENT COUNT: 61 FILED AS OF DATE: 20011213 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TESORO AVIATION CO CENTRAL INDEX KEY: 0001161533 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 742922277 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-01 FILM NUMBER: 1813120 BUSINESS ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 1200 OLIVER ST CITY: HOUSTON STATE: TX ZIP: 77007 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TESORO PETROLEUM CORP /NEW/ CENTRAL INDEX KEY: 0000050104 STANDARD INDUSTRIAL CLASSIFICATION: PETROLEUM REFINING [2911] IRS NUMBER: 950862768 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056 FILM NUMBER: 1813119 BUSINESS ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TESORO HIGH PLAINS PIPELINE CO CENTRAL INDEX KEY: 0001158251 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 743009696 STATE OF INCORPORATION: TX FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-02 FILM NUMBER: 1813121 BUSINESS ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 1200 OLIVER ST CITY: HOUSTON STATE: TX ZIP: 77007 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TESORO MARITIME CO CENTRAL INDEX KEY: 0001144857 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 742886466 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-03 FILM NUMBER: 1813122 BUSINESS ADDRESS: STREET 1: 300 CONCORD PLAZA DR CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 CONCORD PLAZA DR CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TESORO TECHNOLOGY CO CENTRAL INDEX KEY: 0001144854 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 742521013 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-04 FILM NUMBER: 1813123 BUSINESS ADDRESS: STREET 1: 300 CONCORD PLAZA DR CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 CONCORD PLAZA DR CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TESORO WEST COAST CO CENTRAL INDEX KEY: 0001144853 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 760489496 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-05 FILM NUMBER: 1813124 BUSINESS ADDRESS: STREET 1: 3450 S. 34TH WAY STREET 2: SUITE 100 CITY: AUBURN STATE: WA ZIP: 98001 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 CONCORD PLAZA DR CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SMILEYS SUPER SERVICE INC CENTRAL INDEX KEY: 0001144851 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 990088611 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-06 FILM NUMBER: 1813125 BUSINESS ADDRESS: STREET 1: 733 BISHOP ST STREET 2: SUITE 2800 CITY: HONOLULU STATE: HI ZIP: 96813 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 CONCORD PLAZA DR CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FILER: COMPANY DATA: COMPANY CONFORMED NAME: VICTORY FINANCE CO CENTRAL INDEX KEY: 0001144849 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 510377203 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-07 FILM NUMBER: 1813126 BUSINESS ADDRESS: STREET 1: 1105 N. MARKET ST. CITY: WILMINGTON STATE: DE ZIP: 19801 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 CONCORD PLAZA DR CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GOLD STAR MARITIME CO CENTRAL INDEX KEY: 0001144848 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 742886462 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-08 FILM NUMBER: 1813127 BUSINESS ADDRESS: STREET 1: 300 CONCORD PLAZA DR CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 CONCORD PLAZA DR CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FAR EAST MARITIME CO CENTRAL INDEX KEY: 0001144847 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 742886469 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-09 FILM NUMBER: 1813128 BUSINESS ADDRESS: STREET 1: 300 CONCORD PLAZA DR CITY: SAN ANTONIO STATE: TX ZIP: 68216-6999 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 CONCORD PLAZA DR CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TESORO SOUTH PACIFIC PETROLEUM CO CENTRAL INDEX KEY: 0001066666 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 953620808 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-10 FILM NUMBER: 1813129 BUSINESS ADDRESS: STREET 1: 733 BISHOP ST STREET 2: SUITE 2800 CITY: HONOLULU STATE: HI ZIP: 96813 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 CONCORD PLAZA DR CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TESORO HAWAII CORP CENTRAL INDEX KEY: 0001066665 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 920150083 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-11 FILM NUMBER: 1813130 BUSINESS ADDRESS: STREET 1: 733 BISHOP ST. STREET 2: SUITE 2800 CITY: HONOLULU STATE: HI ZIP: 96813 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 CONCORD PLZ DR CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TESORO GAS RESOURCES CO INC CENTRAL INDEX KEY: 0001066664 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 920150083 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-12 FILM NUMBER: 1813131 BUSINESS ADDRESS: STREET 1: 1105 N. MARKET ST CITY: WILMINGTON STATE: DE ZIP: 19801 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 CONCORD PLAZA DR CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TESORO FINANCIAL SERVICES HOLDING CO CENTRAL INDEX KEY: 0001066663 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 510377202 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-13 FILM NUMBER: 1813132 BUSINESS ADDRESS: STREET 1: 1105 N. MARKET ST. CITY: WILMINGTON STATE: DE ZIP: 19801 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 N. CONCORD PLAZA DR CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TESORO VOSTOK CO CENTRAL INDEX KEY: 0001061684 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 742045147 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-14 FILM NUMBER: 1813133 BUSINESS ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TESORO MARINE SERVICE HOLDING CO CENTRAL INDEX KEY: 0001061683 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 742807425 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-15 FILM NUMBER: 1813134 BUSINESS ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TESORO REFINING MARKETING & SUPPLY CO CENTRAL INDEX KEY: 0001061681 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 742045147 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-16 FILM NUMBER: 1813135 BUSINESS ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TESORO PETROLEUM CO INC CENTRAL INDEX KEY: 0001061678 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 742385513 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-17 FILM NUMBER: 1813136 BUSINESS ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TESORO ALASKA PIPELINE CO CENTRAL INDEX KEY: 0001061676 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 741839523 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-18 FILM NUMBER: 1813137 BUSINESS ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FILER: COMPANY DATA: COMPANY CONFORMED NAME: KENAI PIPE LINE CO CENTRAL INDEX KEY: 0001061672 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 946062891 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-19 FILM NUMBER: 1813138 BUSINESS ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TESORO NORTHSTORE CO CENTRAL INDEX KEY: 0001061668 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 920098209 STATE OF INCORPORATION: AK FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-20 FILM NUMBER: 1813139 BUSINESS ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DIGICOMP INC CENTRAL INDEX KEY: 0001061666 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 742521015 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-21 FILM NUMBER: 1813140 BUSINESS ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TESORO MARINE SERVICES INC CENTRAL INDEX KEY: 0001061665 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 742766974 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-22 FILM NUMBER: 1813141 BUSINESS ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TESORO ALASKA CO CENTRAL INDEX KEY: 0000911614 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 741646130 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-75056-23 FILM NUMBER: 1813142 BUSINESS ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 BUSINESS PHONE: 2108288484 MAIL ADDRESS: STREET 1: 300 CONCORD PLAZA DRIVE CITY: SAN ANTONIO STATE: TX ZIP: 78216-6999 FORMER COMPANY: FORMER CONFORMED NAME: TESORO ALASKA PETROLEUM CO DATE OF NAME CHANGE: 19930903 S-4 1 h92783s-4.txt TESORO PETROLEUM CORPORATION AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 13, 2001 REGISTRATION NO. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------- FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 TESORO PETROLEUM CORPORATION AND OTHER REGISTRANTS (SEE TABLE OF OTHER REGISTRANTS BELOW) (Exact name of registrant as specified in its charter) DELAWARE 2911 95-0862768 (State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
300 CONCORD PLAZA DRIVE SAN ANTONIO, TEXAS 78216-6999 (210) 828-8484 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) JAMES C. REED, JR., ESQ. EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY 300 CONCORD PLAZA DRIVE SAN ANTONIO, TEXAS 78216-6999 (210) 828-8484 (Name, address, including zip code, and telephone number, including area code, of agent for service) COPY TO: CHARLES L. STRAUSS FULBRIGHT & JAWORSKI L.L.P. 1301 MCKINNEY, SUITE 5100 HOUSTON, TEXAS 77010 (713) 651-5151 APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after the effective date of this registration statement. If the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, please check the following box. [ ] If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] CALCULATION OF REGISTRATION FEE
================================================================================================================= PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE(1) FEE(2) - ----------------------------------------------------------------------------------------------------------------- 9 5/8% Senior Subordinated Notes due 2008, Series B... $215,000,000 100% $215,000,000 $51,385 - ----------------------------------------------------------------------------------------------------------------- Subsidiary Guarantees(3)..... N/A N/A N/A N/A =================================================================================================================
(1) Pursuant to Rule 457(f)(2), represents the book value of the outstanding 9 5/8% Senior Subordinated Notes for which the registered securities will be exchanged. Estimated solely for the purpose of calculating the registration fee. (2) Calculated Pursuant to Rule 457(f)(2). Pursuant to Rule 457(n), no additional registration fee is required for the registration of the subsidiary guarantees. (3) No separate consideration will be received for the guarantees. The guarantees are not traded separately. --------------------- THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY DETERMINE. ================================================================================ TABLE OF OTHER REGISTRANTS
STATE OR OTHER PRIMARY STANDARD JURISDICTION OF INDUSTRIAL EXACT NAME OF REGISTRANT AS INCORPORATION OR CLASSIFICATION I.R.S. EMPLOYER SPECIFIED IN ITS CHARTER ORGANIZATION NUMBER IDENTIFICATION NO. - --------------------------- ---------------- ---------------- ------------------ Digicomp Inc. .................................. Delaware 7379 74-2521015 Far East Maritime Company....................... Delaware 4422 74-2886469 Gold Star Maritime Company...................... Delaware 4422 74-2886462 Kenai Pipe Line Company......................... Delaware 4613 94-6062891 Smiley's Super Service, Inc. ................... Hawaii 5541 99-0088611 Tesoro Alaska Company........................... Delaware 2911 94-1646130 Tesoro Alaska Pipeline Company.................. Delaware 4613 74-1839523 Tesoro Aviation Company......................... Delaware 4522 74-2922277 Tesoro Financial Services Holding Company....... Delaware 6711 51-0377202 Tesoro Gas Resources Company, Inc. ............. Delaware 1311 92-0150083 Tesoro Hawaii Corporation....................... Hawaii 2911 99-0143882 Tesoro High Plains Pipeline Company............. Delaware 4612 74-3009696 Tesoro Marine Services Holding Company.......... Delaware 5171 74-2807425 Tesoro Marine Services, LLC .................... Delaware 5171 74-2766974 Tesoro Maritime Company......................... Delaware 4422 74-2886466 Tesoro Northstore Company....................... Alaska 5541 92-0098209 Tesoro Petroleum Companies, Inc. ............... Delaware 7389 74-2385513 Tesoro Refining, Marketing & Supply Company..... Delaware 5171 74-2045147 Tesoro South Pacific Petroleum Company.......... California 5171 95-3620808 Tesoro Technology Company....................... Delaware 7379 74-2521013 Tesoro Vostock Company.......................... Delaware 5172 74-2257610 Tesoro West Coast Company....................... Delaware 2911 76-0489496 Victory Finance Company......................... Delaware 6719 51-0377203
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES, AND WE ARE NOT SOLICITING OFFERS TO BUY THESE SECURITIES, IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED. SUBJECT TO COMPLETION, DATED DECEMBER 13, 2001 (TESORO PETROLEUM CORPORATION LOGO) TESORO PETROLEUM CORPORATION OFFER TO EXCHANGE 9 5/8% SENIOR SUBORDINATED NOTES DUE 2008, SERIES B THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 FOR ANY AND ALL OUTSTANDING 9 5/8% SENIOR SUBORDINATED NOTES DUE 2008 ($215,000,000 IN PRINCIPAL AMOUNT OUTSTANDING) THE EXCHANGE OFFER The exchange offer expires at 5:00 p.m., New York City time, on , 2002, unless extended. The exchange offer is not conditioned upon the tender of any minimum aggregate amount of the outstanding 9 5/8% Senior Subordinated Notes due 2008, which we refer to in this prospectus as the outstanding 9 5/8% notes. All of the outstanding 9 5/8% notes tendered according to the procedures in this prospectus and not withdrawn will be exchanged for an equal principal amount of exchange notes. The exchange offer is not subject to any condition other than that it not violate applicable laws or any applicable interpretation of the staff of the Securities and Exchange Commission. THE EXCHANGE NOTES The terms of the exchange notes to be issued in the exchange offer are substantially identical to the outstanding 9 5/8% notes, except that we have registered the exchange notes with the Securities and Exchange Commission. In addition, the exchange notes will not be subject to the transfer restrictions applicable to the outstanding 9 5/8% notes. We will not apply for listing any of the exchange notes on any securities exchange or to arrange for them to be quoted on any quotation system. The exchange notes will be our unsecured senior subordinated obligations and will be guaranteed on a senior subordinated basis by our subsidiary guarantors. The exchange notes will rank pari passu in right of payment with our existing 9% Senior Subordinated Notes due 2008 and will be subordinated in right of payment to all of our existing and future indebtedness. Interest on the exchange notes will accrue from November 6, 2001, or from the most recent interest payment date to which interest has been paid, and is payable on May 1 and November 1 of each year, beginning on May 1, 2002. The notes will mature on November 1, 2008. YOU SHOULD CAREFULLY CONSIDER THE RISK FACTORS BEGINNING ON PAGE 16 OF THIS PROSPECTUS BEFORE PARTICIPATING IN THE EXCHANGE OFFER. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this prospectus is , 200 . TABLE OF CONTENTS
PAGE ---- Incorporation of Certain Information by Reference........................ iii Forward-Looking Statements............ iv Prospectus Summary.................... 1 Risk Factors.......................... 16 The Acquisitions...................... 23 The Exchange Offer.................... 25 Use of Proceeds....................... 34 Ratio of Earnings to Fixed Charges.... 35 Capitalization........................ 36 Pro Forma Financial Statements........ 37
PAGE ---- Selected Historical Consolidated Financial Data...................... 43 Business.............................. 45 Management............................ 57 Description of Other Indebtedness..... 60 Description of the Exchange Notes..... 62 Certain Federal Income Tax Considerations...................... 101 Plan of Distribution.................. 104 Legal Matters......................... 105 Experts............................... 105
--------------------- You should rely only upon the information contained or incorporated by reference in this document. We have not authorized any other person to provide you with different information in connection with the exchange offer covered by this prospectus. If anyone provides you with different or inconsistent information, you should not rely on it. We are not making an offer to sell, or a solicitation of an offer to buy, the outstanding 9 5/8% notes or the exchange notes in any jurisdiction where, or to any person to or from whom, the offer or sale is not permitted. You should assume the information appearing in this document is accurate only as of the date on the front cover of this document. Our business, financial condition, results of operations and prospects may have changed since that date. This document is based on information provided by us and other sources we believe are reliable. We have summarized certain documents and other information in a manner we believe to be accurate, but we refer you to the actual documents for a more complete understanding of what we discuss in this document. In making an investment decision, you must rely on your own examination of our business and the terms of this offering and the notes, including the merits and risks involved. This exchange offer is being made on the basis of this prospectus. Any decision to participate in the exchange offer must be based on the information contained in this prospectus. You should contact us with any questions about this exchange offer or if you require additional information to verify the information contained in this document. We are not making any representation to any holder of the outstanding 9 5/8% notes regarding the legality of an investment in the exchange notes by it under any legal investment or similar laws or regulations. You should not consider any information in this document to be legal, business or tax advice. You should consult your own attorney, business advisor and tax advisor for legal, business and tax advice regarding an investment in the exchange notes. The federal securities laws prohibit trading in our securities while in possession of material non-public information with respect to us. NOTICE TO NEW HAMPSHIRE RESIDENTS NEITHER THE FACT THAT A REGISTRATION STATEMENT OR AN APPLICATION FOR A LICENSE HAS BEEN FILED UNDER RSA 421-B WITH THE STATE OF NEW HAMPSHIRE NOR THE FACT THAT A SECURITY IS EFFECTIVELY REGISTERED OR A PERSON IS LICENSED IN THE STATE OF NEW HAMPSHIRE CONSTITUTES A FINDING BY THE SECRETARY OF STATE OF NEW HAMPSHIRE THAT ANY DOCUMENT FILED UNDER RSA 421-B IS TRUE, COMPLETE AND NOT MISLEADING. NEITHER ANY SUCH FACT NOR THE FACT THAT AN EXCEPTION OR EXEMPTION IS AVAILABLE FOR A SECURITY OR A TRANSACTION MEANS THE SECRETARY OF STATE HAS PASSED IN ANY WAY UPON THE MERITS OR QUALIFICATIONS OF, OR RECOMMENDED OR GIVEN APPROVAL TO, ANY i PERSON, SECURITY OR TRANSACTION. IT IS UNLAWFUL TO MAKE OR CAUSE TO BE MADE, TO ANY PROSPECTIVE PURCHASER, CUSTOMER OR CLIENT, ANY REPRESENTATION INCONSISTENT WITH THE PROVISIONS OF THIS PARAGRAPH. --------------------- We sold the outstanding 9 5/8% notes to Lehman Brothers Inc., ABN AMRO, Incorporated, Bank of America Securities LLC, Banc One Capital Markets, Inc., Credit Lyonnais Securities (USA), Inc. and Scotia Capital (USA) Inc., as the initial purchasers, on November 6, 2001, in transactions not registered under the Securities Act in reliance upon the exemption provided in Section 4(2) of the Securities Act. The initial purchasers placed the outstanding 9 5/8% notes with qualified institutional buyers (as defined in Rule 144A under the Securities Act) ("Qualified Institutional Buyers" or "QIBs"), each of whom agreed to comply with certain transfer restrictions and other restrictions. Accordingly, the outstanding 9 5/8% notes may not be reoffered, resold or otherwise transferred in the United States unless such transaction is registered under the Securities Act or an applicable exemption from the registration requirements of the Securities Act is available. We are offering the exchange notes hereby in order to satisfy our obligations under a registration rights agreement among us, the subsidiary guarantors and the initial purchasers relating to the outstanding 9 5/8% notes. The exchange notes will bear interest at a rate of 9 5/8% per annum, payable semiannually on May 1 and November 1 of each year, commencing May 1, 2002. Holders of exchange notes of record on April 15, 2002, will receive on May 1, 2002, an interest payment in an amount equal to (x) the accrued interest on such exchange notes from the date of issuance thereof to May 1, 2002, plus (y) the accrued interest on the previously held outstanding 9 5/8% notes from the date of issuance of such outstanding 9 5/8% notes (November 6, 2001) to the date of exchange thereof. The outstanding 9 5/8% notes and the exchange notes mature on November 1, 2008. The outstanding 9 5/8% notes were initially represented by two global outstanding 9 5/8% notes (the "Old Global Notes") in registered form, registered in the name of Cede & Co., as nominee for The Depository Trust Company ("DTC" or the "Depositary"), as depositary. The exchange notes exchanged for outstanding 9 5/8% notes represented by the Old Global Notes will be initially represented by one or more global exchange notes (the "Exchange Global Notes") in registered form, registered in the name of the Depositary. See "Description of the Exchange Notes -- Book-Entry, Delivery and Form". References herein to "Global Notes" shall be references to the Old Global Notes and the Exchange Global Notes. Based on an interpretation of the Securities Act by the staff of the Securities and Exchange Commission (the "SEC" or "Commission"), exchange notes issued pursuant to the exchange offer in exchange for outstanding 9 5/8% notes may be offered for resale, resold and otherwise transferred by a holder thereof (other than (i) a broker-dealer who purchased such outstanding 9 5/8% notes directly from us for resale pursuant to Rule 144A or any other available exemption under the Securities Act or (ii) a person that is our "affiliate" (within the meaning of Rule 405 of the Securities Act)), without compliance with the registration and prospectus delivery provisions of the Securities Act, provided that such holder is acquiring the exchange notes in its ordinary course of business and is not participating, and has no arrangement or understanding with any person to participate, in the distribution of the exchange notes. Holders of outstanding 9 5/8% notes wishing to accept the exchange offer must represent to us that such conditions have been met. Each broker-dealer that receives exchange notes for its own account pursuant to the exchange offer must agree that it will deliver a prospectus in connection with any resale of such exchange notes. The Letter of Transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of exchange notes received in exchange for outstanding 9 5/8% notes where such outstanding 9 5/8% notes were acquired by such broker-dealer as a result of market-making activities or other trading activities. We have agreed that, for a period of one year after the expiration date of the exchange offer, we will make this prospectus available to any broker-dealer for use in connection with any such resale. See "Plan of Distribution". ii The exchange notes will be a new issue of securities for which there currently is no market. The initial purchasers are not obligated to make a market in the exchange notes, and any such market making may be discontinued at any time without notice. As the outstanding 9 5/8% notes were issued and the exchange notes are being issued to a limited number of institutions who typically hold similar securities for investment, we do not expect that an active public market for the exchange notes will develop. Accordingly, there can be no assurance as to the development, liquidity or maintenance of any market for the exchange notes on any securities exchange or for quotation through the Nasdaq Stock Market. See "Risk Factors". INCORPORATION OF CERTAIN INFORMATION BY REFERENCE This prospectus contains information about certain contracts or other documents that is not necessarily complete. When we make such statements, we refer you to the actual copies of the contracts or documents (that we will make available upon request), because the information is qualified in all respects by reference to those documents. We file annual, quarterly and special reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC's web site at http://www.sec.gov. You also may read and copy any document we file at the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. Our common stock is listed and traded on the New York Stock Exchange and the Pacific Stock Exchange under the trading symbol "TSO". Our reports, proxy statements and other information filed with the SEC also can be inspected and copied at the New York Stock Exchange, 20 Broad Street, New York, New York, and at the Pacific Stock Exchange, 301 Pine Street, San Francisco, California. This prospectus "incorporates by reference" the information we file with the SEC, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and information that we file later with the SEC will automatically update and supersede the information in this prospectus. We incorporate by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, until we complete the exchange offer: - Our Annual Report on Form 10-K for the year ended December 31, 2000; - Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2001, June 30, 2001 and September 30, 2001; - Our Definitive Proxy Statement filed on April 20, 2001; - Our Current Report on Form 8-K filed on July 17, 2001; - Our Current Report on Form 8-K filed on September 4, 2001; - Our Current Report on Form 8-K filed on September 21, 2001, as amended by Amendment No. 1 to our Current Report on Form 8-K filed on October 24, 2001 and Amendment No. 2 to our Current Report on Form 8-K filed on November 5, 2001; and - Our Current Report on Form 8-K filed on October 24, 2001. You may request a copy of these filings at no cost, by writing or telephoning us at the following address. Tesoro Petroleum Corporation Attention: Corporate Communications 300 Concord Plaza Drive San Antonio, Texas 78216-6999 (210) 828-8484 TO OBTAIN TIMELY DELIVERY OF ANY COPIES OF FILINGS REQUESTED, PLEASE WRITE OR TELEPHONE NO LATER THAN FIVE DAYS BEFORE THE EXPIRATION DATE. iii FORWARD-LOOKING STATEMENTS This prospectus includes and incorporates by reference forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These statements are included throughout this prospectus, including in the sections entitled "Prospectus Summary", "Risk Factors" and "Business" and relate to projections of revenues, earnings, earnings per share, cash flows, capital expenditures or other financial items, the Acquisitions, discussions of estimated future revenue enhancements and cost savings. These statements also relate to our business strategy, goals and expectations concerning our market position, future operations, margins, profitability, liquidity and capital resources. We have used the words "anticipate", "believe", "could", "estimate", "expect", "intend", "may", "plan", "predict", "project", "will" and similar terms and phrases to identify forward-looking statements in this prospectus and in the documents incorporated by reference in this prospectus. Although we believe the assumptions upon which these forward-looking statements are based are reasonable, any of these assumptions could prove to be inaccurate and the forward-looking statements based on those assumptions could be incorrect. Our operations involve risks and uncertainties, many of which are outside our control, and any one of which, or a combination of which, could materially affect our results of operations and whether the forward-looking statements ultimately prove to be correct. Accordingly, these forward-looking statements are qualified in their entirety by reference to the factors described in "Risk Factors" and elsewhere in this prospectus. Actual results and trends in the future may differ materially depending on a variety of factors including, but not limited to: - changes in general economic conditions; - the timing and extent of changes in commodity prices and underlying demand for our products; - the availability and costs of crude oil, other refinery feedstocks and refined products; - the direct or indirect effects on our business resulting from recent terrorist incidents; - political developments in foreign countries; - changes in our inventory levels; - changes in the cost or availability of third-party vessels, pipelines and other means of transporting feedstocks and products; - changes in fuel and utility costs for our facilities; - disruptions due to equipment interruption or failure at our or third-party facilities; - execution of planned capital projects; - our ability to successfully integrate acquisitions, including the recently acquired North Dakota System and Utah System; - adverse changes in the credit ratings assigned to our trade credit and debt instruments; - state and federal environmental, economic, safety and other policies and regulations, any changes therein, and any legal or regulatory delays or other factors beyond our control; - adverse rulings, judgments, or settlements in litigation or other legal or tax matters, including unexpected environmental remediation costs in excess of any reserves; - actions of customers and competitors; - weather conditions affecting our operations or the areas in which our products are marketed; - earthquakes or other natural disasters affecting operations; and - the condition of the capital markets. iv Many of these factors are described in greater detail in our filings with the SEC. All future written and oral forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the previous statements. We undertake no obligation to update any information contained in this prospectus or to publicly release the results of any revisions to any forward-looking statements that may be made to reflect events or circumstances that occur, or that we become aware of, after the date of this prospectus. v PROSPECTUS SUMMARY The following summary is qualified in its entirety by and should be read in conjunction with the detailed information and financial statements appearing elsewhere or incorporated by reference in this prospectus. You should carefully consider the matters discussed under the caption "Risk Factors". The terms "Tesoro", "we", "our" and "us", except as otherwise indicated in this prospectus or as the context otherwise indicates, refer to Tesoro Petroleum Corporation and its subsidiaries. The term "North Dakota System" refers to the refinery in Mandan, North Dakota and related storage, pipeline, distribution and gasoline marketing assets and the Pipeline System we recently acquired; the term "Utah System" refers to the refinery in Salt Lake City, Utah and related storage, distribution and gasoline marketing assets we recently acquired; and the term "Pipeline System" refers to a crude oil gathering and transmission system located in Montana and North Dakota, which we acquired on November 1, 2001, that provides crude oil to the North Dakota refinery. The term "Acquisitions" refers collectively to the acquisition of the North Dakota System and the Utah System and the term "Transactions" refers to (1) the Acquisitions, (2) the recent financing of our new senior secured credit facility and (3) the offering of the outstanding 9 5/8% notes. Neither the term "Acquisitions" nor the term "Transactions" includes our recent acquisition of certain retail fueling facilities in the Pacific Northwest area from Gull Industries Inc. THE COMPANY OVERVIEW We are an independent refiner and marketer with operations in two business segments -- (1) refining crude oil and other feedstocks and marketing petroleum products ("Refining and Marketing") and (2) providing petroleum products and logistics services to the marine and offshore exploration and production industries ("Marine Services"). Through our Refining and Marketing segment, we manufacture products including gasoline and gasoline blendstocks, jet fuel, diesel fuel and residual fuel for sale to a wide variety of commercial customers in the United States and countries in the Pacific Rim. Our Refining and Marketing segment also distributes gasoline through a retail network of gas stations under the Tesoro, Mirastar, Tesoro Alaska and Amoco brands. Our Marine Services segment markets and distributes a broad range of petroleum products, chemicals and supplies and provides logistical support services to the marine and offshore exploration and production industries operating in the Gulf of Mexico. On August 27, 2001, we announced we are evaluating various strategic opportunities (including a possible sale of all or a part of this business) to capitalize on the value of our Marine Services assets. Our Marine Services business accounted for approximately 6% and 5% of our historical EBITDA and segment operating profit, respectively, for the year ended December 31, 2000 and approximately 5% and 4% of our historical EBITDA and segment operating profit, respectively, for the nine months ended September 30, 2001. On September 6, 2001, we acquired two refineries in North Dakota and Utah and related storage, distribution and retail assets from certain affiliates of BP p.l.c. We paid $665.8 million in cash (including $82.2 million for hydrocarbon inventories) for the Utah System and the North Dakota System (excluding the Pipeline System, which we acquired on November 1, 2001 for $90.1 million). We also assumed certain liabilities and obligations (including costs associated with transferred employees and environmental matters) related to the acquired assets, subject to specified levels of indemnification. The Acquisitions increased our number of refineries from three to five, with aggregate refining capacity rising from 275,000 barrels per day ("bpd") to 390,000 bpd, and increased our retail gas station network from 300 stations to over 630 stations. Revenue for the nine months ended September 30, 2001 was $3.9 billion historically and $4.9 billion pro forma for the Acquisitions, EBITDA for the nine months ended September 30, 2001 was $207.2 million historically and $315.7 million pro forma for the Acquisitions, and net earnings for the nine months ended September 30, 2001 was $84.0 million historically and $125.2 million pro forma for the Acquisitions. 1 REFINING AND MARKETING Our five refineries have a combined rated crude oil throughput capacity of 390,000 bpd, as follows: - 108,000 bpd in Anacortes, Washington; - 95,000 bpd in Kapolei, Hawaii on the island of Oahu; - 72,000 bpd in Kenai, Alaska; - 60,000 bpd in Mandan, North Dakota; and - 55,000 bpd in Salt Lake City, Utah. Our refineries primarily manufacture gasoline and gasoline blendstocks, jet fuel, diesel fuel and residual fuel oil. We also manufacture other products, including liquefied petroleum gas and liquid asphalt. During 2000 (excluding the Acquisitions), products from our refineries accounted for approximately 80% of sales volume, with the remaining 20% purchased from other refiners and suppliers. Actual throughput of crude oil and other feedstocks are summarized below.
THROUGHPUT -------------------------------- REFINERY 1998 1999 2000 2001(a) - -------- ---- ---- ---- ------- (THOUSAND BPD) Washington............................................ 102(b) 98 117(c) 120(c) Hawaii................................................ 82(b) 87 84 88 Alaska................................................ 58 49 49 50 North Dakota(d)....................................... 55 55 51 55 Utah(d)............................................... 49 51 51 51 --- --- --- --- Total Throughput............................ 346 340 352 364 === === === ===
- --------------- (a) For the nine months ended September 30, 2001. (b) Washington and Hawaii refineries average throughput since we acquired them (August 1998 and May 1998, respectively), averaged over the period owned in 1998. If averaged over the full year, the throughput for the Washington and Hawaii refineries would have been 43,000 bpd and 48,000 bpd, respectively. (c) At the Washington refinery, throughput was higher than the rated crude oil capacity in 2000 and the nine months ended September 30, 2001 due to operational improvements and the processing of other feedstocks in addition to crude oil. (d) Includes historical throughput for periods during which we did not own the North Dakota and Utah refineries. Throughput for the 25 days that we owned the North Dakota and Utah refineries in September 2001 averaged 54,600 bpd and 51,200 bpd, respectively. We operate the largest refineries in Hawaii and Utah, the second largest refinery in Alaska and the only refinery in North Dakota. The addition of retail distribution in the North Dakota System and the Utah System further expands our retail market presence and diversifies our income stream. We commenced a heavy oil conversion project at our Washington refinery in 2000, which will enable us to process a larger proportion of lower-cost heavy crude oils, to manufacture a larger proportion of higher-value gasoline and to reduce production of lower-value heavy products. We expect to spend approximately $100 million (including capitalized interest) for this project, of which $85 million had been spent through September 30, 2001. We completed the first stage of the project, the installation of a de-asphalting unit, in late September 2001. We expect the upgrade of the fluid catalytic cracking unit, the final major component of the heavy oil conversion project, to be operational by the end of the first quarter of 2002. We originally estimated the total heavy oil conversion project would increase annual operating profit by $30 million to $40 million. Based upon price differentials between light and heavy crude oils and between light and heavy refined products and changes in throughput, yield levels and operating expenses, we estimate the heavy oil conversion project 2 would have increased annual operating profit by approximately $41 million for the twelve months ended August 31, 2001, if it had been in operation during that period. We also operate refined product terminals in the following states: - Alaska -- Anchorage and Kenai; - California -- Port Hueneme and Stockton; - Hawaii -- on the islands of Hawaii, Kauai, Maui and Oahu; - Idaho -- Boise and Burley; - Minnesota -- Minneapolis/St. Paul, Moorehead and Sauk Center; - North Dakota -- Jamestown and Mandan; - Utah -- Salt Lake City; and - Washington -- Anacortes, Port Angeles and Vancouver. In addition, we distribute products through third-party terminals and truck racks in our market areas. Terminals we operate are supplied primarily by our refineries. Fuel distributed through third-party facilities is supplied both by our refineries and through purchases and exchange arrangements with other refining and marketing companies. On August 30, 2001, we opened a Long Beach, California office to provide supply and marketing activities in California and the southwestern United States. Our goal is to establish a marketing operation in California capable of providing a competitive and secure supply of products to independent marketers in California. To further these objectives, we leased approximately 500,000 barrels of storage capacity with waterborne access in southern California. We are evaluating several additional projects at our existing refineries that could increase our production capacity of California Air Resources Board products from approximately 25,000 bpd to between 50,000 and 60,000 bpd. As of September 30, 2001, our Refining and Marketing business included a network of 650 branded retail stations (under the Tesoro, Mirastar, Tesoro Alaska and Amoco brands), including 163 Tesoro-owned retail gasoline stations and 487 jobber stations (third-party retail distributors) in the mid-continental and western United States. We developed our Mirastar brand exclusively for Wal-Mart, for which we build and operate retail fueling facilities on sites at selected Wal-Mart store locations. Our relationship with Wal-Mart covers 17 western states, including North Dakota and Utah. As of September 30, 2001, we had 47 Mirastar stations in operation, 5 stations under construction and 54 sites in various stages of development or evaluation. The availability of future sites is determined solely at Wal-Mart's option, but decisions concerning the development of a Mirastar station at a site are determined solely by us. We expect to have approximately 60 to 70 Mirastar stations operating by the end of 2001 and expect to construct an additional 50 to 60 stations in each of 2002 and 2003. In November 2001, we acquired 46 retail fueling facilities, including 37 retail stations with convenience stores and nine commercial card lock facilities, located in Washington, Oregon and Idaho from Gull Industries Inc., a privately-held company based in Seattle, Washington. MARINE SERVICES Our Marine Services segment markets and distributes a broad range of petroleum products, chemicals and supplies and provides logistical support services to the marine and offshore exploration and production industries operating in the Gulf of Mexico. These operations are conducted through a network of 15 terminals located on the Texas Gulf Coast in Freeport, Galveston, Harbor Island, Houston, Port O'Connor and Sabine Pass, and along the Louisiana Gulf Coast in Amelia, Berwick, Cameron, Intracoastal City, Port Fourchon and Venice. We also own tugboats, barges and trucks used in the Marine Services operations. On August 27, 2001, 3 we announced we are evaluating various strategic opportunities (including a possible sale of all or a part of this business) to capitalize on the value of our Marine Services assets. Fuels and Lubricants. Our Marine Services segment markets and distributes fuels and lubricants to offshore drilling rigs, offshore production platforms and various ships engaged in seismic surveys. Marine Services also provides petroleum products to the Gulf of Mexico fishing industry, tugboats and barges using the Intracoastal Canal System along the Gulf of Mexico and ships entering various ports in Texas and Louisiana. Marine Services obtains its supply of fuel from local area refiners. Total gallons of fuel, primarily diesel fuel, sold by this segment amounted to approximately 181 million, 148 million and 170 million in 1998, 1999 and 2000, respectively and 132 million in the nine months ended September 30, 2001. We are a distributor of major brands of marine lubricants and greases, offering a full spectrum of brands. Total sales of lubricants amounted to approximately two million gallons in each of the years 1998, 1999 and 2000 and 1.6 million gallons in the nine months ended September 30, 2001. Logistical Services. Through many of our Gulf Coast terminals, Marine Services provides full-service shore-based support to offshore drilling rigs and production platforms. These services include cranes, forklifts and loading docks for supply boats serving the offshore exploration and production industry. In addition, Marine Services provides warehousing, office space, living quarters, helicopter landing pads and long-term parking for offshore workers. Marine Services terminals also serve as "one-stop shops" for a full range of offshore exploration and production services. We provide products and services, such as drilling mud, environmental services and equipment repair and fabrication, through a variety of arrangements with tenant partners. STRATEGY AND COMPETITIVE STRENGTHS Our goal is to create value by: - maximizing our earnings, cash flows and return on capital employed by reducing costs, increasing efficiencies and optimizing existing assets; and - increasing our competitiveness by expanding our size and market presence through a combination of internal growth initiatives and selective acquisitions that are accretive to earnings and cash flow and provide operational synergies. We believe that we are well positioned to execute this strategy as a result of the following competitive strengths: Geographic and Cash Flow Diversity. The Acquisitions have further diversified our geographical and operational sources of earnings and cash flow. Prior to the Acquisitions, our refining and marketing operations were all located in the Pacific Northwest and West Coast regions, or Petroleum Administration for Defense District V, a federal regional designation encompassing Alaska, Arizona, California, Hawaii, Nevada, Oregon and Washington. As a result of the Acquisitions, we commenced refining and marketing operations in the mid-continental United States and expanded our operations in the western United States. In addition, the building and purchase of additional retail stations has furthered our operational and geographic diversification. This geographical diversity reduces our dependence on any one market, which should reduce the volatility of our earnings and cash flow. Operations in Attractive Markets. Prior to the Acquisitions, we operated primarily in three markets -- Alaska, Hawaii and the Pacific Northwest. The acquisition of the North Dakota System and the Utah System continues our operational strategy of concentrating on markets with above-average historical refining margins. The operating regions that include the North Dakota System and the Utah System include markets where refining margins historically have been higher than those on the Gulf and East Coasts and in the Midwest. Solid Track Record. Over the last several years, we have made significant operating improvements in each of our business segments while reducing our overall financial leverage. We have established a solid track record of operating stability and growth, with compound annual EBITDA growth from continuing operations 4 of 123% during the period from 1996 to 2000 (excluding the Acquisitions). In addition, we are dedicated to attaining conservative leverage levels. While leverage has historically increased as a result of acquisitions, we have successfully decreased debt levels with increased cash flow, asset sales and aggressive debt repayment efforts. From 1993 to 1996, we decreased our ratio of total debt to EBITDA by approximately 84%. Again, from 1998 (the year of our Washington and Hawaii acquisitions) through 2000, we decreased our ratio of total debt to EBITDA by approximately 58%. These results demonstrate our experience and commitment to reducing debt levels, as well as our long-term focus on operating with a balanced capital structure. Growth Opportunities in our Retail Business. Our retail operations are an important component of our corporate strategy as they provide a ratable offtake for our products at higher margins than products sold at wholesale. In addition, the retail market generally provides a more profitable outlet for refined product than the wholesale market. The North Dakota System and the Utah System complement our existing retail platform and fortify our growth strategy. We expect to use the North Dakota System as a platform for retail expansion in the Minneapolis/St. Paul market. We intend to use the Utah refinery to expand our proprietary supply to the eastern Washington state market, offering us further retail expansion opportunities. Our agreement with Wal-Mart provides us additional growth opportunities to build and operate retail fueling facilities under the Mirastar brand on sites at selected Wal-Mart store locations in the western United States, including North Dakota and Utah. Experienced Management Team. We benefit from a strong and experienced management team at both the corporate and operating levels. Our senior management team has an average of 25 years of experience in the energy industry. Our management team has significantly improved our operating and financial performance over the last five years. In addition, our management team has demonstrated its ability to integrate acquisitions involving significant increases in assets, capacity and employees, as evidenced by our successful integration of the Washington and Hawaii refineries in 1998. --------------------- We were incorporated in Delaware in 1968. Our principal executive offices are located at 300 Concord Plaza Drive, San Antonio, Texas 78216-6999 and our telephone number is (210) 828-8484. THE TRANSACTIONS THE ACQUISITIONS On September 6, 2001, we acquired the Utah System and the North Dakota System (excluding the Pipeline System which is discussed below) from certain affiliates of BP. We paid $665.8 million in cash (including $82.2 million for hydrocarbon inventories). The North Dakota System. The North Dakota System (excluding the Pipeline System) includes: - a 60,000 bpd refinery in Mandan, North Dakota; - five terminals with an aggregate capacity of 2.8 million barrels (including refinery tankage); - approximately 430 miles of refined product pipeline connecting the refinery to our terminals, including the Minneapolis/St. Paul market; - 12 retail stations with convenience stores; and - contracts to supply a jobber network of over 90 retail stations. The Utah System. The Utah System includes: - a 55,000 bpd refinery in Salt Lake City, Utah; - five terminals, two of which are leased, with an aggregate capacity of 2.5 million barrels (including refinery tankage); 5 - 31 retail stations with convenience stores; and - contracts to supply a jobber network of over 200 retail stations. The Pipeline System. In connection with the acquisition of the North Dakota refinery, we acquired the Pipeline System, which consists of over 700 miles of pipeline, on November 1, 2001. The Pipeline System is configured to gather crude oil from the local Williston Basin and adjacent production areas in North Dakota and Montana and transport it to the North Dakota refinery. The Pipeline System also is configured to move substantial quantities of imported Canadian crude oil to the North Dakota refinery or transport it either to Clearbrook, Minnesota to the east or to Guernsey, Wyoming to the south. We funded the $90.1 million purchase price with the proceeds of the delayed draw term loan under our new senior secured credit facility. THE FINANCINGS Senior Secured Credit Facility. On September 6, 2001, we entered into a new senior secured credit facility arranged by Lehman Brothers Inc. in the amount of $1.0 billion in connection with the funding of the acquisitions of the North Dakota System and the Utah System. Our new senior secured credit facility, as amended, consists of a $175 million revolving credit facility (with a $90 million sublimit for letters of credit), an $85 million tranche A term loan, a $90 million delayed draw term loan (used to fund the purchase of the Pipeline System), a $450 million tranche B term loan and a $200 million capital markets term loan. On November 6, 2001, we repaid the $200 million capital markets term loan with the proceeds of the outstanding 9 5/8% notes, as described below. Our new senior secured credit facility is guaranteed by substantially all of our active domestic subsidiaries and is secured by substantially all of our material present and future assets as well as all material present and future assets of our domestic subsidiaries (with certain exceptions for pipeline, retail and marine services assets) and is additionally secured by a pledge of all of the stock of all current active and future domestic subsidiaries and of 66% of the stock of our current and future foreign subsidiaries. Offering of the Outstanding 9 5/8% Notes. We issued $215 million in aggregate principal amount of the outstanding 9 5/8% notes on November 6, 2001. We used the net proceeds of this offering to repay in full the capital markets term loan under our new senior secured credit facility, to pay accrued interest on the capital markets term loan, to pay underwriting fees and offering expenses related to the offering and for general corporate purposes. See "Use of Proceeds" and "Capitalization". THE EXCHANGE OFFER BACKGROUND OF THE OUTSTANDING 9 5/8% NOTES.................. We issued $215 million aggregate principal amount of our 9 5/8% Senior Subordinated Notes due 2008 to Lehman Brothers Inc., ABN AMRO, Incorporated, Bank of America Securities LLC, Banc One Capital Markets, Inc., Credit Lyonnais Securities (USA), Inc. and Scotia Capital (USA) Inc., as the initial purchasers, on November 6, 2001. The initial purchasers then sold the outstanding 9 5/8% notes to qualified institutional buyers in reliance on Rule 144A under the Securities Act and to non-U.S. persons outside the United States in reliance on Regulation S under the Securities Act. Because they were sold pursuant to exemptions from registration, the outstanding 9 5/8% notes are subject to transfer restrictions. In connection with the issuance of the outstanding 9 5/8% notes, we entered into a registration rights agreement in which we agreed to deliver to you this prospectus and to use our best efforts to complete the exchange offer or to file and cause to become effective a registration statement covering the resale of the outstanding 9 5/8% notes. 6 THE EXCHANGE OFFER............ We are offering to exchange up to $215 million principal amount of exchange notes for an identical principal amount of the outstanding 9 5/8% notes. The outstanding 9 5/8% notes may be exchanged only in $1,000 increments. The terms of the exchange notes are identical in all material respects to the outstanding 9 5/8% notes except that the exchange notes have been registered under the Securities Act. Because we have registered the exchange notes, the exchange notes will not be subject to transfer restrictions and holders of exchange notes will have no registration rights. RESALE OF EXCHANGE NOTES...... We believe you may offer, sell or otherwise transfer the exchange notes you receive in the exchange offer without compliance with the registration and prospectus delivery provisions of the Securities Act provided that: - you acquire the exchange notes you receive in the exchange offer in the ordinary course of your business; - you are not participating and have no understanding with any person to participate in the distribution of the exchange notes issued to you in the exchange offer; and - you are not an affiliate of ours. Each broker-dealer issued exchange notes in the exchange offer for its own account in exchange for the outstanding 9 5/8% notes acquired by the broker-dealer as a result of market-making or other trading activities must acknowledge that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of the exchange notes issued in the exchange offer. A broker-dealer may use this prospectus for an offer to resell, resale or other retransfer of the exchange notes issued to it in the exchange offer. EXPIRATION DATE............... 5:00 p.m., New York City time, on , 2002, unless we extend the exchange offer. It is possible that we will extend the exchange offer until all of the outstanding 9 5/8% notes are tendered. You may withdraw the outstanding 9 5/8% notes you tendered at any time before 5:00 p.m., New York City time, on the expiration date. See "The Exchange Offer -- Expiration Date; Extensions; Amendments". WITHDRAWAL RIGHTS............. You may withdraw the outstanding 9 5/8% notes you tendered by furnishing a notice of withdrawal to the exchange agent or by complying with applicable Automated Tender Offer Program (ATOP) procedures of The Depositary Trust Company (DTC) at any time before 5:00 p.m. New York City time on the expiration date. See "The Exchange Offer -- Withdrawal of Tenders". ACCRUED INTEREST ON THE EXCHANGE NOTES AND OUR OUTSTANDING 9 5/8% NOTES...... The exchange notes will bear interest from November 6, 2001 or, if later, from the most recent date of payment of interest on the outstanding 9 5/8% notes. CONDITIONS TO THE EXCHANGE OFFER......................... The exchange offer is subject only to the following conditions: - the compliance of the exchange offer with securities laws; 7 - the proper tender of the outstanding 9 5/8% notes; - the representation by the holders of the outstanding 9 5/8% notes that they are not our affiliates, that the exchange notes they will receive are being acquired by them in the ordinary course of business and that at the time the exchange offer is completed the holders had no plans to participate in the distribution of the exchange notes; and - no judicial or administrative proceeding is pending or shall have been threatened that would limit us from proceeding with the exchange offer. REPRESENTATIONS AND WARRANTIES.................... By participating in the exchange offer, you represent to us that, among other things: - you will acquire the exchange notes you receive in the exchange offer in the ordinary course of your business; - you are not participating and have no understanding with any person to participate in the distribution of the exchange notes issued to you in the exchange offer; and - you are not an affiliate of ours or, if you are an affiliate, you will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable. PROCEDURES FOR TENDERING OUR OUTSTANDING 9 5/8% NOTES...... To accept the exchange offer, you must send the exchange agent either - a properly completed and executed letter of transmittal; or - a computer-generated message transmitted by means of DTC's ATOP system that, when received by the exchange agent will form a part of a confirmation of book-entry transfer in which you acknowledge and agree to be bound by the terms of the letter of transmittal; and either - a timely confirmation of book-entry transfer of your outstanding 9 5/8% notes into the exchange agent's account at DTC; or - the documents necessary for compliance with the guaranteed delivery procedures described below. Other procedures may apply to holders of certificated notes. For more information, see "The Exchange Offer -- Procedures for Tendering". TENDERS BY BENEFICIAL OWNERS........................ If you are a beneficial owner whose outstanding 9 5/8% notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and wish to tender those outstanding 9 5/8% notes in the exchange offer, please contact the registered holder as soon as possible and instruct that holder to tender on your behalf and comply with the instructions in this prospectus. GUARANTEED DELIVERY PROCEDURES.................... If you are unable to comply with the procedures for tendering, you may tender your outstanding 9 5/8% notes according to the guaran- 8 teed delivery procedures described in this prospectus under the heading "The Exchange Offer -- Guaranteed Delivery Procedures". ACCEPTANCE OF THE OUTSTANDING 9 5/8% NOTES AND DELIVERY OF EXCHANGE NOTES................ If the conditions described under "The Exchange Offer -- Conditions" are satisfied, we will accept for exchange any and all outstanding 9 5/8% notes that are properly tendered before the expiration date. EFFECT OF NOT TENDERING....... Any of the outstanding 9 5/8% notes that are not tendered or that are tendered but not accepted will remain subject to restrictions on transfer. Since the outstanding 9 5/8% notes have not been registered under the federal securities laws, they bear a legend restricting their transfer absent registration or the availability of an exemption from registration. Upon completion of the exchange offer, we will have no further obligation, except under limited circumstances, to provide for registration of the outstanding 9 5/8% notes under the federal securities laws. FEDERAL INCOME TAX CONSIDERATIONS................ See "Certain Federal Income Tax Considerations" for a discussion of U.S. federal income tax considerations you should consider before tendering the outstanding 9 5/8% notes in the exchange offer. EXCHANGE AGENT................ U.S. Bank Trust National Association is serving as exchange agent for the exchange offer. The address for the exchange agent is listed under "The Exchange Offer -- Exchange Agent". THE EXCHANGE NOTES The form and terms of the exchange notes to be issued in the exchange offer are the same as the form and terms of the outstanding 9 5/8% notes except that the exchange notes will be registered under the Securities Act and, accordingly, will not bear legends restricting their transfer. The notes issued in the exchange offer will evidence the same debt as the outstanding 9 5/8% notes, and both the outstanding 9 5/8% notes and the exchange notes are governed by the same indenture. The following terms are applicable to both the outstanding 9 5/8% notes and the exchange notes. In this document, the term "notes" refers to both the outstanding 9 5/8% notes and the exchange notes. We define certain capitalized terms used in this summary in the "Description of Notes -- Certain Definitions" section of this prospectus. Company....................... Tesoro Petroleum Corporation Securities Offered............ $215 million in principal amount of 9 5/8% Senior Subordinated Notes due 2008, Series B. Maturity Date................. November 1, 2008. Interest Payment Dates........ May 1 and November 1 of each year, commencing on May 1, 2002. Mandatory Redemption.......... We will not be required to make mandatory redemption or sinking fund payments with respect to the notes. Optional Redemption........... We may redeem the notes in whole or in part at any time on or after November 1, 2005, at the redemption prices described under "Description of the Notes -- Optional Redemption". Prior to November 1, 2004, we may redeem up to 35% of the notes with the 9 proceeds of an equity offering, subject to limitations contained in our new senior secured credit facility. Subsidiary Guarantees......... All payments with respect to the notes will be fully and unconditionally guaranteed, jointly and severally, on a senior subordinated basis by our domestic restricted subsidiaries. Our foreign subsidiaries generally will not, and our subsidiaries designated as unrestricted subsidiaries will not, be required to provide guarantees; however, if any subsidiary guarantees any Tesoro indebtedness, it must guarantee these notes. If we cannot make payments on the notes when they are due, the guarantor subsidiaries must make them instead. See "Description of the Exchange Notes -- Subsidiary Guarantees". Change of Control............. If we experience specific kinds of changes of control, we must offer to repurchase the notes at 101% of the principal amount of the notes, plus accrued and unpaid interest, if any, to the date of repurchase. For more details, see "Description of the Exchange Notes -- Repurchase at the Option of Holders -- Change of Control". Ranking....................... The notes will be our unsecured senior subordinated obligations. The notes will rank: - subordinate in right of payment to all existing and future senior indebtedness, including our new senior secured credit facility; - equal in right of payment with existing and any future senior subordinated indebtedness; and - senior in right of payment to any future junior subordinated indebtedness. Assuming we had completed this offering as of September 30, 2001, and applied the net proceeds as described in "Use of Proceeds", the notes: - would have been subordinated to approximately $678 million of senior indebtedness; and - would have ranked equally in right of payment with $300 million of other senior subordinated indebtedness. Certain Covenants............. We will issue the notes under an indenture with U.S. Bank Trust National Association, as trustee. The indenture contains limitations on, among other things: - the payment of dividends and other distributions with respect to our capital stock and the purchase, redemption or retirement of our capital stock; - restrictions affecting the right of restricted subsidiaries to make certain payments and distributions; - our ability to incur additional indebtedness and issue preferred stock; - asset sales; - transactions with affiliates; - the incurrence of liens on assets to secure certain debt; 10 - engaging in certain business activities; and - certain mergers or consolidations and transfers of assets. These covenants are subject to exceptions, and many of the covenants will terminate before the notes mature if two specified rating agencies assign the notes an investment-grade rating in the future and no event of default exists under the indenture. See "Description of the Exchange Notes -- Certain Covenants". Exchange Offer, Registration Rights........................ Under a registration rights agreement between us and the initial purchasers of the notes, we have agreed to: - file with the SEC a registration statement with respect to an offer to exchange (the "Registered Exchange Offer") the outstanding 9 5/8% notes for notes of ours having substantially identical terms as the outstanding 9 5/8% notes (the "exchange notes") (except that the exchange notes will not contain terms with respect to transfer restrictions) within 60 days after the date of the original issuance of the offered notes; and - use our reasonable best efforts to cause the registration statement to become effective under the Securities Act within 120 days after the date of the original issuance of the outstanding 9 5/8% notes. Under certain circumstances, in lieu of a Registered Exchange Offer, we have agreed to file a shelf registration statement with respect to the offered notes and to use our reasonable best efforts to keep the shelf registration statement effective for at least two years after its effective date. The interest rate on the notes will increase under certain circumstances if we do not comply with our obligations under the registration rights agreement. For more details, see "Description of the Exchange Notes -- Registration Rights; Liquidated Damages". Use of Proceeds............... We will not receive any cash proceeds from the exchange offer. We used the net proceeds from the issuance of the outstanding 9 5/8% notes to repay in full $200 million of outstanding indebtedness incurred under the capital markets term loan under our new senior secured credit facility and interest accrued on this indebtedness. We incurred this indebtedness to fund a portion of the purchase price for the acquisition of the North Dakota System (excluding the Pipeline System) and the Utah System. The remaining net proceeds were or will be used for underwriting fees and offering expenses and for general corporate purposes. 11 SUMMARY HISTORICAL AND UNAUDITED PRO FORMA FINANCIAL DATA The following tables set forth certain of our summary historical condensed consolidated financial data and certain pro forma information after giving effect to the Transactions, the issuance of the exchange notes and the conversion of our Premium Income Equity Securities ("PIES(SM)") into shares of our common stock. The summary historical financial information presented below for each of the years ended December 31, 1998, 1999 and 2000, and for each of the nine-month periods ended September 30, 2000 and 2001, has been derived from the financial statements incorporated by reference in this prospectus. The pro forma results of consolidated operations for the year ended December 31, 2000 and for the nine months ended September 30, 2001 and the pro forma balance sheet data as of September 30, 2001 are derived from our unaudited pro forma financial statements included in this prospectus. The unaudited pro forma information set forth below is not necessarily indicative of the results that actually would have been achieved had the Transactions been consummated on January 1, 2000, or that may be achieved in the future. The unaudited pro forma financial statements do not reflect any benefits from potential cost savings or revenue enhancements resulting from our integration of the North Dakota System and the Utah System. You should read this information in conjunction with "Management's Discussion and Analysis of Financial Condition and Results of Operations" in our Annual Report on Form 10-K and Quarterly Reports on Form 10-Q incorporated by reference in this prospectus and the "Selected Historical Consolidated Financial Data", "Pro Forma Financial Statements", the Consolidated Financial Statements of Tesoro Petroleum Corporation and the Combined Financial Statements of The North Dakota and Utah Refining and Marketing Business of BP Corporation North America Inc. included or incorporated by reference in this prospectus.
TESORO HISTORICAL PRO FORMA TESORO HISTORICAL PRO FORMA ------------------------------ --------- ------------------- --------- YEARS ENDED DECEMBER 31,(a) NINE MONTHS ENDED SEPTEMBER 30, ------------------------------------------ ------------------------------- 1998 1999 2000 2000 2000 2001(b) 2001 -------- -------- -------- --------- -------- -------- --------- (DOLLARS IN MILLIONS) STATEMENT OF OPERATIONS DATA: Total Revenues.................. $1,386.6 $3,000.3 $5,104.4 $6,588.2 $3,668.1 $3,938.9 $4,911.2 Total Segment Operating Profit(c)..................... 78.3 131.0 199.5 291.0 140.6 213.5 321.0 Net Earnings from Continuing Operations before Extraordinary Items........... 7.6 32.2 73.3 91.5 48.9 84.0 125.2 OTHER DATA: Cash Flows From (Used In): Operating activities.......... $ 121.8 $ 112.7 $ 90.4 * $ 53.5 $ 76.3 * Investing activities.......... (718.6) 166.3 (88.0) * (40.9) (836.8) * Financing activities.......... 606.6 (149.2) (130.1) * (129.9) 747.6 * -------- -------- -------- -------- -------- -------- -------- Increase (Decrease) in Cash and Cash Equivalents.............. $ 9.8 $ 129.8 $ (127.7) * $ (117.3) $ (12.9) * ======== ======== ======== ======== ======== ======== ======== EBITDA(d): Refining and Marketing........ $ 94.8 $ 163.0 $ 229.5 $ 346.0 $ 160.8 $ 235.8 $ 344.3 Marine Services............... 11.0 8.5 13.1 13.1 10.6 11.3 11.3 -------- -------- -------- -------- -------- -------- -------- Total Segment EBITDA........ 105.8 171.5 242.6 359.1 171.4 247.1 355.6 Corporate and unallocated..... (39.9) (39.8) (40.9) (40.9) (30.4) (39.9) (39.9) -------- -------- -------- -------- -------- -------- -------- Total from Continuing Operations........... 65.9 131.7 201.7 318.2 141.0 207.2 315.7 Discontinued operations....... 87.0 110.3 -- -- -- -- -- -------- -------- -------- -------- -------- -------- -------- Total Consolidated EBITDA............... $ 152.9 $ 242.0 $ 201.7 $ 318.2 $ 141.0 $ 207.2 $ 315.7 ======== ======== ======== ======== ======== ======== ======== Capital Expenditures(e): Refining and Marketing........ $ 38.0 $ 72.4 $ 87.5 * $ 38.4 $ 127.3 * Marine Services............... 4.2 1.5 3.2 * 2.2 2.3 * Corporate..................... 7.8 10.8 3.3 * 2.1 22.1 * -------- -------- -------- -------- -------- -------- -------- Total from Continuing Operations........... 50.0 84.7 94.0 * 42.7 151.7 * Discontinued operations....... 135.1 56.5 -- * -- -- * -------- -------- -------- -------- -------- -------- -------- Total Capital Expenditures......... $ 185.1 $ 141.2 $ 94.0 * $ 42.7 $ 151.7 * ======== ======== ======== ======== ======== ======== ========
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TESORO HISTORICAL PRO FORMA TESORO HISTORICAL PRO FORMA ------------------------------ --------- ------------------- --------- YEARS ENDED DECEMBER 31,(a) NINE MONTHS ENDED SEPTEMBER 30, ------------------------------------------ ------------------------------- 1998 1999 2000 2000 2000 2001(b) 2001 -------- -------- -------- --------- -------- -------- --------- (DOLLARS IN MILLIONS) Crude Oil Refining Capacity (thousands of bpd)............ 275 275 275 390 275 390 390 Number of Branded Retail Stations (end of period): Tesoro-owned.................. 61 62 83 126 69 163 163 Jobber-owned.................. 171 182 193 486 201 487 487 -------- -------- -------- -------- -------- -------- -------- Total Stations......... 232 244 276 612 270 650 650 ======== ======== ======== ======== ======== ======== ======== Total Debt/EBITDA............... 3.6x 1.7x 1.5x * * * * EBITDA/Interest Expense (Continuing Operations)....... 2.6x 3.5x 6.2x 3.4x 5.5x 6.6x 4.6x EBITDA/Interest Expense plus Preferred Dividends (Continuing Operations)(f).... 2.1x 2.7x 4.5x 3.4x 4.1x 5.5x 4.6x
TESORO HISTORICAL PRO FORMA TESORO HISTORICAL PRO FORMA ------------------------------ --------- ------------------- --------- AS OF DECEMBER 31, AS OF SEPTEMBER 30, ------------------------------------------ ------------------------------- 1998 1999 2000 2000 2000 2001(b) 2001 -------- -------- -------- --------- -------- -------- --------- (DOLLARS IN MILLIONS) BALANCE SHEET DATA: Cash and Cash Equivalents....... $ 12.0 $ 141.8 $ 14.1 * $ 24.5 $ 1.2 $ 6.0 Working Capital................. 182.4 290.0 247.8 * 252.4 397.3 393.8 Property, Plant and Equipment, Net........................... 691.4 731.6 781.4 * 741.8 1,372.3 1,462.3 Total Assets.................... 1,406.4 1,486.5 1,543.6 * 1,530.8 2,539.3 2,643.4 Total Debt and Other Obligations................... 543.9 417.6 310.6 * 310.8 1,085.1 1,190.1 Stockholders' Equity(g)......... 559.2 623.1 669.9 * 647.8 752.0 752.0
- --------------- * Not available. (a) Financial results of the Washington refinery operations and the Hawaii refinery operations have been included in the amounts above since August 1998 and May 1998, their respective acquisition dates. (b) Financial results of the North Dakota System (excluding the Pipeline System) and the Utah System have been included in the amounts above since September 6, 2001, their acquisition date. (c) Segment operating profit equals operating revenues, gains and losses on asset sales and other income, less applicable segment costs of sales, operating expenses, depreciation and other items. Income taxes, interest expense, corporate general and administrative and other expenses are not included in determining segment operating profit. In 1998, a charge of $19 million for special incentive compensation, of which $7 million related to operating segments, was classified as corporate other expense and not charged to segment operating profit. (d) Earnings before extraordinary items, interest and financing costs, income taxes and depreciation and amortization ("EBITDA") is a measure we use for internal analysis and in presentations to analysts, investors and lenders. The calculation of EBITDA is not based on accounting principles generally accepted in the United States ("U.S. GAAP") and should not be considered as an alternative to net earnings or cash flows from operating activities (which are determined in accordance with U.S. GAAP), as an indicator of operating performance or as a measure of liquidity. EBITDA may not be comparable to similarly titled measures used by other entities. (e) Capital expenditures exclude $536.5 million in 1998 and $669.7 million in 2001 to fund acquisitions in the Refining and Marketing segment. (f) We paid preferred dividends to holders of our PIES(SM), representing fractional interests of our 7.25% Mandatorily Convertible Preferred Stock, for the periods presented. These securities automatically converted into 10.35 million shares of our common stock on July 1, 2001. We paid the final quarterly cash dividends on the PIES(SM) on July 2, 2001. (g) We have not paid dividends on our common stock since 1986. 13 SUMMARY REFINING AND MARKETING OPERATING DATA
NINE MONTHS FISCAL YEARS ENDED ----------------------- SEPTEMBER 30, 1998(a) 1999 2000 2001 ------- ----- ----- ------------- REFINERY THROUGHPUT (thousand bpd): Washington Refinery........................... 102 98 117(b) 120(b) Hawaii Refinery............................... 82 87 84 88 Alaska Refinery............................... 58 49 49 50 North Dakota Refinery(c)...................... 55 55 51 55 Utah Refinery(c).............................. 49 51 51 51 ----- ----- ----- ----- Total Throughput.................... 346 340 352 364 ===== ===== ===== ===== REFINED PRODUCTS MANUFACTURED (thousand bpd): Washington, Hawaii and Alaska Refineries, as a group -- Gasoline and gasoline blendstocks........... 93 93 95 92 Jet fuel.................................... 59 58 58 57 Diesel fuel................................. 33 33 39 43 Heavy oils, residual products and other..... 66 60 65 72 ----- ----- ----- ----- Total for Hawaii, Washington and Alaska Refineries, as a group..... 251 244 257 264 ===== ===== ===== ===== North Dakota Refinery(c) -- Gasoline and gasoline blendstocks........... 31 32 30 29 Jet fuel.................................... 4 4 3 2 Diesel fuel................................. 16 15 14 18 Heavy oils, residual products and other..... 3 2 2 3 ----- ----- ----- ----- Total for North Dakota Refinery..... 54 53 49 52 ===== ===== ===== ===== Utah Refinery(c) -- Gasoline and gasoline blendstocks........... 28 28 28 28 Jet fuel.................................... 7 8 7 6 Diesel fuel................................. 13 13 14 14 Heavy oils, residual products and other..... 3 3 3 3 ----- ----- ----- ----- Total for Utah Refinery............. 51 52 52 51 ===== ===== ===== ===== REFINERY PRODUCT SPREAD ($/barrel): Washington, Alaska and Hawaii Refineries, as a group....................................... $5.67 $5.79 $6.99 $7.87(d) NUMBER OF BRANDED RETAIL STATIONS (end of period): Western and Mid-continental U.S. (excluding stations included in the Acquisitions) -- Tesoro-owned................................ -- -- 21 55 Jobber-owned................................ 44 54 75 86 Hawaii -- Tesoro-owned................................ 30 31 33 34 Jobber-owned................................ 2 3 3 3
14
NINE MONTHS FISCAL YEARS ENDED ----------------------- SEPTEMBER 30, 1998(a) 1999 2000 2001 ------- ----- ----- ------------- Alaska -- Tesoro-owned................................ 31 31 29 31 Jobber-owned................................ 125 125 115 105 North Dakota(e) -- Tesoro-owned................................ * * * 12 Jobber-owned................................ * * * 91 Utah(e) -- Tesoro-owned................................ * * * 31 Jobber-owned................................ * * * 202
- --------------- * Not applicable. (a) Washington and Hawaii refineries average throughput and refined products manufactured since date of acquisitions (August 1998 and May 1998, respectively), averaged over the period owned in 1998. If averaged over the full year, the throughput for the Washington and Hawaii refineries would have been 43,000 bpd and 48,000 bpd, respectively. (b) At the Washington refinery, throughput and refined products manufactured were higher than the rated crude oil capacity in 2000 and the nine months ended September 30, 2001 due to operational improvements and the processing of other feedstocks in addition to crude oil. (c) Includes historical throughput and refined products manufactured for periods during which we did not own the North Dakota and Utah refineries. Throughput for the 25 days that we owned the North Dakota and Utah refineries in September 2001 averaged 54,600 bpd and 51,200 bpd, respectively. (d) Refinery product spread for 2001 includes amounts for North Dakota and Utah operations since their acquisition on September 6, 2001. (e) Reflects the number of stations included in the Acquisitions. 15 RISK FACTORS Your investment in the exchange notes will involve risks. Before you decide to exchange the outstanding 9 5/8% notes, you should carefully consider the following risk factors and the other information set forth or incorporated by reference in this prospectus. RISKS RELATING TO THE EXCHANGE NOTES WE HAVE A SUBSTANTIAL AMOUNT OF DEBT THAT COULD HAVE A MATERIAL ADVERSE EFFECT ON OUR BUSINESS, FINANCIAL CONDITION AND RESULTS OF OPERATIONS AND PREVENT US FROM SATISFYING OUR OBLIGATIONS UNDER THE EXCHANGE NOTES. Giving effect to the Transactions and the application of the net proceeds as described in this prospectus, our pro forma consolidated indebtedness as of September, 2001 would have been $1.2 billion (including the outstanding 9 5/8% notes, but excluding an additional $131.2 million available under our revolving credit facility). Our high degree of leverage may have important consequences for you, including the following: - we may have difficulties obtaining additional or favorable financing for capital expenditures, working capital, acquisitions or other purposes; - a substantial portion of our cash flow will be used to make debt service payments, which will reduce the funds that would otherwise be available to us for operations and future business opportunities; - our debt level could limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate; - our debt level may place us at a competitive disadvantage to our less leveraged competitors; - our debt level makes us more vulnerable to the impact of economic downturns and adverse developments in our business; and - our debt level makes us more vulnerable to the impact of an increase in interest rates. We expect to obtain the money to pay our expenses and to pay the principal and interest on the exchange notes, the outstanding 9 5/8% notes, our new senior secured credit facility, the outstanding 9% notes and other debt from our operations. Our ability to meet our expenses and debt obligations, to refinance our debt obligations and to fund capital expenditures will depend on our future performance, which will be affected by general economic, financial, competitive, legislative, regulatory and other factors beyond our control. Based upon current levels of operations, we believe cash flow from operations, amounts available under our new senior secured credit facility and available cash will be adequate to meet our anticipated future requirements for working capital, capital expenditures and scheduled payments of principal and interest on our indebtedness, including the exchange notes. We cannot assure you, however, that our business will generate sufficient cash flow, or that we will be able to borrow funds under our new senior secured credit facility in an amount sufficient to enable us to service our indebtedness, including the exchange notes, the outstanding 9 5/8% notes and the outstanding 9% notes, or make capital expenditures. If we are unable to generate sufficient cash flow from operations or to borrow sufficient funds to service our debt, we may be required to sell assets, reduce capital expenditures, refinance all or a portion of our existing debt (including the notes) or obtain additional financing. We cannot assure you that we will be able to refinance our debt, sell assets or borrow more money on terms acceptable to us, if at all. Additionally, our ability to incur additional debt will be restricted under the covenants contained in our new senior secured credit facility and our indentures. IN THE EVENT OF OUR BANKRUPTCY OR LIQUIDATION, HOLDERS OF THE OUTSTANDING 9 5/8% NOTES AND THE EXCHANGE NOTES WILL BE PAID FROM ANY ASSETS REMAINING AFTER PAYMENTS TO HOLDERS OF SENIOR DEBT. The exchange notes and subsidiary guarantees will be general unsecured obligations, subordinate in right of payment to all of our and our subsidiary guarantors' existing and future senior debt, including all indebtedness under our new senior secured credit facility. In the event of insolvency, liquidation, reorganiza- 16 tion or a similar proceeding relating to us or any subsidiary guarantor, the senior debt of that person must be paid in full before the principal of, and premium, if any, and interest on the exchange notes or the obligations under any subsidiary guarantee may be paid. In the event of a bankruptcy, liquidation or reorganization of us or any subsidiary guarantor, holders of the exchange notes will participate ratably (based upon respective amounts owed to each holder or creditor) with all holders of subordinated indebtedness of us or any subsidiary guarantor that is deemed to be of the same class as the exchange notes in the remaining assets of us or any subsidiary guarantor. If any of these events occur, we cannot assure you that there would be sufficient assets to pay amounts due on the exchange notes or the subsidiary guarantees. In addition, the indenture provides that no payment with respect to the exchange notes or any subsidiary guarantee may be made if a payment default or certain non-payment defaults occur with respect to certain designated senior debt under certain circumstances. The holders of designated senior debt, including indebtedness under our new senior secured credit facility, will be entitled to preferred payments if a nonpayment default occurs with respect to designated senior debt. As of September 30, 2001, pro forma for the Transactions, we would have had approximately $678 million of senior debt outstanding. WE ARE A HOLDING COMPANY, AND WE ARE DEPENDENT ON THE ABILITY OF OUR SUBSIDIARIES TO DISTRIBUTE FUNDS TO US. Tesoro Petroleum Corporation is a holding company and conducts substantially all of its operations through its subsidiaries. Our only significant assets are the capital stock of our wholly owned subsidiaries. As a holding company, we are dependent on distributions of funds from our subsidiaries to meet our debt service and other obligations, including the payment of principal and interest on the exchange notes. The ability of our subsidiaries to make distributions to us may be restricted by, among other things, applicable laws and regulations. Furthermore, claims of creditors of our existing and future subsidiaries that are not guarantors, including trade creditors of, and banks and other lenders to, those subsidiaries, generally will have priority with respect to the assets and earnings of those subsidiaries over the claims of our creditors, including the holders of the exchange notes. If we are unable to obtain funds from our subsidiaries as a result of restrictions under our other debt instruments, applicable laws and regulations or otherwise, we may not be able to pay interest or principal on the exchange notes when due and we cannot assure you that we will be able to obtain the necessary funds from other sources. YOUR RIGHT TO RECEIVE PAYMENTS ON THE EXCHANGE NOTES AND GUARANTEES IS UNSECURED AND WILL BE EFFECTIVELY SUBORDINATED TO OUR AND OUR SUBSIDIARIES' EXISTING AND FUTURE SECURED INDEBTEDNESS. The exchange notes will be general unsecured senior subordinated obligations of us and our subsidiary guarantors, effectively junior to any secured debt that we and our subsidiary guarantors have and may have in the future to the extent of the value of the assets securing that debt. In the event of liquidation, dissolution, reorganization, bankruptcy or any similar proceeding regarding our assets or the assets of our subsidiary guarantors, whether voluntarily or involuntarily instituted, the holders of our or our subsidiary guarantors' secured debt will be entitled to be paid from our or their assets, as applicable, before any payment may be made with respect to the exchange notes or the subsidiary guarantees. If any of the foregoing events occurs, we cannot assure you that we or our subsidiary guarantors will have sufficient assets to pay amounts due on our and our subsidiary guarantors' secured debt, the exchange notes and the subsidiary guarantees. As a result, the holders of the exchange notes may receive less, ratably, than the holders of secured debt in the event of our or our subsidiary guarantors' liquidation, dissolution, reorganization, bankruptcy or other similar occurrence. YOU MAY SUFFER ADVERSE CONSEQUENCES IF YOU DO NOT EXCHANGE THE OUTSTANDING 9 5/8% NOTES. Any of the outstanding 9 5/8% notes that are not exchanged for exchange notes have not been registered with the SEC or in any state. Unless the outstanding 9 5/8% notes are registered, they only may be offered and sold pursuant to an exemption from, or in a transaction that is not subject to, the registration requirements of the Securities Act. Depending upon the percentage of the outstanding 9 5/8% notes exchanged for exchange notes, the liquidity of the outstanding 9 5/8% notes may be adversely affected. 17 OUR DEBT INSTRUMENTS IMPOSE RESTRICTIONS ON US THAT MAY ADVERSELY AFFECT OUR ABILITY TO OPERATE OUR BUSINESS. The indenture relating to the outstanding 9 5/8% notes and the exchange notes and the indenture for the outstanding 9% notes contain covenants that restrict, among other things, our ability to: - pay dividends and other distributions with respect to our capital stock and purchase, redeem or retire our capital stock; - incur additional indebtedness and issue preferred stock; - enter into asset sales; - enter into transactions with affiliates; - incur liens on assets to secure certain debt; - engage in certain business activities; and - engage in certain mergers or consolidations and transfers of assets. In addition, our new senior secured credit facility contains other and more restrictive covenants, including the prohibition on making voluntary or optional prepayments of certain of our indebtedness, including the exchange notes. Under our new senior secured credit facility, we are required to comply with specified financial covenants, including maintaining specified levels of consolidated leverage and interest and fixed charge coverages and limiting our debt to capital ratio. These financial ratios become more restrictive over the life of our new senior secured credit facility. Our ability to comply with these covenants may be affected by many events beyond our control and we cannot assure you that our future operating results will be sufficient to comply with the covenants, or in the event of a default, to remedy that default. Our failure to comply with those financial covenants or to comply with the other restrictions contained in our new senior secured credit facility could result in a default, which could cause that indebtedness (and by reason of cross-default provisions, indebtedness under our indentures and other indebtedness) to become immediately due and payable. If we are unable to repay those amounts, the lenders under our new senior secured credit facility could proceed against the collateral granted to them to secure that indebtedness. If those lenders accelerate the payment of the senior secured credit facility, we cannot assure you that our assets would be sufficient to pay that indebtedness and our other indebtedness, including the exchange notes. THE SUBSIDIARY GUARANTEES COULD BE DEEMED FRAUDULENT CONVEYANCES UNDER CERTAIN CIRCUMSTANCES, AND A COURT MAY TRY TO SUBORDINATE OR AVOID THE SUBSIDIARY GUARANTEES. Our obligations under the exchange notes will be guaranteed on a general unsecured senior subordinated basis by the subsidiary guarantors. Various preference or fraudulent conveyance laws have been enacted for the protection of creditors and may be used by a court to subordinate or avoid any subsidiary guarantee issued by a guarantor. It also is possible that under certain circumstances a court could hold that the direct obligations of a guarantor could be superior to the obligations under its subsidiary guarantee. To the extent that a court finds that at the time a guarantor entered into a subsidiary guarantee either (1) the subsidiary guarantee was incurred by a guarantor with the intent to hinder, delay or defraud any present or future creditor or that a guarantor contemplated insolvency with a design to favor one or more creditors to the exclusion in whole or in part of others or (2) the guarantor did not receive fair consideration or reasonably equivalent value for issuing the subsidiary guarantee and, at the time it issued the subsidiary guarantee, the guarantor (a) was insolvent or rendered insolvent by reason of the issuance of the subsidiary guarantee, (b) was engaged or about to engage in a business or transaction for which the remaining assets of the guarantor constituted unreasonably small capital or (c) intended to incur, or believed that it would incur, debts beyond its ability to pay debts as they matured, the court could avoid or subordinate the subsidiary guarantee in favor of the guarantor's other creditors. Among other things, a legal challenge of a subsidiary guarantee issued by a guarantor on fraudulent conveyance grounds may focus on the benefits, if any, realized by the guarantor as a result of our issuance of the exchange notes. To the extent a subsidiary guarantee is 18 avoided as a fraudulent conveyance or held unenforceable for any other reason, the holders of the exchange notes would cease to have any claim in respect of that subsidiary guarantor. We cannot assure you that a court would conclude that the exchange notes and the subsidiary guarantees issued concurrently with the issuance of the exchange notes are incurred for proper purposes and in good faith. We also cannot assure you that a court would conclude that, after giving effect to indebtedness incurred in connection with the issuance of the exchange notes and the issuance of the subsidiary guarantees, Tesoro and the subsidiary guarantors are solvent and will continue to be solvent, will have sufficient capital for carrying on their respective businesses and will be able to pay their debts as they become absolute and mature. WE MAY NOT BE ABLE TO FINANCE A CHANGE OF CONTROL OFFER AS REQUIRED BY THE INDENTURE. Upon a change of control under the indenture, we will be required to offer to repurchase all of the outstanding 9 5/8% notes and exchange notes then outstanding at 101% of the principal amount, plus accrued and unpaid interest and liquidated damages, if any, to the repurchase date. Since the events that constitute a change of control under the indenture also constitute a change of control under the indenture that governs the outstanding 9% notes, upon each occurrence, we will be required to offer to repurchase all of the outstanding 9% notes then outstanding at 101% of the principal amount, plus accrued and unpaid interest to the repurchase date. Prior to repurchasing any of the outstanding 9 5/8% notes, any of the exchange notes or any of the outstanding 9% notes, we must either repay all of our senior debt (including debt under our new senior secured credit facility) or obtain required consents, if any, from holders of senior debt to allow us to repurchase the outstanding 9 5/8% notes, the exchange notes and the outstanding 9% notes. If a change of control were to occur today, we would not have the financial resources available to repay all of our senior debt and any other debt that would become payable upon a change of control and to repurchase all of outstanding 9% notes and the outstanding 9 5/8% notes and exchange notes. We cannot assure you that we will have the financial resources available or that we will be permitted by our debt instruments to fulfill these obligations upon a change of control. YOUR ABILITY TO TRANSFER THE NOTES MAY BE LIMITED BY THE ABSENCE OF AN ACTIVE TRADING MARKET, AND WE CANNOT ASSURE YOU THAT ANY ACTIVE TRADING MARKET WILL DEVELOP FOR THE NOTES. We do not intend to list the exchange notes on any national securities exchange or to seek the admission of the notes for trading on the Nasdaq National Market. The initial purchasers are not obligated to make a market in the exchange notes and any market-making activities with respect to the exchange notes may be discontinued at any time without notice. We cannot assure you that an active public or other market will develop for the exchange notes or provide you with assurances as to the liquidity of the trading market for the exchange notes. If a trading market does not develop or is not maintained, holders of the exchange notes may experience difficulty in reselling the exchange notes or may be unable to sell them at all. If a market for the exchange notes develops, that market may be discontinued at any time. If a public trading market develops for the exchange notes, future trading prices of the exchange notes will depend on many factors, including, among other things, prevailing interest rates, our financial condition and results of operations and the market for similar notes. Depending on those and other factors, the exchange notes may trade at a discount from their principal amount. RISKS RELATING TO THE ACQUISITIONS WE COULD FACE SIGNIFICANT EXPOSURE TO LIABILITIES THAT WE HAVE ASSUMED OR AGREED TO ASSUME IN CONNECTION WITH THE ACQUISITIONS. We have assumed or agreed to assume a substantial portion of the sellers' obligations, responsibilities, liabilities, costs and expenses arising out of or incurred in connection with the North Dakota System and the Utah System. This includes, subject to certain exceptions, certain of the sellers' obligations, liabilities, costs and expenses for violations of health, safety and environmental laws relating to the assets, including certain known and unknown obligations, liabilities, costs and expenses arising or incurred prior to, on or after the closing date. We also assumed the sellers' obligations and liabilities under a consent decree among the 19 United States, BP Exploration and Oil Co., Amoco Oil Company and Atlantic Richfield Company. BP recently entered into this consent decree for both the North Dakota and Utah refineries for various alleged violations. As the new owner of these refineries, we are required to address issues including leak detection and repair, flaring protection and sulfur recovery unit optimization. We estimate we will have to spend $9 million at each of the North Dakota and Utah refineries to comply with this consent decree. In addition, we have agreed to indemnify the sellers for all losses of any kind incurred in connection with or related to these assumed liabilities. The operation of refineries and pipelines is inherently subject to spills, discharges or other releases of petroleum or hazardous substances. If any of these events occurred or occurs in connection with the acquired assets, other than events for which we are indemnified, we will be liable for all costs and penalties associated with their remediation under federal, state or local environmental laws or common law, and will be liable for property damage to third parties caused by contamination from releases and spills. The penalties and clean-up costs that we could have to pay for releases or spills, or the amounts that we could have to pay to third parties for damage to their property, could be significant and the payment of these amounts could have a material adverse effect on our business, financial condition and results of operations. The operation of the North Dakota System and the Utah System is and will continue to be subject to hazards and risks inherent in refining operations and in transporting and storing crude oil and refined products, including fires, natural disasters, explosions, pipeline ruptures and spills and mechanical failure of equipment. Any of these events can result in environmental pollution and property damage. Our assumption of liability for these events that occurred before closing could expose us to significant and costly liabilities, the payment of which could have a material adverse effect on our business, financial condition and results of operations. INTEGRATING OUR OPERATIONS WITH THE ACQUISITION ASSETS MAY STRAIN OUR RESOURCES. The significant expansion of our business and operations, both in terms of geography and magnitude resulting from the Acquisitions, may strain our administrative, operational and financial resources. The integration of the North Dakota System and the Utah System will require the dedication of management resources that may temporarily detract attention from our day-to-day business. The process of integrating these assets also may interrupt the activities of the North Dakota System and the Utah System. These types of demands and uncertainties could have a material adverse effect on our business, financial condition and results of operations. We cannot assure you that we will be able to manage the combined operations and assets effectively or realize any of the anticipated benefits of the Acquisitions. AS A RESULT OF THE ACQUISITIONS, WE WILL HAVE ADDITIONAL CAPACITY AND OBLIGATIONS WITH WHICH WE MAY BE INEXPERIENCED OR UNFAMILIAR. Prior to the Acquisitions, we did not own refineries or pipelines in North Dakota or Utah and had no experience in operating refineries or pipelines in those states. We are unfamiliar with the regulatory and business climates in North Dakota and Utah. In addition, our management is more experienced at operating refineries than pipelines, so we may face regulatory and operational matters with which we are unfamiliar. While we have entered into a transition services agreement for BP to operate the Pipeline System on our behalf for a period of six months after the closing, we currently do not have the necessary knowledge, infrastructure or employees to operate the Pipeline System if we were required to suddenly take over its operation. In addition, we have entered into agreements with BP pursuant to which BP has agreed to purchase some of the products from the Utah refinery and a majority of the products from the North Dakota refinery. If, however, BP fails to purchase these products under the agreements, we currently are unfamiliar with customers in those markets and we would suffer losses in revenue until we find third-party purchasers. AN INADEQUATE SUPPLY OF NORTH DAKOTA AND MONTANA CRUDE OIL TO THE NORTH DAKOTA REFINERY CAN ADVERSELY AFFECT OUR BUSINESS. The North Dakota refinery is landlocked and does not have a diversity of pipelines to allow us to transport crude oil to it. The North Dakota refinery, therefore, is completely dependent upon the delivery of crude oil 20 through the Pipeline System. If outside events cause an inadequate supply of crude oil, or if the Pipeline System transports lower volumes of crude oil, our anticipated revenues could decrease, and we could have less cash to pay our debt obligations. RISKS RELATING TO OUR BUSINESS THE VOLATILITY OF CRUDE OIL PRICES, REFINED PRODUCT PRICES AND FUEL AND UTILITY SERVICE PRICES MAY HAVE A MATERIAL ADVERSE EFFECT ON OUR BUSINESS, FINANCIAL CONDITION AND RESULTS OF OPERATIONS. Our refining and marketing earnings and cash flows from operations depend on the margin above fixed and variable expenses (including the cost of refinery feedstocks) at which we are able to sell refined products. In recent years, the prices of crude oil and refined products have fluctuated substantially. These prices depend on numerous factors beyond our control, including the demand for crude oil, gasoline and other refined products, which are subject to, among other things: - changes in the economy and the level of foreign and domestic production of crude oil and refined products; - worldwide political conditions; - availability of crude oil and refined product imports; - marketing of alternative and competing fuels; - government regulations; and - local factors, including market conditions and the level of operations of other refineries in our markets. Our sale prices for refined products are influenced by the commodity price of crude oil. Generally, an increase or decrease in the price of crude oil results in a corresponding increase or decrease in the price of gasoline and other refined products. The timing of the relative movement of the prices, however, as well as the overall change in product prices, can reduce profit margins and could have a significant impact on our refining and marketing operations and our earnings and cash flows. In addition, we maintain inventories of crude oil, intermediate products and refined products, the values of which are subject to rapid fluctuation in market prices. Also, crude oil supply contracts are generally term contracts with market-responsive pricing provisions. We purchase our refinery feedstocks prior to selling the refined products manufactured. Price level changes during the period between purchasing feedstocks and selling the manufactured refined products from these feedstocks could have a significant effect on our financial results. We also purchase refined products manufactured by others for sale to our customers. Price level changes during the periods between purchasing and selling these products could have a material adverse effect on our business, financial condition and results of operations. The rising costs and unpredictable availability of fuel and utility services used by our refineries and other operations have increased operating costs and will continue to impact production and delivery of products. Fuel and utility prices have been and will continue to be affected by supply and demand for fuel and utility services in both local and regional markets. TERRORIST ATTACKS AND THREATS OR ACTUAL WAR MAY NEGATIVELY IMPACT OUR BUSINESS, FINANCIAL CONDITION AND RESULTS OF OPERATIONS. Our business is affected by general economic conditions and fluctuations in consumer confidence and spending, which can decline as a result of numerous factors outside of our control, such as terrorist attacks and acts of war. Recent terrorist attacks in the United States, as well as events occurring in response to or in connection with them, including future terrorist attacks against U.S. targets, rumors or threats of war, actual conflicts involving the United States or its allies, or military or trade disruptions impacting our suppliers or our customers, may adversely impact our operations. As a result, there could be delays or losses in the delivery of supplies and raw materials to us, decreased sales of our products (especially sales to our customers that purchase jet fuel) and extension of time for payment of accounts receivable from our customers (especially 21 our customers in the airline industry). Strategic targets such as energy-related assets (which could include refineries such as ours) may be at greater risk of future terrorist attacks than other targets in the United States. These occurrences could have an adverse impact on energy prices, including prices for our crude oil and refined products, and an adverse impact on the margins from our refining and marketing operations. In addition, disruption or significant increases in energy prices could result in government-imposed price controls. It is possible that any or a combination of these occurrences could have a material adverse effect on our business, financial condition and results of operations. COMPLIANCE WITH VARIOUS REGULATORY AND ENVIRONMENTAL LAWS COULD INCREASE THE COST OF OPERATING OUR BUSINESS. All of our operations are subject to extensive requirements relating to air emissions, water discharges, waste management and other environmental matters that can entail costly compliance measures. For example, we currently anticipate that revised standards for low sulfur content in gasoline and highway diesel fuel will require us to spend approximately $100 million through 2006 and $45 million in years after 2006 to comply with regulations that will be applicable to several of our refineries at various dates (depending on the refinery and the fuel involved) between 2004 and 2010, and that other air emissions and environmental requirements will require us to spend over $50 million more during the next four years. We cannot assure you that the measures we anticipate for achieving compliance with these and other obligations will meet requirements, or that our compliance costs will not significantly exceed current estimates. If we fail to meet environmental requirements, we may be subject to administrative, civil and criminal proceedings by state and federal authorities, as well as civil proceedings by environmental groups and other individuals, which could result in substantial fines and penalties against us as well as orders that could limit or halt our operations. Our Refining and Marketing and Marine Services segments operate in environmentally sensitive coastal waters, where tanker, pipeline and refined product transportation operations are closely regulated by local and Federal agencies and monitored by environmental interest groups. Our Washington, Hawaii and Alaska refineries import crude oil feedstocks by tanker. Transportation of crude oil and refined product over water involves inherent risk and subjects us to the provisions of the Federal Oil Pollution Act of 1990 and state laws in Washington, Hawaii, Alaska and the U.S. Gulf Coast. Among other things, these laws require us to demonstrate in some situations our capacity to respond to a "worst case discharge" to the maximum extent possible. We have contracted with various spill response service companies in the areas in which we transport crude oil and refined product to meet the requirements of the Federal Oil Pollution Act of 1990 and state laws. However, we cannot assure you that there will be no accidents involving tankers transporting crude oil or refined products, that response services will respond to a "worst case discharge" in a manner that will adequately contain that discharge or that we will not be subject to liability in connection with a discharge. Our operations are inherently subject to accidental spills, discharges or other releases of petroleum or hazardous substances that may make us liable to governmental entities or private parties under Federal, state or local environmental laws, as well as under common law. These may involve contamination of facilities we currently own or operate, facilities we formerly owned or operated and facilities to which we sent wastes or by-products for treatment or disposal and other contamination. We cannot assure you that accidental discharges will not occur in the future, that future action will not be taken in connection with past discharges, that governmental agencies will not assess damages or penalties against us in connection with any past or future contamination, or that third parties will not assert claims against us for damages allegedly arising out of any past or future contamination. From time to time we have been, and presently are, subject to litigation and investigations with respect to environmental and related matters. We cannot assure you that we will not become involved in further litigation or other proceedings, or that if we are held responsible in any existing or future litigation or proceedings, the costs would not be material. We have in the past operated service stations with underground storage tanks in various jurisdictions, and currently operate service stations in Hawaii, Alaska and 14 states in the mid-continental and western United States that have underground storage tanks. Federal and state regulations and legislation govern the storage 22 tanks and compliance with these requirements can be costly. The operation of underground storage tanks also poses certain other risks, including damages associated with soil and groundwater contamination. We cannot assure you that leaks from underground storage tanks at one or more of our service stations will not occur, or that previously operated service stations have not impacted soil or groundwater that could result in fines or civil liability for us. THE DANGERS INHERENT IN OUR OPERATIONS AND THE POTENTIAL LIMITS ON INSURANCE COVERAGE COULD EXPOSE US TO POTENTIALLY SIGNIFICANT LIABILITY COSTS. Our operations are subject to hazards and risks inherent in refining operations and in transporting and storing crude oil and refined products, such as fires, natural disasters, explosions, pipeline ruptures and spills and mechanical failure of equipment at our or third-party facilities, any of which can result in environmental pollution, personal injury claims and other damage to our properties and the properties of others. We do not maintain insurance coverage against all potential losses and we could suffer losses for uninsurable or uninsured risks or in amounts in excess of existing insurance coverage. The occurrence of an event that is not fully covered by insurance could have a material adverse effect on our business, financial condition and results of operations. IF WE ARE UNABLE TO MAINTAIN AN ADEQUATE SUPPLY OF FEEDSTOCKS, OUR RESULTS FROM OPERATIONS MAY BE ADVERSELY AFFECTED. We cannot assure you that we will continue to have an adequate supply of feedstocks, primarily crude oil, available to our five refineries to sustain our current level of refining operations. If additional crude oil becomes necessary at one or more of our refineries, we intend to implement available alternatives that are most advantageous under then prevailing conditions. Implementation of some alternatives could require the consent or cooperation of third parties and other considerations beyond our control. If we are unable to obtain these supplemental crude oil volumes, or are only able to obtain these volumes at uneconomic prices, our results from operations could be adversely affected. WE ARE SUBJECT TO INTERRUPTIONS OF SUPPLY AND INCREASED COSTS AS A RESULT OF OUR RELIANCE ON THIRD-PARTY TRANSPORTATION OF CRUDE OIL AND REFINED PRODUCTS. Our Washington refinery receives all of its Canadian crude oil through pipelines operated by third parties. During 2000, it also delivered approximately 76,000 barrels per day of high-value refined products through third-party pipelines. Our Hawaii and Alaska refineries receive most of their crude oil and transport a substantial portion of refined products through ships and barges. Our North Dakota and Utah refineries receive substantially all of their crude oil through pipelines. In addition to environmental risks discussed above, we could experience an interruption of supply or an increased cost to deliver refined products to market if the ability of the pipelines or vessels to transport crude oil or refined product is upset because of accidents, governmental regulation or third-party action. A prolonged upset of the ability of a pipeline or vessels to transport crude oil or product could have a material adverse effect on our business, financial condition and results of operations. THE ACQUISITIONS On September 6, 2001, we acquired two refineries in North Dakota and Utah and related storage, distribution and retail assets from BP Corporation North America Inc. and Amoco Oil Company. We paid $665.8 million in cash (including $82.2 million for hydrocarbon inventories). We also assumed certain liabilities and obligations (including costs associated with transferred employees and environmental matters), subject to specified levels of indemnification. On November 1, 2001, we acquired pipelines used to transport crude oil in North Dakota and Montana from BP and BP Pipelines (North America) Inc. for $90.1 million. We used borrowings under our new senior secured credit facility to finance the North Dakota System (excluding the Pipeline System) and Utah System acquisitions, and we used the $90 million delayed draw term loan under our new senior secured credit facility to finance the acquisition of the Pipeline System. 23 NORTH DAKOTA AND UTAH SYSTEMS Our acquisition of the North Dakota System (excluding the Pipeline System, which is discussed below) included the sellers' equipment and facilities related to the Mandan, North Dakota refinery, approximately 430 miles of pipeline used to transport petroleum products from this refinery, five marketing terminals with related assets and equipment and 12 retail stations with convenience stores located in North Dakota with related assets and equipment. We also acquired: - hydrocarbon inventories relating to the sellers' business at the North Dakota refinery; - the sellers' interest in real property on which the North Dakota refinery, the retail stations with convenience stores and the terminals are located; and - a non-exclusive, royalty-free right to use the technology the sellers currently use in connection with the North Dakota refinery and related business. Our acquisition of the Utah System included the sellers' equipment and facilities related to the Salt Lake City, Utah refinery, three marketing terminals with related assets and equipment and 31 retail stations with convenience stores located near Salt Lake City with related assets and equipment. We also acquired: - hydrocarbon inventories relating to the sellers' business at the Utah refinery; - the sellers' interest in real property on which the Utah refinery, the retail stations with convenience stores and three owned terminals are located; - the sellers' interest in two leased marketing terminals; and - the non-exclusive, royalty-free right to use the technology the sellers currently use in connection with the Utah refinery and related business. Our acquisition of the North Dakota System and the Utah System also included the rights to supply an Amoco-branded jobber network of over 290 stations. We have assumed or agreed to assume a substantial portion of the sellers' obligations, responsibilities, liabilities, costs and expenses arising out of or incurred in connection with the North Dakota System and the Utah System. This includes, subject to certain exceptions, certain of the sellers' obligations, liabilities, costs and expenses for violations of health, safety and environmental laws relating to the assets, including certain known and unknown obligations, liabilities, costs and expenses arising or incurred prior to, on or after the closing date. We also assumed the sellers' obligations and liabilities under a consent decree among the United States, BP Exploration and Oil Co., Amoco Oil Company and Atlantic Richfield Company. BP recently entered into this consent decree for both the North Dakota and Utah refineries for various alleged violations. As the new owner of these refineries, we are required to address issues including leak detection and repair, flaring protection and sulfur recovery unit optimization. We estimate we will have to spend $9 million at each of the North Dakota and Utah refineries to comply with this consent decree. In addition, we have agreed to indemnify the sellers for all losses of any kind incurred in connection with or related to these assumed liabilities. We did not assume, however, liability for personal injury or death due to operation of the North Dakota System and the Utah System prior to the closing date. Our agreement to assume the sellers' obligations and liabilities relating to the North Dakota System and the Utah System also excludes liabilities attributable to taxes accruing on or before the closing date and relating to indebtedness for borrowed money, the asset purchase agreement and certain specified environmental and other matters. We also offered employment to each employee who worked for the sellers in connection with the North Dakota System and the Utah System on the same or better terms than the employee received before our acquisition of the North Dakota System and the Utah System. We entered into transition services agreements requiring the sellers to provide their assistance after closing in operating the North Dakota System and the Utah System. The sellers also obtained all consents and 24 approvals necessary for us to purchase and operate the North Dakota System and the Utah System and assume the related contracts, permits and other rights. PIPELINE SYSTEM We acquired a network of crude oil pipelines used to transport crude oil in Montana and North Dakota. The Pipeline System is associated with the North Dakota refinery and consists of over 700 miles of pipeline. The Pipeline System is configured to gather crude oil from the local Williston Basin and adjacent production areas in North Dakota and Montana and transport it to the North Dakota refinery. It is also configured to move substantial quantities of imported Canadian crude oil to the North Dakota refinery or transport it either to Clearbrook, Minnesota to the east or to Guernsey, Wyoming to the south. In addition to the Pipeline System, we acquired all of the sellers' rights in real property related to the transportation of crude oil, the sellers' gathering system used to gather and supply crude oil and all of the sellers' rights of access relating to the Pipeline System. We expect to be able to continue to operate the Pipeline System as it was being operated by the sellers because we acquired the sellers' equipment, technology, permits and other rights related to the Pipeline System. We entered into a transition services agreement requiring the sellers to provide assistance after closing in operating the Pipeline System. We paid $90.1 million for the Pipeline System, which we funded with the proceeds of the delayed draw term loan under our new senior secured credit facility. In addition to paying the $90.1 million purchase price for the Pipeline System, we have assumed or agreed to assume a substantial portion of the sellers' obligations, liabilities, costs and expenses arising out of or incurred in connection with the Pipeline System. This includes certain obligations, liabilities, costs and expenses for violations of health, safety and environmental laws relating to the Pipeline System, including certain known and unknown obligations, liabilities, costs and expenses arising or incurred prior to, on or after the closing date. In addition, we have agreed to indemnify the sellers for all losses of any kind incurred in connection with or related to these assumed liabilities. We did not assume, however, liability for personal injury or death due to operation of the Pipeline System prior to the closing date. Our agreement to assume the sellers' obligations and liabilities relating to the Pipeline System excludes those liabilities attributable to taxes accruing on or before the closing date and those relating to indebtedness for borrowed money, the asset purchase agreement and certain specified environmental and other liabilities. We also offered employment to each employee who works for the sellers in connection with the Pipeline System on the same or better terms than the employee received before our acquisition of the Pipeline System. THE EXCHANGE OFFER PURPOSE AND EFFECT OF THE EXCHANGE OFFER We issued $215 million aggregate principal amount of the outstanding 9 5/8% notes to the initial purchasers on November 6, 2001 in transactions not registered under the Securities Act of 1933 in reliance on exemptions from registration under that act. The initial purchasers then sold the outstanding 9 5/8% notes to qualified institutional buyers in reliance on Rule 144A under the Securities Act and to non-United States persons outside the United States in reliance on Regulation S under the Securities Act. Because they have been sold pursuant to exemptions from registration, the outstanding 9 5/8% notes are subject to transfer restrictions. In connection with the issuance of the outstanding 9 5/8% notes, we agreed with the initial purchasers that promptly following the issuance of the outstanding 9 5/8% notes, we would: - file with the SEC a registration statement related to the exchange notes; - use our best efforts to cause the registration statement to become effective under the Securities Act; and 25 - offer to the holders of the outstanding 9 5/8% notes the opportunity to exchange the outstanding 9 5/8% notes for a like principal amount of exchange notes upon the effectiveness of the registration statement. Our failure to comply with these agreements within certain time periods would result in additional interest being due on the outstanding 9 5/8% notes. A copy of the agreement with the initial purchasers has been filed as an exhibit to the registration statement of which this prospectus is a part. Based on existing interpretations of the Securities Act by the staff of the SEC described in several no-action letters to third parties, and subject to the following sentence, we believe that the exchange notes issued in the exchange offer may be offered for resale, resold and otherwise transferred by their holders, other than broker-dealers or our "affiliates", without further compliance with the registration and prospectus delivery provisions of the Securities Act. However, any holder of the outstanding 9 5/8% notes who is an affiliate of ours, who is not acquiring the exchange notes in the ordinary course of such holder's business or who intends to participate in the exchange offer for the purpose of distributing the exchange notes: - will not be able to rely on the interpretations by the staff of the SEC described in the above-mentioned no-action letters; - will not be able to tender the outstanding 9 5/8% notes in the exchange offer; and - must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of the outstanding 9 5/8% notes unless the sale or transfer is made under an exemption from these requirements. We do not intend to seek our own no-action letter, and there is no assurance that the staff of the SEC would make a similar determination regarding the exchange notes as it has in these no-action letters to third parties. As a result of the filing and effectiveness of the registration statement of which this prospectus is a part, we will not be required to pay an increased interest rate on the outstanding 9 5/8% notes unless we either fail to timely consummate the exchange offer or fail to maintain the effectiveness of the registration statement to the extent we agreed to do so. Following the closing of the exchange offer, holders of the outstanding 9 5/8% notes not tendered will not have any further registration rights except in limited circumstances requiring the filing of a shelf registration statement, and the outstanding 9 5/8% notes will continue to be subject to restrictions on transfer. Accordingly, the liquidity of the market for the outstanding 9 5/8% notes will be adversely affected. TERMS OF THE EXCHANGE OFFER Upon the terms and subject to the conditions stated in this prospectus and in the letter of transmittal, we will accept all outstanding 9 5/8% notes properly tendered and not withdrawn before 5:00 p.m., New York City time, on the expiration date. After authentication of the exchange notes by the trustee or an authenticating agent, we will issue $1,000 principal amount of exchange notes in exchange for each $1,000 principal amount of the outstanding 9 5/8% notes accepted in the exchange offer. By tendering the outstanding 9 5/8% notes for exchange notes in the exchange offer and signing or agreeing to be bound by the letter of transmittal, you will represent to us that: - you will acquire the exchange notes you receive in the exchange offer in the ordinary course of your business; - you are not participating and have no understanding with any person to participate in the distribution of the exchange notes issued to you in the exchange offer; - you are not an affiliate of ours or, if you are an affiliate, you will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable; - if you are not a broker-dealer, that you are not engaged in and do not intend to engage in the distribution of the exchange notes; and 26 - if you are a broker-dealer that will receive exchange notes for your own account in exchange for outstanding 9 5/8% notes that were acquired as a result of market-making or other trading activities, that you will deliver a prospectus, as required by law, in connection with any resale of those exchange notes. Broker-dealers that are receiving exchange notes for their own account must have acquired the outstanding 9 5/8% notes as a result of market-making or other trading activities in order to participate in the exchange offer. Each broker-dealer that receives exchange notes for its own account under the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of the exchange notes. The letter of transmittal states that, by so acknowledging and by delivering a prospectus, a broker-dealer will not be admitting that it is an "underwriter" within the meaning of the Securities Act. We will be required to allow broker-dealers to use this prospectus following the exchange offer in connection with the resale of exchange notes received in exchange for outstanding 9 5/8% notes acquired by broker-dealers for their own account as a result of market-making or other trading activities. If required by applicable securities laws, we will, upon written request, make this prospectus available to any broker-dealer for use in connection with a resale of exchange notes. See "Plan of Distribution". The exchange notes will evidence the same debt as the outstanding 9 5/8% notes and will be issued under and entitled to the benefits of the same indenture. The form and terms of the exchange notes are identical in all material respects to the form and terms of the outstanding 9 5/8% notes except that: - the exchange notes will be issued in a transaction registered under the Securities Act; - the exchange notes will not be subject to transfer restrictions; and - provisions providing for an increase in the stated interest rate on the outstanding 9 5/8% notes will be eliminated after completion of the exchange offer. As of the date of this prospectus, $215 million aggregate principal amount of the outstanding 9 5/8% notes was outstanding. In connection with the issuance of the outstanding 9 5/8% notes, we arranged for the outstanding 9 5/8% notes to be issued and transferable in book-entry form through the facilities of DTC, acting as depositary. The exchange notes will also be issuable and transferable in book-entry form through DTC. This prospectus, together with the accompanying letter of transmittal, is initially being sent to all registered holders as of the close of business on , 200 . We intend to conduct the exchange offer as required by the Exchange Act, and the rules and regulations of the SEC under the Exchange Act, including Rule 14e-1, to the extent applicable. Rule 14e-1 describes unlawful tender offer practices under the Exchange Act. This rule requires us, among other things: - to hold our exchange offer open for 20 business days; - to give ten business days notice of any change in the terms of this offer; and - to issue a press release in the event of an extension of the exchange offer. The exchange offer is not conditioned upon any minimum aggregate principal amount of the outstanding 9 5/8% notes being tendered, and holders of the outstanding 9 5/8% notes do not have any appraisal or dissenters' rights under the Delaware General Corporation Law or under the indenture in connection with the exchange offer. We shall be considered to have accepted the outstanding 9 5/8% notes tendered according to the procedures in this prospectus when, as and if we have given oral or written notice of acceptance to the exchange agent. See "-- Exchange Agent". The exchange agent will act as agent for the tendering holders for the purpose of receiving exchange notes from us and delivering exchange notes to those holders. If any tendered outstanding 9 5/8% notes are not accepted for exchange because of an invalid tender or the occurrence of other events described in this prospectus, certificates for these unaccepted outstanding 9 5/8% notes will be returned, at our cost, to the tendering holder of outstanding 9 5/8% notes or, in the case of outstanding 9 5/8% notes tendered by book-entry transfer, into the holder's account at DTC according to the procedures described below, as promptly as practicable after the expiration date. 27 Holders who tender outstanding 9 5/8% notes in the exchange offer will not be required to pay brokerage commissions or fees or, subject to the instructions in the letter of transmittal, transfer taxes related to the exchange of the outstanding 9 5/8% notes in the exchange offer. We will pay all charges and expenses, other than applicable taxes, in connection with the exchange offer. See "-- Solicitation of Tenders; Fees and Expenses". NEITHER WE NOR OUR BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO HOLDERS OF THE OUTSTANDING 9 5/8% NOTES AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING ALL OR ANY PORTION OF THEIR OUTSTANDING 9 5/8% NOTES IN THE EXCHANGE OFFER. MOREOVER, NO ONE HAS BEEN AUTHORIZED TO MAKE ANY SUCH RECOMMENDATION. HOLDERS OF THE OUTSTANDING 9 5/8% NOTES MUST MAKE THEIR OWN DECISION WHETHER TO TENDER IN THE EXCHANGE OFFER AND, IF SO, THE AMOUNT OF THE OUTSTANDING 9 5/8% NOTES TO TENDER AFTER READING THIS PROSPECTUS AND THE LETTER OF TRANSMITTAL AND CONSULTING WITH THEIR ADVISORS, IF ANY, BASED ON THEIR OWN FINANCIAL POSITION AND REQUIREMENTS. EXPIRATION DATE; EXTENSIONS; AMENDMENTS The term "expiration date" shall mean 5:00 p.m., New York City time, on , 2002, unless we, in our sole discretion, extend the exchange offer, in which case the term "expiration date" shall mean the latest date to which the exchange offer is extended. We expressly reserve the right, in our sole discretion: - to delay acceptance of any outstanding 9 5/8% notes or to terminate the exchange offer and to refuse to accept outstanding 9 5/8% notes not previously accepted, if any of the conditions described under "-- Conditions" shall have occurred and shall not have been waived by us; - to extend the expiration date of the exchange offer; - to amend the terms of the exchange offer in any manner; - to purchase or make offers for any outstanding 9 5/8% notes that remain outstanding subsequent to the expiration date; - to the extent permitted by applicable law, to purchase outstanding 9 5/8% notes in the open market, in privately negotiated transactions or otherwise. The terms of the purchases or offers described in the fourth and fifth clauses above may differ from the terms of the exchange offer. Any delay in acceptance, termination, extension, or amendment will be followed as promptly as practicable by oral or written notice to the exchange agent and by making a public announcement. If the exchange offer is amended in a manner determined by us to constitute a material change, we will promptly disclose the amendment in a manner reasonably calculated to inform the holders of the amendment. Without limiting the manner in which we may choose to make public announcements of any delay in acceptance, termination, extension, or amendment of the exchange offer, we shall have no obligation to publish, advise, or otherwise communicate any public announcement, other than by making a timely release to Business Wire. You are advised that we may extend the exchange offer because some of the holders of the outstanding 9 5/8% notes do not tender on a timely basis. In order to give these noteholders the ability to participate in the exchange and to avoid the significant reduction in liquidity associated with holding an unexchanged note, we may elect to extend the exchange offer. INTEREST ON THE EXCHANGE NOTES The exchange notes will bear interest from November 6, 2001 or the most recent date on which interest was paid or provided for on the outstanding 9 5/8% notes surrendered for the exchange notes. Accordingly, holders of outstanding 9 5/8% notes that are accepted for exchange will not receive interest that is accrued but 28 unpaid on the outstanding 9 5/8% notes at the time of tender. Interest on the exchange notes will be payable semi-annually on each May 1 and November 1, commencing on May 1, 2002. PROCEDURES FOR TENDERING Only a holder may tender its outstanding 9 5/8% notes in the exchange offer. Any beneficial owner whose outstanding 9 5/8% notes are registered in the name of such holder's broker, dealer, commercial bank, trust company or other nominee or are held in book-entry form and who wishes to tender should contact the registered holder promptly and instruct the registered holder to tender on such holder's behalf. If the beneficial owner wishes to tender on such holder's own behalf, the beneficial owner must, before completing and executing the letter of transmittal and delivering such holder's outstanding 9 5/8% notes, either make appropriate arrangements to register ownership of outstanding 9 5/8% notes in the owner's name or obtain a properly completed bond power from the registered holder. The transfer of record ownership may take considerable time. The tender by a holder will constitute an agreement among the holder, us and the exchange agent according to the terms and subject to the conditions described in this prospectus and in the letter of transmittal. A holder who desires to tender outstanding 9 5/8% notes and who cannot comply with the procedures set forth herein for tender on a timely basis or whose outstanding 9 5/8% notes are not immediately available must comply with the procedures for guaranteed delivery set forth below. THE METHOD OF DELIVERY OF THE OUTSTANDING 9 5/8% NOTES AND THE LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE ELECTION AND RISK OF THE HOLDERS. DELIVERY OF SUCH DOCUMENTS WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE AGENT OR DEEMED RECEIVED UNDER THE ATOP PROCEDURES DESCRIBED BELOW. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE DELIVERY TO THE EXCHANGE AGENT BEFORE THE EXPIRATION DATE. NO LETTER OF TRANSMITTAL OR OUTSTANDING 9 5/8% NOTES SHOULD BE SENT TO US. HOLDERS MAY ALSO REQUEST THAT THEIR RESPECTIVE BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES OR NOMINEES EFFECT THE TENDER FOR HOLDERS IN EACH CASE AS DESCRIBED IN THIS PROSPECTUS AND IN THE LETTER OF TRANSMITTAL. OUTSTANDING 9 5/8% NOTES HELD IN CERTIFICATED FORM For a holder to validly tender outstanding 9 5/8% notes held in physical form, the exchange agent must receive, before 5:00 p.m., New York City time, on the expiration date, at its address set forth in this prospectus: - a properly completed and validly executed letter of transmittal, or a manually signed facsimile thereof, together with any signature guarantees and any other documents required by the instructions to the letter of transmittal, and - certificates for tendered outstanding 9 5/8% notes. OUTSTANDING 9 5/8% NOTES HELD IN BOOK-ENTRY FORM We understand that the exchange agent will make a request promptly after the date of the prospectus to establish accounts for the outstanding 9 5/8% notes at DTC for the purpose of facilitating the exchange offer, and subject to their establishment, any financial institution that is a participant in DTC may make book-entry delivery of the outstanding 9 5/8% notes by causing DTC to transfer the outstanding 9 5/8% notes into the exchange agent's account for the 9 5/8% notes using DTC's procedures for transfer. If you desire to transfer outstanding 9 5/8% notes held in book-entry form with DTC, the exchange agent must receive, before 5:00 p.m. New York City time on the expiration date, at its address set forth in this 29 prospectus, a confirmation of book-entry transfer of outstanding 9 5/8% notes into the exchange agent's account at DTC, which is referred to in this prospectus as a "book-entry confirmation", and: - a properly completed and validly executed letter of transmittal, or manually signed facsimile thereof, together with any signature guarantees and other documents required by the instructions in the letter of transmittal; or - an agent's message transmitted pursuant to ATOP. TENDER OF OUTSTANDING 9 5/8% NOTES USING DTC'S AUTOMATED TENDER OFFER PROGRAM (ATOP) The exchange agent and DTC have confirmed that the exchange offer is eligible for ATOP. Accordingly, DTC participants may electronically transmit their acceptance of the exchange offer by causing DTC to transfer outstanding 9 5/8% notes held in book-entry form to the exchange agent in accordance with DTC's ATOP procedures for transfer. DTC will then send a book- entry confirmation, including an agent's message, to the exchange agent. The term "agent's message" means a message transmitted by DTC, received by the exchange agent and forming part of the book-entry confirmation, which states that DTC has received an express acknowledgment from the participant in DTC tendering outstanding 9 5/8% notes that are the subject of that book-entry confirmation that the participant has received and agrees to be bound by the terms of the letter of transmittal, and that we may enforce such agreement against such participant. If you use ATOP procedures to tender outstanding 9 5/8% notes you will not be required to deliver a letter of transmittal to the exchange agent, but you will be bound by its terms just as if you had signed it. SIGNATURES Signatures on a letter of transmittal or a notice of withdrawal, as the case may be, must be guaranteed by a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc. or a commercial bank or trust company having an office or correspondent in the United States or an "eligible guarantor institution" within the meaning of Rule 17Ad-15 under the Exchange Act, unless outstanding 9 5/8% notes tendered with the letter of transmittal are tendered: - by a registered holder who has not completed the box entitled "Special Registration Instructions" or "Special Delivery Instructions" in the letter of transmittal; or - for the account of an institution eligible to guarantee signatures. If the letter of transmittal is signed by a person other than the registered holder or DTC participant who is listed as the owner, the outstanding 9 5/8% notes must be endorsed or accompanied by appropriate bond powers which authorize the person to tender the outstanding 9 5/8% notes on behalf of the registered holder or DTC participant who is listed as the owner, in either case signed as the name of the registered holder(s) who appears on the outstanding 9 5/8% notes or the DTC participant who is listed as the owner. If the letter of transmittal or any of the outstanding 9 5/8% notes or bond powers are signed or endorsed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, those persons should so indicate when signing, and unless waived by us, evidence satisfactory to us of their authority to so act must be submitted with the letter of transmittal. If you tender your notes through ATOP, signatures and signature guarantees are not required. DETERMINATIONS OF VALIDITY All questions as to the validity, form, eligibility, including time of receipt, acceptance and withdrawal of the tendered outstanding 9 5/8% notes will be determined by us in our sole discretion. This determination will be final and binding. We reserve the absolute right to reject any and all outstanding 9 5/8% notes not properly tendered or any outstanding 9 5/8% notes our acceptance of which would, in the opinion of our counsel, be unlawful. We also reserve the absolute right to waive any irregularities or conditions of tender as to particular outstanding 9 5/8% notes. Our interpretation of the terms and conditions of the exchange offer, including the 30 instructions in the letter of transmittal, will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of outstanding 9 5/8% notes must be cured within the time we shall determine. Although we intend to notify holders of defects or irregularities related to tenders of outstanding 9 5/8% notes, neither we, the exchange agent nor any other person shall be under any duty to give notification of defects or irregularities related to tenders of outstanding 9 5/8% notes nor shall we or any of them incur liability for failure to give notification. Tenders of outstanding 9 5/8% notes will not be considered to have been made until the irregularities have been cured or waived. Any outstanding 9 5/8% notes received by the exchange agent that we determine are not properly tendered or the tender of which is otherwise rejected by us and as to which the defects or irregularities have not been cured or waived by us will be returned by the exchange agent to the tendering holder unless otherwise provided in the letter of transmittal, as soon as practicable following the expiration date. GUARANTEED DELIVERY PROCEDURES Holders who wish to tender their outstanding 9 5/8% notes and: - whose outstanding 9 5/8% notes are not immediately available; - who cannot complete the procedure for book-entry transfer on a timely basis; - who cannot deliver their outstanding 9 5/8% notes, the letter of transmittal or any other required documents to the exchange agent before the expiration date; or - who cannot complete a tender of outstanding 9 5/8% notes held in book-entry form using DTC's ATOP procedures on a timely basis; may effect a tender if they tender through an eligible institution described under "-- Procedures for Tendering -- Signatures" or if they tender using ATOP's guaranteed delivery procedures. A tender of outstanding 9 5/8% notes made by or through an eligible institution will be accepted if: - before 5:00 p.m., New York City time, on the expiration date, the exchange agent receives from an eligible institution a properly completed and duly executed notice of guaranteed delivery, by facsimile transmittal, mail or hand delivery, that: (1) sets forth the name and address of the holder, the certificate number or numbers of the holder's outstanding 9 5/8% notes and the principal amount of the outstanding 9 5/8% notes tendered, (2) states that the tender is being made, and (3) guarantees that, within five business days after the expiration date, a properly completed and validly executed letter of transmittal or facsimile, together with a certificate(s) representing the outstanding 9 5/8% notes to be tendered in proper form for transfer, or a confirmation of book-entry transfer into the exchange agent's account at DTC of the outstanding 9 5/8% notes delivered electronically, and any other documents required by the letter of transmittal will be deposited by the eligible institution with the exchange agent; and - the properly completed and executed letter of transmittal or a facsimile, together with the certificate(s) representing all tendered outstanding 9 5/8% notes in proper form for transfer, or a book-entry confirmation, and all other documents required by the letter of transmittal are received by the exchange agent within five business days after the expiration date. A tender made through ATOP will be accepted if: - before 5:00 p.m., New York City time, on the expiration date, the exchange agent receives an agent's message from DTC stating that DTC has received an express acknowledgment from the participant in DTC tendering the outstanding 9 5/8% notes that they have received and agree to be bound by the notice of guaranteed delivery; and - the exchange agent receives, within five business days after the expiration date, either: (1) a book-entry conformation, including an agent's message, transmitted via ATOP procedures; or (2) a properly completed and executed letter of transmittal or a facsimile, together with the certificate(s) represent- 31 ing all tendered outstanding 9 5/8% notes in proper form for transfer, or a book-entry confirmation, and all other documents required by the letter of transmittal. Upon request to the exchange agent, a notice of guaranteed delivery will be sent to holders who wish to tender their outstanding 9 5/8% notes according to the guaranteed delivery procedures described above. WITHDRAWAL OF TENDERS Except as otherwise provided in this prospectus, tenders of outstanding 9 5/8% notes may be withdrawn at any time before 5:00 p.m., New York City time, on the expiration date. To withdraw a tender of outstanding 9 5/8% notes in the exchange offer: - a written or facsimile transmission of a notice of withdrawal must be received by the exchange agent at its address listed below before 5:00 p.m., New York City time, on the expiration date; or - you must comply with the appropriate procedures of ATOP. Any notice of withdrawal must: - specify the name of the person having deposited the outstanding 9 5/8% notes to be withdrawn; - identify the outstanding 9 5/8% notes to be withdrawn, including the certificate number or numbers and principal amount of the outstanding 9 5/8% notes or, in the case of the outstanding 9 5/8% notes transferred by book-entry transfer, the name and number of the account at the depositary to be credited; - be signed by the same person and in the same manner as the original signature on the letter of transmittal by which the outstanding 9 5/8% notes were tendered, including any required signature guarantee, or be accompanied by documents of transfer sufficient to permit the trustee for the outstanding 9 5/8% notes to register the transfer of the outstanding 9 5/8% notes into the name of the person withdrawing the tender; and - specify the name in which any of these outstanding 9 5/8% notes are to be registered, if different from that of the person who deposited the outstanding 9 5/8% notes to be withdrawn. All questions as to the validity, form and eligibility, including time of receipt, of the withdrawal notices will be determined by us, and our determination shall be final and binding on all parties. Any outstanding 9 5/8% notes so withdrawn will be judged not to have been tendered according to the procedures in this prospectus for purposes of the exchange offer, and no exchange notes will be issued in exchange for those outstanding 9 5/8% notes unless the outstanding 9 5/8% notes so withdrawn are validly retendered. Any outstanding 9 5/8% notes that have been tendered but are not accepted for exchange will be returned to the holder of the outstanding 9 5/8% notes without cost to the holder or, in the case of outstanding 9 5/8% notes tendered by book-entry transfer into the holder's account at DTC according to the procedures described above. This return or crediting will take place as soon as practicable after withdrawal, rejection of tender or termination of the exchange offer. Properly withdrawn outstanding 9 5/8% notes may be retendered by following one of the procedures described above under "-- Procedures for Tendering" at any time before the Expiration Date. CONDITIONS The exchange offer is subject only to the following conditions: - the compliance of the exchange offer with securities laws; - the proper tender of the outstanding 9 5/8% notes; - the representation by the holders of the outstanding 9 5/8% notes that they are not our affiliates, that the exchange notes they will receive are being acquired by them in the ordinary course of business and that at the time the exchange offer is completed the holders had no plans to participate in the distribution of the exchange notes; and 32 - no judicial or administrative proceeding is pending or shall have been threatened that would limit us from proceeding with the exchange offer. EXCHANGE AGENT U.S. Bank Trust National Association, the trustee under the indenture, has been appointed as exchange agent for the exchange offer. In this capacity, the exchange agent has no fiduciary duties and will be acting solely on the basis of our directions. Requests for assistance and requests for additional copies of this prospectus or of the letter of transmittal should be directed to the exchange agent. You should send certificates for the outstanding 9 5/8% notes, letters of transmittal and any other required documents to the exchange agent addressed as follows: By Registered or Certified Mail: U.S. Bank Trust Center 180 East Fifth Street St. Paul, Minnesota 55101 Attn: Specialized Finance Group By Hand Delivery or Overnight Courier: U.S. Bank Trust Center 180 East Fifth Street St. Paul, Minnesota 55101 Attn: Specialized Finance Group By Facsimile Transmission: (for eligible institutions only) (651) 244-1537 To Confirm by Telephone or for Information: (800) 934-6802 DELIVERY OF THE LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS LISTED ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS DESCRIBED ABOVE DOES NOT CONSTITUTE A VALID DELIVERY OF THE LETTER OF TRANSMITTAL. SOLICITATION OF TENDERS; FEES AND EXPENSES We will bear the expenses of soliciting the requesting holders of outstanding 9 5/8% notes to determine if such holders wish to tender those notes for exchange notes. The principal solicitation under the exchange offer is being made by mail. Additional solicitations may be made by our officers and regular employees and our affiliates in person, by telegraph, telephone or telecopier. We have not retained any dealer-manager in connection with the exchange offer and will not make any payments to brokers, dealers or other persons soliciting acceptances of the exchange offer. We, however, will pay the exchange agent reasonable and customary fees for its services and will reimburse the exchange agent for its reasonable out-of-pocket costs and expenses in connection with the exchange offer and will indemnify the exchange agent for all losses and claims incurred by it as a result of the exchange offer. We may also pay brokerage houses and other custodians, nominees and fiduciaries the reasonable out-of-pocket expenses incurred by them in forwarding copies of this prospectus, letters of transmittal and related documents to the beneficial owners of the outstanding 9 5/8% notes and in handling or forwarding tenders for exchange. We will pay the expenses to be incurred in connection with the exchange offer, including fees and expenses of the exchange agent and trustee and accounting and legal fees and printing costs. You will not be obligated to pay any transfer tax in connection with the exchange, except if you instruct us to register exchange notes in the name of, or request that notes not tendered or not accepted in the 33 exchange offer be returned to, a person other than you, in which event you will be responsible for the payment of any applicable transfer tax. ACCOUNTING TREATMENT The exchange notes will be recorded at the same carrying value as the outstanding 9 5/8% notes, as reflected in our accounting records on the date of the exchange. Accordingly, no gain or loss for accounting purposes will be recognized by us upon the closing of the exchange offer. We will amortize the expenses of the exchange offer over the term of the exchange notes. PARTICIPATION IN THE EXCHANGE OFFER; UNTENDERED NOTES Participation in the exchange offer is voluntary. Holders of the outstanding 9 5/8% notes are urged to consult their financial and tax advisors in making their own decisions on what action to take. As a result of the making of, and upon acceptance for exchange of all of the outstanding 9 5/8% notes tendered under the terms of, this exchange offer, we will have fulfilled a covenant contained in the terms of the registration rights agreement. Holders of the outstanding 9 5/8% notes who do not tender in the exchange offer will continue to hold their outstanding 9 5/8% notes and will be entitled to all the rights, and subject to the limitations, applicable to the outstanding 9 5/8% notes under the indenture. Holders of the outstanding 9 5/8% notes will no longer be entitled to any rights under the registration rights agreement that by their terms terminate or cease to have further effect as a result of the making of this exchange offer. See "Description of Notes". All untendered outstanding 9 5/8% notes will continue to be subject to the restrictions on transfer described in the indenture. To the extent the outstanding 9 5/8% notes are tendered and accepted, there will be fewer outstanding 9 5/8% notes remaining following the exchange, which could significantly reduce the liquidity of the untendered notes. We may in the future seek to acquire our untendered outstanding 9 5/8% notes in the open market or through privately negotiated transactions, through subsequent exchange offers or otherwise. We intend to make any acquisitions of the outstanding 9 5/8% notes following the applicable requirements of the Securities Exchange Act of 1934, and the rules and regulations of the SEC under the Exchange Act, including Rule 14e-1, to the extent applicable. We have no present plan to acquire any outstanding 9 5/8% notes that are not tendered in the exchange offer or to file a registration statement to permit resales of any outstanding 9 5/8% notes that are not tendered in the exchange offer, except in those circumstances in which we may be obligated to file a shelf registration statement. USE OF PROCEEDS We will not receive any cash proceeds from the exchange offer. We used the net proceeds from the issuance of the outstanding 9 5/8% notes to repay in full $200 million of outstanding indebtedness incurred under the capital markets term loan under our new senior secured credit facility and interest accrued on this indebtedness. We incurred this indebtedness to fund a portion of the purchase price for the acquisition of the North Dakota System (excluding the Pipeline System) and the Utah System. The remaining net proceeds were or will be used for underwriting fees and offering expenses and for general corporate purposes. 34 RATIO OF EARNINGS TO FIXED CHARGES We have computed the ratio of earnings to fixed charges for each of the following periods on a consolidated basis. You should read the ratio of earnings to fixed charges in conjunction with our consolidated financial statements that are incorporated by reference in this prospectus.
PRO FORMA PRO FORMA AS ADJUSTED AS ADJUSTED FOR THE TESORO FOR THE TESORO HISTORICAL TRANSACTIONS HISTORICAL TRANSACTIONS ------------------------------------ ------------ ---------- ------------ YEAR ENDED DECEMBER 31, --------------------------------------------------- NINE MONTHS ENDED 1996 1997 1998 1999 2000 2000 SEPTEMBER 30, 2001 ---- ----- ----- ----- ----- ------------ ------------------------- Ratio of Earnings to Fixed Charges...... * 1.14x 1.28x 1.83x 3.31x 2.34x 3.81x 3.37x
- --------------- * In 1996, earnings were insufficient to cover fixed charges by $20.3 million. For purposes of computing the ratio of earnings to fixed charges, "earnings" consist of pretax income from continuing operations plus fixed charges (excluding capitalized interest). "Fixed charges" represent interest incurred (whether expensed or capitalized), amortization of debt expense and that portion of rental expense on operating leases deemed to be the equivalent of interest. 35 CAPITALIZATION The following table sets forth our consolidated capitalization as of September 30, 2001 (1) on a historical basis and (2) as adjusted to give effect to (a) the acquisition of the Pipeline System and borrowings under the delayed draw term loan of our new senior secured credit facility and (b) the offering of the outstanding 9 5/8% notes and the application of the net proceeds of that offering. You should read this table in conjunction with our consolidated financial statements and "Management's Discussion and Analysis of Financial Condition and Results of Operations" in our Annual Report on Form 10-K and Quarterly Reports on Form 10-Q incorporated by reference in this prospectus and other financial information included elsewhere or incorporated by reference in this prospectus.
SEPTEMBER 30, 2001 ---------------------- HISTORICAL PRO FORMA ---------- --------- (DOLLARS IN MILLIONS) Cash and cash equivalents................................... $ 1.2 $ 6.0 ======== ======== Debt, including current portion: New Senior Secured Credit Facility: Revolving Credit Facility(a)........................... $ 43.0 $ 43.0 Tranche A Term Loan.................................... 85.0 85.0 Delayed Draw Term Loan(b).............................. -- 90.0 Tranche B Term Loan.................................... 450.0 450.0 Capital Markets Term Loan.............................. 200.0 -- Other debt(c)............................................. 9.6 9.6 9% Senior Subordinated Notes due 2008..................... 297.5 297.5 9 5/8% Senior Subordinated Notes due 2008................. -- 215.0 -------- -------- Total debt, including current portion............. 1,085.1 1,190.1 Stockholders' equity........................................ 752.0 752.0 -------- -------- Total capitalization.............................. $1,837.1 $1,942.1 ======== ========
- --------------- (a) The revolving credit facility has total availability of $175 million, which includes a sublimit of $90 million for the issuance of letters of credit. As of September 30, 2001, we had an outstanding letter of credit in the amount of $0.8 million. (b) The delayed draw term loan was used to fund the purchase of the Pipeline System on November 1, 2001. (c) Other debt consists primarily of capital lease obligations. 36 PRO FORMA FINANCIAL STATEMENTS The following Unaudited Pro Forma Combined Condensed Balance Sheet gives effect to the following events as if each had occurred on September 30, 2001: - the November 1, 2001 acquisition of the Pipeline System; - the borrowings under the delayed draw term loan of our new senior secured credit facility, as amended; - the offering of the outstanding 9 5/8% notes; and - the exchange notes. Since the acquisition of the North Dakota System (excluding the Pipeline System) and the Utah System occurred on September 6, 2001, the financial position of the North Dakota System (excluding the Pipeline System) and the Utah System and the recent financing of our new senior secured credit facility, as amended (excluding borrowings under the delayed draw term loan used to finance the Pipeline System), are included in Tesoro's historical balance sheet as of September 30, 2001 as reported in our Quarterly Report on Form 10-Q for the quarter ended September 30, 2001. The following Unaudited Pro Forma Combined Condensed Statements of Operations give effect to the following events as if each had occurred on January 1, 2000: - the Acquisitions; - the recent financing of our new senior secured credit facility, as amended; - the July 1, 2001 conversion of our PIES(SM) into shares of our common stock; - the offering of the outstanding 9 5/8% notes; and - the exchange notes. Since the acquisition of the North Dakota System (excluding the Pipeline System) and the Utah System occurred on September 6, 2001, the results of operations of the North Dakota System (excluding the Pipeline System) and the Utah System and interest expense and financing costs related to the recent financing of our new senior secured credit facility, as amended (excluding borrowings under the delayed draw term loan used to finance the Pipeline System), are included in Tesoro's historical results of operations for the period from September 6, 2001 through September 30, 2001. The Acquisitions are being accounted for using the purchase method of accounting. The estimates of the fair value of the acquired assets and assumed liabilities are based on valuations that are preliminary. These valuations will likely be updated with respect to property, plant and equipment, intangible assets and certain assumed liabilities and will likely change from the amounts shown. The unaudited pro forma combined condensed financial statements are based on assumptions that we believe are reasonable under the circumstances and are intended for informational purposes only. They are not necessarily indicative of the future financial position or future results of the combined companies or of the financial position or the results of operations that would have actually occurred had the Acquisitions taken place as of the date or for the periods presented. The Unaudited Pro Forma Combined Condensed Statements of Operations do not reflect any benefits from potential cost savings or revenue enhancements resulting from the integration of the operations of Tesoro, the North Dakota System and the Utah System. These unaudited pro forma combined condensed financial statements should be read in conjunction with "Management's Discussion and Analysis of Financial Condition and Results of Operations" in our Annual Report on Form 10-K and Quarterly Reports on Form 10-Q incorporated by reference in this prospectus, as well as the historical consolidated financial statements of Tesoro Petroleum Corporation and the combined financial statements of The North Dakota and Utah Refining and Marketing Business of BP Corporation North America Inc. incorporated by reference in this prospectus. 37 UNAUDITED PRO FORMA COMBINED CONDENSED BALANCE SHEET SEPTEMBER 30, 2001
HISTORICAL PRO FORMA -------------------------- ------------------------ TESORO PIPELINE SYSTEM ADJUSTMENTS COMBINED -------- --------------- ----------- -------- (DOLLARS IN MILLIONS) ASSETS Current Assets: Cash and cash equivalents.................. $ 1.2 $ -- $ 4.8(a) $ 6.0 Receivables................................ 479.2 -- -- 479.2 Inventories................................ 396.6 -- -- 396.6 Prepayments and other...................... 7.1 -- -- 7.1 -------- ----- ------ -------- Total Current Assets............... 884.1 -- 4.8 888.9 -------- ----- ------ -------- Property, Plant and Equipment: Refining and Marketing..................... 1,589.9 56.3 33.7(b) 1,679.9 Marine Services............................ 52.4 -- -- 52.4 Corporate.................................. 47.1 -- -- 47.1 -------- ----- ------ -------- 1,689.4 56.3 33.7 1,779.4 Less accumulated depreciation and amortization............................ 317.1 32.9 (32.9)(b) 317.1 -------- ----- ------ -------- Net Property, Plant and Equipment.......... 1,372.3 23.4 66.6 1,462.3 Goodwill..................................... 112.4 -- 2.0(c) 114.4 Other Assets................................. 170.5 -- 7.3(d) 177.8 -------- ----- ------ -------- Total Assets....................... $2,539.3 $23.4 $ 80.7 $2,643.4 ======== ===== ====== ======== LIABILITIES AND STOCKHOLDERS' EQUITY Current Liabilities: Accounts payable........................... $ 339.1 $ 0.8 $ (0.8)(e) $ 339.1 Accrued liabilities........................ 131.1 0.7 (0.6)(f) 129.3 (1.9)(a) Current maturities of debt and other obligations............................. 16.6 -- 10.1(a) 26.7 -------- ----- ------ -------- Total Current Liabilities.......... 486.8 1.5 6.8 495.1 -------- ----- ------ -------- Deferred Income Taxes........................ 124.6 -- -- 124.6 Other Liabilities............................ 107.4 -- 0.9(f) 108.3 Debt and Other Obligations................... 1,068.5 -- 94.9(a) 1,163.4 Parent Company Investment.................... -- 21.9 (21.9)(g) -- Stockholders' Equity: Common stock............................... 7.2 -- -- 7.2 Additional paid-in capital................. 448.5 -- -- 448.5 Retained earnings.......................... 317.9 -- -- 317.9 Treasury stock............................. (21.6) -- -- (21.6) -------- ----- ------ -------- Total Stockholders' Equity......... 752.0 -- -- 752.0 -------- ----- ------ -------- Total Liabilities and Stockholders' Equity........................... $2,539.3 $23.4 $ 80.7 $2,643.4 ======== ===== ====== ========
38 NOTES TO UNAUDITED PRO FORMA COMBINED CONDENSED BALANCE SHEET SEPTEMBER 30, 2001 (a) Represents an adjustment of $105.0 million to aggregate borrowings to finance the acquisition of the Pipeline System, to pay accrued interest on the capital markets term loan, to pay related fees, expenses and debt issuance costs and for general corporate purposes as follows (in millions): Cash purchase price (including direct costs of acquisition).............................................. $ 91.0 Accrued interest on the capital markets term loan........... 1.9 Debt issuance costs......................................... 7.3 General corporate purposes.................................. 4.8 ------ $105.0 ======
(b) Represents an adjustment of acquired property, plant and equipment from book value to fair market value. (c) Represents goodwill, which is the excess purchase price over the fair market value of net assets acquired. (d) Represents an adjustment to record estimated debt issuance costs totaling $7.3 million associated with the outstanding 9 5/8% notes and the exchange notes. (e) Represents an adjustment to exclude certain liabilities of BP that we did not acquire in connection with the acquisition of the Pipeline System. (f) Represents an adjustment for certain employee benefit and environmental liabilities we assumed in connection with the acquisition of the Pipeline System. (g) Represents the elimination of historical equity related to the Pipeline System. 39 UNAUDITED PRO FORMA COMBINED CONDENSED STATEMENT OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 2000
HISTORICAL PRO FORMA ----------------------- ------------------------ TESORO ACQUISITIONS ADJUSTMENTS COMBINED -------- ------------ ----------- -------- (DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS) Revenues: Refining and Marketing........................ $4,917.6 $1,483.8(b) $ -- $6,401.4 Marine Services............................... 186.8 -- -- 186.8 -------- -------- ------ -------- Total Revenues........................ 5,104.4 1,483.8 -- 6,588.2 -------- -------- ------ -------- Cost of Sales and Operating Expenses: Refining and Marketing........................ 4,688.1 1,368.2 (0.9)(c) 6,055.4 Marine Services............................... 173.7 -- -- 173.7 Depreciation and amortization................. 43.1 23.2 (3.0)(d) 68.1 4.8(e) -------- -------- ------ -------- Total Costs of Sales and Operating Expenses............................ 4,904.9 1,391.4 0.9 6,297.2 -------- -------- ------ -------- Segment Operating Profit........................ 199.5 92.4 (0.9) 291.0 General and Administrative...................... (40.3) -- -- (40.3) Interest and Financing Costs, Net of Capitalized Interest...................................... (32.7) -- (52.3)(f) (93.5) (8.5)(g) Interest Income................................. 2.8 -- -- 2.8 Other Expenses.................................. (5.8) -- -- (5.8) -------- -------- ------ -------- Earnings Before Income Taxes.................... 123.5 92.4 (61.7) 154.2 Income Tax Provision............................ 50.2 35.9 (23.4)(h) 62.7 -------- -------- ------ -------- Net Earnings.................................... 73.3 56.5 (38.3) 91.5 Preferred Dividend Requirements................. (12.0) -- 12.0(i) -- -------- -------- ------ -------- Net Earnings Applicable to Common Stock......... $ 61.3 $ 56.5 $(26.3) $ 91.5 ======== ======== ====== ======== Weighted Average Common Shares -- Basic......... 31.2 10.4(i) 41.6 Weighted Average Common Shares and Potentially Dilutive Common Shares -- Diluted............. 41.8 41.8 Net earnings per share -- Basic................. $ 1.96 $ 2.20 Net earnings per share -- Diluted............... $ 1.75 $ 2.19
40 UNAUDITED PRO FORMA COMBINED CONDENSED STATEMENT OF OPERATIONS FOR THE NINE MONTHS ENDED SEPTEMBER 30, 2001
HISTORICAL PRO FORMA ---------------------------- ------------------------ TESORO ACQUISITIONS(a) ADJUSTMENTS COMBINED ---------- --------------- ----------- -------- (DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS) Revenues: Refining and Marketing................... $3,799.5 $972.3(b) $ -- $4,771.8 Marine Services.......................... 139.4 -- -- 139.4 -------- ------ ------ -------- Total Revenues................... 3,938.9 972.3 -- 4,911.2 -------- ------ ------ -------- Costs of Sales and Operating Expenses: Refining and Marketing................... 3,563.7 869.3 (5.5)(c) 4,427.5 Marine Services.......................... 128.1 -- -- 128.1 Depreciation and amortization............ 33.6 -- (2.2)(d) 34.6 3.2(e) -------- ------ ------ -------- Total Costs of Sales and Operating Expenses............. 3,725.4 869.3 (4.5) 4,590.2 -------- ------ ------ -------- Segment Operating Profit................... 213.5 103.0 4.5 321.0 General and Administrative................. (37.4) -- -- (37.4) Interest and Financing Costs, Net of Capitalized Interest..................... (31.4) -- (36.0)(f) (69.1) (1.7)(g) Interest Income............................ 0.6 -- -- 0.6 Other Expenses............................. (5.1) -- -- (5.1) -------- ------ ------ -------- Earnings Before Income Taxes............... 140.2 103.0 (33.2) 210.0 Income Tax Provision....................... 56.2 41.2 (12.6)(h) 84.8 -------- ------ ------ -------- Net Earnings............................... 84.0 61.8 (20.6) 125.2 Preferred Dividend Requirements............ (6.0) -- 6.0(i) -- -------- ------ ------ -------- Net Earnings Available to Common Stock..... $ 78.0 $ 61.8 $(14.6) $ 125.2 ======== ====== ====== ======== Weighted Average Common Shares -- Basic.... 34.5 6.9(i) 41.4 Weighted Average Common Shares and Potentially Dilutive Common Shares -- Diluted........................ 41.9 41.9 Net earnings per share -- Basic............ $ 2.26 $ 3.02 Net earnings per share -- Diluted.......... $ 2.00 $ 2.99
41 NOTES TO UNAUDITED PRO FORMA COMBINED CONDENSED STATEMENTS OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 2000 AND THE NINE MONTHS ENDED SEPTEMBER 30, 2001 (a) Includes the North Dakota System (excluding the Pipeline System) and the Utah System for the period from January 1, 2001 through September 5, 2001, and the Pipeline System for the nine months ended September 30, 2001. The results of operations of the North Dakota System (excluding the Pipeline System) and the Utah System are included in Tesoro's results from the date of acquisition, September 6, 2001, through September 30, 2001. (b) In connection with the Acquisitions, we entered into certain offtake agreements with BP to provide us with a distribution channel for a portion of our refined products we produce at these refineries. The offtake agreements commit approximately 37,220 bpd of refined products for a period ranging from three to five years. Historically, BP has sold these volumes through its distribution network, which included retail stations and jobbers. The product sales prices that we will receive under the offtake agreements may be less than BP historically had realized. A decrease in product sales price of 1 cent per gallon would have resulted in a decrease in revenues of $5.7 million for the year ended December 31, 2000 and $4.3 million for the nine months ended September 30, 2001, and a decrease in net earnings of $3.4 million for the year ended December 31, 2000 and $2.6 million for the nine months ended September 30, 2001. (c) Represents an adjustment to conform the accounting policy for refinery maintenance turnaround costs to that of Tesoro's policy. (d) Represents an adjustment in depreciation expense due to the change in property, plant and equipment from book value to fair value related to the Acquisitions. Pro forma depreciation is calculated on the straight-line method over estimated useful lives of 28 years for refinery assets, 22 years for pipeline assets and 16 years for terminals and retail assets. (e) Represents the amortization of various intangible assets related to the Acquisitions over their estimated useful lives (weighted average life of 16.1 years). Intangible assets include jobber agreements, permits and plans, refinery technology, customer contracts and non-contractual customer arrangements. (f) Represents additional interest under our new senior secured credit facility and the notes, offset by a decrease in interest related to our prior credit facility. (g) Represents the amortization of debt issuance costs related to our new senior secured credit facility and the notes, less the amortization of debt issuance costs related to our prior credit facility. (h) Represents the tax effect of the adjustments above at a combined statutory tax rate of 38%. (i) Represents the elimination of the preferred dividend requirements upon conversion of our PIES(SM) into shares of our common stock on July 1, 2001. 42 SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA The following table sets forth certain selected historical consolidated financial information for Tesoro based upon our historical financial statements. Separate financial statements of our subsidiary guarantors are not included herein because our subsidiary guarantors are jointly and severally liable on the notes and the aggregate net assets, earnings and equity of the subsidiary guarantors are substantially equivalent to the net assets, earnings and equity of Tesoro on a consolidated basis. The selected historical consolidated financial information presented below for each of the years ended December 31, 1998, 1999 and 2000, and for the nine-month periods ended September 30, 2000 and 2001, has been derived from our financial statements incorporated by reference in this prospectus. You should read this information in conjunction with "Management's Discussion and Analysis of Financial Condition and Results of Operations" in our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and the Consolidated Financial Statements of Tesoro Petroleum Corporation incorporated by reference in this prospectus.
NINE MONTHS ENDED YEARS ENDED DECEMBER 31,(a) SEPTEMBER 30,(a) ------------------------------------------------ ------------------- 1996 1997 1998 1999 2000 2000 2001 ------ ------ -------- -------- -------- -------- -------- (UNAUDITED) (DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS) STATEMENTS OF OPERATIONS DATA: Total Revenues...................... $867.9 $853.1 $1,386.6 $3,000.3 $5,104.4 $3,668.1 $3,938.9 Total Segment Operating Profit(b)... 12.1 26.8 78.3 131.0 199.5 140.6 213.5 Earnings (Loss) from Continuing Operations, Net of Income Taxes... (14.4) 2.4 7.6 32.2 73.3 48.9 84.0 Net Earnings (Loss)(c).............. 74.5 30.7 (19.4) 75.0 73.3 48.9 84.0 Net Earnings (Loss) Applicable to Common Stock...................... 74.5 30.7 (25.4) 63.0 61.3 39.9 78.0 Earnings (Loss) per Share from Continuing Operations: Basic............................. $(0.55) $ 0.09 $ 0.05 $ 0.62 $ 1.96 $ 1.27 $ 2.26 Diluted(d)........................ (0.55) 0.09 0.05 0.62 1.75 1.17 2.00 OTHER DATA: Cash Flows From (Used In): Operating activities.............. $177.7 $ 91.0 $ 121.8 $ 112.7 $ 90.4 $ 53.5 $ 76.3 Investing activities.............. (94.2) (151.5) (718.6) 166.3 (88.0) (40.9) (836.8) Financing activities.............. (75.9) 41.5 606.6 (149.2) (130.1) (129.9) 747.6 ------ ------ -------- -------- -------- -------- -------- Increase (Decrease) in Cash and Cash Equivalents....................... $ 7.6 $(19.0) $ 9.8 $ 129.8 $ (127.7) $ (117.3) $ (12.9) ====== ====== ======== ======== ======== ======== ======== EBITDA(e): Refining and Marketing.............. $ 18.5 $ 33.2 $ 94.8 $ 163.0 $ 229.5 $ 160.8 $ 235.8 Marine Services..................... 7.3 8.0 11.0 8.5 13.1 10.6 11.3 Corporate and Unallocated........... (17.7) (14.6) (39.9) (39.8) (40.9) (30.4) (39.9) ------ ------ -------- -------- -------- -------- -------- Total from Continuing Operations............... 8.1 26.6 65.9 131.7 201.7 141.0 207.2 Discontinued Operations(c).......... 166.7 77.2 87.0 110.3 -- -- -- ------ ------ -------- -------- -------- -------- -------- Total EBITDA............... $174.8 $103.8 $ 152.9 $ 242.0 $ 201.7 $ 141.0 $ 207.2 ====== ====== ======== ======== ======== ======== ========
43
NINE MONTHS ENDED YEARS ENDED DECEMBER 31,(a) SEPTEMBER 30,(a) ------------------------------------------------ ------------------- 1996 1997 1998 1999 2000 2000 2001 ------ ------ -------- -------- -------- -------- -------- (UNAUDITED) (DOLLARS IN MILLIONS, EXCEPT PER SHARE AMOUNTS) Capital Expenditures(f): Refining and Marketing............ $ 11.1 $ 43.9 $ 38.0 $ 72.4 $ 87.5 $ 38.4 $ 127.3 Marine Services................... 6.9 9.4 4.2 1.5 3.2 2.2 2.3 Corporate......................... 0.4 1.3 7.8 10.8 3.3 2.1 22.1 ------ ------ -------- -------- -------- -------- -------- Total from Continuing Operations............... 18.4 54.6 50.0 84.7 94.0 42.7 151.7 Discontinued Operations........... 66.6 92.9 135.1 56.5 -- -- -- ------ ------ -------- -------- -------- -------- -------- Total Capital Expenditures............. $ 85.0 $147.5 $ 185.1 $ 141.2 $ 94.0 $ 42.7 $ 151.7 ====== ====== ======== ======== ======== ======== ======== BALANCE SHEET DATA: Working Capital..................... $ 81.4 $ 61.5 $ 182.4 $ 290.0 $ 247.8 $ 252.4 $ 397.3 Property, Plant and Equipment, Net............................... 197.0 236.0 691.4 731.6 781.4 741.8 1,372.3 Total Assets........................ 558.8 610.4 1,406.4 1,486.5 1,543.6 1,530.8 2,539.3 Total Debt and Other Obligations(g).................... 89.3 132.3 543.9 417.6 310.6 310.8 1,085.1 Stockholders' Equity(g)(h).......... 304.1 333.0 559.2 623.1 669.9 647.8 752.0
- --------------- (a) Financial results of operations acquired in 1998 and 2001 have been included in the amounts above since their respective acquisition dates. (b) Segment operating profit equals operating revenues, gains and losses on asset sales and other income, less applicable segment costs of sales, operating expenses, depreciation and other items. Income taxes, interest expense, corporate general and administrative and other expenses are not included in determining segment operating profit. In 1998, a charge of $19 million for special incentive compensation, of which $7 million related to operating segments, was classified as corporate other expense and not charged to segment operating profit and corporate general and administrative expense. (c) In December 1999, we sold our oil and gas exploration and production operations and recorded an aftertax gain of $39.1 million from the sale of these operations. In 1998, these operations incurred pretax write-downs of oil and gas properties of $68.3 million ($43.2 million aftertax) and recognized pretax income from receipt of contingency funds of $21.3 million ($13.4 million aftertax). The discontinued operations included $60 million in pretax income ($42 million aftertax) from termination of a natural gas contract in 1996. (d) The assumed conversion of our PIES(SM) into 10.35 million shares of our common stock for 1998 and 1999 produced anti-dilutive results and therefore was not included in the diluted calculations of earnings per share. (e) EBITDA is a measure we use for internal analysis and in presentations to analysts, investors and lenders. The calculation of EBITDA is not based on U.S. GAAP and should not be considered as an alternative to net earnings or cash flows from operating activities (which are determined in accordance with U.S. GAAP), as an indicator of operating performance or as a measure of liquidity. EBITDA may not be comparable to similarly titled measures used by other entities. (f) Capital expenditures exclude amounts to fund acquisitions in the Marine Services segment in 1996 and the Refining and Marketing segment in 1998 and 2001. (g) In conjunction with acquisitions in 1998, we refinanced our existing indebtedness and issued senior subordinated notes and additional equity securities, including our common stock and PIES(SM) that are included in stockholders' equity. On July 1, 2001, the PIES(SM)automatically converted into 10.35 million shares of our common stock. (h) We have not paid dividends on our common stock since 1986. 44 BUSINESS We are an independent refiner and marketer with operations in two business segments -- (1) refining crude oil and other feedstocks and marketing petroleum products ("Refining and Marketing") and (2) providing petroleum products and logistics services to the marine and offshore exploration and production industries ("Marine Services"). Through our Refining and Marketing segment, we manufacture products including gasoline and gasoline blendstocks, jet fuel, diesel fuel and residual fuel for sale to a wide variety of commercial customers in the United States and countries in the Pacific Rim. Our Refining and Marketing segment also distributes gasoline through a retail network of gas stations under the Tesoro, Mirastar, Tesoro Alaska and Amoco brands. Our Marine Services segment markets and distributes a broad range of petroleum products, chemicals and supplies and provides logistical support services to the marine and offshore exploration and production industries operating in the Gulf of Mexico. On August 27, 2001, we announced we are evaluating various strategic opportunities (including a possible sale of all or a part of this business) to capitalize on the value of our Marine Services assets. Our Marine Services business accounted for approximately 6% and 5% of our historical EBITDA and segment operating profit, respectively, for the year ended December 31, 2000 and approximately 5% and 4% of our historical EBITDA and segment operating profit, respectively, for the nine months ended September 30, 2001. On September 6, 2001, we acquired two refineries in North Dakota and Utah and related storage, distribution and retail assets from certain affiliates of BP. We paid $665.8 million in cash (including $82.2 million for hydrocarbon inventories) for the Utah System and the North Dakota System (excluding the Pipeline System, which we acquired on November 1, 2001 for $90.1 million). We also assumed certain liabilities and obligations (including costs associated with transferred employees and environmental matters) related to the acquired assets, subject to specified levels of indemnification. The Acquisitions increased our number of refineries from three to five, with aggregate crude oil refining capacity rising from 275,000 bpd to 390,000 bpd, and increased our retail gas station network from 300 stations to over 630 stations. REFINING AND MARKETING OVERVIEW We own and operate petroleum refineries in Washington, Hawaii, Alaska, North Dakota and Utah and sell refined products to a wide variety of customers in the mid-continental and western continental United States, Hawaii, Alaska and countries in the Pacific Rim. During 2000 (excluding the Acquisitions), products from the refineries accounted for approximately 80% of our sales volumes, with the remaining 20% purchased from other refiners and suppliers. REFINERIES AND TERMINALS Our five refineries have a combined rated crude oil throughput capacity of 390,000 bpd, including 108,000 bpd at the Washington refinery, 95,000 bpd at the Hawaii refinery, 72,000 bpd at the Alaska refinery, 60,000 bpd at the North Dakota refinery and 55,000 bpd at the Utah refinery. Actual throughput of crude oil and other feedstocks are summarized below:
THROUGHPUT -------------------------------- REFINERY 1998 1999 2000 2001(a) - -------- ---- ---- ---- ------- (THOUSAND BPD) Washington............................................ 102(b) 98 117(c) 120(c) Hawaii................................................ 82(b) 87 84 88 Alaska................................................ 58 49 49 50 North Dakota(d)....................................... 55 55 51 55 Utah(d)............................................... 49 51 51 51 --- --- --- --- Total Throughput............................ 346 340 352 364 === === === ===
- --------------- (a) For the nine months ended September 30, 2001. 45 (b) Washington and Hawaii refineries average throughput since we acquired them (August 1998 and May 1998, respectively), averaged over the period owned in 1998. If averaged over the full year, the throughput for the Washington and Hawaii refineries would have been 43,000 bpd and 48,000 bpd, respectively. (c) At the Washington refinery, throughput was higher than the rated crude oil capacity in 2000 and the nine months ended September 30, 2001 due to operational improvements and the processing of other feedstocks in addition to crude oil. (d) Includes historical throughput for periods during which we did not own the North Dakota and Utah refineries. Throughput for the 25 days that we owned the North Dakota and Utah refineries in September 2001 averaged 54,600 bpd and 51,200 bpd, respectively. Throughput at the Alaska refinery has been below capacity levels, reflecting supply and marketing economics in the region. Scheduled refinery maintenance turnarounds temporarily reduced throughput in Utah in 2001, in Hawaii and North Dakota in 2000, in Washington and Alaska in 1999 and in Washington and Hawaii in 1998. Throughput for our refining system averaged 249,500 bpd in 2000 (prior to the Acquisitions), which consisted of 49% crude oil from foreign sources (including 16% from Canada), 34% crude oil from Alaska's North Slope, 12% crude oil from Alaska's Cook Inlet and 5% from other feedstocks. In 2000, approximately 42% of throughput was heavy crude oil, compared with 35% in 1999. We purchase feedstock for the refineries through term agreements and in the spot market. We purchase Alaska Cook Inlet, Canadian and Alaska North Slope crude oils from several suppliers under term agreements with renewal provisions. Prices under the term agreements fluctuate with market prices. We continuously evaluate the economics of processing various crude oils and other feedstocks and make adjustments in the volumes and mix of feedstocks processed at each refinery. To optimize refinery operations, we processed 38 types of crude oil during 2000, which were at least twice the number of crude oil types run by these refineries in 1998. Occasionally, a better economic opportunity displaces a previous crude oil purchase commitment, in which case we sell crude oil. In 2000 and the nine months ended September 30, 2001, crude oil resales also included amounts related to agreements that provide for us to purchase Alaska North Slope crude oil from one of our suppliers and to sell an equal quantity of West Texas Intermediate crude oil to that supplier. We charter two double-hull Lightship Class tankers to transport crude oil and refined products. The charter for the Cape Lookout Shoals has a three-year primary term that began in May 2000 and two one-year renewal options. In March 2001, we entered into a charter for a double-hull sister ship to the Cape Lookout Shoals for a two-year initial term with an option to renew for an additional year. We also charter other tankers and ocean-going barges on a short-term basis to transport crude oil and petroleum products. Our refineries primarily manufacture gasoline and gasoline blendstocks, jet fuel, diesel fuel and residual fuel oil. We also manufacture liquefied petroleum gas and liquid asphalt. Refined products manufactured by our refineries (including throughput for the North Dakota and Utah refineries for periods during which we did not own them), in volume and as a percentage, are summarized below:
NINE MONTHS ENDED SEPTEMBER 30, 1998 1999 2000 2001 ------------ ------------ ------------ -------------- VOLUME % VOLUME % VOLUME % VOLUME % ------ --- ------ --- ------ --- ------ ----- REFINED PRODUCTS MANUFACTURED (THOUSAND BPD)*: Gasoline and gasoline blendstocks............ 152 43 153 44 153 43 149 41 Jet fuel..................................... 70 20 70 20 68 19 65 18 Diesel fuel.................................. 62 17 61 17 67 19 75 20 Heavy oils, residual products and other...... 72 20 65 19 70 19 78 21 --- --- --- --- --- --- --- --- Total Refined Products Manufactured...................... 356 100 349 100 358 100 367 100 === === === === === === === ===
46 - --------------- * Washington and Hawaii refineries average refined products manufactured since date of acquisitions (August 1998 and May 1998, respectively), averaged over the period owned in 1998. Includes refined products manufactured for periods when we did not own the North Dakota and Utah refineries. Washington Refining. The Washington refinery, located in Anacortes on Puget Sound, about 60 miles north of Seattle, includes fluid catalytic cracking ("FCC"), alkylation, hydrotreating, vacuum distillation and catalytic reformer units. It is the most complex of our refineries. The FCC and other product upgrade units enable the Washington refinery to produce about 75% to 85% of its output as gasoline, diesel and jet fuel, depending on the mix of crude oil and other feedstock throughput. The acquisition of the Washington refinery shifted our total manufactured product mix by increasing gasoline yield and decreasing lower-value heavy oil and residual products. The FCC unit also can upgrade heavy vacuum gas oils from the Alaska and Hawaii refineries and other suppliers. In December 1999, the Washington refinery completed the installation of a distillate treater that increased production of low-sulfur diesel and jet fuels. A turnaround is scheduled for the FCC and alkylation units in the first quarter of 2002. Our manufacturing strategy focuses on improving refinery reliability and safety, improving refining processes and controlling manufacturing costs. We commenced a heavy oil conversion project at our Washington refinery in 2000, which will enable us to process a larger proportion of lower-cost heavy crude oils, to manufacture a larger proportion of higher-value gasoline and to reduce production of lower-value heavy products. We expect to spend approximately $100 million (including capitalized interest) for this project, of which $85 million had been spent through September 30, 2001. We expect the upgrade of the FCC unit, the final major component of the heavy oil conversion project, to be fully operational in the first quarter of 2002. Crude Oil Supply. The Washington refinery's crude oil is sourced primarily from Alaska, Canada and Southeast Asia. We receive crude oil from Canada at the Washington refinery through a third-party pipeline system. Other feedstock is delivered by tanker at the Washington refinery's marine terminal at Anacortes. We supply intermediate feedstocks, primarily heavy vacuum gas oil, from our other refineries and by spot market purchases from third-party refineries. Transportation. The Washington refinery receives crude oil from Canada through the 24-inch, third-party Transmountain Pipeline, which originates in Edmonton, Canada. We receive other crude oil through the Washington refinery's marine terminal. The pipeline and the marine terminal are each capable of providing 100% of the Washington refinery's feedstock needs. During 2000, the Washington refinery shipped approximately 76,000 bpd (37,500 bpd of which was allocated to us and the balance of which was allocated to customers) of high-value products (gasoline, jet fuel and diesel) via the third-party Olympic pipeline system, which serves the Seattle, Washington area with 16-inch and 20-inch lines and continues to Portland, Oregon with a 14-inch line. We also deliver gasoline through a neighboring refinery's truck rack, and we distribute some diesel fuel through a truck rack at our refinery. We also ship products by barge and ship. The Washington refinery can deliver significant volumes of products through our marine terminal to ships and barges. We ship all of the fuel oil production by water. Propane and asphalt are shipped by both truck and rail. Terminals. We operate refined product terminals at Port Angeles and Vancouver, Washington and at Stockton and Port Hueneme, California. In addition, we distribute products through third-party terminals and truck racks in our market areas. Terminals we operate are supplied primarily by our refineries. Fuel distributed through third-party facilities also is supplied by our refineries and through purchases and exchange arrangements with other refining and marketing companies. Hawaii Refining. The Hawaii refinery, located at Kapolei in an industrial park 22 miles west of Honolulu, produces liquified petroleum gas, gasoline and gasoline blendstocks, jet fuel, diesel fuel and fuel oil. This refinery began operations in 1972 and has been expanded progressively in capacity and complexity. The refinery has a total crude oil capacity of 95,000 bpd and is the largest refinery in the state. Major product 47 upgrade units include the distillate hydrocracker, vacuum distillation and catalytic reformer units. We completed a planned maintenance turnaround in September 2000, and the next major turnaround is scheduled for 2003. Crude Oil Supply. The Hawaii refinery's crude oil supply is sourced primarily from Alaska, Australia and Southeast Asia. We receive crude oil for the Hawaii refinery through our single-point mooring terminal and pipeline system that also can be used for receiving and loading refined products. Transportation. Crude oil is transported to Hawaii by tankers and discharged through our single-point mooring terminal, about 1.5 miles offshore from the Hawaii refinery. Three underwater pipelines connect the single-point mooring terminal to the Hawaii refinery to allow crude oil and products to be transferred to the Hawaii refinery and to load products from the Hawaii refinery to ships and barges. We distribute refined products to customers on the island of Oahu through a pipeline system with connections to the military at several locations. We also distribute refined products to commercial customers via third-party terminals at Honolulu International Airport and Honolulu Harbor and by barge to Tesoro-owned and third-party terminal facilities on the islands of Maui, Kauai and Hawaii. Our product pipelines connect the Hawaii refinery to Barbers Point Harbor, 2.5 miles away, which is able to accommodate barges and product tankers up to 800 feet in length and reduces traffic at the single-point mooring terminal. Terminals. We operate refined product terminals in Hawaii on the islands of Hawaii, Kauai, Maui and Oahu. In addition, we distribute products through third-party terminals and truck racks in our market areas. Terminals we operate are supplied primarily by our refineries. Fuel distributed through third-party facilities also is supplied by our refineries and through purchases and exchange arrangements with other refining and marketing companies. Alaska Refining. The Alaska refinery is located near Kenai, Alaska, approximately 70 miles southwest of Anchorage, where it has access to Alaskan and imported crude oil supplies. The Alaska refinery produces liquefied petroleum gas, gasoline and gasoline blendstocks, jet fuel, diesel fuel, heating oil, liquid asphalt, heavy oils and residual products. The Alaska refinery began operations in 1969 and has been expanded progressively, including the 1997 hydrocracker unit expansion that increased the unit's capacity to produce more jet fuel. The refinery has a total crude oil capacity of 72,000 bpd and is the second largest refinery in the state. We completed a scheduled maintenance turnaround of all major process units at the Alaska refinery in the second quarter of 2001, and the next turnaround is scheduled for the second quarter of 2003. Crude Oil Supply. The Alaska refinery runs primarily Alaska Cook Inlet and, to a lesser extent, Alaska North Slope and other crude oils. We deliver crude oil by tanker to the Alaska refinery through the Kenai Pipe Line Company marine terminal, which is a Tesoro-owned common carrier and marine dock facility, and to the Kenai Pipe Line Company marine terminal by pipeline connected directly with some of the Cook Inlet producing fields. Transportation. We own and operate a common-carrier petroleum products pipeline, which runs from the Alaska refinery to our terminal facilities in Anchorage and to the Anchorage airport. This ten-inch diameter pipeline has a capacity to transport approximately 40,000 bpd of products and allows us to transport light products to the terminal facilities throughout the year, regardless of weather conditions. We also own and operate a common-carrier pipeline and Kenai Pipe Line Company marine terminal, adjacent to the Alaska refinery, for unloading crude oil feedstocks and loading product inventory on tankers and barges. Terminals. We operate refined product terminals at Kenai and Anchorage, Alaska. In addition, we distribute products through third-party terminals and truck racks in our market areas. The terminals we operate are supplied primarily by our refineries. Fuel distributed through third-party facilities also is supplied by our refineries and through purchases and exchange arrangements with other refining and marketing companies. 48 North Dakota Refining. The North Dakota refinery is located near Mandan, North Dakota on 960 acres of land. The 60,000 bpd refinery is the only one in the state and serves both state needs and those of neighboring Minnesota. The refinery produces a slate of high-value products derived primarily from local crude oil supplies in the Williston Basin and also some limited Canadian crude oil, which both reach the refinery through the Pipeline System. The North Dakota refinery produces approximately 60% gasoline, 30% distillates and 10% other products. Crude Oil Supply. The North Dakota refinery's crude oil is sourced primarily from local Williston Basin sweet crude oil. Although the current tariff structure makes local crude oil more economic, the refinery also has access to other sources of crude oil. The Pipeline System is associated with the North Dakota refinery and consists of over 700 miles of pipeline. The Pipeline System delivers all of the North Dakota refinery's crude oil requirements as well as some crude oil requirements to regional points where there is additional demand. The Pipeline System is configured to gather crude oil from the local Williston Basin and adjacent production areas in North Dakota and Montana and transport it to the North Dakota refinery. The Pipeline System is also configured to move substantial quantities of imported Canadian crude oil to the North Dakota refinery or transport it either to Clearbrook, Minnesota to the east or to Guernsey, Wyoming to the south. The crude oil pipelines are common carriers transporting crude oil subject to regulation by various local, state and federal agencies, including the Federal Energy Regulatory Commission. Transportation. Our refined product pipeline system distributes approximately 85% of the North Dakota refinery's product. The main product pipeline is approximately 430 miles and has a capacity of approximately 50,000 bpd. All gasoline and distillate products produced at the North Dakota refinery, with the exception of railroad-spec diesel fuel, can be shipped on the line to downstream terminals. An additional pipeline provides railroad-spec diesel fuel via a five-mile, 5,000 bpd pipeline to the Burlington Northern rail yard in Bismark, North Dakota. Terminals. The main product pipeline of our refined product pipeline system connects the refinery to five owned product marketing terminals located in: (1) Mandan, at the North Dakota refinery; (2) Jamestown, North Dakota; (3) Moorehead, Minnesota; (4) Sauk Center, Minnesota; and (5) the Minneapolis/ St. Paul, Minnesota area. Total capacity for all five terminals is 2,830,000 barrels. Offtake Agreements. In connection with the acquisition of the North Dakota and Utah refineries, we entered into certain offtake agreements with BP to provide us with a distribution channel for a portion of our refined products produced at these refineries. The offtake agreements related to the North Dakota refinery commit approximately 30,470 bpd of the North Dakota refinery product for a period ranging from three to five years (which represents approximately 59% of the historical three-year average production of 51,770 bpd in the first three years of the offtake agreement). Volumes related to the Minneapolis/St. Paul terminal, committed over five years, will decline after year three. BP initially will receive approximately 68% of the committed product via the Minneapolis/St. Paul terminal with the remainder distributed through the other Minnesota and North Dakota terminals. These agreements provide a stable distribution channel for our product, while allowing time to form relationships and seek new outlets for future product distribution. Sales prices under the offtake agreements are based on market prices at the time of sale. Utah Refining. The Utah refinery is located in Salt Lake City. The 55,000 bpd refinery is the largest in the state of Utah and is well-positioned to supply products to the growing Utah and Idaho marketing areas, which historically have had some of the highest wholesale prices for products in the United States. The refinery produces a high-value product slate from Canadian and Rocky Mountain crude oil, which it receives via pipeline and truck from fields in Utah, Colorado, Wyoming and Canada. The Utah refinery's primary products include gasoline, diesel fuel and jet fuel, which are shipped via pipeline, rail car or truck to markets in Utah, Idaho, Wyoming, Nevada, Oregon and Washington. 49 Crude Oil Supply. The Utah refinery processes a low sulfur crude oil slate and has the flexibility to process different crude oils. As local crude oil declines, local capacity can be replaced with Canadian Light Sweet or Syncrude. Local crude oils are delivered primarily via the Amoco "U" Pipeline. Canadian crude oil and other domestic crudes are delivered primarily through the Frontier system. The price of local crude oil is primarily based on the Canadian import alternative. Transportation. The Utah refinery's products are distributed through a system of both owned and third-party terminals and third-party pipeline connections primarily in Utah and Idaho, with some incremental product to Nevada, Washington and Wyoming. Terminals. We distribute product through the Chevron Pipeline to the two terminals we own at Boise and Burley, Idaho and to two terminals we lease from Northwest Terminalling Company in Pocatello, Idaho and Pasco, Washington. Total storage capacity for the three owned terminals is 2,467,000 barrels. In addition, the two leased terminals have an aggregate allocated throughput capacity of 10,000 bpd. Offtake Agreements. The offtake agreements for the Utah refinery represent approximately 6,750 bpd of refined product produced (approximately 14% of the historical three year-average production of 48,560 bpd) for periods ranging from two years to three years, depending on the terminal. The volume under the agreements has limited gasoline volumes since we acquired substantially all of BP's retail assets in the region. A majority of the product under the agreements will be distributed through the Salt Lake City terminal. Sales prices under the offtake agreements are based on market prices at the time of sale. MARKETING Our Refining and Marketing segment sells refined products, including gasoline and gasoline blendstocks, jet fuel, diesel fuel, heavy oil and residual products. Sources of our product sales include products manufactured at our refineries, products drawn from inventory balances and products purchased from third parties. Gasoline and Gasoline Blendstocks. We sell gasoline and gasoline blendstocks in both the bulk, wholesale and retail markets in the mid-continental and western United States (including Alaska and Hawaii). The demand for gasoline is seasonal in a majority of our markets, with lowest demand during the winter months. In wholesale marketing, we sell gasoline to several major oil companies on the U.S. west coast under term sales agreements, which approximated 37,500 bpd in 2000, or approximately 36% of our U.S. west coast gasoline sales. We also sell to one of the major oil companies in Hawaii and Alaska. We sell gasoline to wholesale customers and bulk end-users under various supply agreements. Gasoline also is delivered to refiners and marketers in exchange for product received at other locations in the mid-continental and western United States. We also sell, at wholesale, to unbranded jobbers. We distribute product through Tesoro-owned and third-party terminals and truck racks. Although our marketing strategy in Hawaii and Alaska is to maximize in-state sales, gasoline and gasoline components produced in excess of market demand may be shipped to the U.S. west coast or exported to other markets, principally in the Asia/Pacific area. Light naphtha, which is produced by the Hawaii refinery, is sold to Hawaii's gas utility company as feedstock for their manufacture of synthetic natural gas distributed through the Honolulu gas utility pipeline system. We sell California Air Resources Board quality blendstocks in the wholesale bulk market, generally at higher values than conventional gasoline. We are evaluating several additional projects at our existing refineries that could increase our production capacity of California Air Resources Board products from approximately 25,000 bpd to between 50,000 and 60,000 bpd. In April 2001, we entered into a nonexclusive license agreement that allows us to make and sell gasoline subject to patents held by Union Oil Company of California, a subsidiary of Unocal Corporation. This agreement removes uncertainty regarding patent royalties as we expand production and marketing of cleaner-burning gasoline. On August 30, 2001, we opened a Long Beach, California office to provide supply and marketing activities in California and the southwestern United States. Our goal is to establish a marketing operation in California capable of providing a competitive and secure supply of products to independent marketers in 50 California. To further these objectives, we leased approximately 500,000 barrels of storage capacity with waterborne access in southern California. We continue initiatives to expand our retail marketing. We sell gasoline to retail customers through an arrangement with Wal-Mart, through Tesoro-owned and operated sites and agreements with third-party, branded jobbers. Volumes sold under these branded retail marketing programs averaged 14,000 bpd in 2000 (excluding the Acquisitions). We have retail marketing offices in: Auburn, Washington; Honolulu, Hawaii; Anchorage, Alaska; and Denver, Colorado. As of September 30, 2001, our Refining and Marketing business included a network of 650 branded retail stations (under the Tesoro, Mirastar, Tesoro Alaska and Amoco brands), including 163 Tesoro-owned retail gasoline stations and 487 jobber stations in the mid-continental and western United States. We developed our Mirastar brand exclusively for Wal-Mart, for which we build and operate retail fueling facilities on sites at selected Wal-Mart store locations. Our relationship with Wal-Mart covers 17 western states, including North Dakota and Utah. Each of the sites under our agreement with Wal-Mart is subject to a ground lease with a ten-year primary term and two options, exercisable at our discretion, to extend a site's lease for additional terms of five years. As of September 30, 2001, we had 47 Mirastar stations in operation, 5 Mirastar stations under construction and 54 sites in various stages of development or evaluation. The availability of future sites is determined solely at Wal-Mart's option, but decisions concerning the development of a Mirastar station at a site are determined solely by us. We expect to have approximately 60 to 70 Mirastar stations operating by the end of 2001 and expect to construct an additional 50 to 60 stations in each of 2002 and 2003. Our average cost of constructing a standard Mirastar station with four fuel dispensers is approximately $550,000. The average investment in Mirastar stations may increase in the future as stations with five to eight fuel dispensers are constructed. We expect the Acquisitions to create economic benefits for our current retail platform by providing a source of proprietary gasoline supply and additional opportunities for our expanded retail network. The following table summarizes the branded retail stations we own and jobber-owned stations as of December 31, 1998, 1999 and 2000 and September 30, 2001:
DECEMBER 31, ------------------ SEPTEMBER 30, 1998 1999 2000 2001 ---- ---- ---- ------------- Branded Retail Stations: Tesoro -- Tesoro-owned.................................... 31 59 60 71 Jobber-owned.................................... 2 51 69 90 Tesoro Alaska -- Tesoro-owned.................................... 30 3 3 2 Jobber-owned.................................... 169 131 124 104 Mirastar -- Tesoro-owned.................................... -- -- 20 47 Amoco -- Tesoro-owned(a)................................. (b) (b) (b) 43 Jobber-owned.................................... (b) (b) (b) 293 --- --- --- --- Total Branded Retail Stations................. 232 244 276 650 === === === ===
- --------------- (a) We are in the process of re-branding the 43 Amoco stations we acquired in the Acquisitions to the Tesoro brand. (b) Not applicable. 51 In November 2001, we acquired 46 retail fueling facilities, including 37 retail stations with convenience stores and nine commercial card lock facilities, located in Washington, Oregon and Idaho from Gull Industries Inc., a privately-held company based in Seattle, Washington. Jet Fuel. We are a major supplier of commercial jet fuel to passenger and cargo airlines in Alaska and Hawaii and on the U.S. west coast. Several marketers, including us, import jet fuel into Alaska, Hawaii and the U.S. west coast. In December 1999, the Washington refinery installed a distillate treater that enabled the refinery to increase production of low-sulfur diesel and jet fuels. We primarily market commercial jet fuel at airports in Anchorage, Honolulu and other Hawaiian island locations, Seattle/Tacoma, Portland, San Francisco, the Los Angeles area, San Diego, Salt Lake City, Las Vegas, Reno and Phoenix. We also supply military jet fuel in Hawaii, Utah and North Dakota. Diesel Fuel. We sell our diesel fuel production primarily on a wholesale basis for marine, transportation and industrial purposes, as well as for home heating. We sell lesser amounts to end-users through marine terminals and retail gas stations and for power generation in Hawaii and Washington. Generally, the production of diesel fuel by refiners in Alaska, Hawaii and our market areas in the western United States is typically in balance with demand. As a result of seasonal demand swings, we import and export diesel fuel from Alaska and Hawaii. See "Government Regulation and Legislation -- Environmental Controls and Expenditures" for a discussion of the effect of governmental regulations on the production of low-sulfur diesel fuel. Heavy Oil and Residual Products. Our Washington, Hawaii and Alaska refineries have vacuum units that use atmospheric crude oil tower bottoms as a feedstock and further process these volumes into light vacuum gas oil, medium vacuum gas oil, heavy vacuum gas oil and vacuum tower bottoms. Light vacuum gas oil and medium vacuum gas oil are further processed in the Alaska and Hawaii hydrocrackers, where they are converted into jet fuel, gasoline blendstocks and diesel fuel. Heavy vacuum gas oil is used primarily as an FCC feedstock at the Washington refinery where heavy vacuum gas oil is upgraded to gasoline and diesel fuel. The vacuum tower bottoms are used to produce liquid asphalt, fuel oil and marine bunker fuel. We sell heavy fuel oils to other refineries, electric power producers and marine and industrial end-users. We sell our liquid asphalt for paving materials in Alaska, Hawaii and Washington. In Alaska and Washington, demand for liquid asphalt is seasonal because mild weather conditions are needed for highway construction. We have marine fuel marketing operations and leased facilities at Port Angeles and Seattle, Washington, and Portland, Oregon. Marine fuels sold from these locations are supplied principally by our Washington and Alaska refineries. Sales of Purchased Products. In the normal course of business, we purchase refined products manufactured by others for resale to customers. The products, primarily gasoline, jet fuel, diesel fuel and industrial and marine fuel blendstocks are purchased primarily in the spot market. Sales of these products represented approximately 20% of total volumes we sold in 1999 and 2000 (excluding the Acquisitions). We conduct our gasoline and diesel fuel purchase and resale activity primarily on the U.S. west coast. The jet fuel activity primarily consists of imports into Alaska and California. MARINE SERVICES OVERVIEW Our Marine Services segment markets and distributes a broad range of petroleum products, chemicals and supplies and provides logistical support services to the marine and offshore exploration and production industries operating in the Gulf of Mexico. These operations are conducted through a network of 15 terminals located on the Texas Gulf Coast in Freeport, Galveston, Harbor Island, Houston, Port O'Connor and Sabine Pass, and along the Louisiana Gulf Coast in Amelia, Berwick, Cameron, Intracoastal City, Port Fourchon and Venice. We also own tugboats, barges and trucks used in the Marine Services operations. On August 27, 2001, we announced we are evaluating various strategic opportunities (including a possible sale of all or a part of this business) to capitalize on the value of our Marine Services assets. 52 FUELS AND LUBRICANTS Marine Services markets and distributes fuels and lubricants to offshore drilling rigs, offshore production platforms, and various ships engaged in seismic surveys. Marine Services also provides petroleum products to the Gulf of Mexico fishing industry, tugboats and barges using the Intracoastal Canal System along the Gulf of Mexico and ships entering various ports in Texas and Louisiana. Marine Services obtains its supply of fuel from local area refiners. Total gallons of fuel, primarily diesel fuel, sold by this segment amounted to approximately 181 million, 148 million and 170 million in 1998, 1999 and 2000, respectively, and 132 million in the nine months ended September 30, 2001. We are a distributor of major brands of marine lubricants and greases, offering a full spectrum of brands. Total sales of lubricants amounted to approximately two million gallons in each of the years 1998, 1999 and 2000 and 1.6 million gallons in the nine months ended September 30, 2001. LOGISTICAL SERVICES Through many of its Gulf Coast terminals, Marine Services provides full-service shore-based support for offshore drilling rigs and production platforms. These services include cranes, forklifts and loading docks for supply boats serving the offshore exploration and production industry. In addition, Marine Services provides warehousing, office space, living quarters, helicopter landing pads and long-term parking for offshore workers. Marine Services terminals also serve as "one-stop shops" for a full range of offshore exploration and production services. Products and services, such as drilling muds, environmental services, and equipment repair and fabrication, are provided through a variety of arrangements with "tenant partners". COMPETITION AND OTHER The petroleum industry is highly competitive in all phases, including the refining of crude oil, the marketing of refined petroleum products and the marine services business. The industry also competes with other industries that supply the energy and fuel requirements of industrial, commercial and individual consumers. We compete with a substantial number of major integrated oil companies and other companies having greater financial and other resources. These competitors have a greater ability to bear the economic risks inherent in all phases of the industry. The recent consolidation experienced in the refining and marketing industry has reduced the number of competitors; however, it has not reduced overall competition. In addition, unlike us, many of our competitors produce large volumes of crude oil that can then be used in connection with their refining operations. Other larger competitors, although they do not produce crude oil, may have a competitive advantage as larger purchasers when negotiating with crude oil producers. The refining and marketing businesses are highly competitive, with prices of feedstocks and products being the principal factors in competition. Our Washington refinery competes with several refineries on the U.S. west coast, including refineries that have higher refining capacity than the Washington refinery and that are owned by substantially larger companies. Our Hawaii refinery competes primarily with one other refinery in Hawaii that also is located at Kapolei and that has a rated capacity of 54,000 bpd of crude oil. Historically, the other refinery produces lower volumes of jet fuel than our Hawaii refinery. In the refining industry, the Alaska refinery competes primarily with other refineries in Alaska and on the U.S. west coast. Our refining competition in Alaska includes two refineries near Fairbanks and one refinery near Valdez. We estimate that the other refineries have a combined capacity to process approximately 270,000 bpd of crude oil. After processing the crude oil and removing the higher-value products, these refiners are permitted, because of their direct connection to the Trans Alaska Pipeline System, to return the remainder of the processed crude oil back into the pipeline system as "return oil" in consideration for a fee, thereby eliminating their need to transport and market lower-value products that are not in demand in Alaska. Our Alaska refinery is not directly connected to the Trans Alaska Pipeline System, and we, therefore, cannot return our lower-value products to the Trans Alaska Pipeline System. Our North Dakota refinery is the sole refinery in North Dakota. Refineries in Wyoming, Montana, the Midwest and the United States Gulf Coast region are the primary competitors to our North Dakota refinery. The Utah refinery is the largest of five refineries located in Utah. We estimate that the other refineries have a combined capacity to process approximately 107,500 bpd of crude oil. These five 53 refineries collectively supply an estimated 70% of the gasoline and distillate products consumed in the states of Utah and Idaho. The bulk of the remainder is imported from refineries in Wyoming and Montana. We are a major producer and distributor of gasoline in Alaska and Hawaii through a network of Tesoro-operated retail stations and branded and unbranded jobbers. We supply a major oil company through a product exchange agreement, whereby gasoline in Alaska is provided in exchange for gasoline delivered to us on the U.S. west coast. In 2000, approximately 36% of our U.S. west coast gasoline sales were to two major oil companies through term sales agreements at market prices. We also supply one of these major oil companies in Alaska and Hawaii through a gasoline sales agreement. Competitive factors affecting the retail marketing of gasoline include factors such as price and quality, together with station appearance, location and brand-name identification. We compete with other petroleum companies, distributors and other developers for new locations. We compete against independent marketing companies and integrated oil companies when engaging in these marketing operations. Our jet fuel sales in Alaska are concentrated in Anchorage, where we are one of the principal suppliers to the Anchorage International Airport, a major hub for air cargo traffic between manufacturing regions in the Far East and markets in the United States and Europe. In Hawaii, jet fuel sales are concentrated in Honolulu, where we are the principal supplier to the Honolulu International Airport. We also serve four airports on other islands in Hawaii. In Washington, jet fuel sales are concentrated at the Seattle/Tacoma International Airport. We also supply jet fuel customers in Portland, Oregon; Los Angeles, San Francisco and San Diego, California; Las Vegas and Reno, Nevada; and Phoenix, Arizona. Other refiners and marketers compete for sales at all of these airports. In Utah, jet fuel sales are concentrated in Salt Lake City. We also supply jet fuel customers in Boise, Burley and Pocatello, Idaho. The North Dakota refinery supplies jet fuel to customers in Minneapolis/ St. Paul and Moorehead, Minnesota and Bismark, North Dakota. Our Refining and Marketing segment sells its diesel fuel primarily on a wholesale basis, competing with other refiners and marketers in all of its market areas. Refined products from foreign sources also compete for distillate markets in our market areas. Demand for services and products offered by Marine Services is significantly affected by the level of oil and gas exploration, development and production in the Gulf of Mexico. Various factors, including general economic conditions, demand for and prices of oil and natural gas, availability of equipment and materials, and government regulations and energy policies cause exploration and development activity to fluctuate and directly impact the revenues of Marine Services. We believe the principal competitive factors affecting the Marine Services operations are location of facilities, availability of logistical support services, experience of personnel and dependability of service. The market for Marine Services' products and services, particularly diesel fuel, is highly competitive and price sensitive. GOVERNMENT REGULATION AND LEGISLATION ENVIRONMENTAL CONTROLS AND EXPENDITURES All of our operations, to some degree, are affected by federal, state, regional and local laws, regulations and ordinances relating to the protection of the environment. While we believe our facilities generally are in substantial compliance with current requirements, over the next several years we expect our facilities will be engaged in meeting new requirements being adopted and promulgated by the U.S. Environmental Protection Agency and the states in which we operate. Under the federal Clean Air Act, as amended in 1990, for example, we will need to comply with the second phase of regulations establishing Maximum Achievable Control Technologies for petroleum refineries ("Refinery MACT II"). These regulations, promulgated in January 2001, will require additional air emission controls for certain processing units at several of our refineries. We expect to spend approximately $35 million in capital improvements at our refineries over the next four years to comply with the Refinery MACT II standards. Changes in fuel manufacturing standards, including those related to gasoline and diesel fuel sulfur concentrations affect our operations. Effective January 1, 2004, the sulfur content in gasoline must be reduced to meet the new fuel manufacturing standard for gasoline. We expect to make approximately $65 million in 54 capital improvements through 2006 and $15 million in years after 2006 to meet the new gasoline fuel standards. In December 2000, the EPA announced additional standards for allowable sulfur concentrations in highway diesel fuels. The "ultra low sulfur diesel" standards will, in general, become effective on June 1, 2006. We expect to spend approximately $35 million in capital improvements through 2006 and $30 million in years after 2006 to meet the new diesel fuel standards. In connection with the Acquisitions, we assumed the sellers' obligations and liabilities under a consent decree among the United States, BP Exploration and Oil Co., Amoco Oil Company and Atlantic Richfield Company. BP recently entered into this consent decree for both the North Dakota and Utah refineries for various alleged violations. As the new owner of these refineries, we are required to address issues including leak detection and repair, flaring protection and sulfur recovery unit optimization. We estimate we will have to spend $9 million at each of the North Dakota and Utah refineries to comply with this consent decree. In addition, we have agreed to indemnify the sellers for all losses of any kind incurred in connection with or related to the consent decree. We anticipate we will make additional capital improvements of approximately $8 million in 2001 and $10 million in 2002, primarily for improvements to storage tanks, tank farm secondary containment and pipelines. During the nine months ended September 30, 2001, we spent approximately $5 million on environmental capital projects. Conditions that require additional expenditures may exist for various of our sites, including, but not limited to, our refineries, tank farms, retail gasoline stations (operating and closed locations) and petroleum product terminals, and for compliance with the Clean Air Act and other state and federal regulations. We currently cannot determine the amount of these future expenditures. OIL SPILL PREVENTION AND RESPONSE The Federal Oil Pollution Act of 1990 and related state regulations include requirements that most oil refining, transport and storage companies maintain and update various oil spill prevention and oil spill contingency plans. We have submitted these plans and received federal and state approvals necessary to comply with the Federal Oil Pollution Act of 1990 and related regulations. Our oil spill prevention plans and procedures are frequently reviewed and modified to prevent oil releases and to minimize potential impacts should a release occur. We currently charter, on a long-term and short-term basis, tankers and barges for shipment of crude oil from foreign and domestic sources to our Alaska, Hawaii and Washington refineries. The Federal Oil Pollution Act of 1990 requires, as a condition of operation, that we demonstrate the capability to respond to the "worst case discharge" to the maximum extent practicable. As an example, the State of Alaska requires us to provide spill-response capability to contain or control and cleanup an amount equal to 50,000 barrels of crude oil for a tanker carrying fewer than 500,000 barrels or 300,000 barrels for a tanker carrying more than 500,000 barrels. To meet these requirements, we have entered into contracts with various parties to provide spill response services. We have entered into spill-response agreements with: (1) Cook Inlet Spill Prevention and Response, Incorporated and Alyeska Pipeline Service Company for spill-response services in Alaska; (2) Clean Islands Council for response services throughout the State of Hawaii; and (3) Clean Sound Incorporated for response actions associated with the Puget Sound, Washington operations. In addition, for larger spill contingency capabilities, we have entered into contracts with Marine Spill Response Corporation in Hawaii and in the Gulf Coast region. We believe these contracts, and those with other regional spill-response organizations that are in place on a location by location basis, provide the additional services necessary to meet spill-response requirements established by state and federal law. Regulations promulgated by the Alaska Department of Environmental Conservation require the installation of liners in secondary containment systems for petroleum storage tanks. In 1996, the Alaska Department of Environmental Conservation approved our alternative compliance schedule that allows us until the year 2002 to line secondary containment systems for all of our existing petroleum storage tank facilities in Alaska. The total remaining estimated cost of these improvements is approximately $3 million. 55 REGULATION OF THE PIPELINE SYSTEM The Pipeline System and the refined product pipeline systems in Alaska, North Dakota and Minnesota are common carriers subject to regulation by various local, state and federal agencies including the Federal Energy Regulatory Commission under the Interstate Commerce Act. The Interstate Commerce Act provides that, to be lawful, the rates of common carrier petroleum pipelines must be "just and reasonable" and not unduly discriminatory. New and changed rates must be filed with the FERC, which may investigate their lawfulness on protest or its own motion. The FERC may suspend the effectiveness of the new rates for up to seven months. If the suspension expires before completion of the investigation, the rates go into effect, but the pipeline can be required to refund to shippers, with interest, any difference between the level the FERC determines to be lawful and the filed rates under investigation. Rates that have become final and effective may be challenged by complaint to FERC filed by a shipper or on the FERC's own initiative. The party filing the complaint may recover reparations for the two-year period prior to the complaint, if the FERC finds the rate to be unlawful. The intrastate operations of the Pipeline System are subject to regulation by the North Dakota Public Services Commission. Like the FERC, the state regulatory authorities require that shippers be notified of proposed intrastate tariff increases and have an opportunity to protest the increases. The North Dakota Public Services Commission also files with the state authorities copies of interstate tariff changes filed with the FERC. In addition to challenges to new or proposed rates, challenges to intrastate rates that have already become effective are permitted by complaint of an interested person or by independent action of the appropriate regulatory authority. EMPLOYEES At November 30, 2001, we had approximately 3,450 employees. Approximately 220 employees, 150 employees and 120 employees at the Washington, North Dakota and Utah refineries, respectively, are covered by collective bargaining agreements which run until January 31, 2002. In November 2001, eligible employees at our Hawaii refinery voted to be represented by a collective bargaining representative. We consider our relations with our employees to be satisfactory. LEGAL PROCEEDINGS Environmental. We are currently involved with the U.S. Environmental Protection Agency regarding a waste disposal site near Abbeville, Louisiana, at which we have been named a potentially responsible party under the Federal Comprehensive Environmental Response, Compensation and Liability Act (also known as CERCLA or Superfund). Although the Superfund law may impose joint and several liability upon each party at the site, we expect the extent of our allocated financial contributions for cleanup to be de minimis based upon the number of companies, volumes of waste involved and total estimated costs to close the site. We believe, based on these considerations and discussions with the EPA, our liability at the Abbeville site will not exceed $25,000. Other. On May 31, 2000, we and certain of our officers were named defendants in a lawsuit filed in the United States District Court, Western District of Texas, San Antonio Division, brought by Group One Limited that sought to certify as a class, all persons or entities who purchased our securities during the period from January 3, 2000 through May 3, 2000. Three other identical lawsuits were filed in the same court. The lawsuits, which were consolidated, alleged that the defendants issued false and misleading information regarding our financial condition and operations, which artificially inflated the market price of our securities during the period from January 3, 2000 through May 3, 2000. The plaintiffs sought unspecified damages. On November 30, 2001, these claims were dismissed with prejudice pursuant to a judgement. 56 MANAGEMENT The following table sets forth certain information with respect to our directors, executive officers and key employees at November 30, 2001.
NAME AGE POSITION - ---- --- -------- Bruce A. Smith....................... 58 Chairman of the Board of Directors, President and Chief Executive Officer Steven H. Grapstein.................. 43 Vice Chairman of the Board of Directors James F. Clingman, Jr. .............. 64 Director William J. Johnson................... 67 Director Raymond K. Mason, Sr. ............... 74 Director A. Maurice Myers..................... 61 Director Donald H. Schmude.................... 66 Director Patrick J. Ward...................... 71 Director Murray L. Weidenbaum................. 74 Director William T. Van Kleef................. 49 Executive Vice President and Chief Operating Officer James C. Reed, Jr. .................. 56 Executive Vice President, General Counsel and Secretary Thomas E. Reardon.................... 55 Executive Vice President, Corporate Resources Everett D. Lewis..................... 53 Senior Vice President, Planning and Risk Management Gregory A. Wright.................... 51 Senior Vice President and Chief Financial Officer Sharlene S. Fey...................... 46 Vice President and Controller Sharon L. Layman..................... 48 Vice President and Treasurer W. Eugene Burden..................... 53 President, Tesoro Alaska Company and Senior Vice President and President, Northwest Region, Tesoro West Coast Company Faye W. Kurren....................... 51 President, Tesoro Hawaii Corporation Donald A. Nyberg..................... 50 President, Tesoro Marine Services, LLC Jerry H. Mouser...................... 59 Executive Vice President, Commercial Marketing, Tesoro Refining, Marketing & Supply Company Stephen L. Wormington................ 56 Executive Vice President, Supply and Distribution, Tesoro Refining, Marketing & Supply Company Richard M. Parry..................... 48 Senior Vice President, Retail, Tesoro West Coast Company Daniel J. Porter..................... 45 Senior Vice President and President, Northern Great Plains Region, Tesoro West Coast Company James L. Taylor...................... 47 Senior Vice President, Manufacturing, Tesoro Refining, Marketing & Supply Company Rick D. Weyen........................ 43 Senior Vice President and President, Mountain Region, Tesoro West Coast Company
Bruce A. Smith has been Chairman of the Board of Directors, President and Chief Executive Officer of Tesoro since June 1996. He has been a director of Tesoro since July 1995. Mr. Smith was President and Chief Executive Officer of Tesoro from September 1995 to June 1996; Executive Vice President, Chief Financial Officer and Chief Operating Officer of Tesoro from July 1995 to September 1995; and Executive Vice President responsible for Exploration and Production and Chief Financial Officer of Tesoro from September 1993 to July 1995; and Vice President and Chief Financial Officer of Tesoro from September 1992 to September 1993. 57 Steven H. Grapstein has been Chief Executive Officer of Kuo Investment Company and subsidiaries ("Kuo"), an international investment group, since January 1997. From September 1985 to January 1997, Mr. Grapstein was a Vice President of Kuo. He is also a director of several of the Kuo companies. Mr. Grapstein has been a Vice President of Oakville N.V., a Kuo subsidiary, since 1989. James F. Clingman, Jr. is President and Chief Operating Officer of H.E. Butt Grocery Company ("H-E-B"). He also serves on the grocery firm's Board of Directors. Mr. Clingman joined H-E-B in 1975 as a district manager and has held a number of management positions with increasing responsibility since then. He was elected to his current positions in 1996. William J. Johnson has been a petroleum consultant and President of JonLoc Inc., a private company engaged in oil and gas investments, since 1994 and a managing director of M.E. Zukerman & Co., merchant bankers involved with energy financing and investments, since 1995. Mr. Johnson previously served as President, Chief Operating Officer and director of Apache Corporation, a publicly held, independent oil and gas company. Mr. Johnson is on the Board of Directors of Devon Energy Corporation, a publicly held company engaged in oil and gas exploration, development and production, and the acquisition of producing properties. Raymond K. Mason, Sr. served as Chairman of the Board of Directors of American Banks of Florida, Inc., from 1978 to 1998. A. Maurice Myers serves as President, Chairman and Chief Executive Officer of Waste Management Inc., Houston. He joined Waste Management in November 1999 after holding the same positions at Yellow Corporation since 1996. Earlier, he served as President and Chief Executive Officer of America West Airlines from January 1994 to 1996 and held executive positions at Aloha Airlines. Donald H. Schmude has 36 years of experience in the energy industry with Texaco and Star Enterprise, a Texaco and Saudi Aramco joint venture. Prior to his retirement from Texaco in 1994, he was Vice President of Texaco and President and Chief Executive Officer of Texaco Refining & Marketing Inc. in Houston, Texas and Los Angeles, California. He also served as Vice President of Texaco, Inc., Special Projects, in Anacortes, Washington, and held various refinery engineering, planning and marketing positions. Patrick J. Ward has 47 years of experience in international energy operations with Caltex Petroleum Corporation, a 50/50 joint venture of Chevron Corp. and Texaco, Inc., engaged in the business of refining and marketing. Prior to his retirement in 1995, he was Chairman, President and Chief Executive Officer of Caltex, positions he had held since 1990. Mr. Ward served on the Board of Directors of Caltex from 1989 to 1995. Murray L. Weidenbaum, an economist and educator, has been the Mallinckrodt Distinguished University Professor at Washington University in St. Louis, Missouri, since 1971. He was Chairman of the University's Center for the Study of American Business from 1975 to 2000, when its name was changed to the Weidenbaum Center on the Economy, Government, and Public Policy. He now serves as Honorary Chairman of the Center. William T. Van Kleef has been Executive Vice President and Chief Operating Officer since July 1998. He was named Executive Vice President in September 1996. He was elected Senior Vice President and Chief Financial Officer in September 1995. He joined Tesoro as Vice President and Treasurer in 1993. James C. Reed, Jr. has been Executive Vice President, General Counsel and Secretary since September 1995. He served as Senior Vice President, General Counsel and Secretary from June 1994 to September 1995 and Vice President, General Counsel and Secretary from October 1993 to June 1994. He was Vice President, Assistant General Counsel and Assistant Secretary from February 1990 to October 1993 and Assistant General Counsel from August 1982 to February 1990. Thomas E. Reardon has been Executive Vice President, Corporate Resources since November 1999. From May 1998 to November 1999, he served as Senior Vice President, Corporate Resources. From September 1995 to May 1998, he served as Vice President, Human Resources and Environmental and, before that, was Vice President, Human Resources and Environmental Services of Tesoro Petroleum Companies, 58 Inc., a subsidiary of Tesoro, from October 1994 to September 1995. Prior to that time, he served as Vice President, Human Resources of Tesoro Petroleum Companies, Inc. from February 1990 to October 1994. Everett D. Lewis has been Senior Vice President, Planning and Risk Management since April 2001. He served as Senior Vice President of Strategic Projects from March 1999 to April 2001, and served as a senior consultant with EDL Associates from 1997 to 1999. Prior to that time, he was the Project Executive of Refining and Marketing at Transworld Oil from 1993 to 1996. He has more than 30 years of experience in the refining industry in refinery operations, international business and project development. Gregory A. Wright has been Senior Vice President and Chief Financial Officer since April 2001. He served as Vice President, Finance and Treasurer from May 1998 to April 2001. He was Vice President and Treasurer from September 1995 to May 1998. He also served as Vice President, Corporate Communications from February 1995 to September 1995. Prior to that time, he served as Vice President, Corporate Communications of Tesoro Petroleum Companies, Inc. from January 1995 to February 1995. Sharlene S. Fey has been Vice President and Controller since April 2001. She previously had served as Assistant Controller, Corporate of Tesoro Petroleum Companies, Inc. since 1994. Sharon L. Layman has been Vice President and Treasurer since November 1999. Ms. Layman was Assistant Treasurer from February 1990 to November 1999. W. Eugene Burden was named Senior Vice President and President, Northwest Region of Tesoro West Coast Company in September 2001. He has also served as President of Tesoro Alaska Company, a subsidiary of Tesoro, since February 2001. He served as Senior Vice President, Government Relations of Tesoro Petroleum Companies, Inc. from September 1999 to February 2001. Prior to joining Tesoro, he was President of Burden & Associates, Inc. from February 1996 to September 1999. Faye W. Kurren has been President of Tesoro Hawaii Corporation since May 1998. Prior to that, she was Vice President, Operations Planning, Supply and International Marketing of BHP Hawaii Inc. from March 1996 to May 1998. She served as Vice President, General Counsel of BHP Hawaii Inc. from February 1995 to March 1996. Donald A. Nyberg has been President of Tesoro Marine Services, LLC since November 1996. Mr. Nyberg was Vice President, Strategic Planning, of MAPCO Inc. from January 1996 to November 1996. He served as President and Chief Executive Officer of Marya Resources from August 1994 to January 1996. Jerry H. Mouser was named Executive Vice President, Commercial Marketing for Tesoro Refining, Marketing & Supply Co. in April 2001. He previously served as Senior Vice President of New Business Ventures from June 2000 to July 2001. Prior to joining Tesoro, he was with KBC Advanced Technologies plc, Weybridge, England as President, Worldwide Sales and Marketing from 1997 to 2000; President, Americas from 1994 to 1996; and a director and a member of the Executive Committee from 1994 to 2000. Mr. Mouser has over 30 years experience in both operational and senior management assignments in the energy industry with companies such as E-Z Serve Inc., Enterprise Products Co. and Marathon Oil Co. Stephen L. Wormington has served as Executive Vice President, Supply and Distribution, for Tesoro Refining, Marketing & Supply Company since May 1998. Prior to that, he was President of Tesoro Alaska Company from September 1995 until May 1998. He was Vice President, Supply and Operations Coordination for Tesoro Alaska from April 1995 until September 1995. He joined Tesoro in January 1995 as General Manager, Strategic Projects. Richard M. Parry has been Vice President, Retail of Tesoro West Coast Company, a subsidiary of Tesoro, since June 1999. Mr. Parry was Vice President, Marketing & Sales of Tesoro Hawaii Corporation from May 1998 to June 1999. He served as Vice President, Marketing & Sales of BHP Hawaii Inc. from December 1997 to May 1998 and Vice President, Trading and Marketing, of BHP Hawaii Inc. from December 1994 to December 1997. Daniel J. Porter joined Tesoro as Senior Vice President and President of the Northern Great Plains Region of Tesoro West Coast Company in September 2001. Mr. Porter has more than 23 years of experience 59 with BP. He has been Business Unit Leader of the North Dakota refinery since January 1999. He was the Downstream Business Consultant from January 1998 to January 1999 and Manager, BP Oil Europe MS&D Strategy & Planning from March 1996 to January 1998. James L. Taylor joined Tesoro in July 2001 as Senior Vice President of Manufacturing of Tesoro Refining, Marketing & Supply Company. During 2000 and 2001, he served as General Manager, Worldwide Technical Services, of Criterion Catalysts and Technologies. Prior to that, Mr. Taylor was with KBC Advanced Technologies, as Job Controller from 1998 to 2000 and as Senior Consultant from 1997 to 1998. From 1996 to 1997, he was a consultant for Amoco Oil Company's refinery in Whiting, Indiana. Rick D. Weyen joined Tesoro as Senior Vice President and President of the Mountain Region of Tesoro West Coast Company in September 2001. Mr. Weyen has over 20 years of experience in the industry. He was Commercial Manager from 1999 to 2001 and Supply and Optimization Manager from 1995 to 1999 for BP at the Salt Lake City refinery. Prior to that, Mr. Weyen served as Operations Manager at the Salt Lake City refinery from 1992 to 1995. DESCRIPTION OF OTHER INDEBTEDNESS NEW SENIOR SECURED CREDIT FACILITY In connection with the Acquisitions, on September 6, 2001, we entered into a $1.0 billion senior secured credit facility provided by a syndicate of lenders led by Lehman Brothers Inc., as Lead Arranger, Lehman Commercial Paper Inc., as Syndication Agent, and Bank One, NA, as Administrative Agent. Our obligations under our new senior secured credit facility are secured by a lien on all of the tangible and intangible assets of our direct and indirect active domestic subsidiaries, excluding certain of our retail and marine services assets, and a pledge by us and our direct and indirect domestic subsidiaries of all of the capital stock of their respective domestic subsidiaries and 66% of the capital stock of our direct and indirect foreign subsidiaries. In addition, our direct and indirect active domestic subsidiaries have guaranteed indebtedness under our new senior secured credit facility. We are required to make mandatory prepayments under the new senior secured credit facility upon the occurrence of certain circumstances, including if we generate excess cash flow. We must apply 25% to 75% of our excess cash flow (the percentage depends on our ratio of total debt to EBITDA) from each fiscal year to repay outstanding loans, commencing with our fiscal year ending December 31, 2002. The new senior secured credit facility, as amended, consists of: - a five-year $175 million revolving credit facility, of which there were no borrowings outstanding except for an $0.8 million letter of credit at November 30, 2001. - a five-year $85 million tranche A term loan, of which $85 million was outstanding at November 30, 2001; - a five-year $90 million delayed draw term loan, of which $90 million was outstanding at November 30, 2001; - a six-year $450 million tranche B term loan, of which $450 million was outstanding at November 30, 2001; and - a $200 million capital markets term loan, which was repaid with the proceeds of the outstanding 9 5/8% notes on November 6, 2001. Borrowings under our senior secured credit facility bear interest at either a base rate (6.0% at September 30, 2001) or a eurodollar rate, plus an applicable margin. The applicable margin at September 30, 2001 for the tranche A term loan, the delayed draw term loan and the revolving credit facility is 1.25% in the case of the base rate and 2.25% in the case of the eurodollar rate. The applicable margin for the tranche B term loan is 1.75% in the case of the base rate and 2.75% in the case of the eurodollar rate. Additionally, the tranche B eurodollar rate is deemed to be no less than 3.0%. The applicable margin for the capital markets term loan was 1.50% over the base rate. These initial applicable margins are the highest margins applicable to 60 the respective base and eurodollar rates and will vary in relation to the ratios of our consolidated total debt to consolidated EBITDA, as defined in our senior secured credit facility. In addition, at any time during which our new senior secured credit facility is rated at least BBB- by Standard & Poor's Rating Services and Baa3 by Moody's Investors Service, Inc., each applicable margin will be reduced by 0.125%. We are also charged various fees and expenses in connection with our new senior secured credit facility, including commitment fees and various letter of credit fees. In addition to paying interest on the outstanding principal, we will pay a commitment fee to the lenders in respect of unused commitments of the revolving credit facility at a rate of 0.50% per annum. We paid a commitment fee to the lenders of the delayed draw term loan at a rate of 0.50% per annum on November 1, 2001, the day on which the delayed draw term loan was fully drawn. The senior secured credit facility contains negative covenants limiting our ability to, among other things, incur debt, create liens, guarantee obligations, pay dividends, make distributions or stock repurchases, make loans and advances, engage in sales and leasebacks, change our fiscal year, agree to negative pledge clauses, make investments, engage in transactions with affiliates, sell assets and engage in mergers and acquisitions. Except on terms satisfactory to our lenders, we also will be restricted from refinancing, defeasing, repurchasing or repaying out subordinated debt. The senior secured credit facility requires us to maintain certain financial ratios, including maximum total debt to EBITDA (decreasing from a ratio of 4.00 to 1.00 to a ratio of 2.50 to 1.00), minimum EBITDA to fixed charges (increasing from a ratio of 1.50 to 1.00 to a ratio of 2.00 to 1.00), minimum EBITDA to interest expense (increasing from a ratio of 2.50 to 1.00 to a ratio of 4.00 to 1.00) and maximum total debt to total capitalization (decreasing from a ratio of 0.65 to 1.00 to a ratio of 0.55 to 1.00). Failure to satisfy any of these financial covenants constitutes an event of default under the senior secured credit facility. The senior secured credit facility also includes other customary events of default, including, without limitation, a cross-default to our other material indebtedness and certain changes of control. 9% SENIOR SUBORDINATED NOTES DUE 2008 In July 1998, we issued $300 million of senior subordinated notes. These notes are unconditionally guaranteed on a senior subordinated basis by substantially all of our active domestic subsidiaries. The notes mature on July 1, 2008 with interest payable semi-annually in arrears on January 1 and July 1 of each year. The notes may be redeemed at any time, in whole or in part, on or after July 1, 2003 at a redemption price equal to 104.5% of the principal amount of the notes in the first year, and declining yearly to a redemption price equal to the principal amount at July 1, 2006, in each case plus accrued and unpaid interest to the redemption date. Upon the occurrence of a change of control, each holder of the notes will have the right to require us to repurchase all or part that holder's notes at a price equal to 101% of their principal amount, plus accrued and unpaid interest to the repurchase date. The indenture governing the 9% Senior Subordinated Notes due 2008 contains covenants that, among other things, limit our ability to: - incur additional indebtedness; - pay dividends or make other distributions; - make certain asset dispositions; - merge or consolidate with any other person or enter into transactions with our affiliates; - encumber assets under certain circumstances; - restrict our subsidiaries' ability to make dividend payments; - incur liens; - issue or transfer capital stock of any of our subsidiaries; and - engage in certain business activities. 61 DESCRIPTION OF THE EXCHANGE NOTES We issued the outstanding 9 5/8% notes and will issue the exchange notes under an Indenture dated as of November 6, 2001 (the "Indenture"), among Tesoro, certain of its Subsidiaries as guarantors and U.S. Bank Trust National Association, as trustee (the "Trustee"). The terms of the notes include those provisions contained in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939. In this section, we refer to the 9 5/8% Senior Subordinated Notes due 2008 as our "outstanding 9 5/8% notes", we refer to the 9 5/8% Senior Subordinated Notes due 2008, Series B offered in the exchange offer as the "exchange notes" and we refer to the outstanding 9 5/8% notes and the exchange notes, collectively, as the "notes". The following discussion summarizes certain provisions of the Indenture and does not purport to be complete, and is qualified in its entirety by reference to all of the provisions of the notes and the Indenture, including the definition of certain terms, and to the Trust Indenture Act of 1939. A copy of the Indenture is available to prospective purchasers of the notes upon request. We urge you to read the Indenture for additional information before you participate in the exchange offer. Wherever particular sections or defined terms of the Indenture are referred to herein, the sections or defined terms are incorporated by reference herein. For purposes of this section, references to "Tesoro", "we", "our" or "us" mean Tesoro Petroleum Corporation and do not include our subsidiaries. You can find the definitions of certain terms used in this section under "-- Certain Definitions". GENERAL The notes will mature on November 1, 2008. The notes will bear interest at the rate set forth on the cover page of this prospectus from November 6, 2001 (the "Issue Date"), or from the most recent interest payment date to which interest has been paid, payable semiannually on May 1 and November 1 of each year, beginning on May 1, 2002. We will pay interest to the persons in whose names the notes are registered at the close of business on April 15 and October 15 of each year. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. We issued the outstanding 9 5/8% notes with an initial maximum aggregate principal amount of $215 million. We may issue additional notes from time to time after this offering. Any offering of additional notes is subject to the covenant described below under the caption "-- Certain Covenants -- Incurrence of Indebtedness and Issuance of Preferred Stock". The notes and any additional notes subsequently issued under the Indenture will be treated as a single class for all purposes under the Indenture, including, without limitation, waivers, amendments, redemptions and offers to purchase. Principal of, premium, if any, interest and liquidated damages, if any, on the notes will be payable, and the notes will be exchangeable and transferable, at the office or agency of Tesoro in The City of New York maintained for such purposes, which initially will be the office of the Trustee in The City of New York. In addition, interest may be paid, at our option, by check mailed to the registered holders at their respective addresses as shown on the Security Register. The notes will be issued only in fully registered form without coupons, in denominations of $1,000 and integral multiples thereof. No service charge will be made for any registration of transfer, exchange or redemption of notes, except in specified circumstances for any tax or other governmental charge that may be imposed in connection with those transfers, exchanges or redemptions. The interest rate on the notes is subject to increase in certain circumstances if we do not file a registration statement relating to the Registered Exchange Offer or, in lieu thereof, a resale shelf registration statement for the notes, if such registration statement is not declared effective on a timely basis or if certain other conditions are not satisfied, all as further described under "-- Registration Rights; Liquidated Damages". SUBORDINATION The payment of principal of, and premium, if any, interest and liquidated damages, if any, on, the notes will be subordinated in right of payment, as set forth in the Indenture, to the prior payment in full, in cash, of 62 all Senior Debt of Tesoro, whether outstanding on the Issue Date or thereafter incurred, assumed or guaranteed. Upon any distribution to creditors of Tesoro in a liquidation or dissolution of Tesoro or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to Tesoro or its property, in an assignment for the benefit of creditors or any marshaling of Tesoro's assets and liabilities, the holders of Senior Debt of Tesoro will be entitled to receive payment in full, in cash, of all Obligations due in respect of such Senior Debt (including interest after the commencement of any such proceeding at the rate specified in the applicable Senior Debt (whether or not an allowable claim)) before the holders of notes will be entitled to receive any payment with respect to the notes, and until all Obligations with respect to such Senior Debt are paid in full, in cash, pursuant to such liquidation or dissolution, any such distribution to which the holders of notes would be entitled shall be made to the holders of such Senior Debt (except that holders of notes may receive and retain (1) Permitted Junior Securities and (2) payments made from the trust described under "-- Legal Defeasance and Covenant Defeasance" or "-- Satisfaction and Discharge"; provided that at the time of its creation such trust does not violate the Senior Credit Facility). Tesoro also may not make any payment upon or in respect of the notes (except (1) in Permitted Junior Securities or (2) from the trust described under "-- Legal Defeasance and Covenant Defeasance" or "-- Satisfaction and Discharge"; provided that at the time of its creation such trust does not violate the Senior Credit Facility) if (1) a default in the payment, when due, of the principal of, or premium, if any, or interest on, Designated Senior Debt occurs and is continuing beyond any applicable period of grace (a "Payment Default"); or (2) any other default occurs and is continuing with respect to Designated Senior Debt that permits holders of the Designated Senior Debt as to which such default relates to accelerate its maturity without further notice or the expiration of any applicable grace periods (a "Nonpayment Default") and the Trustee receives (and Tesoro receives, if not sent by Tesoro) a notice of such default (a "Payment Blockage Notice") from the Representative of the holders of any Designated Senior Debt specifying an election to effect a payment blockage for the period specified in the next paragraph. Payments on the notes may and shall be resumed (a) in the case of a Payment Default, upon the date on which such default is cured or waived or any acceleration is rescinded, as applicable; and (b) in case of a Nonpayment Default, the earlier of the date on which such Nonpayment Default is cured or waived or 179 days after the date on which the applicable Payment Blockage Notice is received, unless the maturity of any Designated Senior Debt has been accelerated and not thereafter rescinded, provided, in each case, Tesoro may pay the notes without regard to the foregoing if it and the Trustee receive written notice approving same from Representatives of each Designated Senior Debt. No new period of payment blockage may be commenced unless and until (1) 360 days have elapsed since the effectiveness of the immediately prior Payment Blockage Notice; and (2) all scheduled payments of principal of, and, premium, if any, interest and liquidated damages, if any, on, the notes that have come due have been paid in full in cash. No Nonpayment Default that existed or was continuing on the date of delivery of any Payment Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent Payment Blockage Notice unless such default shall have been cured or waived for a period of not less than 90 days. The Indenture further requires that Tesoro promptly notify holders of Senior Debt if payment of the notes is accelerated because of an Event of Default. As a result of the subordination provisions described above, in the event of a liquidation or insolvency, holders of notes may recover less ratably than creditors of Tesoro who are holders of its Senior Debt or holders of debt of Tesoro which is pari passu with the notes but not expressly subordinated to such Senior Debt. Tesoro and the Guarantors had approximately $678 million of Senior Debt outstanding at September 30, 2001, pro forma for the Transactions (exclusive of an additional $131.2 million available under our revolving credit facility). The Indenture limits, subject to certain financial tests and specified exceptions, the amount of additional Indebtedness, including Senior Debt, that Tesoro and its Restricted Subsidiaries can incur. See "-- Certain Covenants -- Incurrence of Indebtedness and Issuance of Preferred Stock". 63 SUBSIDIARY GUARANTEES Tesoro's payment obligations under the notes are jointly and severally guaranteed on a senior subordinated basis by the Guarantors. Each Subsidiary of Tesoro that guarantees any Indebtedness of Tesoro shall be required to execute Subsidiary Guarantees and become a Guarantor under the Indenture. The Subsidiary Guarantee of each Guarantor will be subordinated to the prior payment in full of all Senior Debt of such Guarantor, and the amounts for which the Guarantors will be liable under its guarantees issued from time to time with respect to Senior Debt of Tesoro, in each case to the same extent as the Obligations of Tesoro with respect to the notes are subordinated to Senior Debt of Tesoro. An aggregate amount of $9.6 million of Senior Debt of all Guarantors (excluding guarantees of Senior Debt of Tesoro) was outstanding as of September 30, 2001. The obligations of each Guarantor under its Subsidiary Guarantee will be limited to the maximum amount the Guarantors are permitted to guarantee under applicable law without creating a "fraudulent conveyance". The Indenture provides that, subject to the provisions of the following paragraph, no Guarantor may consolidate with or merge with or into (whether or not such Guarantor is the surviving Person), another Person whether or not affiliated with such Guarantor unless: (1) the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) assumes all the obligations of such Guarantor pursuant to a supplemental indenture in form and substance reasonably satisfactory to the Trustee, under the notes and the Indenture; (2) immediately after giving effect to such transaction, no Default or Event of Default exists; and (3) Tesoro would be permitted by virtue of Tesoro's pro forma Fixed Charge Coverage Ratio, immediately after giving effect to such transaction, to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the covenant described below under the caption "-- Certain Covenants -- Incurrence of Indebtedness and Issuance of Preferred Stock"; provided, however, that this clause (3) shall be permanently terminated when we and our Restricted Subsidiaries are no longer subject to the Terminated Covenants. See "-- Certain Covenants -- Covenant Termination". Notwithstanding the foregoing paragraph: (1) any Guarantor may consolidate with, merge into or transfer all or a part of its properties and assets to Tesoro or any other Guarantor; (2) any Guarantor may consolidate with, merge into or transfer all or a part of its properties and assets to a Restricted Subsidiary of Tesoro that has no significant assets or liabilities and was incorporated, organized or formed solely for the purpose of reincorporating or otherwise reorganizing such Guarantor in another State of the United States; provided that such successor, resultant or transferee Person continues to be a Guarantor; and (3) the Indenture provides that in certain circumstances involving the disposition (including by way of merger, consolidation or otherwise) of all or substantially all assets or all Capital Stock of any Guarantor, and subject to related conditions, such transaction may be so consummated and such Guarantor will be released from its Subsidiary Guarantee and any resultant, surviving or transferee Person shall not be required to assume such obligations upon the conditions described under the caption "-- Certain Covenants -- Additional Subsidiary Guarantees". OPTIONAL REDEMPTION The notes will not be redeemable at Tesoro's option prior to November 1, 2005. Thereafter, the notes will be subject to redemption at any time or from time to time at the option of Tesoro, in whole or in part, upon not less than 30 nor more than 60 days' notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest and liquidated damages, if any, thereon to the 64 applicable redemption date, if redeemed during the twelve-month period beginning on November 1, of the years indicated below:
YEAR PERCENTAGE - ---- ---------- 2005........................................................ 104.813% 2006........................................................ 102.406% 2007 and thereafter......................................... 100.000%
Notwithstanding the foregoing, at any time or from time to time on or before November 1, 2004, Tesoro may on any one or more occasions redeem up to 35% of the aggregate principal amount of notes issued under the Indenture at a redemption price of 109.625% of the principal amount thereof, plus accrued and unpaid interest, if any, and liquidated damages, if any, thereon, to the redemption date, with the net cash proceeds of any one or more Equity Offerings; provided that at least 65% of the aggregate principal amount of notes issued under the Indenture remains outstanding immediately after each occurrence of such redemption; and provided, further, that each such redemption shall occur within 90 days of the date of the closing of such Equity Offering. SELECTION AND NOTICE If less than all of the notes are to be redeemed at any time, selection of notes for redemption will be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which the notes are listed, or, if the notes are not so listed, on a pro rata basis, by lot or by such method as the Trustee shall deem fair and appropriate; provided that no notes of $1,000 or less shall be redeemed in part. Notices of redemption shall be mailed by first class mail at least 30 but not more than 60 days before the redemption date to each holder of notes to be redeemed at its registered address. Notices of redemption may not be conditional. If any note is to be redeemed in part only, the notice of redemption that relates to such note shall state the portion of the principal amount thereof to be redeemed. A new note in principal amount equal to the unredeemed portion thereof will be issued in the name of the holder thereof upon cancellation of the original note. Notes called for redemption become due on the date fixed for redemption. On and after the redemption date, interest and liquidated damages, if any, cease to accrue on notes or portions of them called for redemption. MANDATORY REDEMPTION Tesoro is not required to make mandatory redemption or sinking fund payments with respect to the notes. However, under certain circumstances, we may be required to offer to purchase the notes as described below under the caption "-- Repurchase at the Option of Holders". REPURCHASE AT THE OPTION OF HOLDERS Change of Control. Upon the occurrence of a Change of Control, each holder of notes will have the right to require Tesoro to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of such holder's notes pursuant to the offer described below (the "Change of Control Offer") at an offer price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest and liquidated damages, if any, thereon, to the date of purchase (the "Change of Control Payment"). Within 30 days following any Change of Control, Tesoro will mail a notice to each holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase notes on the date specified in such notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed (the "Change of Control Payment Date"), pursuant to the procedures required by the Indenture and described in such notice. Tesoro will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the notes as a result of a Change of Control. On the Change of Control Payment Date, Tesoro will, to the extent lawful, (1) accept for payment all notes or portions thereof properly tendered pursuant to the Change of Control Offer, (2) deposit with the 65 Paying Agent an amount equal to the Change of Control Payment in respect of all notes or portions thereof so tendered and (3) deliver or cause to be delivered to the Trustee the notes so accepted together with an Officers' Certificate stating the aggregate principal amount of notes or portions thereof being purchased by Tesoro. The Paying Agent will promptly mail to each holder of notes so tendered the Change of Control Payment for such notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each holder a new note equal in principal amount to any unpurchased portion of the notes surrendered, if any; provided that each such new note will be in a principal amount of $1,000 or an integral multiple thereof. The Indenture provides that, prior to complying with the provisions of this covenant, but in any event within 90 days following a Change of Control, Tesoro will either repay all of its outstanding Senior Debt or obtain the requisite consents, if any, under all agreements governing such outstanding Senior Debt to permit the repurchase of notes required by this covenant. Tesoro will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The Change of Control provisions described above will be applicable whether or not any other provisions of the Indenture are applicable, except as set forth under the captions "-- Legal Defeasance and Covenant Defeasance" and "-- Satisfaction and Discharge". Except as described above with respect to a Change of Control, the Indenture will not contain provisions that permit the holders of the notes to require that Tesoro repurchase or redeem the notes in the event of a takeover, recapitalization or similar transaction. The definition of Change of Control includes a phrase relating to the sale, lease, transfer, conveyance or other disposition of "all or substantially all" of the assets of Tesoro. There is little case law interpreting the phrase "all or substantially all" in the context of an indenture. Because there is no precise established definition of this phrase, the ability of a holder of notes to require Tesoro to repurchase such notes as a result of a sale, lease, exchange or other transfer of Tesoro's assets to a Person or a Group based on the Change of Control provisions may be uncertain. The Senior Credit Facility limits the ability of Tesoro to purchase any notes and provides that certain change of control events with respect to Tesoro would constitute a default thereunder. Any future Credit Facilities or other agreements relating to Senior Debt to which Tesoro becomes a party may contain similar restrictions and provisions. In the event a Change of Control occurs at a time when Tesoro is prohibited by a Credit Facility from purchasing notes, Tesoro could seek the consent of its applicable lenders to the purchase of notes or could attempt to refinance the borrowings that contain such prohibition. If Tesoro does not obtain such a consent or repay such borrowings, Tesoro will remain so prohibited from purchasing notes. In such case, Tesoro's failure to purchase tendered notes would constitute an Event of Default under the Indenture which would, in turn, constitute a default under the Senior Credit Facility. In such circumstances, the subordination provisions in the Indenture would likely restrict payments to the holders of notes. Tesoro will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture applicable to a Change of Control Offer made by Tesoro and purchases all notes validly tendered and not withdrawn under such Change of Control Offer. Asset Sales. The Indenture provides that Tesoro will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (1) Tesoro or the Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the fair market value (which, in the case of an Asset Sale for consideration exceeding $20 million, shall be determined in good faith by Tesoro's Board of Directors) of the assets or Equity Interests issued or sold or otherwise disposed of and (2) at least 75% of the consideration therefor received by Tesoro or the Restricted Subsidiary is in the form of, or any combination of, (A) cash or Cash Equivalents, (B) the assumption of any liabilities (as shown on Tesoro's or the Restricted Subsidiary's most recent balance sheet) of Tesoro or any Restricted Subsidiary of Tesoro (other than liabilities that are by their terms subordinated to the notes or any Subsidiary Guarantee) by the transferee of any such assets pursuant to a customary novation agreement that releases Tesoro or the Restricted Subsidiary from further liability, (C) any securities, notes or other obligations received by Tesoro or any such Restricted Subsidiary from such transferee that are converted by Tesoro or the Restricted Subsidiary into cash or Cash Equivalents within 60 days following their receipt (to the extent of cash or Cash Equivalents received) and (D) assets or rights used or useful in a Permitted Business; provided, that any Asset 66 Sale pursuant to a condemnation, appropriation or other similar taking, including by deed in lieu of condemnation, or pursuant to the foreclosure or other enforcement of a Lien incurred not in violation of the covenant described under the caption "Certain Covenants -- Liens" or exercise by the related lienholder of rights with respect thereto, including by deed or assignment in lieu of foreclosure shall not be required to satisfy the conditions set forth in clauses (1) and (2) of this paragraph. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, Tesoro or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option, (a) to repay, repurchase or redeem Senior Debt, (b) to acquire a controlling interest in another business or all or substantially all of the assets of a business, in each case engaged in a Permitted Business, (c) to make capital expenditures, or (d) to acquire other non-current assets to be used in a Permitted Business, including, without limitation, assets or Investments of the nature or type described in clause (m) of the definition of "Permitted Investments" provided, that Tesoro or the Restricted Subsidiary will have complied with clause (b) or (c) if, within 365 days of such Asset Sale, Tesoro or the Restricted Subsidiary shall have commenced and not completed or abandoned an expenditure or Investment, or a binding agreement with respect to an expenditure or Investment, in compliance with clause (b) or (c), and that expenditure or Investment is substantially completed within a date one year and six months after the date of the Asset Sale. Pending the final application of any such Net Proceeds, Tesoro may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by the Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess Proceeds exceeds $15 million, Tesoro shall be required to make an offer to all holders of notes and holders of each other Indebtedness that ranks by its terms pari passu in right of payment with the notes and the terms of which contain substantially similar requirements with respect to the application of net proceeds from asset sales as are contained in the Indenture (an "Asset Sale Offer") to purchase on a pro rata basis (with the Excess Proceeds prorated between the holders and such holders of pari passu Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the notes, that is an integral multiple of $1,000, that may be purchased out of the prorated Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and liquidated damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of notes and other Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, Tesoro and its Restricted Subsidiaries may use any remaining Excess Proceeds for general corporate purposes and any other purpose not prohibited by the Indenture. If the aggregate principal amount of notes surrendered by holders thereof exceeds the amount of the prorated Excess Proceeds, the Trustee shall select the notes to be purchased on a pro rata basis. Upon completion of the offer to purchase, the amount of Excess Proceeds shall be reset at zero. CERTAIN COVENANTS Restricted Payments. Tesoro will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly: (1) declare or pay any dividend or make any other payment or distribution on account of Tesoro's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving Tesoro or any of its Restricted Subsidiaries) or to the direct or indirect holders of Tesoro's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such, in each case other than dividends or distributions declared or paid in Equity Interests (other than Disqualified Stock) of Tesoro or declared or paid to Tesoro or any of its Restricted Subsidiaries; 67 (2) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving Tesoro) any Equity Interests of Tesoro (other than any such Equity Interests owned by a Restricted Subsidiary of Tesoro); (3) make any payment to purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the notes, except a payment of interest or principal at its Stated Maturity; or (4) make any Investment other than a Permitted Investment (all such payments and other actions set forth in clauses (1) through (4) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (a) no Default or Event of Default shall have occurred and be continuing; and (b) Tesoro would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described below under the caption "-- Certain Covenants -- Incurrence of Indebtedness and Issuance of Preferred Stock"; and (c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by Tesoro or any of its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (2), (3), (4), (5), (6), (8) or (10) of the next succeeding paragraph), is less than the sum of (1) 50% of the Consolidated Net Income of Tesoro for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing immediately prior to the Issue Date to the end of Tesoro's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a loss, less 100% of such loss), plus (2) 100% of the aggregate net cash proceeds, or the Fair Market Value of assets or property other than cash, received by Tesoro from the issue or sale, in either case, since the Issue Date of (A) Equity Interests of Tesoro (other than Disqualified Stock), or (B) Disqualified Stock or debt securities of Tesoro that have been converted into, or exchanged for, such Equity Interests, together with the aggregate cash received at the time of such conversion or exchange, or received by Tesoro from any such conversion or exchange of such debt securities sold or issued prior to the Issue Date other than Equity Interests (or Disqualified Stock or convertible or exchangeable debt securities) sold to a Restricted Subsidiary of Tesoro and other than Disqualified Stock or debt securities that have been converted or exchanged into Disqualified Stock, plus (3) in case any Unrestricted Subsidiary has been redesignated a Restricted Subsidiary pursuant to the terms of the Indenture or has been merged, consolidated or amalgamated with or into, or transfers or conveys assets to or is liquidated into, Tesoro or a Restricted Subsidiary and provided that no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof, the lesser of (A) the book value (determined in accordance with GAAP) at the date of such redesignation, combination or transfer of the aggregate Investments made by Tesoro and its Restricted Subsidiaries in such Unrestricted Subsidiary (or of the assets transferred or conveyed, as applicable) and (B) the fair market value of such Investment in such Unrestricted Subsidiary at the time of such redesignation, combination or transfer (or of the assets transferred or conveyed, as applicable), in each case as determined in good faith by the Board of Directors of Tesoro, whose determination shall be conclusive and evidenced by a resolution of such Board and, in each case, after deducting any Indebtedness of the Unrestricted Subsidiary so designated or combined or with the assets so transferred or conveyed, plus 68 (4) to the extent not already included in Consolidated Net Income for such period, (A) if any Restricted Investment that was made by Tesoro or any Restricted Subsidiary after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment resulting from such sale or disposition (less the cost of disposition, if any) and (B) with respect to any Restricted Investment that was made by Tesoro or any Restricted Subsidiary after the Issue Date, the net reduction in such Restricted Investment resulting from payments of interest, dividends, principal repayments and other transfers and distributions of cash, assets or property, in an amount not to exceed the aggregate amount of such Restricted Investment. The foregoing provisions shall not prohibit: (1) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions of the Indenture; (2) the redemption, repurchase, retirement, defeasance or other acquisition, prior to its Stated Maturity, of any (y) Indebtedness (or portion thereof) which is subordinated to the notes, or the making of any principal payment thereon, or (z) Equity Interests of Tesoro or any Restricted Subsidiary, in each case in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (a sale or issuance will be deemed substantially concurrent if such redemption, repurchase, retirement or acquisition occurs not more than 30 days after such sale or issuance) (other than to a Restricted Subsidiary of Tesoro) of, Equity Interests of Tesoro (other than any Disqualified Stock), provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition, or payments, shall be excluded from clause (c)(2) of the preceding paragraph; (3) the making of any principal payment on, or the defeasance, redemption, repurchase or other acquisition of, prior to its Stated Maturity, Indebtedness which is subordinated to the notes with the net cash proceeds from an incurrence of, or in exchange for the issuance of, Permitted Refinancing Indebtedness; (4) the payment of any dividend or distribution by a Restricted Subsidiary of Tesoro to the holders of its Equity Interests (other than Disqualified Stock) on a pro rata basis; (5) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Tesoro or any Restricted Subsidiary of Tesoro held by any current or former officer, employee or director of Tesoro (or any of its Subsidiaries) pursuant to the terms of agreements (including employment agreements) and plans approved by Tesoro's Board of Directors, including any management equity plan or stock option plan or any other management or employee benefit plan, agreement or trust, provided, however, that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests pursuant to this clause (5) shall not exceed the sum of (y) $2 million in any twelve-month period and (z) the aggregate net proceeds received by Tesoro during such 12-month period from issuance of such Equity Interests pursuant to such agreements or plans; (6) repurchases of Equity Interests deemed to occur upon the cashless exercise of stock options; (7) the purchase, redemption, defeasance or retirement, in each case prior to its Stated Maturity, of any Indebtedness that is subordinated to the notes in right of payment by payments out of Excess Proceeds remaining after completion of an Asset Sale Offer, provided that (x) any payments made or value given for such purchase, redemption, defeasance or retirement shall be made out of, or shall not be in excess of, any Excess Proceeds remaining after completion of an Asset Sale Offer (but for the provision of the last sentence under the caption "-- Repurchase at the Option of Holders -- Asset Sales") and (y) Tesoro would, at the time of such payment and after giving pro forma effect thereto as if such payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described below under the caption "-- Certain Covenants -- Incurrence of Indebtedness and Issuance of Preferred Stock"; 69 (8) reasonable and customary directors' fees to the members of Tesoro's Board of Directors, provided that such fees are consistent with past practice or current requirements; (9) the purchase by Tesoro of fractional shares arising out of stock dividends, splits or combinations or business combinations; and (10) other Restricted Payments in an aggregate principal amount since the Issue Date not to exceed $50 million; provided, further, that, with respect to clauses (2), (3), (5), (6), (7), (8) and (10) above, no Default or Event of Default shall have occurred and be continuing. In determining whether any Restricted Payment is permitted by the foregoing covenant, Tesoro may allocate or reallocate all or any portion of such Restricted Payment among the clauses (1) through (10) of the preceding paragraph or among such clauses and the first paragraph of this covenant including clauses (a), (b) and (c), provided that at the time of such allocation or reallocation, all such Restricted Payments, or allocated portions thereof, would be permitted under the various provisions of the foregoing covenant. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value (as determined by the Board of Directors of Tesoro and as evidenced by a resolution of the Board of Directors of Tesoro set forth in an Officers' Certificate delivered to the Trustee) on the date of the transfer, incurrence or issuance of such non-cash Restricted Payment. Not later than (1) the end of any calendar quarter in which any Restricted Payment is made or (2) the making of a Restricted Payment which, when added to the sum of all previous Restricted Payments made in a calendar quarter, would cause the aggregate of all Restricted Payments made in such quarter to exceed $10 million, Tesoro shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payments were permitted and setting forth the basis upon which the calculations required by this covenant were computed, which calculations may be based upon Tesoro's latest available financial statements. The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary only if: (1) immediately after giving effect to such designation, Tesoro could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test under the first paragraph of the covenant described below under the caption "-- Certain Covenants -- Incurrence of Indebtedness and Issuance of Preferred Stock"; (2) immediately before and immediately after giving effect to such designation, no Default or Event of Default shall have occurred and be continuing; and (3) Tesoro certifies that such designation complies with this covenant. Any such designation by the Board of Directors shall be evidenced by Tesoro promptly filing with the Trustee a copy of the resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing provisions. The Board of Directors may designate any Subsidiary of Tesoro to be an Unrestricted Subsidiary under the circumstances and pursuant to the requirements described in the definition of "Unrestricted Subsidiary", which requirements include that such designation will be made in compliance with this covenant. For purposes of making the determination as to whether such designation would be made in compliance with this covenant, all outstanding Investments by Tesoro and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this covenant. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the greatest of (1) the net book value (determined in accordance with GAAP) of such Investments at the time of such designation, (2) the Fair Market Value of such Investments at the time of such designation and (3) the original Fair Market Value of such Investments at the time they were made. Incurrence of Indebtedness and Issuance of Preferred Stock. The Indenture provides that Tesoro will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, 70 guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "incur") any Indebtedness (including Acquired Debt), other than Permitted Debt, and Tesoro shall not issue, and shall not permit any of its Restricted Subsidiaries to issue, any Disqualified Stock; provided, however, that Tesoro or any Guarantor may incur Indebtedness (including Acquired Debt) or Tesoro or any Guarantor may issue shares of Disqualified Stock if Tesoro's Fixed Charge Coverage Ratio for Tesoro's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 2.00 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if such additional Indebtedness had been incurred, or such Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period. The provisions of the first paragraph of this covenant shall not apply to the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"): (1) the incurrence by Tesoro or any Guarantor of additional Indebtedness and letter of credit reimbursement obligations under one or more Credit Facilities (with letter of credit reimbursement obligations being deemed to have a principal amount equal to the maximum potential liability of Tesoro or its Restricted Subsidiaries for reimbursement obligations thereunder) in an aggregate principal amount not to exceed $800 million at any one time outstanding under this clause (1); (2) the incurrence by Tesoro and the Guarantors of Indebtedness represented by the notes issued in this offering, the exchange notes and the Subsidiary Guarantees; (3) the incurrence by Tesoro or any of its Restricted Subsidiaries of Existing Indebtedness; (4) the incurrence by Tesoro or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness other than Indebtedness incurred pursuant to clause (1) above; (5) the incurrence by Tesoro or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Tesoro and any of its Restricted Subsidiaries; provided, however, that (A) if Tesoro or any Guarantor is the obligor and a Restricted Subsidiary of Tesoro that is not a Guarantor is the obligee on such Indebtedness, such Indebtedness will be subordinated to the payment in full of all Obligations with respect to the notes and (B) (1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Tesoro or a Restricted Subsidiary of Tesoro and (2) any sale or other transfer of any such Indebtedness to a Person that is not either Tesoro or a Restricted Subsidiary of Tesoro shall be deemed, in each case, to constitute an incurrence of such Indebtedness by Tesoro or such Restricted Subsidiary, as the case may be; (6) the incurrence by Tesoro or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of financing all or any part of the purchase price or cost of construction, improvement or development of property, plant or equipment used in the Permitted Business (including, without limitation, oil and gas properties) of Tesoro or a Restricted Subsidiary of Tesoro or incurred to extend, refinance, renew, replace, defease or refund any such purchase price or cost of construction, improvement or development, in each case in an aggregate principal amount not to exceed $50 million at any time outstanding; (7) the incurrence by Tesoro or any of its Restricted Subsidiaries of Indebtedness incurred in the ordinary course of business under (A) documentary letters of credit, or surety bonds or insurance contracts, which are to be repaid in full not more than one year after the date on which such Indebtedness is originally incurred to finance the purchase of goods by Tesoro or a Restricted Subsidiary of Tesoro, (B) standby letters of credit, surety bonds or insurance contracts issued for the purpose of supporting (1) workers' compensation or similar liabilities of Tesoro or any of its Restricted Subsidiaries, or (2) performance, payment, deposit or surety obligations of Tesoro or any of its Restricted Subsidiaries and (C) bid, advance payment and performance bonds and surety bonds, or similar insurance contracts, for Tesoro and its Restricted Subsidiaries, and refinancings thereof; 71 (8) the incurrence by Tesoro or any of its Restricted Subsidiaries of Indebtedness consisting of Hedging Obligations entered into in the ordinary course of business and not for speculative purposes; (9) Indebtedness arising from agreements of Tesoro or any of its Restricted Subsidiaries providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with the disposition or acquisition of any business, assets or a Restricted Subsidiary of Tesoro or any business or assets of its Restricted Subsidiaries, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Restricted Subsidiary of Tesoro or any of its Restricted Subsidiaries for the purposes of financing such acquisition; provided, however, that (A) such Indebtedness is not reflected on the balance sheet of Tesoro or any of its Restricted Subsidiaries (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (A)) and (B) the maximum liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including noncash proceeds (the Fair Market Value of such noncash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by Tesoro and its Restricted Subsidiaries in connection with such disposition; (10) the guarantee by Tesoro or any of the Guarantors of Indebtedness of Tesoro or a Restricted Subsidiary of Tesoro that was permitted to be incurred by any other provision of this covenant; provided that the guarantee of any Indebtedness of a Restricted Subsidiary of Tesoro that ceases to be such a Restricted Subsidiary shall be deemed a Restricted Investment at the time such Restricted Subsidiary's status terminates in an amount equal to the maximum principal amount so guaranteed, for so long as, and to the extent that, such guarantee remains outstanding; (11) the issuance by a Restricted Subsidiary of Tesoro of preferred stock to Tesoro or to any of its Restricted Subsidiaries; provided, however, that any subsequent event or issuance or transfer of any Equity Interests that results in the owner of such preferred stock ceasing to be Tesoro or any of its Restricted Subsidiaries or any subsequent transfer of such preferred stock to a Person, other than Tesoro or one of its Restricted Subsidiaries, shall be deemed to be an issuance of preferred stock by such Subsidiary that was not permitted by this clause (11); and (12) the incurrence by Tesoro or any of its Restricted Subsidiaries of Indebtedness (in addition to Indebtedness permitted by any other provision of this covenant) in an aggregate principal amount (or accreted value, as applicable) at any time outstanding not to exceed $50 million. To the extent Tesoro's Unrestricted Subsidiaries incur Non-Recourse Indebtedness and any such Indebtedness ceases to be Non-Recourse Indebtedness of such Unrestricted Subsidiary, then such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of Tesoro that was subject to this covenant. For purposes of determining compliance with this covenant, in the event that an item of Indebtedness (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described above or is entitled to be incurred pursuant to the first paragraph of this covenant, Tesoro will, in its sole discretion, classify (or later reclassify) in whole or in part such item of Indebtedness in any manner that complies with this covenant and such item of Indebtedness or a portion thereof may be classified (or later reclassified) in whole or in part as having been incurred under more than one of the applicable clauses or pursuant to the first paragraph hereof. Accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Indebtedness will not be deemed to be an incurrence of Indebtedness for purposes of this covenant. Liens. The Indenture provides that Tesoro will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under any Indebtedness which is pari passu with or subordinated to the notes, unless the notes are equally and ratably secured with the obligations so secured or until such time as such obligations are no longer secured by a Lien. Dividend and Other Payment Restrictions Affecting Subsidiaries. The Indenture provides that Tesoro will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise 72 cause or suffer to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary of Tesoro or Tesoro to: (1) (x) pay dividends or make any other distributions to Tesoro or any of its Restricted Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, or (y) pay any Indebtedness owed to Tesoro or any of its Restricted Subsidiaries; (2) make loans or advances to Tesoro or any of its Restricted Subsidiaries; or (3) transfer any of its properties or assets to Tesoro or any of its Restricted Subsidiaries. However the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of: (a) agreements in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings (collectively, for the purposes of this covenant, "amendments") of any such agreements or any Existing Indebtedness to which such agreements relate, provided that such amendments are no more restrictive with respect to such dividend, distribution or other payment restrictions and loan or investment restrictions than those contained in such agreement, as in effect on the Issue Date; (b) any Credit Facility in effect after the Issue Date to the extent its provisions are no more restrictive with respect to such dividend, distribution or other payment restrictions and loan or investment restrictions than those contained in the Senior Credit Facility as in effect on the Issue Date; (c) the Indenture, the notes, the exchange notes and the Subsidiary Guarantees, or any other indenture governing debt securities issued by Tesoro or any Guarantor that are no more restrictive with respect to such dividend, distribution or other payment restrictions and loan or investment restrictions than those contained in the Indenture and the notes; (d) any future Liens that may be permitted to be granted under, or incurred not in violation of, any other provisions of the Indenture; (e) applicable law; (f) any instrument governing Indebtedness or Capital Stock, or any other agreement relating to any property or assets, of a Person acquired by Tesoro or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except with respect to Indebtedness incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person or such Person's subsidiaries, so acquired, provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of the Indenture to be incurred; (g) restrictions of the nature described in clause (3) above by reason of customary non-assignment provisions in contracts, agreements, licenses and leases entered into in the ordinary course of business; (h) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in clause (3) above on the property so acquired; (i) any restriction with respect to a Restricted Subsidiary of Tesoro imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition; (j) agreements relating to secured Indebtedness otherwise permitted to be incurred pursuant to the covenant described under the caption "-- Incurrence of Indebtedness and Issuance of Preferred Stock", and not in violation of the covenant described under caption "-- Liens", that limit the right of the debtor to dispose of assets securing such Indebtedness; (k) Permitted Refinancing Indebtedness in respect of Indebtedness referred to in clauses (a), (b), (c), (f), (h) and (j) of this paragraph, provided that the restrictions contained in the agreements 73 governing such Permitted Refinancing Indebtedness are no more restrictive with respect to such dividend, distribution or other payment restrictions and loan or investment restrictions than those contained in the agreements governing the Indebtedness being refinanced; and (l) provisions with respect to the disposition or distribution of assets in joint venture agreements and other similar agreements entered into in the ordinary course of business. Merger, Consolidation or Sale of Assets. The Indenture provides that Tesoro will not consolidate or merge with or into, or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the properties or assets in one or more related transactions, to another Person unless: (1) Tesoro is the resulting, transferee or surviving Person or the resultant, transferee or surviving Person (if other than Tesoro) shall be a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia; (2) the resulting transferee or surviving Person (if other than Tesoro) assumes all the obligations and covenants of Tesoro under the notes and the Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (3) immediately before and after such transaction no Default or Event of Default shall have occurred and be continuing; and (4) except in the case of a merger of Tesoro with or into a Restricted Subsidiary, Tesoro or the resultant, transferee or surviving Person (if other than Tesoro) will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of covenant described above under the caption "-- Incurrence of Indebtedness and Issuance of Preferred Stock"; provided, however, that this clause (4) shall be permanently terminated when we and our Restricted Subsidiaries are no longer subject to the Terminated Covenants. See "-- Covenant Termination". Upon any transaction or series of related transactions that are of the type described in, and are effected in accordance with, the foregoing paragraph, the surviving Person (if other than Tesoro) shall succeed to, and be substituted for, and may exercise every right and power of, Tesoro under the Indenture and the notes with the same effect as if such surviving Person had been named as Tesoro in the Indenture; and when a surviving Person duly assumes all of the obligations and covenants of Tesoro pursuant to the Indenture and the notes, except in the case of a lease of all or substantially all of the properties or assets in one or more related transactions (in which case, Tesoro will not be released from the obligation to pay the principal of and interest and liquidated damages, if any, on, the notes), the predecessor Person shall be relieved of all such obligations. Additional Subsidiary Guarantees. The Indenture provides that (1) if any Subsidiary of Tesoro guarantees any Indebtedness of Tesoro, then such Subsidiary shall (a) execute a supplemental indenture in form and substance satisfactory to the Trustee providing that such Subsidiary shall become a Guarantor under the Indenture and (b) deliver an opinion of counsel to the effect that such supplemental indenture has been duly authorized and executed by such Subsidiary and (2) upon (x) the release by the lenders of all guarantees of a Guarantor guaranteeing, and all Liens on the property and assets of such Guarantor securing, Indebtedness of Tesoro, or (y) a sale or other disposition, whether in one or a series of related transactions, of all or substantially all of the assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition, whether in one or a series of related transactions, of all of the Capital Stock of any Guarantor in compliance with the Indenture to any entity that is not Tesoro or a Subsidiary, then such Guarantor and such acquiring, resulting, surviving or transferee Person will be released and relieved of any obligations under any Subsidiary Guarantee; provided, however, that any such termination shall occur only to the extent that all obligations of such Guarantor under such Indebtedness and all of its guarantees of, and under all of its pledges of assets or other security interests which secure, Indebtedness of Tesoro shall also terminate upon such release, sale or transfer and, in the event of any sale or other disposition, delivery of an officer's certificate to the Trustee that the Net Proceeds of such sale or other disposition will be applied in accordance with the applicable provisions of the Indenture. See "-- Repurchase at the Option of Holders -- Asset Sales". 74 Transactions with Affiliates. The Indenture provides that Tesoro will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of any such Person (each of the foregoing, an "Affiliate Transaction"), unless (1) such Affiliate Transaction is on terms that are no less favorable to Tesoro or the relevant Restricted Subsidiary than those that could have been obtained in a transaction by Tesoro or such Restricted Subsidiary with an unrelated Person; and (2) Tesoro delivers to the Trustee: (a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of at least $5 million, an Officers' Certificate certifying that such Affiliate Transaction complies with clause (1) above; (b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20 million, a resolution of its Board of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with clause (1) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of its Board of Directors; and (c) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $30 million and for which there are no disinterested members of its Board of Directors, an opinion as to the fairness to Tesoro of such Affiliate Transaction from a financial point of view issued by an Independent Financial Advisor; provided that none of the following shall be deemed to be Affiliate Transactions and therefore shall not be subject to the provisions of the preceding paragraph: (1) Affiliate Transactions involving the purchase or sale of crude oil, natural gas and other hydrocarbons, and refined products therefrom, in the ordinary course of any Permitted Business, so long as such transactions are priced in line with industry accepted benchmark prices and the pricing of such transactions are equivalent to the pricing of comparable transactions with unrelated third parties; (2) any employment, equity award, equity option or equity appreciation agreement or plan, agreement or other similar compensation plan or arrangement entered into by Tesoro or any of its Restricted Subsidiaries in the ordinary course of its business; (3) transactions between or among (A) Tesoro and its Restricted Subsidiaries and (B) the Restricted Subsidiaries; (4) the performance of any agreement in effect on the Issue Date; (5) loans or advances to officers, directors and employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures and other purposes, in each case in the ordinary course of business; (6) maintenance in the ordinary course of business of customary benefit programs or arrangements for employees, officers or directors, including vacation plans, health and life insurance plans, deferred compensation plans and retirement or savings plans and similar plans; (7) fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of Tesoro or any of its Restricted Subsidiaries in their capacity as such, to the extent such fees and compensation are reasonable and customary; (8) sales of Equity Interests of Tesoro (other than Disqualified Stock) to Affiliates of Tesoro or any of its Restricted Subsidiaries; and 75 (9) Restricted Payments that are permitted by the provisions of the Indenture described above under the caption "-- Restricted Payments". No Senior Subordinated Debt. The Indenture provides that, notwithstanding any other provision thereof, (1) Tesoro will not incur, create, issue, assume, guarantee or otherwise become liable directly or indirectly for any Indebtedness (including Acquired Debt) that is expressly subordinate or junior in right of payment to any Senior Debt of Tesoro and senior in any respect in right of payment to the notes, and (2) no Guarantor will incur, create, issue, assume, guarantee or otherwise become liable for any Indebtedness (including Acquired Debt) that is expressly subordinate or junior in right of payment to any Senior Debt of a Guarantor and senior in any respect in right of payment to the Subsidiary Guarantees, it being understood that Indebtedness will not be considered senior to other Indebtedness solely by reason of being secured. Business Activities. The Indenture provides that Tesoro will not, and Tesoro will not permit any of its Restricted Subsidiaries to, engage in any business other than a Permitted Business, except to such extent as would not be material to Tesoro and its Restricted Subsidiaries taken as a whole. Payments for Consent. The Indenture provides that Tesoro will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any holder of any notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of the Indenture or the notes unless such consideration is offered to be paid or agreed to be paid to all holders of the notes that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement. Reports. The Indenture provides that whether or not Tesoro is required by the rules and regulations of the Commission, so long as any notes are outstanding, Tesoro will furnish to each of the holders of notes (1) all quarterly and annual financial information with respect to Tesoro and its Subsidiaries that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if Tesoro were required to file such forms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" and, with respect to the annual information only, a report thereon by Tesoro's independent public accountants and (2) all current reports that would be required to be filed with the Commission on Form 8-K if Tesoro were required to file such reports. All such information and reports shall be mailed or otherwise delivered to the holders of notes within 15 days after the dates on which such filings would have been required to be made had Tesoro been subject to the rules and regulations of the Commission. Covenant Termination. The Indenture provides that in the event that (a) the rating assigned to the notes by each of S&P and Moody's is an Investment Grade Rating and (b) no Default has occurred and is continuing under the Indenture, Tesoro and its Restricted Subsidiaries will no longer be subject to the provisions of the Indenture described above under the following captions: - "-- Repurchase at the Option of Holders -- Asset Sales"; - "-- Restricted Payments"; - "-- Incurrence of Indebtedness and Issuance of Preferred Stock"; - "-- Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries"; - "-- Transactions with Affiliates"; and - "-- Business Activities" (collectively, the "Terminated Covenants"); provided, however, that Tesoro will remain subject to the provisions of the Indenture described above under the following captions: - "-- Subsidiary Guarantees" (other than the financial tests set forth in clause (3) of such provision), - "-- Repurchase at the Option of Holders -- Change of Control"; - "-- Liens"; 76 - "-- Merger, Consolidation or Sale of Assets" (other than the financial tests set forth in clause (4) of such provision); - "-- Additional Subsidiary Guarantees"; - "-- No Senior Subordinated Debt"; - "-- Payment for Consent"; and - "-- Reports". EVENTS OF DEFAULT AND REMEDIES The Indenture provides that each of the following constitutes an Event of Default: (1) default for 30 days in the payment when due of interest on, or liquidated damages with respect to, the notes; (2) default in payment when due of the principal of, or premium, if any, on the notes; (3) failure by Tesoro or any of its Restricted Subsidiaries to comply with the provisions described under the captions "-- Certain Covenants -- Merger, Consolidation or Sale of Assets" and "-- Repurchase at the Option of Holders -- Change of Control"; (4) failure by Tesoro or any of its Restricted Subsidiaries for 60 days after written notice of such failure from the Trustee or the holders of at least 25% in aggregate principal amount of outstanding notes to comply with any of its other agreements in the Indenture or the notes; (5) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by Tesoro or any of its Restricted Subsidiaries (or the payment of which is guaranteed by Tesoro or any of its Restricted Subsidiaries), whether such Indebtedness or guarantee now exists, or is created after the Issue Date, which default: (a) is caused by a failure to pay principal of or premium, if any, or interest on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness (a "Payment Default"); or (b) results in the acceleration of such Indebtedness prior to its express maturity and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates without duplication $15 million or more, and such default shall not have been cured or waived or any such acceleration rescinded, or such Indebtedness is repaid, within ten business days after the running of such grace period or the occurrence of such acceleration; (6) failure by Tesoro or any of its Restricted Subsidiaries to pay final judgments aggregating in excess of $15 million (excluding amounts covered by insurance), which judgments are not paid, discharged or stayed for a period of 60 days; (7) certain events of bankruptcy or insolvency with respect to Tesoro, or any group of Subsidiaries that when taken together, would constitute a Significant Subsidiary or any Significant Subsidiary upon the occurrence of such events; and (8) except as permitted by the Indenture, any Subsidiary Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor, or any Person acting on behalf of any such Guarantor, shall deny or disaffirm its obligations under its Subsidiary Guarantee (other than by reason of the termination of the Indenture or the release of any such Subsidiary Guarantee in accordance with the Indenture). 77 If any Event of Default occurs and is continuing, the Trustee or the holders of at least 25% in principal amount of the then outstanding notes may declare all the notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, with respect to Tesoro, any Significant Subsidiary or any group of Subsidiaries that, taken together, would constitute a Significant Subsidiary, all outstanding notes will become due and payable without further action or notice. Holders of the notes may not enforce the Indenture or the notes except as provided in the Indenture. Subject to certain limitations, holders of a majority in principal amount of the then outstanding notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from holders of the notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest or liquidated damages) if it determines that withholding notice is in their interest. The holders of a majority in aggregate principal amount of the notes then outstanding by notice to the Trustee may on behalf of the holders of all of the notes (1) waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of interest and liquidated damages, if any, on, or the principal of, the notes and (2) rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default (except nonpayment of principal, interest or liquidated damages that has become due solely because of the acceleration) have been cured or waived. Tesoro is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and Tesoro is required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES, INCORPORATORS, MEMBERS, PARTNERS AND STOCKHOLDERS No director, officer, employee, incorporator, member, partner or stockholder or other owner of Capital Stock of Tesoro or any of its Subsidiaries, as such, shall have any liability for any obligations of Tesoro or any Guarantor under the notes, the Subsidiary Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each holder of notes by accepting a note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the notes. Such waiver may not be effective to waive liabilities under the federal securities laws, and it is the view of the Commission that such a waiver is against public policy. LEGAL DEFEASANCE AND COVENANT DEFEASANCE Tesoro may, at its option and at any time, elect to have all of its obligations discharged with respect to the outstanding notes and all obligations of the Guarantors discharged with respect to their Guarantees ("Legal Defeasance") except for: (1) the rights of holders of outstanding notes to receive payments in respect of the principal of, premium, if any, and interest and liquidated damages, if any, on such notes when such payments are due (but not the Change of Control Payment or the payment pursuant to an Asset Sale Offer) from the trust referred to below; (2) Tesoro's obligations with respect to the notes concerning issuing temporary notes, registration of notes, mutilated, destroyed, lost or stolen notes and the maintenance of an office or agency for payment and money for security payments held in trust; (3) the rights, powers, trusts, duties and immunities of the Trustee, and Tesoro's obligations in connection therewith; and (4) the Legal Defeasance provisions of the Indenture. In addition, Tesoro may, at its option and at any time, elect to have the obligations of Tesoro and the Guarantors released with respect to certain covenants that are described in the Indenture ("Covenant 78 Defeasance"), and thereafter any omission to comply with such obligations shall not constitute a Default or Event of Default with respect to the notes. In the event Covenant Defeasance occurs, certain events (not including non-payment, bankruptcy, receivership, rehabilitation and insolvency events) described under "-- Events of Default and Remedies" will no longer constitute an Event of Default with respect to the notes. In order to exercise either Legal Defeasance or Covenant Defeasance: (1) Tesoro must irrevocably deposit with the Trustee, in trust, for the benefit of the holders of the notes, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and premium, if any, and interest and liquidated damages, if any, on the outstanding notes on the stated maturity or on the applicable redemption date, as the case may be, and Tesoro must specify whether the notes are being defeased to maturity or to a particular redemption date; (2) in the case of Legal Defeasance, Tesoro shall have delivered to the Trustee an opinion of counsel in the United States reasonably acceptable to the Trustee confirming that (A) Tesoro has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the Issue Date, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such opinion of counsel shall confirm that, the holders of the outstanding notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; (3) in the case of Covenant Defeasance, Tesoro shall have delivered to the Trustee an opinion of counsel in the United States reasonably acceptable to the Trustee confirming that the holders of the outstanding notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; (4) no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the incurrence of Indebtedness or the grant of Liens securing such Indebtedness, all or a portion of the proceeds of which will be applied to such deposit) or insofar as Events of Default from bankruptcy or insolvency events are concerned, at any time in the period ending on the 91st day after the date of deposit; (5) such deposit will not result in a breach or violation of, or constitute a default under any material agreement or instrument (other than the Indenture) to which Tesoro or any of its Restricted Subsidiaries is a party or by which Tesoro or any of its Restricted Subsidiaries is bound, or if such breach, violation or default would occur, which is not waived as of, and for all purposes, on and after, the date of such deposit; (6) Tesoro must have delivered to the Trustee an opinion of counsel to the effect that after the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally; (7) Tesoro must deliver to the Trustee an Officers' Certificate stating that the deposit was not made by Tesoro with the intent of preferring the holders of notes over the other creditors of Tesoro with the intent of defeating, hindering, delaying or defrauding creditors of Tesoro or others; and (8) Tesoro must deliver to the Trustee an Officers' Certificate and an opinion of counsel, each stating that all conditions precedent provided for relating to the Legal Defeasance or the Covenant Defeasance have been complied with. 79 SATISFACTION AND DISCHARGE The Indenture will be discharged and will cease to be of further effect as to all notes issued thereunder, when: (a) either (1) all such notes theretofore authenticated and delivered (except lost, stolen or destroyed notes which have been replaced or paid and notes for whose payment money has heretofore been deposited in trust and thereafter repaid to Tesoro) have been delivered to the Trustee for cancellation; or (2) all such notes not theretofore delivered to such Trustee for cancellation have become due and payable by reason of the making of a notice of redemption or otherwise or will become due and payable within one year and Tesoro has irrevocably deposited or caused to be deposited with such Trustee as trust funds in trust solely for the benefit of the holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on such notes not theretofore delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption; (b) no Default or Event of Default with respect to the Indenture or the notes shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under, any other material instrument to which Tesoro is a party or by which Tesoro is bound; (c) Tesoro has paid or caused to be paid all sums due and payable by it under the Indenture; and (d) Tesoro has delivered irrevocable instructions to the Trustee under the Indenture to apply the deposited money toward the payment of such notes at maturity or the redemption date, as the case may be. In addition, Tesoro must deliver an Officers' Certificate and an opinion of counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied. TRANSFER AND EXCHANGE A holder may transfer or exchange notes in accordance with the Indenture. The Registrar and the Trustee may require a holder, among other things, to furnish appropriate endorsements and transfer documents and Tesoro may require a holder to pay any taxes and fees required by law or permitted by the Indenture. Tesoro is not required to transfer or exchange any note selected for redemption. Also, Tesoro is not required to transfer or exchange any note for a period of 15 days before a selection of notes to be redeemed. The registered holder of a note will be treated as the owner of it for all purposes. AMENDMENT, SUPPLEMENT AND WAIVER Except as provided in the next two succeeding paragraphs, the Indenture, the notes or the Subsidiary Guarantees may be amended or supplemented with the consent of the holders of at least a majority in principal amount of the notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, notes), and any existing default or compliance with any provision of the Indenture or the notes may be waived with the consent of the holders of a majority in principal amount of the then outstanding notes (including consents obtained in connection with a tender offer or exchange offer for notes). Without the consent of each holder affected, an amendment, supplement or waiver may not (with respect to any notes held by a non-consenting holder): (1) reduce the principal amount of notes whose holders must consent to an amendment, supplement or waiver; (2) reduce the principal of or change the fixed maturity of any note or alter the provisions with respect to the redemption of the notes (other than provisions relating to the covenants described above under the caption "-- Repurchase at the Option of Holders"); 80 (3) reduce the rate of or change the time for payment of interest or liquidated damages on any note; (4) waive a Default or Event of Default in the payment of principal of or premium, if any, or interest or liquidated damages, if any, on the notes (except a rescission of acceleration of the notes by the holders of at least a majority in aggregate principal amount of the notes and a waiver of the payment default that resulted from such acceleration); (5) make any note payable in money other than that stated in the notes; (6) make any change in the provisions of the Indenture relating to waivers of past Defaults or the rights of holders of notes to receive payments of principal of or premium, if any, or interest or liquidated damages, if any, on the notes; (7) waive a redemption payment with respect to any note (other than a payment required by one of the covenants described above under the caption "-- Repurchase at the Option of Holders"); or (8) make any change in the foregoing amendment and waiver provisions. In addition, any amendment to certain provisions of the Indenture which relate to subordination will require the consent of the holders of at least 75% in aggregate principal amount of the notes then outstanding if such amendment would adversely affect the rights of holders of notes. Notwithstanding the foregoing, without the consent of any holder of notes, Tesoro and the Trustee may amend or supplement the Indenture, the notes or the Subsidiary Guarantees to cure any ambiguity, defect or inconsistency, to provide for uncertificated notes in addition to or in place of certificated notes, to provide for the assumption of Tesoro's or any Guarantor's obligations to holders of notes in the case of a merger or consolidation or sale of all or substantially all of Tesoro's or such Guarantor's assets, to make any change that would provide any additional rights or benefits to the holders of notes or that does not adversely affect the legal rights under the Indenture of any such holder, to comply with requirements of the Commission in order to effect or maintain the qualification of the Indenture under the Trust Indenture Act, to add any additional Guarantor or to release any Guarantor from its Subsidiary Guarantee, to evidence or provide for the acceptance of appointment of a successor Trustee, or to add any additional Events of Default or to secure the notes or the Subsidiary Guarantees, in each case, as provided in the Indenture. CONCERNING THE TRUSTEE The Indenture will contain certain limitations on the rights of the Trustee, should it become a creditor of Tesoro, to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim as security or otherwise. The Trustee will be permitted to engage in other transactions; however, if it acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the Commission for permission to continue or resign. The holders of a majority in principal amount of the then outstanding notes will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee, subject to certain exceptions. The Indenture provides that in case an Event of Default shall occur and be continuing, the Trustee will be required, in the exercise of its power, to use the degree of care of a prudent man in the conduct of his own affairs. Subject to such provisions, the Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request of any holder of notes, unless such holder shall have offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense. ADDITIONAL INFORMATION Anyone who receives this prospectus may obtain a copy of the Indenture without charge by writing to Tesoro Petroleum Corporation, 300 Concord Plaza Drive, San Antonio, Texas 78216-6999, Attention: Vice President and Treasurer. 81 BOOK-ENTRY, DELIVERY AND FORM The outstanding 9 5/8% notes offered and sold to qualified institutional buyers ("Qualified Institutional Buyers" or "QIBs") are represented by one or more global notes in registered, global form without interest coupons (collectively, the "Rule 144A global note"). The Rule 144A global note was initially deposited upon issuance with the Trustee as custodian for The Depository Trust Company (the "Depositary"), in New York, New York, and registered in the name of the Depositary or its nominee, in each case for credit to an account of a direct or indirect participant as described below. The outstanding 9 5/8% notes sold in offshore transactions in reliance on Regulation S under the Securities Act were initially represented by one or more temporary global notes in registered, global form without interest coupons (collectively, the "Regulation S temporary global note"). The Regulation S temporary global note was registered in the name of a nominee of the Depositary for credit to the subscribers' respective accounts at Euroclear Bank S.A./N.V., as operator of the Euroclear System ("Euroclear") and Clearstream Banking N.A. ("Clearstream"). Beneficial interests in the Regulation S temporary global note during the Restricted Period may be held only through Euroclear or Clearstream. Within a reasonable time period after the expiration of the period of 40 days commencing on the commencement of the notes offering (such period through and including such 40th day, the "Restricted Period"), the Regulation S temporary global note will be exchanged for one or more permanent global notes (collectively, the "Regulation S permanent global note" and, together with the Regulation S temporary global note, the "Regulation S global note" (the Regulation S global note and the Rule 144A global note collectively being the "global notes")) upon delivery to the Depositary of certification of compliance with the transfer restrictions applicable to the notes pursuant to Regulation S as provided in the Indenture. During the Restricted Period, beneficial interests in the Regulation S temporary global note may be held only through Euroclear or Clearstream (as indirect participants in the Depository). See "-- Depositary Procedures -- Exchanges between Regulation S Notes and the Rule 144A Global Note". Beneficial interests in the Rule 144A global note may not be exchanged for beneficial interests in the Regulation S global note at any time except in the limited circumstances described below. See "-- Depositary Procedures -- Exchanges between Regulation S Notes and the Rule 144A Global Note". Except as set forth below, the global notes may be transferred, in whole and not in part, only to another nominee of the Depositary or to a successor of the Depositary or its nominee. Beneficial interests in the global notes may not be exchanged for notes in certificated form except in the limited circumstances described below. See "-- Depositary Procedures -- Exchange of Book-Entry Notes for Certificated Notes". The Rule 144A global note (including beneficial interests in the Rule 144A global note) is subject to certain restrictions on transfer and bears a restrictive legend as described under "Notice to Investors". In addition, transfer of beneficial interests in the global notes are subject to the applicable rules and procedures of the Depositary and its direct or indirect participants (including, if applicable, those of Euroclear and Clearstream), which may change from time to time. The notes may be presented for registration of transfer and exchange at the offices of the Registrar. DEPOSITARY PROCEDURES The Depositary has advised Tesoro that the Depositary is a limited-purpose trust company created to hold securities for its participating organizations (collectively, the "Participants") and to facilitate the clearance and settlement of transactions in those securities between Participants through electronic book-entry changes in accounts of Participants. The Participants include securities brokers and dealers (including the initial purchasers), banks, trust companies, clearing corporations and certain other organizations. Access to the Depositary's system is also available to other entities such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Participant, either directly or indirectly (collectively, "Indirect Participants"). Persons who are not Participants may beneficially own securities held by or on behalf of the Depositary only through the Participants or Indirect Participants. The ownership interest 82 and transfer of ownership interest of each actual purchaser of each security held by or on behalf of the Depositary are recorded on the records of the Participants and Indirect Participants. Clearstream and Euroclear hold interests on behalf of their participants through customers' securities accounts in Clearstream's and Euroclear's names on the books of their respective depositaries, which hold those interests in customers' securities accounts in the depositaries' names on the books of the Depositary. At the present time, Citibank, N.A. acts as U.S. depositary for Clearstream and The Chase Manhattan Bank acts as U.S. depositary for Euroclear (the "U.S. Depositaries"). Beneficial interests in the global securities are held in denominations of $1,000 and integral multiples thereof. Except as set forth below, the global securities may be transferred, in whole but not in part, only to another nominee of the Depositary or to a successor of the Depositary or its nominee. Clearstream has advised us that it is incorporated under the laws of Luxembourg as a professional depositary. Clearstream holds securities for its participating organizations ("Clearstream Participants") and facilitates the clearance and settlement of securities transactions between Clearstream Participants through electronic book-entry changes in accounts of Clearstream Participants, thereby eliminating the need for physical movement of certificates. Clearstream provides to Clearstream Participants, among other things, services for safekeeping, administration, clearance and settlement of internationally traded securities and securities lending and borrowing. Clearstream interfaces with domestic markets in several countries. As a professional depositary, Clearstream is subject to regulation by the Luxembourg Monetary Institute. Clearstream Participants are recognized financial institutions around the world, including underwriters, securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations and may include the initial purchasers or their affiliates. Indirect access to Clearstream is also available to others, such as banks, brokers, dealers and trust companies that clear through, or maintain a custodial relationship with, a Clearstream Participant either directly or indirectly. Distributions with respect to the notes held beneficially through Clearstream will be credited to cash accounts of Clearstream Participants in accordance with its rules and procedures, to the extent received by the U.S. Depositary for Clearstream. Euroclear has advised us that it was created in 1968 to hold securities for participants of Euroclear ("Euroclear Participants") and to clear and settle transactions between Euroclear Participants through simultaneous electronic book-entry delivery against payment, thereby eliminating the need for physical movement of certificates and any risk from lack of simultaneous transfers of securities and cash. Euroclear includes various other services, including securities lending and borrowing and interfaces with domestic markets in several countries. Euroclear is operated by Euroclear Bank S.A./N.V. (the "Euroclear Operator"), under contract with Euroclear Clearance Systems S.C., a Belgian cooperative corporation (the "Cooperative"). All operations are conducted by the Euroclear Operator, and all Euroclear securities clearance accounts and Euroclear cash accounts are accounts with the Euroclear Operator, not the Cooperative. The Cooperative establishes policy for Euroclear on behalf of Euroclear Participants. Euroclear Participants include banks (including central banks), securities brokers and dealers and other professional financial intermediaries and may include the initial purchasers or their affiliates. Indirect access to Euroclear is also available to other firms that clear through or maintain a custodial relationship with a Euroclear Participant, either directly or indirectly. Securities clearance accounts and cash accounts with the Euroclear Operator are governed by the Terms and Conditions Governing Use of Euroclear and the related Operating Procedures of the Euroclear System, and applicable Belgian law (the "Terms and Conditions"). The Terms and Conditions govern transfers of securities and cash within Euroclear, withdrawals of securities and cash from Euroclear and receipt of payments with respect to securities in Euroclear. All securities in Euroclear are held on a fungible basis without attribution of specific certificates to specific securities clearance accounts. The Euroclear Operator acts under the Terms and Conditions only on behalf of Euroclear Participants, and has no record of, or relationship with, persons holding through Euroclear Participants. 83 Distribution with respect to the notes held beneficially through Euroclear will be credited to the cash accounts of Euroclear Participants in accordance with the Terms and Conditions, to the extent received by the U.S. Depositary for Euroclear. The laws of some states require that certain persons take physical delivery in definitive form of securities that they own. Consequently, the ability to transfer beneficial interests in a global note to such persons may be limited to that extent. Because the Depositary can act only on behalf of the Participants, which in turn act on behalf of the Indirect Participants and certain banks, the ability of a person having beneficial interests in a global note to pledge such interests to persons or entities that do not participate in the Depositary system, or otherwise take actions in respect of such interests, may be affected by the lack of a physical certificate evidencing such interests. For certain other restrictions on the transferability of the notes, see "-- Depository Procedures -- Exchange of Book-Entry Notes for Certificated Notes", "-- Exchanges Between Regulation S Notes and the Rule 144A Note" and "-- Certificated Notes". EXCEPT AS DESCRIBED BELOW, OWNERS OF INTERESTS IN THE GLOBAL NOTES WILL NOT HAVE NOTES REGISTERED IN THEIR NAMES, WILL NOT RECEIVE PHYSICAL DELIVERY OF NOTES IN CERTIFICATED FORM AND WILL NOT BE CONSIDERED THE REGISTERED OWNERS, OR HOLDERS THEREOF UNDER THE INDENTURE FOR ANY PURPOSE. Payments in respect of the principal and premium and liquidated damages, if any, and interest on a global note registered in the name of the Depositary or its nominee will be payable by the Trustee to the Depositary or its nominee in its capacity as the registered holder under the Indenture. Under the terms of the Indenture, Tesoro and the Trustee will treat the persons in whose names the notes, including the global notes, are registered as the owners thereof for the purpose of receiving such payments and for any and all other purposes whatsoever. Consequently, neither Tesoro, the Trustee nor any agent of Tesoro or the Trustee has or will have any responsibility or liability for (1) any aspect of the Depositary's records or any Participant's or Indirect Participant's records relating to or payments made on account of beneficial ownership interests in the global notes, or for maintaining, supervising or reviewing any of the Depositary's records or any Participant's or Indirect Participant's records relating to the beneficial ownership interests in the global notes; or (2) any other matter relating to the actions and practices of the Depositary or any of its Participants or Indirect Participants. The Depositary has advised Tesoro that its current practices, upon receipt of any payment in respect of securities such as the notes (including principal and interest and liquidated damages, if any), is to credit the accounts of the relevant Participants with the payment on the payment date, in amounts proportionate to their respective holdings in principal amount of beneficial interests in the relevant security such as the global notes as shown on the records of the Depositary. Payments by Participants and the Indirect Participants to the beneficial owners of notes will be governed by standing instructions and customary practices and will not be the responsibility of the Depositary, the Trustee or Tesoro. Neither Tesoro nor the Trustee will be liable for any delay by the Depositary or its Participants in identifying the beneficial owners of the notes, and Tesoro and the Trustee may conclusively rely on and will be protected in relying on instructions from the Depositary or its nominee as the registered owner of the notes for all purposes. Except for trades involving only Euroclear and Clearstream Participants, interests in the global notes will trade in the Depositary's Same-Day Funds Settlement System and secondary market trading activity in such interests will, therefore, settle in immediately available funds, subject in all cases to the rules and procedures of the Depositary and its Participants. Transfers between Participants in the Depositary will be effective in accordance with the Depositary's procedures, and will be settled in same-day funds. Transfers between Participants in Euroclear and Clearstream will be effected in the ordinary way in accordance with their respective rules and operating procedures. Subject to compliance with the transfer restrictions applicable to the notes described herein, cross-market transfers between Participants in the Depositary, on the one hand, and Euroclear or Clearstream Participants, 84 on the other hand, will be effected through the Depositary in accordance with the depository's rules on behalf of Euroclear or Clearstream, as the case may be, by its respective depository; however, such cross-market transactions will require delivery of instructions to Euroclear or Clearstream, as the case may be, by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (Brussels time) of such system. Euroclear or Clearstream, as the case may be, will, if the transaction meets its settlement requirements, deliver instructions to its respective depository to take action to effect final settlement on its behalf by delivering or receiving interests in the relevant global note in the Depositary, and making or receiving payment in accordance with normal procedures for same-day fund settlement applicable to the Depositary. Euroclear Participants and Clearstream Participants may not deliver instructions directly to the depositories for Euroclear or Clearstream. Due to time zone differences, the securities accounts of a Euroclear or Clearstream Participant purchasing an interest in a global note from a Participant in the Depositary will be credited, and any such crediting will be reported to the relevant Euroclear or Clearstream Participant, during the securities settlement processing day (which must be a business day for Euroclear or Clearstream) immediately following the settlement date of the Depositary. Cash received in Euroclear or Clearstream as a result of sales of interests in a global note by or through a Euroclear or Clearstream Participant to a Participant in the Depositary will be received with value on the settlement date of the Depositary but will be available in the relevant Euroclear or Clearstream cash account only as of the business day for Euroclear or Clearstream following the Depositary's settlement date. The Depositary has advised Tesoro that it will take any action permitted to be taken by a holder of notes only at the direction of one or more Participants to whose account the Depositary interests in the global notes are credited and only in respect of such portion of the aggregate principal amount of the notes as to which such Participant or Participants has or have given direction. However, if there is an Event of Default under the notes, the Depositary reserves the right to exchange global notes for legended notes in certificated form, and to distribute such notes to its Participants. The information in this section concerning the Depositary, Euroclear and Clearstream and their book-entry systems has been obtained from sources that Tesoro believes to be reliable, but Tesoro takes no responsibility for the accuracy of that information. Although the Depositary, Euroclear and Clearstream have agreed to the foregoing procedures to facilitate transfers of interests in the Regulation S global note and in the Rule 144A global note among Participants in the Depositary, Euroclear and Clearstream, they are under no obligation to perform or to continue to perform such procedures, and such procedures may be discontinued at any time. None of Tesoro, the initial purchasers or the Trustee will have any responsibility for the performance by the Depositary, Euroclear or Clearstream or their respective Participants or Indirect Participants of their respective obligations under the rules and procedures governing their operations. Exchange of Book-Entry Notes for Certificated Notes. A global note is exchangeable for definitive notes in registered certificated form if (1) the Depositary (A) notifies Tesoro that it is unwilling or unable to continue as depository for the global note and Tesoro thereupon fails to appoint a successor depository or (B) has ceased to be a clearing agency registered under the Exchange Act or (2) Tesoro, at its option, notifies the Trustee in writing that it elects to cause issuance of the notes in certificated form. In addition, beneficial interests in a global note may be exchanged for certificated notes upon request but only upon at least 20 days prior written notice given to the Trustee by or on behalf of the Depositary in accordance with customary procedures. In all cases, certificated notes delivered in exchange for any global note or beneficial interest therein will be registered in names, and issued in any approved denominations, requested by or on behalf of the Depositary (in accordance with its customary procedures) and will bear the restrictive legend referred to in "Notice to Investors" unless Tesoro determines otherwise in compliance with applicable law. Exchanges between Regulation S Notes and the Rule 144A Global Note. Prior to the expiration of the Restricted Period, a beneficial interest in a Regulation S global note may not be transferred to a U.S. person. Thereafter, such transfers will be permitted on the terms specified in the Indenture. 85 Beneficial interests in Rule 144A global notes may be transferred to a person who takes delivery in the form of an interest in Regulation S global notes, whether before or after the expiration of the Restricted Period, only if the transferor first delivers to the Trustee a written certificate to the effect that such transfer is being made in accordance with Rule 903 or 904 of Regulation S and that, if such transfer occurs prior to the expiration of the Restricted Period, the interest transferred will be held immediately thereafter through Euroclear and Clearstream. Any beneficial interest in one of the global notes that is transferred to a person who takes delivery in the form of an interest in another global note will, upon transfer, cease to be an interest in such global note and become an interest in such other global note, and accordingly, will thereafter be subject to all transfer restrictions and other procedures applicable to beneficial interests in such other global note for as long as it remains such an interest. Transfers involving an exchange of a beneficial interest in the Regulation S global note for a beneficial interest in the Rule 144A global note or vice versa will be effected by the Depositary by means of an instruction originated by the Trustee through the Depositary/Deposit Withdraw at Custodian system. Accordingly, in connection with such transfer, appropriate adjustments will be made to reflect a decrease in the principal amount of the Regulation S global note and a corresponding increase in the principal amount of the Rule 144A global note or vice versa, as applicable. Certificated Notes. Subject to certain conditions, any person having a beneficial interest in the global note may, upon request to the Trustee, exchange such beneficial interest for notes in the form of certificated notes. Upon any such issuance, the Trustee is required to register such certificated notes in the name of, and cause the same to be delivered to, such person or persons (or the nominee of any thereof). All such certificated notes would be subject to the legend requirements described herein under "Notice to Investors". In addition, if (1) Tesoro notifies the Trustee in writing that the Depositary is no longer willing or able to act as a depository and Tesoro is unable to locate a qualified successor within 90 days or (2) Tesoro, at its option, notifies the Trustee in writing that it elects to cause the issuance of notes in the form of certificated notes under the Indenture, then, upon surrender by the global note holder of its global note, notes in such form will be issued to each person that the global note holder and the Depositary identify as being the beneficial owner of the related notes. Neither Tesoro nor the Trustee will be liable for any delay by the global note holder or the Depositary in identifying the beneficial owners of notes and Tesoro and the Trustee may conclusively rely on, and will be protected in relying on, instructions from the global note holder or the Depositary for all purposes. Same Day Settlement and Payment. The Indenture will require that payments in respect of the notes represented by the global note (including principal, premium, if any, interest and liquidated damages, if any) be made by wire transfer of immediately available funds to the accounts specified by the global note holder. With respect to certificated notes, Tesoro will make all payments of principal, premium, if any, interest and liquidated damages, if any, by wire transfer of immediately available funds to the accounts specified by the holders thereof or, if no such account is specified, by mailing a check to each such holder's registered address. Tesoro expects that secondary trading in the certificated notes will also be settled in immediately available funds. REGISTRATION RIGHTS; LIQUIDATED DAMAGES Pursuant to the registration rights agreement, Tesoro has agreed to file with the Commission the exchange offer registration statement on the appropriate form under the Securities Act with respect to the exchange notes. Upon the effectiveness of the exchange offer registration statement, Tesoro will offer pursuant to the Registered Exchange Offer to the holders of Transfer Restricted Securities who are able to make certain representations the opportunity to exchange their Transfer Restricted Securities for exchange notes. If (1) Tesoro is not required to file the exchange offer registration statement or permitted to consummate the Registered Exchange Offer because the Registered Exchange Offer is not permitted by applicable law or Commission policy or (2) any holder of Transfer Restricted Securities notifies Tesoro within 20 business days following consummation of the Registered Exchange Offer that (A) it is prohibited by law or Commission 86 policy from participating in the Registered Exchange Offer or (B) it may not resell the exchange notes acquired by it in the Registered Exchange Offer to the public without delivering a prospectus and the prospectus contained in the exchange offer registration statement is not appropriate or available for such resales or (C) that it is a broker-dealer and owns notes acquired directly from Tesoro or an affiliate of Tesoro, Tesoro will file with the Commission a shelf registration statement to cover resales of the notes by the holders thereof who satisfy certain conditions relating to the provision of information in connection with the shelf registration statement. Tesoro will use its reasonable best efforts to cause the applicable registration statement to be declared effective as promptly as possible by the Commission. For purposes of the foregoing, "Transfer Restricted Securities" means each note until (1) the date on which such note has been exchanged by a person other than a broker-dealer for a exchange note in the Registered Exchange Offer, (2) following the exchange by a broker-dealer in the Registered Exchange Offer of a note for a exchange note, the date on which such exchange note is sold to a purchaser who receives from such broker-dealer on or prior to the date of such sale a copy of the prospectus contained in the exchange offer registration statement, (3) the date on which such note has been effectively registered under the Securities Act and disposed of in accordance with the shelf registration statement or (4) the date on which such note is distributed to the public pursuant to Rule 144 under the Securities Act. The registration rights agreement provides that: (1) Tesoro will file an exchange offer registration statement with the Commission on or prior to 60 days after the closing date; (2) Tesoro will use its reasonable best efforts to have the exchange offer registration statement declared effective by the Commission on or prior to 120 days after the closing date; (3) unless the Registered Exchange Offer would not be permitted by applicable law or Commission policy, Tesoro will commence the Registered Exchange Offer and use its reasonable best efforts to issue on or prior to 30 business days after the date on which the exchange offer registration statement was declared effective by the Commission, exchange notes in exchange for all notes tendered prior thereto in the Registered Exchange Offer; and (4) if obligated to file the shelf registration statement, Tesoro will use its reasonable best efforts to file the shelf registration statement with the Commission on or prior to 60 days after such filing obligation arises (and in any event within 120 days after the closing date) and to cause the shelf registration to be declared effective by the Commission on or prior to 60 days after the date upon which Tesoro is obligated to make such filing. If (a) Tesoro fails to file any of the registration statements required by the registration rights agreement on or before the date specified for such filing, (b) any of such Registration Statements is not declared effective by the Commission on or prior to the date specified for such effectiveness (the "Effectiveness Target Date"), or (c) Tesoro fails to consummate the Registered Exchange Offer within 30 business days of the Effectiveness Target Date with respect to the exchange offer registration statement, or (d) the shelf registration statement or the exchange offer registration statement is declared effective but thereafter ceases to be effective or usable in connection with resales of Transfer Restricted Securities during the periods specified in the registration rights agreement (each such event referred to in clauses (a) through (d) above a "Registration Default"), then Tesoro will pay liquidated damages to each holder of notes, with respect to the first 90-day period immediately following the occurrence of such Registration Default in an amount equal to $0.05 per week per $1,000 principal amount of notes held by such holder. The amount of the liquidated damages will increase by an additional $0.05 per week per $1,000 principal amount of notes with respect to each subsequent 90-day period until all Registration Defaults have been cured, up to a maximum amount of liquidated damages of $0.50 per week per $1,000 principal amount of notes. All accrued liquidated damages will be paid by Tesoro on each Damages Payment Date to the global note holder by wire transfer of immediately available funds or by federal funds check and to holders of Certificated Securities by wire transfer to the accounts specified by them or by mailing checks to their registered addresses if no such accounts have been specified. Following the cure of all Registration Defaults, the accrual of liquidated damages will cease. 87 Holders of notes will be required to make certain representations to Tesoro (as described in the registration rights agreement) in order to participate in the Registered Exchange Offer and will be required to deliver information to be used in connection with the shelf registration statement and to provide comments on the shelf registration statement within the time periods set forth in the registration rights agreement in order to have their notes included in the shelf registration statement and benefit from the provisions regarding liquidated damages set forth above. CERTAIN DEFINITIONS Set forth below are certain defined terms used in the Indenture. Reference is made to the Indenture for a full disclosure of all such terms, as well as any other capitalized terms used herein for which no definition is provided. "Acquired Debt" means, with respect to any specified Person, (1) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Restricted Subsidiary of such specified Person, including, without limitation, Indebtedness incurred in connection with, or in contemplation of, such other Person merging with or into or becoming a Restricted Subsidiary of such specified Person and (2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person, but excluding, in any event, Indebtedness that is extinguished, retired or repaid in connection with such Person merging with or becoming a Restricted Subsidiary of such specified Person. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, "control" (including, with correlative meanings, the terms "controlling", "controlled by" and "under common control with"), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided that, for purposes of the covenant described under the caption "-- Certain Covenants -- Transactions with Affiliates" and the use of the term "Affiliates" thereunder, beneficial ownership of 10% or more of the voting securities of a specified Person shall be deemed to be control by the owner thereof. "Asset Sale" means (1) the sale, lease, conveyance or other disposition of any assets or rights (including, without limitation, by way of a sale and leaseback) other than in the ordinary course of business (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of Tesoro and its Restricted Subsidiaries taken as a whole will be governed by the covenants described above under the captions "-- Repurchase at the Option of Holders -- Change of Control" and "-- Certain Covenants -- Merger, Consolidation or Sale of Assets" and not by the provisions of the covenant described above under the caption "-- Repurchase at the Option of Holders -- Asset Sales"); and (2) the issue or sale by Tesoro or any of its Restricted Subsidiaries of Equity Interests of any of Tesoro's Restricted Subsidiaries, in the case of either clause (1) or (2), whether in a single transaction or a series of related transactions, (a) that have a Fair Market Value in excess of $5 million or (b) for Net Proceeds in excess of $5 million; provided that the following will not be deemed to be Asset Sales: (1) any transfer, conveyance, sale, lease or other disposition of assets or rights securing the Senior Credit Facility or other Senior Debt in connection with the enforcement of the Liens therein; (2) any sale or exchange of production of crude oil, natural gas and natural gas liquids, or refined products or residual hydrocarbons, or any other asset or right constituting inventory, made in the ordinary course of the Permitted Business; (3) any disposition of assets in trade or exchange for assets of comparable Fair Market Value used or usable in any Permitted Business (including, without limitation, the trade or exchange for a controlling interest in another business or all or substantially all of the assets of a business, in each case engaged in a Permitted Business or for other non-current assets to be used in a Permitted Business, including, without limitation, assets or Investments of the nature or type described in clause (m) of the definition of "Permitted Investments"), provided that (x) except for trades or exchanges of oil and gas properties and 88 interests therein for other oil and gas properties and interests therein, if the Fair Market Value of the assets so disposed of, in a single transaction or in a series of related transactions, is in excess of $35 million, Tesoro shall obtain an opinion or report from an Independent Financial Advisor confirming that the assets received by Tesoro and the Restricted Subsidiaries in such trade or exchange have a fair market value of at least the fair market value of the assets so disposed and (y) any cash or Cash Equivalents received by Tesoro or a Restricted Subsidiary in connection with such trade or exchange (net of any transaction costs of the type deducted under the definition of "Net Proceeds") shall be treated as Net Proceeds of an Asset Sale and shall be applied in the manner set forth in the covenant described under the caption "-- Repurchase at the Option of Holders -- Asset Sales"; (4) a transfer of assets by Tesoro to a Restricted Subsidiary of Tesoro or by a Restricted Subsidiary of Tesoro to Tesoro or to a Restricted Subsidiary of Tesoro; (5) an issuance or sale of Equity Interests by a Restricted Subsidiary of Tesoro to Tesoro or to another Restricted Subsidiary of Tesoro; (6) (A) a Permitted Investment or (B) a Restricted Payment that is permitted by the covenant described above under the caption "Certain Covenants -- Restricted Payments"; (7) the trade, sale or exchange of Cash Equivalents; (8) the sale, exchange or other disposition of obsolete assets not integral to any Permitted Business; (9) the abandonment or relinquishment of assets or property in the ordinary course of business, including without limitation the abandonment, relinquishment or farm-out of oil and gas leases, concessions or drilling or exploration rights or interests therein; (10) any lease of assets entered into in the ordinary course of business and with respect to which Tesoro or any Restricted Subsidiary of Tesoro is the lessor and the lessee has no option to purchase such assets for less than Fair Market Value at any time the right to acquire such asset occurs; (11) the disposition of assets received in settlement of debts accrued in the ordinary course of business; (12) the creation or perfection of a Lien on any properties or assets (or any income or profit therefrom) of Tesoro or any of its Restricted Subsidiaries that is not prohibited by any covenant of the Indenture; (13) the surrender or waiver in the ordinary course of business of contract rights or the settlement, release or surrender of contractual, non-contractual or other claims of any kind; and (14) the grant in the ordinary course of business of any non-exclusive license of patents, trademarks, registrations therefor and other similar intellectual property. "Board of Directors" means the Board of Directors of Tesoro or any committee thereof duly authorized to act on behalf of such Board. "Capital Lease Obligation" means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized on a balance sheet in accordance with GAAP. "Capital Stock" means: (1) in the case of a corporation, corporate stock; (2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person. "Cash Equivalents" means: (1) United States dollars; (2) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof having maturities of not more than one year from the date of acquisition; (3) certificates of deposit and Eurodollar 89 time deposits with maturities of not more than one year from the date of acquisition, bankers' acceptances with maturities of not more than one year from the date of acquisition and overnight bank deposits, in each case with any domestic commercial bank having capital and surplus in excess of $500 million and a Thompson Bank Watch Rating of "B" or better; (4) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (2) and (3) above entered into with any financial institution meeting the qualifications specified in clause (3) above; and (5) commercial paper having the highest rating obtainable from Moody's or S&P with maturities of not more than one year from the date of acquisition. "Change of Control" means the occurrence of one or more of the following events: (1) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets of Tesoro to any Person or group of related Persons for purposes of Section 13(d) of the Exchange Act (a "Group") together with any Affiliates thereof (whether or not otherwise in compliance with the provisions of the Indenture) unless immediately following such sale, lease, exchange or other transfer in compliance with the Indenture such assets are owned, directly or indirectly, by Tesoro or a Subsidiary of Tesoro; (2) the approval by the holders of Capital Stock of Tesoro of any plan or proposal for the liquidation or dissolution of Tesoro; (3) the acquisition in one or more transactions, of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of Voting Securities of Tesoro by any Person or Group that either (A) beneficially owns (within the meaning of Rule 13d-3 under the Exchange Act), directly or indirectly, at least 50% of Tesoro's then outstanding voting securities entitled to vote on a regular basis for the board of directors of Tesoro, or (B) otherwise has the ability to elect, directly or indirectly, a majority of the members of Tesoro's board of directors, including, without limitation, by the acquisition of revocable proxies for the election of directors; or (4) during any period of two consecutive years, individuals who at the beginning of such period constituted the board of directors of Tesoro (together with any new directors whose election by such board of directors or whose nomination for election by the shareholders (or members, as applicable) of Tesoro was approved by a vote of 66 2/3% of the directors of Tesoro then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the board of directors then in office. Notwithstanding the foregoing, a Change of Control shall not be deemed to occur upon the consummation of any actions undertaken by Tesoro or any of its Restricted Subsidiaries solely for the purpose of changing the legal structure of Tesoro or such Restricted Subsidiary. "Commission" means the U.S. Securities and Exchange Commission. "Commodity Hedging Agreements" means agreements or arrangements designed to protect such Person against fluctuations in the price of (1) crude oil, natural gas, or other hydrocarbons, including refined hydrocarbon products; (2) electricity and other sources of energy or power used in Tesoro's refining or processing operations; or (3) any other commodity; in each case in connection with the conduct of its business and not for speculative purposes. "Commodity Hedging Obligations" means, with respect to any Person, the net payment Obligations of such Person under Commodity Hedge Agreements. "Consolidated Cash Flow" means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period, plus: (1) an amount equal to any extraordinary, unusual or non-recurring expenses or losses (including, whether or not otherwise includable as a separate item in the statement of Consolidated Net Income for such period, losses on sales of assets outside of the ordinary course of business) plus any net loss realized 90 in connection with an Asset Sale (to the extent such losses were deducted in computing such Consolidated Net Income), plus (2) provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was included in computing such Consolidated Net Income, plus (3) consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued and whether or not capitalized (including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers' acceptance financings, and net payments (if any) pursuant to Hedging Obligations), to the extent that any such expense was deducted in computing such Consolidated Net Income, plus (4) depreciation and amortization (including amortization of goodwill and other intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation and amortization were deducted in computing such Consolidated Net Income, minus (5) non-cash items increasing such Consolidated Net Income for such period, in each case, on a consolidated basis and determined in accordance with GAAP. Notwithstanding the foregoing, the provision for taxes on the income or profits of, and the depreciation and amortization and other non-cash charges of, a Restricted Subsidiary of the referent Person shall be added to Consolidated Net Income to compute Consolidated Cash Flow only to the extent (and in same proportion) that the Net Income of such Restricted Subsidiary was included in calculating the Consolidated Net Income of such Person and only if a corresponding amount would be permitted at the date of determination to be dividended to Tesoro by such Restricted Subsidiary without prior governmental approval (that has not been obtained), and without direct or indirect restriction pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Restricted Subsidiary or its stockholders. "Consolidated Net Income" means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries (for such period, on a consolidated basis, determined in accordance with GAAP); provided that (1) the Net Income (but not loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting shall be included only to the extent of the amount of dividends or distributions paid in cash to the referent Person or a Restricted Subsidiary; (2) the Net Income of any Restricted Subsidiary shall be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders; (3) the Net Income of any Person acquired in a pooling of interests transaction for any period prior to the date of such acquisition shall be excluded; (4) the cumulative effect of a change in accounting principles shall be excluded; and (5) any ceiling limitation writedowns under Securities and Exchange Commission guidelines shall be treated as capitalized costs, as if such writedown had not occurred. 91 "Consolidated Net Worth" means, with respect to any Person as of any date, the sum of: (1) the consolidated equity of the common stockholders of such Person and its consolidated Restricted Subsidiaries as of such date, plus (2) the respective amounts reported on such Person's balance sheet as of such date with respect to any series of preferred stock (other than Disqualified Stock) that by its terms is not entitled to the payment of dividends unless such dividends may be declared and paid only out of net earnings in respect of the year of such declaration and payment, but only to the extent of any cash received by such Person upon issuance of such preferred stock, all of the foregoing determined in accordance with GAAP. "Credit Facility" means, with respect to Tesoro or any Restricted Subsidiary of Tesoro, one or more debt facilities (including, without limitation, the Senior Credit Facility) or commercial paper facilities with banks or other institutional lenders providing for revolving credit loans, other borrowings (including term loans), receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, in each case, as amended, restated, modified, renewed, extended, refunded, replaced or refinanced (in each case, without limitation as to amount) in whole or in part from time to time. "Default" means any event that is or with the passage of time or the giving of notice (or both) would be an Event of Default. "Designated Senior Debt" means (1) any Indebtedness outstanding under the Senior Credit Facility and (2) any other Senior Debt permitted hereunder the principal amount of which is $25 million or more and that has been designated by Tesoro as "Designated Senior Debt". "Disqualified Stock" means, with respect to any Person, any Capital Stock to the extent that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or upon the happening of any event, it matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the date that is 91 days after the date on which the notes mature, except such Capital Stock that is solely redeemable with, or solely exchangeable for, any Capital Stock of such Person that is not Disqualified Stock. Notwithstanding the preceding paragraph, any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require Tesoro or any of its Restricted Subsidiaries to repurchase Capital Stock upon the occurrence of a change of control or an asset sale shall not constitute Disqualified Stock if the terms of such Capital Stock provide that Tesoro or such Restricted Subsidiary may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with the covenant described above under the caption "-- Certain Covenants -- Restricted Payments". "Equity Interests" means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock). "Equity Offering" means any public or private sale of Capital Stock of Tesoro (other than sales made to any Restricted Subsidiary of Tesoro and sales of Disqualified Stock) made for cash after the Issue Date. "exchange notes" means notes designated as "Series B" in the Indenture and registered under the Securities Act that are issued under the Indenture in exchange for the notes initially issued under the Indenture pursuant to the Exchange Offer or in replacement of any such initially issued notes pursuant to the Shelf Registration Statement. "Existing Indebtedness" means the aggregate Indebtedness of Tesoro and its Restricted Subsidiaries (other than Indebtedness under the Senior Credit Facility and the notes issued in this offering) in existence on the Issue Date. "Fair Market Value" means, with respect to consideration received or to be received, or given or to be given, pursuant to any transaction by Tesoro or any Restricted Subsidiary, the fair market value of such consideration as determined in good faith by the Board of Directors of Tesoro. 92 "Financial Hedging Obligations" means, with respect to any Person, the net payment Obligations of such Person under (1) interest rate swap agreements, interest rate cap agreements and interest rate collar agreements and (2) other agreements or arrangements designed to protect such Person against fluctuations in interest rates or currency exchange rates in connection with the conduct of its business and not for speculative purposes. "Fixed Charges" means, with respect to any Person for any period, the sum, without duplication, of: (1) the consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued (including, without limitation or duplication, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers' acceptance financings, and net payments (if any) pursuant to Hedging Obligations); (2) the consolidated interest of such Person and its Restricted Subsidiaries that was capitalized during such period; (3) any interest expense on Indebtedness of another Person that is guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries (whether or not such guarantee or Lien is called upon); and (4) the product of; (a) all dividend payments, whether or not in cash, on any series of preferred stock of such Person or any of its Restricted Subsidiaries, other than dividend payments on Equity Interests payable solely in Equity Interests of Tesoro (other than Disqualified Stock), times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case, on a consolidated basis and in accordance with GAAP. "Fixed Charge Coverage Ratio" means with respect to any Person for any period, the ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such Person for such period. In the event that Tesoro or any of its Restricted Subsidiaries incurs, assumes, guarantees or redeems any Indebtedness (other than revolving credit borrowings under any Credit Facility) or issues or redeems preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated but on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee or redemption of Indebtedness, or such issuance or redemption of preferred stock, as if the same had occurred at the beginning of the applicable four-quarter reference period. In addition, for purposes of making the computation referred to above: (1) acquisitions that have been made by Tesoro or any of its Restricted Subsidiaries, including through mergers or consolidations and including any related financing transactions, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date shall be deemed to have occurred on the first day of the four-quarter reference period and Consolidated Cash Flow for such reference period shall be calculated without giving effect to clause (3) of the proviso set forth in the definition of Consolidated Net Income; (2) the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed of prior to the Calculation Date, shall be excluded; and (3) the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed of prior to the Calculation Date, shall be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the referent Person or any of its Restricted Subsidiaries following the Calculation Date. 93 "GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants, the statements and pronouncements of the Financial Accounting Standards Board and such other statements by such other entities as have been approved by a significant segment of the accounting profession, which are applicable at the date of determination. "Government Securities" means direct obligations of, or obligations guaranteed by, the United States of America for the payment of which guarantees or obligations the full faith and credit of the United States is pledged. "guarantee" means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including, without limitation, letters of credit and reimbursement agreements in respect thereof or pledging assets to secure), of all or any part of any Indebtedness. "Guarantors" means (1) each of Digicomp Inc., Far East Maritime Company, Gold Star Maritime Company, Kenai Pipe Line Company, Smiley's Super Service, Inc., Tesoro Alaska Company, Tesoro Alaska Pipeline Company, Tesoro Aviation Company, Tesoro Financial Services Holding Company, Tesoro Gas Resources Company, Inc., Tesoro Hawaii Corporation, Tesoro Marine Services Holding Company, Tesoro Marine Services, LLC (formerly Tesoro Marine Services, Inc.), Tesoro Maritime Company, Tesoro Northstore Company, Tesoro Petroleum Companies, Inc., Tesoro South Pacific Petroleum Company, Tesoro Refining, Marketing & Supply Company, Tesoro Technology Company, Tesoro Vostok Company, Tesoro West Coast Company, Tesoro High Plains Pipeline Company and Victory Finance Company; (2) each of Tesoro's Restricted Subsidiaries that becomes a guarantor of the notes pursuant to the covenant described above under "-- Certain Covenants -- Additional Subsidiary Guarantees"; and (3) each of Tesoro's Restricted Subsidiaries executing a supplemental indenture in which such Restricted Subsidiary agrees to be bound by the terms of the Indenture; provided that any Person constituting a Guarantor as described above shall cease to constitute a Guarantor when its respective Subsidiary Guarantee is released in accordance with the terms thereof. "Hedging Obligations" means, with respect to any Person, collectively, the Commodity Hedging Obligations of such Person and the Financial Hedging Obligations of such Person. "Indebtedness" means, with respect to any Person, without duplication, (1) the principal of and premium, if any, with respect to indebtedness of such Person for borrowed money or evidenced by bonds, notes, debentures or similar instruments; (2) reimbursement obligations of such Person for letters of credit or banker's acceptances; (3) Capital Lease Obligations of such Person; (4) obligations of such Person for the payment of the balance deferred and unpaid of the purchase price of any property except any such balance that constitutes an accrued expense or trade payable; or (5) Hedging Obligations, in each case of the foregoing clauses (1) through (5) if and to the extent any of the foregoing obligations or indebtedness (other than letters of credit, banker's acceptances and Hedging Obligations), but excluding amounts recorded in accordance with Statement of Financial Accounting Standard No. 133, would appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP. In addition, the term "Indebtedness" includes: (A) obligations or indebtedness of others of the type referred to in the foregoing clauses (1) through (5) that are secured by a Lien on any asset of such Person (whether or not such Indebtedness is assumed by such Person), but in an amount not to exceed the lesser of the amount of such other Person's obligation or indebtedness or the Fair Market Value of such asset; and 94 (B) to the extent not otherwise included, the guarantee by such Person of any obligations or indebtedness of others of the type referred to in the foregoing clauses (1) through (5), whether or not such guarantee is contingent, and whether or not such guarantee appears on the balance sheet of such Person. "Independent Financial Advisor" means a nationally recognized accounting, appraisal or investment banking firm that is, in the reasonable judgment of the Board of Directors, qualified to perform the task for which such firm has been engaged hereunder and disinterested and independent with respect to Tesoro and its Affiliates; provided, that providing accounting, appraisal or investment banking services to Tesoro or any of its Affiliates or having an employee, officer or other representative serving as a member of the Board of Directors of Tesoro or any of its Affiliates will not disqualify any firm from being an Independent Financial Advisor. "Investment Grade Rating" means a rating equal to or higher than Baa3 (or the equivalent) by Moody's or BBB- (or the equivalent) by S&P. "Investments" means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the forms of direct or indirect loans (including guarantees of Indebtedness or other Obligations), advances (other than advances to customers in the ordinary course of business which are recorded as accounts receivable on the balance sheet of the lender and commissions, moving, travel and similar advances to employees and officers made in the ordinary course of business) or capital contributions, purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. If Tesoro or any of its Restricted Subsidiaries sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of Tesoro such that, after giving effect to any such sale or disposition, such Person is no longer a direct or indirect Restricted Subsidiary of Tesoro, Tesoro, or such Restricted Subsidiary, as the case may be, shall be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Equity Interests of such Restricted Subsidiary not sold or disposed of in an amount determined as provided in the fourth paragraph of the covenant described above under the caption "-- Certain Covenants -- Restricted Payments". "Issue Date" means the first date on which the notes are issued, authenticated and delivered under the Indenture. "Lien" means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law (including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in any asset and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction). "Moody's" means Moody's Investors Service, Inc. or any successor to the rating agency business thereof. "Net Income" means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends, excluding, however, (1) any gain (but not loss), together with any related provision for taxes on such gain (but not loss), realized in connection with (a) any Asset Sale (including, without limitation, dispositions pursuant to sale and leaseback transactions); or (b) the disposition of any securities by such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries; and (2) any extraordinary or nonrecurring gain (but not loss), together with any related provision for taxes on such extraordinary or nonrecurring gain (but not loss). "Net Proceeds" means the aggregate cash proceeds or Cash Equivalents received by Tesoro or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of (i) the direct costs relating to such Asset Sale (including, without limitation, legal, accounting, investment banking and brokers fees, sales and underwriting commissions and other reasonable costs incurred in preparing such asset for sale), any relocation expenses incurred as a result thereof and any related severance and associated costs, expenses 95 and charges of personnel related to the sold assets and related operations, (ii) taxes paid or reserved as payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements), (iii) amounts required to be applied to the repayment of Indebtedness (other than Indebtedness under any Credit Facility the repayment of which is expressly subordinate to the notes) secured by a Lien on the asset or assets that were the subject of such Asset Sale, (iv) distributions and payments required to be made to minority interest holders in Restricted Subsidiaries as a result of such Asset Sale and (v) any reserve for adjustment (whether or not placed in escrow) in respect of the sale price of such asset or assets established in accordance with GAAP. "Non-Recourse Indebtedness" means Indebtedness (1) as to which neither Tesoro nor any of its Restricted Subsidiaries, (a) provides any guarantee or credit support of any kind (including any undertaking, guarantee, indemnity, agreement or instrument that would constitute Indebtedness); or (b) is directly or indirectly liable (as a guarantor or otherwise); (2) the incurrence of which will not result in any recourse against any of the assets of Tesoro or its Restricted Subsidiaries; and (3) no default with respect to which would permit (upon notice, lapse of time or both) any holder of any other Indebtedness of Tesoro or any of its Restricted Subsidiaries to declare pursuant to the express terms governing such Indebtedness a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its Stated Maturity. "Obligations" means any principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to Tesoro or its Restricted Subsidiaries whether or not a claim for post-filing interest is allowed in such proceeding), penalties, fees, charges, expenses, indemnifications, reimbursement obligations, damages (including liquidated damages), guarantees (including the Subsidiary Guarantees) and other liabilities or amounts payable under the documentation governing any Indebtedness or in respect thereof. "Permitted Business" means, with respect to Tesoro and its Restricted Subsidiaries, the businesses of (1) the acquisition, development, operation and disposition of interests in oil, gas and other hydrocarbon properties, (2) the acquisition, gathering, treating, processing, storage, transportation of production from such interests or properties, (3) the acquisition, processing, marketing, refining, distilling, storage and/or transportation of hydrocarbons and/or royalty or other interests in crude oil or refined or associated products related thereto, (4) the acquisition, operation, improvement, leasing and other use of convenience stores, retail service stations, truck stops and other public accommodations in connection therewith, (5) the marketing and distribution of petroleum and marine products and the provision of logistical services to marine and offshore exploration and production industries, (6) any business currently engaged in by Tesoro or its Restricted Subsidiaries and (7) any activity or business that is a reasonable extension, development or expansion of, or reasonably related to, any of the foregoing. "Permitted Investments" means: (a) any Investment in Tesoro or in a Restricted Subsidiary of Tesoro; (b) any Investment in Cash Equivalents or deposit accounts maintained in the ordinary course of business consistent with past practices; (c) any Investment by Tesoro or any Restricted Subsidiary of Tesoro in a Person, if as a result of such Investment (1) such Person becomes a Restricted Subsidiary of Tesoro; or (2) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys all or substantially all of its assets to, or is liquidated into, Tesoro or a Restricted Subsidiary of Tesoro; 96 (d) any security or other Investment received or Investment made as a result of the receipt of non-cash consideration from (1) an Asset Sale that was made pursuant to and in compliance with the covenant described above under the caption "-- Repurchase at the Option of Holders -- Asset Sales"; or (2) a disposition of assets that do not constitute an Asset Sale; (e) any acquisition of assets solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of Tesoro; (f) any Investment received in settlement of debts, claims or disputes owed to Tesoro or any Restricted Subsidiary of Tesoro that arose out of transactions in the ordinary course of business; (g) any Investment received in connection with or as a result of a bankruptcy, workout or reorganization of any Person; (h) advances and extensions of credit in the nature of accounts receivable arising from the sale or lease of goods or services or the licensing of property in the ordinary course of business; (i) relocation allowances for, and advances and loans to, employees, officers and directors (including, without limitation, loans and advances the net cash proceeds of which are used solely to purchase Equity Interests of Tesoro in connection with restricted stock or employee stock purchase plans, or to exercise stock received pursuant thereto or other incentive plans in a principal amount not to exceed the aggregate exercise or purchase price), or loans to refinance principal and accrued interest on any such loans, provided that the aggregate principal amount of such loans, advances and allowances shall not exceed at any time $10 million; (j) other Investments by Tesoro or any Restricted Subsidiary of Tesoro in any Person having an aggregate Fair Market Value (measured as of the date each such Investment is made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (j) (net of returns of capital, dividends and interest paid on Investments and sales, liquidations and redemptions of Investments), not in excess of the greater of $50 million and 15% of the Consolidated Net Worth of Tesoro; (k) Investments in the form of intercompany Indebtedness or Guarantees of Indebtedness of a Restricted Subsidiary of Tesoro permitted under clauses (5) and (11) of the covenant described under the caption "-- Certain Covenants -- Incurrence of Indebtedness and Issuance of Preferred Stock"; (l) Investments arising in connection with Hedging Obligations that are incurred in the ordinary course of business for the purpose of fixing or hedging currency, commodity or interest rate risk in connection with the conduct of the business of Tesoro and its Subsidiaries and not for speculative purposes; (m) Investments in the form of, or pursuant to, operating agreements, joint ventures, partnership agreements, working interests, royalty interests, mineral leases, processing agreements, farm-out agreements, contracts for the sale, transportation or exchange of oil and natural gas, unitization agreements, pooling agreements, area of mutual interests agreements, production sharing agreements or other or other similar or customary agreements, transactions, properties, interests or arrangements, and Investments and expenditures in connection therewith or pursuant thereto, in each case made or entered into the ordinary course of the business described in clauses (1) and (2) of the definition of "Permitted Business" excluding, however, investments in corporations; (n) any Investments in prepaid expenses, negotiable instruments held for collection and lease, utility, worker's compensation, performance and other similar deposits and prepaid expenses made in the ordinary course of business; and (o) Investments pursuant to agreements and obligations of Tesoro and any Restricted Subsidiary in effect on the Issue Date. 97 "Permitted Junior Securities" means: (1) Equity Interests in Tesoro or any Guarantor which, to the extent received by any holder in connection with any bankruptcy, reorganization, insolvency or similar proceeding in which any Equity Interests are also exchanged for or distributed in respect of Senior Debt, are either common equity securities or are subordinated to all such Equity Interests so exchanged or distributed to substantially the same extent as, or to a greater extent than, the notes are subordinated to Senior Debt pursuant to the Indenture; and (2) debt securities that are subordinated to all Senior Debt (and any debt securities issued in exchange for Senior Debt) to substantially the same extent as, or to a greater extent than, the notes are subordinated to Senior Debt pursuant to the Indenture. "Permitted Refinancing Indebtedness" means any Indebtedness of Tesoro or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund other Indebtedness of Tesoro or any of its Restricted Subsidiaries (other than intercompany Indebtedness), including Indebtedness that extends, refinances, renews, replaces, defeases or refunds Permitted Refinancing Indebtedness, provided that: (1) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount of (or accreted value, if applicable), plus accrued and unpaid interest on, the Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded (plus fees and expenses incurred in connection therewith, including any premium or defeasance cost); (2) such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; (3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the notes, such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and is subordinated in right of payment to, the notes on terms at least as favorable to the holders of notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; and (4) such Indebtedness is incurred either by Tesoro or a Restricted Subsidiary who is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded. "Person" means any individual, corporation, partnership, joint venture, association, joint stock company, trust, limited liability company, unincorporated organization, government or any agency or political subdivision thereof or any other entity. "Rating Agency" means each of S&P and Moody's, or if S&P or Moody's or both shall not make a rating on the notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by Tesoro (as certified by a resolution of the Board of Directors) which shall be substituted for S&P or Moody's, or both, as the case may be. "Regulation S" means Regulation S promulgated under the Securities Act. "Representative" means the administrative agent under the Senior Credit Facility or its successor thereunder or any other agent or representative on behalf of the holders of Designated Senior Debt. "Restricted Investment" means an Investment other than a Permitted Investment. "Restricted Subsidiary" of a Person means any Subsidiary of the referenced Person that is not an Unrestricted Subsidiary or a direct or indirect Subsidiary of an Unrestricted Subsidiary; provided that, on the Issue Date, all Subsidiaries of Tesoro shall be Restricted Subsidiaries of Tesoro. "S&P" means Standard & Poor's Ratings Group, Inc., or any successor to the rating agency business thereof. 98 "Senior Credit Facility" means those certain senior secured credit facilities of Tesoro available pursuant to the Credit Agreement, by and among Tesoro, Lehman Brothers Inc., as Arranger, Lehman Commercial Paper Inc., as Syndication Agent, ABN AMRO Bank N.V., Bank of America, N.A., Credit Lyonnais New York Branch and The Bank of Nova Scotia, as Co-Documentation Agents, Bank One, NA, as Administrative Agent, and certain other lenders and agents, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith and in each case as amended, modified, renewed, restated, refunded, replaced or refinanced (in each case, without limitation as to amount), in whole or in part, from time to time and any agreements (and related documents) governing Indebtedness incurred to refund or refinance credit extensions and commitments then outstanding or permitted to be outstanding under such Senior Credit Facility, whether by the same or any other lender or group of lenders. Tesoro shall promptly notify the Trustee of any such refunding or refinancing of the existing Senior Credit Facility. "Senior Debt" means: (1) Indebtedness of Tesoro or any Guarantor for money borrowed and all obligations of such Person under, or with respect to, the Senior Credit Facility or any other Credit Facility, whether direct or indirect, under guarantees, letters of credit, banker's acceptances, foreign currency or interest rate swaps, foreign exchange contracts, caps, collars, options, hedges or other agreements or arrangements designed to protect against fluctuations in currency values or interest rates and other Hedging Obligations, other extensions of credit, expenses, fees, reimbursements, indemnities and all other amounts (including interest at the contract rate accruing on or after the filing of any petition in bankruptcy or reorganization relating to Tesoro or any Guarantor whether or not a claim for post-filing interest is allowed in such proceeding); (2) the principal of and premium, if any, and accrued and unpaid interest, whether existing on the date hereof or hereafter incurred, in respect of: (A) indebtedness of Tesoro or any Guarantor for money borrowed; (B) guarantees by Tesoro or any Guarantor of indebtedness for money borrowed by any other Person; (C) indebtedness evidenced by notes, debentures, bonds, or other instruments for the payment of which Tesoro or any Guarantor is responsible or liable, by guarantees or otherwise; (D) obligations of Tesoro or any Guarantor for the reimbursement of any obligor on any letter of credit, banker's acceptance or similar credit transaction; (E) obligations of Tesoro or any Guarantor under any agreement to lease, or any lease of, any real or personal property which, in accordance with GAAP, is classified on Tesoro's or any Guarantor's consolidated balance sheet as a liability; (F) obligations of Tesoro or any Guarantor under Hedging Obligations; and (G) modifications, renewals, extensions, replacements, refinancings and refundings of any such indebtedness, obligations or guarantees, unless, in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is expressly provided that such indebtedness, obligations or guarantees, or such modifications, renewals, extensions, replacements, refinancings or refundings thereof, are not superior in right of payment to the notes; provided that Senior Debt will not be deemed to include: (a) Indebtedness represented by preferred stock; (b) any obligation of Tesoro or any Guarantor to any Subsidiary or other Affiliate; (c) any liability for federal, state, local or other taxes owed or owing by Tesoro or any Guarantor; (d) any accounts payable or other liability to trade creditors; 99 (e) any Indebtedness, guarantee or obligation of Tesoro or any Guarantor which is expressly subordinate or junior by its terms in right of payment to any other Indebtedness, guarantee or obligation of Tesoro or any Guarantor; (f) that portion of any Indebtedness incurred in violation of the covenant described above under the caption "-- Certain Covenants -- Incurrence of Indebtedness and Issuance of Preferred Stock" (other than Indebtedness incurred under a Credit Facility if prior to the incurrence thereof or, in the case of contingent obligations such as letters of credit pursuant to which such Indebtedness is incurred, prior to the issuance thereof or agreement to extend credit in respect thereof, Tesoro has certified to the lenders under such Credit Facility that the incurrence or extension of credit does not violate such covenant); or (g) Indebtedness of Tesoro or any Guarantor which is classified as non-recourse in accordance with GAAP or any unsecured claim arising in respect thereof by reason of the application of section 1111(b)(1) of the Bankruptcy Code. "Significant Subsidiary" means any Subsidiary that would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the Issue Date. "Stated Maturity" means, with respect to any installment of interest or principal, or sinking fund or mandatory redemption of principal, on any series of Indebtedness, the date on which such payment of interest or principal was scheduled to be paid or made, as applicable, in the original documentation governing such Indebtedness, and shall not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof. "Subsidiary" means, with respect to any Person, (1) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person; and (2) any partnership (a) the sole general partner or the managing general partner of which is such Person or an entity described in clause (1) and related to such Person or (b) the only general partners of which are such Person or of one or more entities described in clause (1) and related to such Person (or any combination thereof). "Subsidiary Guarantee" means the guarantee of the notes and the exchange notes by each of the Guarantors pursuant to the Indenture and in the form of guarantee endorsed on the form of note attached as Exhibit A-1 or A-2 to the Indenture and any additional guarantee of the notes and the exchange notes to be executed by any Subsidiary of Tesoro pursuant to the covenant described above under the caption "-- Certain Covenants -- Additional Subsidiary Guarantees". "Unrestricted Subsidiary" means: (1) any Subsidiary of Tesoro (including any newly acquired or newly formed Subsidiary of Tesoro) that is designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors as certified in an Officers' Certificate delivered to the Trustee; and (2) each Subsidiary of an Unrestricted Subsidiary, whenever it shall become such a Subsidiary. The Board of Directors may designate any Subsidiary of Tesoro to become an Unrestricted Subsidiary if it (a) has no Indebtedness other than Non-Recourse Indebtedness; (b) is not party to any agreement, contract, arrangement or understanding with Tesoro or any Restricted Subsidiary of Tesoro unless the terms of any such agreement, contract, arrangement or understanding are no less favorable to Tesoro or such Restricted Subsidiary than those that might be obtained, in light of all the circumstances, at the time from Persons who are not Affiliates of Tesoro; (c) is a Person with respect to which neither Tesoro nor any of its Restricted Subsidiaries has any direct or indirect obligation (x) to subscribe for additional Equity Interests or (y) to maintain or preserve such Persons' financial condition or to cause such Persons to achieve any specified levels of operating results; (d) has not guaranteed or otherwise directly or indirectly provided credit support for any 100 Indebtedness of Tesoro or any of its Restricted Subsidiaries; (e) does not own any Capital Stock of or own or hold any Lien on any property of, Tesoro or any Restricted Subsidiary of Tesoro; and (f) would constitute an Investment which Tesoro could make in compliance with the covenant under the caption "-- Certain Covenants -- Restricted Payments". Notwithstanding the foregoing, if, at any time, any Unrestricted Subsidiary would fail to meet the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of the Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred as of such date. "Voting Stock" of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person. "Weighted Average Life to Maturity" means, when applied to any Indebtedness at any date, the number of years obtained by dividing (1) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment, by (2) the then outstanding principal amount of such Indebtedness. CERTAIN FEDERAL INCOME TAX CONSIDERATIONS The following discussion summarizes certain United States federal income tax considerations relevant to persons holding the outstanding notes that acquired notes in the initial offering at the original issue price. This summary is based on currently existing provisions of the Internal Revenue Code of 1986, as amended (the "Code"), existing and temporary Treasury regulations promulgated thereunder, and administrative and judicial interpretations thereof, all as in effect on the date hereof and all of which are subject to change, possibly with retroactive effect, or different interpretations. This discussion does not address the tax consequences to subsequent holders of notes and is limited to persons who hold the notes as capital assets, within the meaning of Section 1221 of the Code. Moreover, this discussion is for general information only and does not address all of the tax consequences that may be relevant to particular holders in light of their personal circumstances or to certain types of holders (such as certain financial institutions, insurance companies, tax-exempt entities, dealers in securities or currencies, persons holding notes as part of a hedging, integrated, conversion or constructive sale transaction or a straddle, traders in securities that elect to use a mark-to market method of accounting for their securities holdings, persons liable for alternative minimum tax, or holders of notes whose "functional currency" is not the U.S. dollar) or the effect of any applicable state, local or foreign tax law. If a partnership holds the notes, the tax treatment of a partner will generally depend on the status of the partner and the tax treatment of the partnership. A partner of a partnership holding the notes should consult its tax advisors. No ruling has been requested from the Internal Revenue Service (the "IRS") with respect to any of the federal income tax consequences of the matters which are discussed herein and the IRS may not agree with some of the conclusions set forth herein. If the IRS contests a conclusion set forth herein, no assurance can be given that a holder of notes would ultimately prevail in a final determination by a court. HOLDERS OF THE NOTES ARE URGED TO CONSULT THEIR OWN TAX ADVISORS AS TO THE PARTICULAR TAX CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE NOTES, INCLUDING THE APPLICABILITY OF ANY FEDERAL TAX LAWS OR ANY STATE, LOCAL OR FOREIGN TAX LAWS, AND ANY CHANGES (OR PROPOSED CHANGES) IN APPLICABLE TAX LAWS OR INTERPRETATIONS THEREOF. As used herein, the term "U.S. Holder" means an individual who is a citizen or resident of the United States (including certain former citizens and former long-term residents), a corporation, partnership or other entity created or organized in or under the laws of the United States or any political subdivision thereof, an estate, the income of which is subject to United States federal income taxation regardless of its source, or a trust if (1) a U.S. court is able to exercise primary supervision over the administration of the trust and one or 101 more U.S. persons have authority to control all substantial decisions of the trust, or (2) the trust has a valid election in effect under applicable Treasury regulations to be treated as a United States person. A "Non-U.S. Holder" is a holder who is not a U.S. Holder. PAYMENT OF INTEREST ON NOTES Generally, interest paid or payable on a note will be taxable to a U.S. Holder as ordinary interest income from domestic sources at the time such interest is received or accrued, in accordance with such U.S. Holder's regular method of accounting for United States federal income tax purposes. Our failure to consummate the Registered Exchange Offer or to file or cause to be declared effective the shelf registration statement as described under "Description of the Notes -- Registration Rights; Liquidated Damages" will cause a U.S. Holder to recognize as ordinary income the additional interest payable as a result of such failure when that amount is accrued or paid, in accordance with such U.S. Holder's regular method of accounting. According to United States Treasury regulations, the possibility of a change in the interest rate will not affect the amount of interest income recognized by a U.S. Holder (or the timing of such recognition) if the likelihood of the change, as of the date the notes are issued, is remote. We believe that the likelihood of a change in the interest rate on the notes is remote and do not intend to treat the possibility of a change in the interest rate as affecting the yield to maturity of any note. SALE, EXCHANGE OR RETIREMENT OF THE NOTES Upon the sale, exchange, redemption, retirement at maturity or other disposition of a note, the U.S. Holder generally will recognize taxable gain or loss equal to the difference between the sum of cash plus the fair market value of all other property received on such disposition (except to the extent such cash or property is attributable to accrued but unpaid interest, which will be taxable as ordinary income) and such U.S. Holder's adjusted tax basis in the note. A U.S. Holder's adjusted tax basis in a note generally will equal the cost of the note to such holder, less any principal payments received by such U.S. Holder. Gain or loss recognized by a U.S. Holder on the disposition of a note generally will be capital gain or loss and will be long-term capital gain or loss if, at the time of such disposition, the U.S. Holder's holding period for the note is more than one year. Long-term capital gains of individuals generally may be subject to tax at a lower tax rate. The deduction of capital losses is subject to certain limitations. U.S. Holders of notes should consult tax advisors regarding the treatment of capital gains and losses. We intend to offer to exchange the notes offered hereby for exchange notes in satisfaction of our obligations under the registration rights agreement. See "Description of the Notes -- Registration Rights; Liquidated Damages". The exchange of a note by a U.S. Holder for an exchange note pursuant to the Registered Exchange Offer should not constitute a taxable exchange. Under existing Treasury regulations relating to modifications and exchanges of debt instruments, any increase in the interest rate of the notes resulting from the Registered Exchange Offer not being consummated, or a shelf registration statement not being declared effective, would not be treated as a taxable exchange, as such change in interest rate would occur pursuant to the original terms of the notes. BACKUP WITHHOLDING AND INFORMATION REPORTING Backup withholding and information reporting requirements may apply to certain payments ("reportable payments") of principal, premium, if any, and interest on a note to a U.S. Holder, and to proceeds paid to a U.S. Holder from the sale or redemption of a note before maturity. We, our agent, a broker, the Trustee or any paying agent, as the case may be, will be required to deduct and withhold the applicable tax from any reportable payment that is subject to backup withholding tax, if, among other things, a U.S. Holder fails to furnish his taxpayer identification number (social security or employer identification number), certify that such number is correct, certify that such holder is not subject to backup withholding or otherwise comply with the applicable requirements of the backup withholding rules. Certain holders, including all corporations and financial institutions, are not subject to backup withholding and reporting requirements. Any amounts withheld under the backup withholding rules from a reportable payment to a U.S. Holder will be allowed as a 102 credit against such U.S. Holder's United States federal income tax and may entitle the U.S. Holder to a refund, provided that the required information is furnished to the IRS. The amount of any reportable payments, including interest, made to the record U.S. Holders of notes (other than to holders that are exempt recipients) and the amount of tax withheld, if any, with respect to such payments will be reported to such U.S. Holders and to the IRS for each calendar year. NON-U.S. HOLDERS The following discussion is a summary of certain United States federal income tax and estate tax consequences to a Non-U.S. Holder that holds a note. No United States federal withholding tax under Sections 1441 and 1442 of the Code will be imposed with respect to the payment by us or our paying agent of principal, premium, if any, or interest on a note owned by an Non-U.S. Holder (the "Portfolio Interest Exception"), provided that (1) the Non-U.S. Holder or the Financial Institution holding the note on behalf of the Non-U.S. Holder provides a statement, which may be provided on IRS Form W-8BEN, IRS Form W-8EXP, or IRS Form W-8IMY, as applicable (an "Owner's Statement"), to us, our paying agent or the person who would otherwise be required to withhold tax, certifying, under penalties of perjury, that such Non-U.S. Holder is not a United States person and providing the name and address of the Non-U.S. Holder, (2) such interest is treated as not effectively connected with the Non-U.S. Holder's United States trade or business, (3) such interest payments are not made to a Non-U.S. Holder within a foreign country that the IRS has listed on a list of countries having provisions inadequate to prevent United States tax evasion, (4) interest payable with respect to the notes is not deemed contingent interest within the meaning of the portfolio debt provisions, (5) such Non-U.S. Holder does not actually or constructively own 10% or more of the total combined voting power of all classes of our stock entitled to vote, (6) such Non-U.S. Holder is not a controlled foreign corporation within the meaning of Section 957 of the Code that is related to us within the meaning of Section 864(d)(4) of the Code, and (7) the beneficial owner is not a bank whose receipt of interest on a note is described in Section 881(c)(3)(A) of the Code. As used herein, the term "Financial Institution" means a securities clearing organization, bank or other financial institution that holds customers' securities in the ordinary course of its trade or business that holds a note on behalf of the owner of the note. A Non-U.S. Holder who does not qualify for the Portfolio Interest Exception would, under current law, generally be subject to United States federal withholding tax at a flat rate of 30% (or lower applicable treaty rate) on interest payments. However, a Non-U.S. Holder will not be subject to the 30% withholding tax if such Non-U.S. Holder provides us with a properly executed (1) IRS Form W-8BEN (or other applicable form) claiming an exemption from or reduction in withholding under the benefit of a tax treaty, or (2) IRS Form W-8ECI (or substitute form) stating that the interest paid on the notes is not subject to withholding tax because it is effectively connected with the beneficial owner's conduct of a trade or business in the United States. The 30% United States federal withholding tax will generally not apply to any gain that a Non-U.S. Holder recognizes upon the redemption, retirement, sale, exchange or other disposition of a note. In general, gain recognized by a Non-U.S. Holder upon the redemption, retirement, sale, exchange or other disposition of a note will not be subject to United States federal income tax unless such gain or loss is effectively connected with a trade or business in the United States of such Non-U.S. Holder. However, a Non-U.S. Holder may be subject to United States federal income tax at a flat rate of 30% (unless a lower applicable treaty rate applies) on any such gain if the Non-U.S. Holder is an individual deemed to be present in the United States for 183 days or more during the taxable year of the disposition of the note and certain other requirements are met. If a Non-U.S. Holder is engaged in a trade or business in the United States and if interest on a note is effectively connected with the conduct of such trade or business, the Non-U.S. Holder, although exempt from United States federal withholding tax as discussed above, will be subject to United States federal income tax on such interest on a net income basis in the same manner as if the holder were a U.S. Holder. In addition, if such holder is a foreign corporation, it may be subject to a branch profits tax equal to 30%, or applicable lower tax treaty rate, of its effectively connected earnings and profits for the taxable year, subject to adjustments. For this purpose, interest on a note will be included in such foreign corporation's effectively connected earnings and profits. 103 Backup withholding and information reporting requirements generally do not apply to payments of principal and interest made by us or a paying agent to a Non-U.S. Holder if the Owner's Statement described above is received, provided that the payor does not have actual knowledge that the holder is a U.S. Holder. If any payments of principal and interest are made to the beneficial owner of a note by or through the foreign office of a foreign custodian, foreign nominee, broker (as defined in applicable Treasury regulations), or other foreign agent of such beneficial owner, backup withholding and information reporting also will not apply, assuming the applicable Owner's Statement described above is received (and the payor does not have actual knowledge that the beneficial owner is a United States person) or the beneficial owner otherwise establishes an exemption. Information reporting requirements (but not backup withholding) may apply, however, to a payment by a foreign office of such a custodian, nominee, broker or agent that is (1) a United States person, (2) a foreign person that derives 50% or more of its gross income for certain periods from the conduct of a trade or business in the United States, (3) a foreign partnership in which one or more United States persons, in the aggregate, own more than 50% of the income or capital interests in the partnership or a foreign partnership that is engaged in a trade or business in the United States, or (4) a controlled foreign corporation within the meaning of Section 957 of the Code unless the holder is a Non-U.S. Holder and certain other conditions are met or the holder otherwise establishes an exemption. Payment of principal and interest on a note to a Non-U.S. Holder by a United States office of a custodian, nominee or agent, or the payment by the United States office of a broker of the proceeds of sale of a note, will be subject to both backup withholding and information reporting unless the beneficial owner provides the Owner's Statement described above (and the payor does not have actual knowledge that the beneficial owner is a United States person) or otherwise establishes an exemption. Subject to applicable estate tax treaty provisions, notes beneficially owned by an individual Non-U.S. Holder at the time of death will not be included in such Non-U.S. Holder's gross estate for United States federal estate tax purposes provided that (1) such individual Non-U.S. Holder does not actually or constructively own 10% or more of the total combined voting power of all classes of our stock entitled to vote within the meaning of the Code and applicable Treasury regulations and (2) the interest payments with respect to such note would not have been, if received at the time of such individual's death, effectively connected with the conduct of a United States trade or business by such individual Non-U.S. Holder. PLAN OF DISTRIBUTION Each broker-dealer that receives exchange notes for its own account in the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of the exchange notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of exchange notes received in exchange for the outstanding 9 5/8% notes where the outstanding 9 5/8% notes were acquired as a result of market-making activities or other trading activities. We have agreed that, after the consummation of the exchange offer, we will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale, if required under applicable securities laws and upon prior written request. We will not receive any proceeds from any sale of exchange notes by broker-dealers. Exchange notes received by broker-dealers for their own account in the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the exchange notes or in a combination of these methods of resale, at market prices prevailing at the time of resale, at prices related to those prevailing market prices or at negotiated prices. Any resale may be made directly to purchasers or to or through brokers-dealers who may receive compensation in the form of commissions or concessions from any broker-dealer or the purchasers of any exchange notes. Any broker-dealer that resells exchange notes that were received by it for its own account in the exchange offer and any broker-dealer that participates in a distribution of the exchange notes may be deemed to be an "underwriter" within the meaning of the Securities Act and any profit on any resale of exchange notes and any commission or concessions received by such person may be considered underwriting compensation under the Securities Act. The letter of transmittal states that, by acknowledging that it will be delivering a prospectus, a broker-dealer will not be regarded as admitting that it is an "underwriter", within the meaning of the Securities Act. 104 As required by applicable securities laws, after the consummation of the exchange offer, we will promptly send additional copies of this prospectus and any amendment or supplement to this prospectus to any broker-dealer that requests such documents in the letter of transmittal. We have agreed to pay all expenses incident to the exchange offer and will indemnify the holders of the outstanding 9 5/8% notes, including any broker-dealers, against certain liabilities, including liabilities under the Securities Act. LEGAL MATTERS The validity of the exchange notes will be passed upon for us by Fulbright & Jaworski L.L.P., Houston, Texas. EXPERTS The consolidated financial statements of Tesoro Petroleum Corporation (the "Company") incorporated in this prospectus by reference from the Company's Annual Report on Form 10-K for the year ended December 31, 2000 have been audited by Deloitte & Touche LLP, independent auditors, as stated in their report, which is incorporated herein by reference, and have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing. The combined financial statements of The North Dakota and Utah Refining and Marketing Business of BP Corporation North America Inc. as of December 31, 2000 and 1999, and for the three years in the period ended December 31, 2000, included in Tesoro Petroleum Corporation's Amendment No. 1 to Current Report on Form 8-K, have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon included therein and incorporated herein by reference. Such combined financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing. 105 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- $215,000,000 (TESORO PETROLEUM CORPORATION LOGO) TESORO PETROLEUM CORPORATION 9 5/8% SENIOR SUBORDINATED NOTES DUE 2008, SERIES B ------------------------------------------------------ PRELIMINARY PROSPECTUS ------------------------------------------------------ , 200 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement in connection with specified actions, rules, or proceedings, whether civil, criminal, administrative, or investigative (other than action by or in the right of the corporation -- a "derivative action"), if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorneys' fees) incurred in connection with the defense or settlement of such action, and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation's charter, by-laws, disinterested director vote, stockholder vote, agreement, or otherwise. Article II, Section 2.9 of the Company's By-laws requires indemnification to the full extent authorized or permitted by the laws of the State of Delaware of any person who is made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was a director, officer, or employee of the Company or serves or served any other enterprise at the request of the Company. Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability for (i) any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) payment of unlawful dividends or unlawful stock purchases or redemptions, or (iv) any transaction from which the director derived an improper personal benefit. Article Ninth of the Company's Restated Certificate of Incorporation, as amended, provides that a director will not be personally liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the Company 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, which concerns unlawful payment of dividends, stock purchases or redemptions or (iv) for any transaction from which the director derived an improper personal benefit. The Company maintains directors' and officers' liability insurance which provides for payment, on behalf of the directors and officers of the Company and its subsidiaries, of certain losses of such persons (other than matters uninsurable under law) arising from claims, including claims arising under the Securities Act, for acts or omissions by such persons while acting as directors or officers of the Company and/or its subsidiaries, as the case may be. The Company has entered into indemnification agreements with its directors and certain of its officers. II-1 ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
EXHIBIT NUMBER DESCRIPTION - ------- ----------- *1.1 Purchase Agreement, dated November 1, 2001, among Tesoro Petroleum Corporation, certain subsidiary guarantors, Lehman Brothers Inc., ABN AMRO, Incorporated, Bank of America Securities LLC, Banc One Capital Markets, Inc., Credit Lyonnais Securities (USA), Inc. and Scotia Capital (USA) Inc. 2.1 Stock Sale Agreement, dated March 18, 1998, among the Company, BHP Hawaii Inc. and BHP Petroleum Pacific Islands Inc. (incorporated by reference herein to Exhibit 2.1 to Registration Statement No. 333-51789). 2.2 Stock Sale Agreement, dated May 1, 1998, among Shell Refining Holding Company, Shell Anacortes Refining Company and the Company (incorporated by reference herein to the Company's Quarterly Report on Form 10-Q for the period ended March 31, 1998, File No. 1-3473). 2.3 Stock Purchase Agreement, dated as of October 8, 1999, but effective as of July 1, 1999 among the Company, Tesoro Gas Resources Company, Inc., EEX Operating LLC and EEX Corporation (incorporated by reference herein to Exhibit 2.1 to the Company's Current Report on Form 8-K filed on January 3, 2000, File No. 1-3473). 2.4 First Amendment to Stock Purchase Agreement dated December 16, 1999, but effective as of October 8, 1999, among the Company, Tesoro Gas Resources Company, Inc., EEX Operating LLC and EEX Corporation (incorporated by reference herein to Exhibit 2.2 to the Company's Current Report on Form 8-K filed on January 3, 2000, File No. 1-3473). 2.5 Purchase Agreement dated as of December 17, 1999 among the Company, Tesoro Gas Resources Company, Inc. and EEX Operating LLC (Membership Interests in Tesoro Grande LLC) (incorporated by reference herein to Exhibit 2.3 to the Company's Current Report on Form 8-K filed on January 3, 2000, File No. 1-3473). 2.6 Purchase Agreement dated as of December 17, 1999 among the Company, Tesoro Gas Resources Company, Inc. and EEX Operating LLC (Membership Interests in Tesoro Reserves Company LLC) (incorporated by reference herein to Exhibit 2.4 to the Company's Current Report on Form 8-K filed on January 3, 2000, File No. 1-3473). 2.7 Purchase Agreement dated as of December 17, 1999 among the Company, Tesoro Gas Resources Company, Inc. and EEX Operating LLC (Membership Interests in Tesoro Southeast LLC) (incorporated by reference herein to Exhibit 2.5 to the Company's Current Report on Form 8-K filed on January 3, 2000, File No. 1-3473). 2.8 Stock Purchase Agreement, dated as of November 19, 1999, by and between the Company and BG International Limited (incorporated by reference herein to Exhibit 2.1 to the Company's Current Report on Form 8-K filed on January 13, 2000, File No. 1-3473). 2.9 Asset Purchase Agreement, dated July 16, 2001, by and among the Company, BP Corporation North America Inc. and Amoco Oil Company (incorporated by reference herein to Exhibit 2.1 to the Company's Current Report on Form 8-K filed on September 21, 2001, File No. 1-3473). 2.10 Asset Purchase Agreement, dated July 16, 2001, by and among the Company, BP Corporation North America Inc. and Amoco Oil Company (incorporated by reference herein to Exhibit 2.2 to the Company's Current Report on Form 8-K filed on September 21, 2001, File No. 1-3473). 2.11 Asset Purchase Agreement, dated July 16, 2001, by and among the Company, BP Corporation North America Inc. and BP Pipelines (North America) Inc. (incorporated by reference herein to Exhibit 2.1 to the Company's Quarterly Report on Form 10-Q for the quarter ended September 31, 2001, File No. 1-3473). 3.1 Restated Certificate of Incorporation of the Company (incorporated by reference herein to Exhibit 3 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1993, File No. 1-3473). 3.2 By-Laws of the Company, as amended through June 6, 1996 (incorporated by reference herein to Exhibit 3.2 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1996, File No. 1-3473).
II-2
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 3.3 Amendment to Restated Certificate of Incorporation of the Company adding a new Article IX limiting Directors' Liability (incorporated by reference herein to Exhibit 3(b) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1993, File No. 1-3473). 3.4 Certificate of Designation Establishing a Series of $2.20 Cumulative Convertible Preferred Stock, dated as of January 26, 1983 (incorporated by reference herein to Exhibit 3(c) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1993, File No. 1-3473). 3.5 Certificate of Designation Establishing a Series A Participating Preferred Stock, dated as of December 16, 1985 (incorporated by reference herein to Exhibit 3(d) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1993, File No. 1-3473). 3.6 Certificate of Amendment, dated as of February 9, 1994, to Restated Certificate of Incorporation of the Company amending Article IV, Article V, Article VII and Article VIII (incorporated by reference herein to Exhibit 3(e) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1993, File No. 1-3473). 3.7 Certificate of Amendment, dated as of August 3, 1998, to Certificate of Incorporation of the Company, amending Article IV, increasing the number of authorized shares of Common Stock from 50,000,000 to 100,000,000 (incorporated by reference herein to Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 1998, File No. 1-3473). 3.8 Certificate of Designation of 7.25% Mandatorily Convertible Preferred Stock (incorporated by reference herein to Exhibit 4.1 to the Company's Current Report on Form 8-K filed on July 1, 1998, File No. 1-3473). *3.9 Certificate of Incorporation of Digicomp, Inc. *3.10 Bylaws of Digicomp, Inc., as amended. *3.11 Certificate of Incorporation of Far East Maritime Company. *3.12 Bylaws of Far East Maritime Company. *3.13 Certificate of Incorporation of Gold Star Maritime Company. *3.14 Bylaws of Gold Star Maritime Company. *3.15 Certificate of Incorporation of Kenai Pipe Line Company. *3.16 Bylaws of Kenai Pipe Line Company, as amended. *3.17 Articles of Incorporation of Smiley's Super Service, Inc. *3.18 Bylaws of Smiley's Super Service, Inc. *3.19 Certificate of Incorporation of Tesoro Alaska Company, as amended. *3.20 Bylaws of Tesoro Alaska Company, as amended. *3.21 Certificate of Incorporation of Tesoro Alaska Pipeline Company, as amended. *3.22 Bylaws of Tesoro Alaska Pipeline Company, as amended. *3.23 Certificate of Incorporation of Tesoro Aviation Company, as amended. *3.24 Bylaws of Tesoro Aviation Company. *3.25 Certificate of Tesoro Financial Services Holding Company. *3.26 Bylaws of Tesoro Financial Services Holding Company. *3.27 Certificate of Incorporation of Tesoro Gas Resources Company, Inc. *3.28 Bylaws of Tesoro Gas Resources Company, Inc. *3.29 Articles of Incorporation of Tesoro Hawaii Corporation, as amended. *3.30 Bylaws of Tesoro Hawaii Corporation, as amended. *3.31 Certificate of Incorporation of Tesoro High Plains Pipeline Company, as amended. *3.32 Bylaws of Tesoro High Plains Pipeline Company. *3.33 Certificate of Incorporation of Tesoro Marine Services Holding Company, as amended. *3.34 Bylaws of Tesoro Marine Services Holding Company. *3.35 Certificate of Formation of Tesoro Marine Services, LLC (formerly Tesoro Marine Services, Inc).
II-3
EXHIBIT NUMBER DESCRIPTION - ------- ----------- *3.36 Limited Liability Company Agreement of Tesoro Marine Services, LLC. *3.37 Certificate of Incorporation of Tesoro Maritime Company. *3.38 Bylaws of Tesoro Maritime Company. *3.39 Articles of Incorporation of Tesoro Northstore Company, as amended. *3.40 Bylaws of Tesoro Northstore Company, as amended. *3.41 Certificate of Incorporation of Tesoro Petroleum Companies, Inc., as amended. *3.42 Bylaws of Tesoro Petroleum Companies, Inc., as amended. *3.43 Certificate of Incorporation of Tesoro Refining, Marketing & Supply Company. *3.44 Bylaws of Tesoro Refining, Marketing & Supply Company, as amended. *3.45 Certificate of Incorporation of Tesoro South Pacific Petroleum Company, as amended. *3.46 Bylaws of Tesoro South Pacific Petroleum Company, as amended. *3.47 Certificate of Incorporation of Tesoro Technology Company, as amended. *3.48 Bylaws of Tesoro Technology Company, as amended. *3.49 Certificate of Incorporation of Tesoro Vostock Company, as amended. *3.50 Bylaws of Tesoro Vostock Company, as amended. *3.51 Certificate of Incorporation of Tesoro West Coast Company, as amended. *3.52 Bylaws of Tesoro West Coast Company, as amended. *3.53 Certificate of Incorporation of Victory Finance Company, as amended. *3.54 Bylaws of Victory Finance Company. 4.1 Form of Coastwide Energy Services Inc. 8% Convertible Subordinated Debenture (incorporated by reference herein to Exhibit 4.3 to Post-Effective Amendment No. 1 to Registration No. 333-00229). 4.2 Debenture Assumption and Conversion Agreement dated as of February 20, 1996, between the Company, Coastwide Energy Services, Inc. and CNRG Acquisition Corp. (incorporated by reference herein to Exhibit 4.4 to Post-Effective Amendment No. 1 to Registration No. 333-00229). 4.3 Form of Cancellation/Substitution Agreement by and between the Company, Coastwide Energy Services, Inc. and Optionee (incorporated by reference herein to Exhibit 4.6 to Post-Effective Amendment No. 1 to Registration No. 333-00229). 4.4 Indenture, dated as of July 2, 1998, between Tesoro Petroleum Corporation and U.S. Bank Trust National Association, as Trustee (incorporated by reference herein to Exhibit 4.4 to Registration Statement No. 333-59871). 4.5 Form of 9% Senior Subordinated Notes due 2008 and 9% Senior Subordinated Notes due 2008, Series B (filed as part of Exhibit 4.4 hereof) (incorporated by reference herein to Exhibit 4.5 to Registration Statement No. 333-59871). 4.6 Deposit Agreement among the Company, The Bank of New York and the holders from time to time of depository receipts executed and delivered thereunder (incorporated by reference to Exhibit 4.2 to the Company's Current Report on Form 8-K filed on July 1, 1998, File No. 1-3473). 4.7 Form of depository receipt evidencing ownership of Premium Income Equity Securities (filed as a part of Exhibit 4.10 hereof) incorporated by reference herein to Exhibit 4.9 to Registration Statement No. 333-59871). *4.8 Indenture, dated as of November 6, 2001, between Tesoro Petroleum Corporation and U.S. Bank Trust National Association, as Trustee. *4.9 Form of 9 5/8% Senior Subordinated Notes due 2008 and 9 5/8% Senior Subordinated Notes due 2008, Series B (filed as part of Exhibit 4.8 hereof). *4.10 Registration Rights Agreement, dated as of November 6, 2001, among Tesoro Petroleum Corporation, certain subsidiary guarantors, Lehman Brothers Inc., ABN AMRO, Incorporated, Bank of America Securities LLC, Banc One Capital Markets, Inc., Credit Lyonnais Securities (USA), Inc. and Scotia Capital (USA) Inc.
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EXHIBIT NUMBER DESCRIPTION - ------- ----------- *5.1 Opinion of Fulbright & Jaworski L.L.P. 10.1 $1,000,000,000 Credit Agreement (the "Credit Agreement"), dated as of September 6, 2001, among the Company and Lehman Brothers Inc. (arranger), Lehman Commercial Paper Inc. (the syndication agent), Bank One, NA (the administrative agent) and a syndicate of banks, financial institutions and other entities. (incorporated by reference to Exhibit 10.1 to Amendment No. 2 to the Company's Current Report on Form 8-K filed on November 5, 2001, File No. 1-3473). 10.2 Guarantee and Collateral Agreement, dated as of September 6, 2001, made by Tesoro Petroleum Corporation in favor of Bank One, NA, as Administrative Agent (incorporated by reference to Exhibit 10.2 to Amendment No. 2 to the Company's Current Report on Form 8-K filed on November 5, 2001. File No. 1-3473). 10.3 First Amendment, dated as of October 16, 2001, to the Credit Agreement (incorporated by reference to Exhibit 10.3 to Amendment No. 2 to the Company's Current Report on Form 8-K filed on November 5, 2001. File No. 1-3473). +10.4 The Company's Amended Executive Security Plan, as amended through November 13, 1989, and Funded Executive Security Plan, as amended through February 28, 1990, for executive officers and key personnel (incorporated by reference herein to Exhibit 10(f) to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1990, File No. 1-3473). +10.5 Sixth Amendment to the Company's Amended Executive Security Plan and Seventh Amendment to the Company's Funded Executive Security Plan, both dated effective March 6, 1991 (incorpo- rated by reference herein to Exhibit 10(g) to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1991, File No. 1-3473). +10.6 Seventh Amendment to the Company's Amended Executive Security Plan and Eighth Amendment to the Company's Funded Executive Security Plan, both dated effective December 8, 1994 (incorporated by reference herein to Exhibit 10(f) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994, File No. 1-3473). +10.7 Eighth Amendment to the Company's Amended Executive Security Plan and Ninth Amendment to the Company's Funded Executive Security Plan, both dated effective June 6, 1996 (incorporated by reference herein to Exhibit 10.5 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1998, File No. 1-3473). +10.8 Ninth Amendment to the Company's Amended Executive Security Plan and Tenth Amendment to the Company's Funded Executive Security Plan, both dated effective October 1, 1998 (incorporated by reference herein to Exhibit 10.6 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1998, File No. 1-3473). +10.9 Amended and Restated Employment Agreement between the Company and Bruce A. Smith dated November 1, 1997 (incorporated by reference therein to Exhibit 10.4 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997, File No. 1-3473). +10.10 First Amendment dated October 28, 1998 to Amended and Restated Employment Agreement between the Company and Bruce A. Smith dated November 1, 1997 (incorporated by reference herein to Exhibit 10.8 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1998, File No. 1-3473). +10.11 Amendment and Restated Employment Agreement between the Company and William T. Van Kleef dated as of October 28, 1998 (incorporated by reference herein to Exhibit 10.9 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1998, File No. 1-3473). +10.12 Amended and Restated Employment Agreement between the Company and James C. Reed, Jr. dated as of October 28, 1998 (incorporated by reference herein to Exhibit 10.10 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1998, File No. 1-3473). +10.13 Management Stability Agreement between the Company and Thomas E. Reardon dated December 14, 1994 (incorporated by reference herein to Exhibit 10(w) to Registration Statement No. 333-00229).
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EXHIBIT NUMBER DESCRIPTION - ------- ----------- +10.14 Management Stability Agreement between the Company and Faye W. Kurren dated March 15, 2000 (incorporated by reference herein to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2000, File No. 1-3473). +10.15 Management Stability Agreement between the Company and Donald A. Nyberg dated December 12, 1996 (incorporated by reference herein to Exhibit 10.7 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997, File No. 1-3473). +10.16 Management Stability Agreement between the Company and Richard M. Parry dated March 15, 2000 (incorporated by reference herein to Exhibit 10.2 to the Company's Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2000, File No. 1-3473). +10.17 Management Stability Agreement between the Company and Steve Wormington dated September 27, 1995 (incorporated by reference herein to Exhibit 10.9 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997, File No. 1-3473). +10.18 Management Stability Agreement between the Company and Gregory A. Wright dated February 23, 1995 (incorporated by reference herein to Exhibit 10(p) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994, File No. 1-3473). +10.19 Management Stability Agreement between the Company and Sharon L. Layman dated December 14, 1994 (incorporated by reference herein to Exhibit 10.14 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1999, File No. 1-3473). +10.20 Management Stability Agreement between the Company and W. Eugene Burden dated February 11, 2001 (incorporated by reference herein to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2001, File No. 1-3473). +10.21 Management Stability Agreement between the Company and Sharlene S. Fey dated April 8, 2001 (incorporated by reference herein to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2001, File No. 1-3473). +10.22 Management Stability Agreement between the Company and Jerry H. Mouser dated April 8, 2001 (incorporated by reference herein to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2001, File No. 1-3473). +10.23 Management Stability Agreement between the Company and Everett D. Lewis dated March 15, 2001 (incorporated by reference herein to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2001, File No. 1-3473). +10.24 The Company's Amended Incentive Stock Plan of 1982, as amended through February 24, 1988 (incorporated by reference herein to Exhibit 10(t) to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1988, File No. 1-3473). +10.25 Resolution approved by the Company's stockholders on April 30, 1992 extending the term of the Company's Amended Incentive Stock Plan of 1982 to February 24, 1994 (incorporated by reference herein to Exhibit 10(o) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1992, File No. 1-3473). +10.26 Copy of the Company's Amended and Restated Executive Long-Term Incentive Plan, as amended through May 25, 2000 (incorporated by reference herein to Exhibit 99.1 to the Company's Registration Statement No. 333-39070 filed on Form S-8). +10.27 Copy of the Company's 1998 Performance Incentive Compensation Plan (incorporated by reference herein to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 1998, File No. 1-3473). +10.28 Copy of the Company's Non-Employee Director Retirement Plan dated December 8, 1994 (incorporated by reference herein to Exhibit 10(t) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994, File No. 1-3473). +10.29 Copy of the Company's Board of Directors Deferred Compensation Plan dated February 23, 1995 (incorporated by reference herein to Exhibit 10(u) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994, File No. 1-3473).
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EXHIBIT NUMBER DESCRIPTION - ------- ----------- +10.30 Copy of the Company's Board of Directors Deferred Compensation Trust dated February 23, 1995 (incorporated by reference herein to Exhibit 10(v) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994, File No. 1-3473). +10.31 Copy of the Company's Board of Directors Deferred Phantom Stock Plan (incorporated by reference herein to Exhibit 10 to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1997, File No. 1-3473). +10.32 Phantom Stock Option Agreement between the Company and Bruce A. Smith dated effective October 29, 1997 (incorporated by reference herein to Exhibit 10.20 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997, File No. 1-3473). 10.33 Copy of Settlement Agreement dated effective January 19, 1993, between Tesoro Petroleum Corporation, Tesoro Alaska Petroleum Company and the State of Alaska (incorporated by reference herein to Exhibit 10(q) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1992, File No. 1-3473). 10.34 Form of Indemnification Agreement between the Company and its officers and directors (incorporated by reference herein to Exhibit B to the Company's Proxy Statement for the Annual Meeting of Stockholders held on February 25, 1987, File No. 1-3473). *12.1 Statement of Computation of Ratio of Earnings to Fixed Charges. *21.1 Subsidiaries of the Company. *23.1 Consent of Deloitte & Touche LLP. *23.2 Consent of Ernst & Young LLP. *23.3 Consent of Fulbright & Jaworski L.L.P. (included in their opinion filed as Exhibit 5.1). *24.1 Powers of Attorney of certain officers and directors of Tesoro Petroleum Corporation and other Registrants (included on the signature pages). *25.1 Form T-1, Statement of Eligibility under the Trust Indenture Act of 1939 of U.S. Bank Trust National Association. *99.1 Form of Letter of Transmittal and Consent. *99.2 Form of Notice of Guaranteed Delivery. *99.3 Form of Letter from Tesoro Petroleum Corporation to Registered Holders and Depository Trust Company Participants. *99.4 Form of Instructions from Beneficial Owners to Registered Holders and Depository Trust Company Participants. *99.5 Form of Letter to Clients.
- --------------- * Filed herewith + Identifies management contracts or compensatory plans or arrangements. Schedules not listed above are omitted because of the absence of the conditions under which they are required or because the information required by such omitted schedules is set forth in the financial statements or the notes thereto. ITEM 22. UNDERTAKINGS The each of the undersigned co-registrants hereby undertakes: (1) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any II-7 action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by final adjudication of such issue. (2) To respond to requests for information that is incorporated by reference into this prospectus pursuant to Items 4, 10(b), 11, or 13 of Form S-4, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This undertaking also includes documents filed subsequent to the effective date of the registration statement through the date of responding to the request. (3) To supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective. (4) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement. (5) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (6) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. II-8 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. TESORO PETROLEUM CORPORATION By: /s/ GREGORY A. WRIGHT ------------------------------------ Gregory A. Wright Senior Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ BRUCE A. SMITH Chairman of the Board of December 13, 2001 ------------------------------------------------ Directors, Director, President Bruce A. Smith and Chief Executive Officer (Principal Executive Officer) /s/ STEVEN H. GRAPSTEIN Vice Chairman of the Board of December 13, 2001 ------------------------------------------------ Directors and Director Steven H. Grapstein /s/ GREGORY A. WRIGHT Senior Vice President and Chief December 13, 2001 ------------------------------------------------ Financial Officer Gregory A. Wright (Principal Financial Officer) /s/ SHARLENE S. FEY Vice President and Controller December 13, 2001 ------------------------------------------------ (Principal Accounting Officer) Sharlene S. Fey /s/ JAMES F. CLINGMAN, JR. Director December 13, 2001 ------------------------------------------------ James F. Clingman, Jr.
II-9
SIGNATURE TITLE DATE --------- ----- ---- /s/ WILLIAM J. JOHNSON Director December 13, 2001 ------------------------------------------------ William J. Johnson /s/ RAYMOND K. MASON, SR. Director December 13, 2001 ------------------------------------------------ Raymond K. Mason, Sr. /s/ A. MAURICE MYERS Director December 13, 2001 ------------------------------------------------ A. Maurice Myers /s/ DONALD H. SCHMUDE Director December 13, 2001 ------------------------------------------------ Donald H. Schmude /s/ PATRICK J. WARD Director December 13, 2001 ------------------------------------------------ Patrick J. Ward /s/ MURRAY L. WEIDENBAUM Director December 13, 2001 ------------------------------------------------ Murray L. Weidenbaum
II-10 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. DIGICOMP INC. By: /s/ GREGORY A. WRIGHT ------------------------------------ Gregory A. Wright Senior Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ BRUCE A. SMITH Director and President December 13, 2001 ------------------------------------------------ (Principal Executive Officer) Bruce A. Smith /s/ WILLIAM T. VAN KLEEF Director and Executive Vice December 13, 2001 ------------------------------------------------ President William T. Van Kleef /s/ JAMES C. REED, JR. Director, Executive Vice December 13, 2001 ------------------------------------------------ President, General Counsel and James C. Reed, Jr. Secretary /s/ GREGORY A. WRIGHT Senior Vice President and December 13, 2001 ------------------------------------------------ Chief Financial Officer Gregory A. Wright (Principal Financial Officer) /s/ SHARLENE S. FEY Vice President and Controller December 13, 2001 ------------------------------------------------ (Principal Accounting Officer) Sharlene S. Fey
II-11 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. FAR EAST MARITIME COMPANY By: /s/ TIMOTHY F. PLUMMER ------------------------------------ Timothy F. Plummer President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ TIMOTHY F. PLUMMER Director and President December 13, 2001 ------------------------------------------------ (Principal Executive Officer) Timothy F. Plummer /s/ GREGORY A. WRIGHT Director December 13, 2001 ------------------------------------------------ Gregory A. Wright /s/ JAMES B. WILLCOX Treasurer (Principal Financial December 13, 2001 ------------------------------------------------ and Accounting Officer) James B. Willcox
II-12 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. GOLD STAR MARITIME COMPANY By: /s/ TIMOTHY F. PLUMMER ------------------------------------ Timothy F. Plummer President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ TIMOTHY F. PLUMMER Director and President December 13, 2001 ------------------------------------------------ (Principal Executive Officer) Timothy F. Plummer /s/ GREGORY A. WRIGHT Director December 13, 2001 ------------------------------------------------ Gregory A. Wright /s/ JAMES B. WILLCOX Treasurer (Principal Financial December 13, 2001 ------------------------------------------------ and Accounting Officer) James B. Willcox
II-13 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. KENAI PIPE LINE COMPANY By: /s/ GREGORY A. WRIGHT ------------------------------------ Gregory A. Wright Senior Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ BRUCE A. SMITH Director December 13, 2001 ------------------------------------------------ Bruce A. Smith /s/ WILLIAM T. VAN KLEEF Director and Executive Vice December 13, 2001 ------------------------------------------------ President William T. Van Kleef /s/ JAMES C. REED, JR. Director, Executive Vice December 13, 2001 ------------------------------------------------ President and, Secretary James C. Reed, Jr. /s/ W. EUGENE BURDEN President (Principal Executive December 13, 2001 ------------------------------------------------ Officer) W. Eugene Burden /s/ GREGORY A. WRIGHT Senior Vice President and Chief December 13, 2001 ------------------------------------------------ Financial Officer (Principal Gregory A. Wright Financial Officer) /s/ SHARLENE S. FEY Vice President and Controller December 13, 2001 ------------------------------------------------ (Principal Accounting Officer) Sharlene S. Fey
II-14 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. SMILEY'S SUPER SERVICE, INC. By: /s/ GREGORY A. WRIGHT ------------------------------------ Gregory A. Wright Senior Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ BRUCE A. SMITH Chairman of the Board of December 13, 2001 ------------------------------------------------ Directors and Director Bruce A. Smith /s/ WILLIAM T. VAN KLEEF Director and Executive Vice December 13, 2001 ------------------------------------------------ President William T. Van Kleef /s/ JAMES C. REED, JR. Director, Executive Vice December 13, 2001 ------------------------------------------------ President and Secretary James C. Reed, Jr. /s/ FAYE W. KURREN Director and President December 13, 2001 ------------------------------------------------ (Principal Executive Officer) Faye W. Kurren /s/ GREGORY A. WRIGHT Senior Vice President and Chief December 13, 2001 ------------------------------------------------ Financial Officer (Principal Gregory A. Wright Financial Officer) /s/ SHARLENE S. FEY Vice President and Controller December 13, 2001 ------------------------------------------------ (Principal Accounting Officer) Sharlene S. Fey
II-15 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. TESORO ALASKA COMPANY By: /s/ GREGORY A. WRIGHT ------------------------------------ Gregory A. Wright Senior Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ BRUCE A. SMITH Chairman of the Board of December 13, 2001 ------------------------------------------------ Directors and Director Bruce A. Smith /s/ WILLIAM T. VAN KLEEF Director and Executive Vice December 13, 2001 ------------------------------------------------ President William T. Van Kleef /s/ JAMES C. REED, JR. Director, Executive Vice December 13, 2001 ------------------------------------------------ President and Secretary James C. Reed, Jr. /s/ W. EUGENE BURDEN President (Principal Executive December 13, 2001 ------------------------------------------------ Officer) W. Eugene Burden /s/ GREGORY A. WRIGHT Senior Vice President and Chief December 13, 2001 ------------------------------------------------ Financial Officer (Principal Gregory A. Wright Financial Officer) /s/ SHARLENE S. FEY Vice President and Controller December 13, 2001 ------------------------------------------------ (Principal Accounting Officer) Sharlene S. Fey
II-16 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. TESORO ALASKA PIPELINE COMPANY By: /s/ GREGORY A. WRIGHT ------------------------------------ Gregory A. Wright Senior Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ BRUCE A. SMITH Director December 13, 2001 ------------------------------------------------ Bruce A. Smith /s/ WILLIAM T. VAN KLEEF Director and Executive Vice December 13, 2001 ------------------------------------------------ President William T. Van Kleef /s/ JAMES C. REED, JR. Director, Executive Vice December 13, 2001 ------------------------------------------------ President and Secretary James C. Reed, Jr. /s/ W. EUGENE BURDEN President (Principal Executive December 13, 2001 ------------------------------------------------ Officer) W. Eugene Burden /s/ GREGORY A. WRIGHT Senior Vice President and Chief December 13, 2001 ------------------------------------------------ Financial Officer (Principal Gregory A. Wright Financial Officer) /s/ SHARLENE S. FEY Vice President and Controller December 13, 2001 ------------------------------------------------ (Principal Accounting Officer) Sharlene S. Fey
II-17 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. TESORO AVIATION COMPANY By: /s/ GREGORY A. WRIGHT ------------------------------------ Gregory A. Wright Senior Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ BRUCE A. SMITH Director and President December 13, 2001 ------------------------------------------------ (Principal Executive Officer) Bruce A. Smith /s/ WILLIAM T. VAN KLEEF Director and Executive Vice December 13, 2001 ------------------------------------------------ President William T. Van Kleef /s/ JAMES C. REED, JR. Director, Executive Vice December 13, 2001 ------------------------------------------------ President, General Counsel and James C. Reed, Jr. Secretary /s/ GREGORY A. WRIGHT Senior Vice President and Chief December 13, 2001 ------------------------------------------------ Financial Officer (Principal Gregory A. Wright Financial Officer) /s/ SHARLENE S. FEY Vice President and Controller December 13, 2001 ------------------------------------------------ (Principal Accounting Officer) Sharlene S. Fey
II-18 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. TESORO FINANCIAL SERVICES HOLDING COMPANY By: /s/ CHARLES L. MAGEE ------------------------------------ Charles L. Magee President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ CHARLES L. MAGEE Director and President December 13, 2001 ------------------------------------------------ (Principal Executive, Financial Charles L. Magee and Accounting Officer) /s/ HEATHER R. HILL Director December 13, 2001 ------------------------------------------------ Heather R. Hill
II-19 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. TESORO GAS RESOURCES COMPANY, INC. By: /s/ GREGORY A. WRIGHT ------------------------------------ Gregory A. Wright Senior Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ BRUCE A. SMITH Director and President December 13, 2001 ------------------------------------------------ (Principal Executive Officer) Bruce A. Smith /s/ JAMES C. REED, JR. Director, Executive Vice December 13, 2001 ------------------------------------------------ President, General Counsel and James C. Reed, Jr. Secretary /s/ GREGORY A. WRIGHT Senior Vice President and Chief December 13, 2001 ------------------------------------------------ Financial Officer (Principal Gregory A. Wright Financial Officer) /s/ SHARLENE S. FEY Vice President and Controller December 13, 2001 ------------------------------------------------ (Principal Accounting Officer) Sharlene S. Fey
II-20 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. TESORO HAWAII CORPORATION By: /s/ GREGORY A. WRIGHT ------------------------------------ Gregory A. Wright Senior Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ BRUCE A. SMITH Chairman of the Board of December 13, 2001 ------------------------------------------------ Directors and Director Bruce A. Smith /s/ WILLIAM T. VAN KLEEF Executive Vice President and December 13, 2001 ------------------------------------------------ Director William T. Van Kleef /s/ JAMES C. REED, JR. Executive Vice President, December 13, 2001 ------------------------------------------------ Secretary and Director James C. Reed, Jr. /s/ FAYE W. KURREN President and Director December 13, 2001 ------------------------------------------------ (Principal Executive Officer) Faye W. Kurren /s/ GREGORY A. WRIGHT Senior Vice President and Chief December 13, 2001 ------------------------------------------------ Financial Officer (Principal Gregory A. Wright Financial Officer) /s/ SHARLENE S. FEY Vice President and Controller December 13, 2001 ------------------------------------------------ (Principal Accounting Officer) Sharlene S. Fey
II-21 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. TESORO HIGH PLAINS PIPELINE COMPANY By: /s/ GREGORY A. WRIGHT ------------------------------------ Gregory A. Wright Senior Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ BRUCE A. SMITH Chairman of the Board of December 13, 2001 ------------------------------------------------ Directors, Director, President Bruce A. Smith and Chief Executive Officer (Principal Executive Officer) /s/ WILLIAM T. VAN KLEEF Director, Executive Vice December 13, 2001 ------------------------------------------------ President and Chief Operating William T. Van Kleef Officer /s/ JAMES C. REED, JR. Director, Executive Vice December 13, 2001 ------------------------------------------------ President, General Counsel and James C. Reed, Jr. Secretary /s/ GREGORY A. WRIGHT Senior Vice President and Chief December 13, 2001 ------------------------------------------------ Financial Officer (Principal Gregory A. Wright Financial Officer) /s/ SHARLENE S. FEY Vice President and Controller December 13, 2001 ------------------------------------------------ (Principal Accounting Officer) Sharlene S. Fey
II-22 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. TESORO MARINE SERVICES HOLDING COMPANY By: /s/ GREGORY A. WRIGHT ------------------------------------ Gregory A. Wright Senior Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ BRUCE A. SMITH Chairman of the Board of December 13, 2001 ------------------------------------------------ Directors and Director Bruce A. Smith /s/ WILLIAM T. VAN KLEEF Director and Executive Vice December 13, 2001 ------------------------------------------------ President William T. Van Kleef /s/ JAMES C. REED, JR. Director, Executive Vice December 13, 2001 ------------------------------------------------ President, General Counsel and James C. Reed, Jr. Secretary /s/ DONALD A. NYBERG Director and President December 13, 2001 ------------------------------------------------ (Principal Executive Officer) Donald A. Nyberg /s/ GREGORY A. WRIGHT Senior Vice President and Chief December 13, 2001 ------------------------------------------------ Financial Officer (Principal Gregory A. Wright Financial Officer) /s/ DEAN M. KRAKOSKY Controller (Principal December 13, 2001 ------------------------------------------------ Accounting Officer) Dean M. Krakosky
II-23 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. TESORO MARINE SERVICES, LLC. By: /s/ GREGORY A. WRIGHT ------------------------------------ Gregory A. Wright Senior Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ BRUCE A. SMITH Chairman; Chairman of the Board December 13, 2001 ------------------------------------------------ of Directors and Director of Bruce A. Smith Sole Member /s/ WILLIAM T. VAN KLEEF Director of Sole Member December 13, 2001 ------------------------------------------------ William T. Van Kleef /s/ JAMES C. REED, JR. Director of Sole Member December 13, 2001 ------------------------------------------------ James C. Reed, Jr. /s/ DONALD A. NYBERG President and Director of Sole December 13, 2001 ------------------------------------------------ Member (Principal Executive Donald A. Nyberg Officer)
II-24
SIGNATURE TITLE DATE --------- ----- ---- /s/ GREGORY A. WRIGHT Senior Vice President and Chief December 13, 2001 ------------------------------------------------ Financial Officer (Principal Gregory A. Wright Financial Officer) /s/ DEAN M. KRAKOSKY Controller (Principal December 13, 2001 ------------------------------------------------ Accounting Officer) Dean M. Krakosky
II-25 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. TESORO MARITIME COMPANY By: /s/ GREGORY A. WRIGHT ------------------------------------ Gregory A. Wright Senior Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ BRUCE A. SMITH Chairman of the Board of December 13, 2001 ------------------------------------------------ Directors Bruce A. Smith /s/ TIMOTHY F. PLUMMER Director and President December 13, 2001 ------------------------------------------------ (Principal Executive Officer) Timothy F. Plummer /s/ GREGORY A. WRIGHT Director, Senior Vice President December 13, 2001 ------------------------------------------------ and Chief Financial Officer Gregory A. Wright (Principal Financial Officer) /s/ SHARLENE S. FEY Vice President and Controller December 13, 2001 ------------------------------------------------ (Principal Accounting Officer) Sharlene S. Fey
II-26 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. TESORO NORTHSTORE COMPANY By: /s/ GREGORY A. WRIGHT ------------------------------------ Gregory A. Wright Senior Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ BRUCE A. SMITH Director December 13, 2001 ------------------------------------------------ Bruce A. Smith /s/ WILLIAM T. VAN KLEEF Director and Executive Vice December 13, 2001 ------------------------------------------------ President William T. Van Kleef /s/ JAMES C. REED, JR. Director, Executive Vice December 13, 2001 ------------------------------------------------ President and Secretary James C. Reed, Jr. /s/ W. EUGENE BURDEN President (Principal Executive December 13, 2001 ------------------------------------------------ Officer) W. Eugene Burden /s/ GREGORY A. WRIGHT Senior Vice President and Chief December 13, 2001 ------------------------------------------------ Financial Officer (Principal Gregory A. Wright Financial Officer) /s/ SHARLENE S. FEY Vice President and Controller December 13, 2001 ------------------------------------------------ Principal Accounting Officer) Sharlene S. Fey
II-27 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. TESORO PETROLEUM COMPANIES, INC. By: /s/ GREGORY A. WRIGHT ------------------------------------ Gregory A. Wright Senior Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ BRUCE A. SMITH Director and President December 13, 2001 ------------------------------------------------ (Principal Executive Officer) Bruce A. Smith /s/ WILLIAM T. VAN KLEEF Director and Executive Vice December 13, 2001 ------------------------------------------------ President William T. Van Kleef /s/ JAMES C. REED, JR. Director, Executive Vice December 13, 2001 ------------------------------------------------ President, General Counsel and James C. Reed, Jr. Secretary /s/ GREGORY A. WRIGHT Senior Vice President and Chief December 13, 2001 ------------------------------------------------ Financial Officer (Principal Gregory A. Wright Financial Officer) /s/ SHARLENE S. FEY Vice President and Controller December 13, 2001 ------------------------------------------------ (Principal Accounting Officer) Sharlene S. Fey
II-28 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. TESORO REFINING, MARKETING & SUPPLY COMPANY By: /s/ GREGORY A. WRIGHT ------------------------------------ Gregory A. Wright Senior Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ BRUCE A. SMITH Chairman of the Board of December 13, 2001 ------------------------------------------------ Directors and Director Bruce A. Smith /s/ WILLIAM T. VAN KLEEF Director and President December 13, 2001 ------------------------------------------------ (Principal Executive Officer) William T. Van Kleef /s/ JAMES C. REED, JR. Director, Executive Vice December 13, 2001 ------------------------------------------------ President, General Counsel and James C. Reed, Jr. Secretary /s/ GREGORY A. WRIGHT Senior Vice President and Chief December 13, 2001 ------------------------------------------------ Financial Officer (Principal Gregory A. Wright Financial Officer) /s/ SHARLENE S. FEY Vice President and Controller December 13, 2001 ------------------------------------------------ (Principal Accounting Officer) Sharlene S. Fey
II-29 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. TESORO SOUTH PACIFIC PETROLEUM COMPANY By: /s/ GREGORY A. WRIGHT ------------------------------------ Gregory A. Wright Senior Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ BRUCE A. SMITH Chairman of the Board of December 13, 2001 ------------------------------------------------ Directors and Director Bruce A. Smith /s/ WILLIAM T. VAN KLEEF Director and Executive Vice December 13, 2001 ------------------------------------------------ President William T. Van Kleef /s/ JAMES C. REED, JR. Director, Executive Vice December 13, 2001 ------------------------------------------------ President and Secretary James C. Reed, Jr. /s/ FAYE W. KURREN President (Principal Executive December 13, 2001 ------------------------------------------------ Officer) Faye W. Kurren /s/ GREGORY A. WRIGHT Senior Vice President and Chief December 13, 2001 ------------------------------------------------ Financial Officer (Principal Gregory A. Wright Financial Officer) /s/ SHARLENE S. FEY Vice President and Controller December 13, 2001 ------------------------------------------------ (Principal Accounting Officer) Sharlene S. Fey
II-30 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. TESORO TECHNOLOGY COMPANY By: /s/ GREGORY A. WRIGHT ------------------------------------ Gregory A. Wright Senior Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ BRUCE A. SMITH Director and President December 13, 2001 ------------------------------------------------ (Principal Executive Officer) Bruce A. Smith /s/ WILLIAM T. VAN KLEEF Director and Executive Vice December 13, 2001 ------------------------------------------------ President William T. Van Kleef /s/ JAMES C. REED, JR. Director, Executive Vice December 13, 2001 ------------------------------------------------ President, General Counsel and James C. Reed, Jr. Secretary /s/ GREGORY A. WRIGHT Senior Vice President and Chief December 13, 2001 ------------------------------------------------ Financial Officer (Principal Gregory A. Wright Financial Officer) /s/ SHARLENE S. FEY Vice President and Controller December 13, 2001 ------------------------------------------------ (Principal Accounting Officer) Sharlene S. Fey
II-31 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. TESORO VOSTOCK COMPANY By: /s/ GREGORY A. WRIGHT ------------------------------------ Gregory A. Wright Senior Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ BRUCE A. SMITH Director and President December 13, 2001 ------------------------------------------------ (Principal Executive Officer) Bruce A. Smith /s/ WILLIAM T. VAN KLEEF Director and Executive Vice December 13, 2001 ------------------------------------------------ President William T. Van Kleef /s/ JAMES C. REED, JR. Director, Executive Vice December 13, 2001 ------------------------------------------------ President and Secretary James C. Reed, Jr. /s/ GREGORY A. WRIGHT Senior Vice President and Chief December 13, 2001 ------------------------------------------------ Financial Officer (Principal Gregory A. Wright Financial Officer) /s/ SHARLENE S. FEY Vice President and Controller December 13, 2001 ------------------------------------------------ (Principal Accounting Officer) Sharlene S. Fey
II-32 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. TESORO WEST COAST COMPANY By: /s/ GREGORY A. WRIGHT ------------------------------------ Gregory A. Wright Senior Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ BRUCE A. SMITH Chairman of the Board of December 13, 2001 ------------------------------------------------ Directors and Director Bruce A. Smith /s/ JAMES C. REED, JR. Director, Executive Vice December 13, 2001 ------------------------------------------------ President and Secretary James C. Reed, Jr. /s/ WILLIAM T. VAN KLEEF Director and President December 13, 2001 ------------------------------------------------ (Principal Executive Officer) William T. Van Kleef /s/ GREGORY A. WRIGHT Senior Vice President and Chief December 13, 2001 ------------------------------------------------ Financial Officer (Principal Gregory A. Wright Financial Officer) /s/ SHARLENE S. FEY Vice President and Controller December 13, 2001 ------------------------------------------------ (Principal Accounting Officer) Sharlene S. Fey
II-33 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly cause this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, State of Texas, on December 13, 2001. VICTORY FINANCE COMPANY By: /s/ CHARLES L. MAGEE ------------------------------------ Charles L. Magee President POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints James C. Reed, Jr. and Bruce A. Smith and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign, execute and file this registration statement under the Securities Act and any and all amendments (including, without limitation, post-effective amendments and any amendment or amendments or additional registration statement filed pursuant to Rule 462 under the Securities Act increasing the amount of securities for which registration is being sought) to this registration statement, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, to sign any and all applications, registration statements, notices or other documents necessary or advisable to comply with the applicable state security laws, and to file the same, together with other documents in connection therewith, with the appropriate state securities authorities, granting unto said attorney-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intends and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE --------- ----- ---- /s/ CHARLES L. MAGEE President and Director December 13, 2001 ------------------------------------------------ (Principal Executive Financial Charles L. Magee and Accounting Officer) /s/ HEATHER R. HILL Director December 13, 2001 ------------------------------------------------ Heather R. Hill
II-34 INDEX TO EXHIBITS
EXHIBIT NUMBER DESCRIPTION - ------- ----------- *1.1 Purchase Agreement, dated November 1, 2001, among Tesoro Petroleum Corporation, certain subsidiary guarantors, Lehman Brothers Inc., ABN AMRO, Incorporated, Bank of America Securities LLC, Banc One Capital Markets, Inc., Credit Lyonnais Securities (USA), Inc. and Scotia Capital (USA) Inc. 2.1 Stock Sale Agreement, dated March 18, 1998, among the Company, BHP Hawaii Inc. and BHP Petroleum Pacific Islands Inc. (incorporated by reference herein to Exhibit 2.1 to Registration Statement No. 333-51789). 2.2 Stock Sale Agreement, dated May 1, 1998, among Shell Refining Holding Company, Shell Anacortes Refining Company and the Company (incorporated by reference herein to the Company's Quarterly Report on Form 10-Q for the period ended March 31, 1998, File No. 1-3473). 2.3 Stock Purchase Agreement, dated as of October 8, 1999, but effective as of July 1, 1999 among the Company, Tesoro Gas Resources Company, Inc., EEX Operating LLC and EEX Corporation (incorporated by reference herein to Exhibit 2.1 to the Company's Current Report on Form 8-K filed on January 3, 2000, File No. 1-3473). 2.4 First Amendment to Stock Purchase Agreement dated December 16, 1999, but effective as of October 8, 1999, among the Company, Tesoro Gas Resources Company, Inc., EEX Operating LLC and EEX Corporation (incorporated by reference herein to Exhibit 2.2 to the Company's Current Report on Form 8-K filed on January 3, 2000, File No. 1-3473). 2.5 Purchase Agreement dated as of December 17, 1999 among the Company, Tesoro Gas Resources Company, Inc. and EEX Operating LLC (Membership Interests in Tesoro Grande LLC) (incorporated by reference herein to Exhibit 2.3 to the Company's Current Report on Form 8-K filed on January 3, 2000, File No. 1-3473). 2.6 Purchase Agreement dated as of December 17, 1999 among the Company, Tesoro Gas Resources Company, Inc. and EEX Operating LLC (Membership Interests in Tesoro Reserves Company LLC) (incorporated by reference herein to Exhibit 2.4 to the Company's Current Report on Form 8-K filed on January 3, 2000, File No. 1-3473). 2.7 Purchase Agreement dated as of December 17, 1999 among the Company, Tesoro Gas Resources Company, Inc. and EEX Operating LLC (Membership Interests in Tesoro Southeast LLC) (incorporated by reference herein to Exhibit 2.5 to the Company's Current Report on Form 8-K filed on January 3, 2000, File No. 1-3473). 2.8 Stock Purchase Agreement, dated as of November 19, 1999, by and between the Company and BG International Limited (incorporated by reference herein to Exhibit 2.1 to the Company's Current Report on Form 8-K filed on January 13, 2000, File No. 1-3473). 2.9 Asset Purchase Agreement, dated July 16, 2001, by and among the Company, BP Corporation North America Inc. and Amoco Oil Company (incorporated by reference herein to Exhibit 2.1 to the Company's Current Report on Form 8-K filed on September 21, 2001, File No. 1-3473). 2.10 Asset Purchase Agreement, dated July 16, 2001, by and among the Company, BP Corporation North America Inc. and Amoco Oil Company (incorporated by reference herein to Exhibit 2.2 to the Company's Current Report on Form 8-K filed on September 21, 2001, File No. 1-3473). 3.1 Restated Certificate of Incorporation of the Company (incorporated by reference herein to Exhibit 3 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1993, File No. 1-3473). 3.2 By-Laws of the Company, as amended through June 6, 1996 (incorporated by reference herein to Exhibit 3.2 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1996, File No. 1-3473). 3.3 Amendment to Restated Certificate of Incorporation of the Company adding a new Article IX limiting Directors' Liability (incorporated by reference herein to Exhibit 3(b) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1993, File No. 1-3473).
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 3.4 Certificate of Designation Establishing a Series of $2.20 Cumulative Convertible Preferred Stock, dated as of January 26, 1983 (incorporated by reference herein to Exhibit 3(c) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1993, File No. 1-3473). 3.5 Certificate of Designation Establishing a Series A Participating Preferred Stock, dated as of December 16, 1985 (incorporated by reference herein to Exhibit 3(d) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1993, File No. 1-3473). 3.6 Certificate of Amendment, dated as of February 9, 1994, to Restated Certificate of Incorporation of the Company amending Article IV, Article V, Article VII and Article VIII (incorporated by reference herein to Exhibit 3(e) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1993, File No. 1-3473). 3.7 Certificate of Amendment, dated as of August 3, 1998, to Certificate of Incorporation of the Company, amending Article IV, increasing the number of authorized shares of Common Stock from 50,000,000 to 100,000,000 (incorporated by reference herein to Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 1998, File No. 1-3473). 3.8 Certificate of Designation of 7.25% Mandatorily Convertible Preferred Stock (incorporated by reference herein to Exhibit 4.1 to the Company's Current Report on Form 8-K filed on July 1, 1998, File No. 1-3473). *3.9 Certificate of Incorporation of Digicomp, Inc. *3.10 Bylaws of Digicomp, Inc., as amended. *3.11 Certificate of Incorporation of Far East Maritime Company. *3.12 Bylaws of Far East Maritime Company. *3.13 Certificate of Incorporation of Gold Star Maritime Company. *3.14 Bylaws of Gold Star Maritime Company. *3.15 Certificate of Incorporation of Kenai Pipe Line Company. *3.16 Bylaws of Kenai Pipe Line Company, as amended. *3.17 Articles of Incorporation of Smiley's Super Service, Inc. *3.18 Bylaws of Smiley's Super Service, Inc. *3.19 Certificate of Incorporation of Tesoro Alaska Company, as amended. *3.20 Bylaws of Tesoro Alaska Company, as amended. *3.21 Certificate of Incorporation of Tesoro Alaska Pipeline Company, as amended. *3.22 Bylaws of Tesoro Alaska Pipeline Company, as amended. *3.23 Certificate of Incorporation of Tesoro Aviation Company, as amended. *3.24 Bylaws of Tesoro Aviation Company. *3.25 Certificate of Tesoro Financial Services Holding Company. *3.26 Bylaws of Tesoro Financial Services Holding Company. *3.27 Certificate of Incorporation of Tesoro Gas Resources Company, Inc. *3.28 Bylaws of Tesoro Gas Resources Company, Inc. *3.29 Articles of Incorporation of Tesoro Hawaii Corporation, as amended. *3.30 Bylaws of Tesoro Hawaii Corporation, as amended. *3.31 Certificate of Incorporation of Tesoro High Plains Pipeline Company, as amended. *3.32 Bylaws of Tesoro High Plains Pipeline Company. *3.33 Certificate of Incorporation of Tesoro Marine Services Holding Company, as amended. *3.34 Bylaws of Tesoro Marine Services Holding Company. *3.35 Certificate of Formation of Tesoro Marine Services, LLC (formerly Tesoro Marine Services, Inc). *3.36 Limited Liability Company Agreement of Tesoro Marine Services, LLC. *3.37 Certificate of Incorporation of Tesoro Maritime Company.
EXHIBIT NUMBER DESCRIPTION - ------- ----------- *3.38 Bylaws of Tesoro Maritime Company. *3.39 Articles of Incorporation of Tesoro Northstore Company, as amended. *3.40 Bylaws of Tesoro Northstore Company, as amended. *3.41 Certificate of Incorporation of Tesoro Petroleum Companies, Inc., as amended. *3.42 Bylaws of Tesoro Petroleum Companies, Inc., as amended. *3.43 Certificate of Incorporation of Tesoro Refining, Marketing & Supply Company. *3.44 Bylaws of Tesoro Refining, Marketing & Supply Company, as amended. *3.45 Certificate of Incorporation of Tesoro South Pacific Petroleum Company, as amended. *3.46 Bylaws of Tesoro South Pacific Petroleum Company, as amended. *3.47 Certificate of Incorporation of Tesoro Technology Company, as amended. *3.48 Bylaws of Tesoro Technology Company, as amended. *3.49 Certificate of Incorporation of Tesoro Vostock Company, as amended. *3.50 Bylaws of Tesoro Vostock Company, as amended. *3.51 Certificate of Incorporation of Tesoro West Coast Company, as amended. *3.52 Bylaws of Tesoro West Coast Company, as amended. *3.53 Certificate of Incorporation of Victory Finance Company, as amended. *3.54 Bylaws of Victory Finance Company. 4.1 Form of Coastwide Energy Services Inc. 8% Convertible Subordinated Debenture (incorporated by reference herein to Exhibit 4.3 to Post-Effective Amendment No. 1 to Registration No. 333-00229). 4.2 Debenture Assumption and Conversion Agreement dated as of February 20, 1996, between the Company, Coastwide Energy Services, Inc. and CNRG Acquisition Corp. (incorporated by reference herein to Exhibit 4.4 to Post-Effective Amendment No. 1 to Registration No. 333-00229). 4.3 Form of Cancellation/Substitution Agreement by and between the Company, Coastwide Energy Services, Inc. and Optionee (incorporated by reference herein to Exhibit 4.6 to Post-Effective Amendment No. 1 to Registration No. 333-00229). 4.4 Indenture, dated as of July 2, 1998, between Tesoro Petroleum Corporation and U.S. Bank Trust National Association, as Trustee (incorporated by reference herein to Exhibit 4.4 to Registration Statement No. 333-59871). 4.5 Form of 9% Senior Subordinated Notes due 2008 and 9% Senior Subordinated Notes due 2008, Series B (filed as part of Exhibit 4.4 hereof) (incorporated by reference herein to Exhibit 4.5 to Registration Statement No. 333-59871). 4.6 Deposit Agreement among the Company, The Bank of New York and the holders from time to time of depository receipts executed and delivered thereunder (incorporated by reference to Exhibit 4.2 to the Company's Current Report on Form 8-K filed on July 1, 1998, File No. 1-3473). 4.7 Form of depository receipt evidencing ownership of Premium Income Equity Securities (filed as a part of Exhibit 4.10 hereof) incorporated by reference herein to Exhibit 4.9 to Registration Statement No. 333-59871). *4.8 Indenture, dated as of November 6, 2001, between Tesoro Petroleum Corporation and U.S. Bank Trust National Association, as Trustee. *4.9 Form of 9 5/8% Senior Subordinated Notes due 2008 and 9 5/8% Senior Subordinated Notes due 2008, Series B (filed as part of Exhibit 4.8 hereof). *4.10 Registration Rights Agreement, dated as of November 6, 2001, among Tesoro Petroleum Corporation, certain subsidiary guarantors, Lehman Brothers Inc., ABN AMRO, Incorporated, Bank of America Securities LLC, Banc One Capital Markets, Inc., Credit Lyonnais Securities (USA), Inc. and Scotia Capital (USA) Inc. *5.1 Opinion of Fulbright & Jaworski L.L.P.
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 10.1 $1,000,000,000 Credit Agreement (the "Credit Agreement"), dated as of September 6, 2001, among the Company and Lehman Brothers Inc. (arranger), Lehman Commercial Paper Inc. (the syndication agent), Bank One, NA (the administrative agent) and a syndicate of banks, financial institutions and other entities. (incorporated by reference to Exhibit 10.1 to Amendment No. 2 to the Company's Current Report on Form 8-K filed on November 5, 2001, File No. 1-3473). 10.2 Guarantee and Collateral Agreement, dated as of September 6, 2001, made by Tesoro Petroleum Corporation in favor of Bank One, NA, as Administrative Agent (incorporated by reference to Exhibit 10.2 to Amendment No. 2 to the Company's Current Report on Form 8-K filed on November 5, 2001. File No. 1-3473). 10.3 First Amendment, dated as of October 16, 2001, to the Credit Agreement (incorporated by reference to Exhibit 10.3 to Amendment No. 2 to the Company's Current Report on Form 8-K filed on November 5, 2001. File No. 1-3473). +10.4 The Company's Amended Executive Security Plan, as amended through November 13, 1989, and Funded Executive Security Plan, as amended through February 28, 1990, for executive officers and key personnel (incorporated by reference herein to Exhibit 10(f) to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1990, File No. 1-3473). +10.5 Sixth Amendment to the Company's Amended Executive Security Plan and Seventh Amendment to the Company's Funded Executive Security Plan, both dated effective March 6, 1991 (incorpo- rated by reference herein to Exhibit 10(g) to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1991, File No. 1-3473). +10.6 Seventh Amendment to the Company's Amended Executive Security Plan and Eighth Amendment to the Company's Funded Executive Security Plan, both dated effective December 8, 1994 (incorporated by reference herein to Exhibit 10(f) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994, File No. 1-3473). +10.7 Eighth Amendment to the Company's Amended Executive Security Plan and Ninth Amendment to the Company's Funded Executive Security Plan, both dated effective June 6, 1996 (incorporated by reference herein to Exhibit 10.5 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1998, File No. 1-3473). +10.8 Ninth Amendment to the Company's Amended Executive Security Plan and Tenth Amendment to the Company's Funded Executive Security Plan, both dated effective October 1, 1998 (incorporated by reference herein to Exhibit 10.6 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1998, File No. 1-3473). +10.9 Amended and Restated Employment Agreement between the Company and Bruce A. Smith dated November 1, 1997 (incorporated by reference therein to Exhibit 10.4 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997, File No. 1-3473). +10.10 First Amendment dated October 28, 1998 to Amended and Restated Employment Agreement between the Company and Bruce A. Smith dated November 1, 1997 (incorporated by reference herein to Exhibit 10.8 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1998, File No. 1-3473). +10.11 Amendment and Restated Employment Agreement between the Company and William T. Van Kleef dated as of October 28, 1998 (incorporated by reference herein to Exhibit 10.9 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1998, File No. 1-3473). +10.12 Amended and Restated Employment Agreement between the Company and James C. Reed, Jr. dated as of October 28, 1998 (incorporated by reference herein to Exhibit 10.10 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1998, File No. 1-3473). +10.13 Management Stability Agreement between the Company and Thomas E. Reardon dated December 14, 1994 (incorporated by reference herein to Exhibit 10(w) to Registration Statement No. 333-00229). +10.14 Management Stability Agreement between the Company and Faye W. Kurren dated March 15, 2000 (incorporated by reference herein to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2000, File No. 1-3473).
EXHIBIT NUMBER DESCRIPTION - ------- ----------- +10.15 Management Stability Agreement between the Company and Donald A. Nyberg dated December 12, 1996 (incorporated by reference herein to Exhibit 10.7 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997, File No. 1-3473). +10.16 Management Stability Agreement between the Company and Richard M. Parry dated March 15, 2000 (incorporated by reference herein to Exhibit 10.2 to the Company's Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2000, File No. 1-3473). +10.17 Management Stability Agreement between the Company and Steve Wormington dated September 27, 1995 (incorporated by reference herein to Exhibit 10.9 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997, File No. 1-3473). +10.18 Management Stability Agreement between the Company and Gregory A. Wright dated February 23, 1995 (incorporated by reference herein to Exhibit 10(p) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994, File No. 1-3473). +10.19 Management Stability Agreement between the Company and Sharon L. Layman dated December 14, 1994 (incorporated by reference herein to Exhibit 10.14 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1999, File No. 1-3473). +10.20 Management Stability Agreement between the Company and W. Eugene Burden dated February 11, 2001 (incorporated by reference herein to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2001, File No. 1-3473). +10.21 Management Stability Agreement between the Company and Sharlene S. Fey dated April 8, 2001 (incorporated by reference herein to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2001, File No. 1-3473). +10.22 Management Stability Agreement between the Company and Jerry H. Mouser dated April 8, 2001 (incorporated by reference herein to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2001, File No. 1-3473). +10.23 Management Stability Agreement between the Company and Everett D. Lewis dated March 15, 2001 (incorporated by reference herein to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2001, File No. 1-3473). +10.24 The Company's Amended Incentive Stock Plan of 1982, as amended through February 24, 1988 (incorporated by reference herein to Exhibit 10(t) to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1988, File No. 1-3473). +10.25 Resolution approved by the Company's stockholders on April 30, 1992 extending the term of the Company's Amended Incentive Stock Plan of 1982 to February 24, 1994 (incorporated by reference herein to Exhibit 10(o) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1992, File No. 1-3473). +10.26 Copy of the Company's Amended and Restated Executive Long-Term Incentive Plan, as amended through May 25, 2000 (incorporated by reference herein to Exhibit 99.1 to the Company's Registration Statement No. 333-39070 filed on Form S-8). +10.27 Copy of the Company's 1998 Performance Incentive Compensation Plan (incorporated by reference herein to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q for the period ended September 30, 1998, File No. 1-3473). +10.28 Copy of the Company's Non-Employee Director Retirement Plan dated December 8, 1994 (incorporated by reference herein to Exhibit 10(t) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994, File No. 1-3473). +10.29 Copy of the Company's Board of Directors Deferred Compensation Plan dated February 23, 1995 (incorporated by reference herein to Exhibit 10(u) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994, File No. 1-3473). +10.30 Copy of the Company's Board of Directors Deferred Compensation Trust dated February 23, 1995 (incorporated by reference herein to Exhibit 10(v) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994, File No. 1-3473).
EXHIBIT NUMBER DESCRIPTION - ------- ----------- +10.31 Copy of the Company's Board of Directors Deferred Phantom Stock Plan (incorporated by reference herein to Exhibit 10 to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1997, File No. 1-3473). +10.32 Phantom Stock Option Agreement between the Company and Bruce A. Smith dated effective October 29, 1997 (incorporated by reference herein to Exhibit 10.20 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997, File No. 1-3473). 10.33 Copy of Settlement Agreement dated effective January 19, 1993, between Tesoro Petroleum Corporation, Tesoro Alaska Petroleum Company and the State of Alaska (incorporated by reference herein to Exhibit 10(q) to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1992, File No. 1-3473). 10.34 Form of Indemnification Agreement between the Company and its officers and directors (incorporated by reference herein to Exhibit B to the Company's Proxy Statement for the Annual Meeting of Stockholders held on February 25, 1987, File No. 1-3473). *12.1 Statement of Computation of Ratio of Earnings to Fixed Charges. *21.1 Subsidiaries of the Company. *23.1 Consent of Deloitte & Touche LLP. *23.2 Consent of Ernst & Young LLP. *23.3 Consent of Fulbright & Jaworski L.L.P. (included in their opinion filed as Exhibit 5.1). *24.1 Powers of Attorney of certain officers and directors of Tesoro Petroleum Corporation and other Registrants (included on the signature pages). *25.1 Form T-1, Statement of Eligibility under the Trust Indenture Act of 1939 of U.S. Bank Trust National Association. *99.1 Form of Letter of Transmittal and Consent. *99.2 Form of Notice of Guaranteed Delivery. *99.3 Form of Letter from Tesoro Petroleum Corporation to Registered Holders and Depository Trust Company Participants. *99.4 Form of Instructions from Beneficial Owners to Registered Holders and Depository Trust Company Participants. *99.5 Form of Letter to Clients.
- --------------- * Filed herewith + Identifies management contracts or compensatory plans or arrangements. EX-1.1 3 h92783ex1-1.txt PURCHASE AGREEMENT EXHIBIT 1.1 $215,000,000 TESORO PETROLEUM CORPORATION 9 5/8% SENIOR SUBORDINATED NOTES DUE 2008 PURCHASE AGREEMENT NOVEMBER 1, 2001 LEHMAN BROTHERS INC. ABN AMRO, INCORPORATED BANK OF AMERICA SECURITIES LLC BANC ONE CAPITAL MARKETS, INC. CREDIT LYONNAIS SECURITIES (USA), INC. SCOTIA CAPITAL (USA) INC. LEHMAN BROTHERS INC. 101 HUDSON STREET 33RD FLOOR, HIGH YIELD CAPITAL MARKETS JERSEY CITY, NJ 07302 Ladies and Gentlemen: Tesoro Petroleum Corporation, a Delaware corporation (the "Company"), proposes to sell to you (the "Initial Purchasers") $215,000,000 aggregate principal amount of 9 5/8% Senior Subordinated Notes due 2008 (the "Notes"). The Initial Purchasers, acting severally and not jointly, propose to purchase the respective principal amounts of Notes set forth on Schedule I hereto. The Notes will be issued pursuant to an Indenture to be dated as of November 6, 2001 (the "Indenture"), between the Company and U.S. Bank Trust National Association, as trustee (the "Trustee"). This is to confirm the agreement concerning the purchase of the Notes from the Company by the Initial Purchasers. As used herein, the term "Subsidiary" shall include each entity listed on Schedule III hereto. The Notes will be guaranteed (the "Subsidiary Guarantees") by each of the entities listed on Schedule II hereto (each as "Guarantor" and collectively the "Guarantors"). The Notes will be offered and sold to the Initial Purchasers without being registered under the Securities Act of 1933, as amended (the "Securities Act"), in reliance on one or more exemptions therefrom. The Company and the Guarantors have prepared a preliminary offering memorandum, dated October 19, 2001 (the "Preliminary Offering Memorandum"), and will prepare a final offering memorandum (the "Offering Memorandum"), relating to the Notes and the Subsidiary Guarantees. Any references herein to the Preliminary Offering Memorandum and the Offering Memorandum shall be deemed to include all documents incorporated therein by reference. Copies of the Preliminary Offering Memorandum have been, and copies of the Offering Memorandum will be, delivered by the Company to the Initial Purchasers pursuant to the terms of this Agreement. The Company hereby confirms that it has authorized the use of the 2 Preliminary Offering Memorandum and the Offering Memorandum in connection with the offering and resale of the Notes by the Initial Purchasers in accordance with Section 3 hereof. On the Closing Date (as defined herein), and as a condition to the obligations of the Initial Purchasers hereunder, the Company and each of the Initial Purchasers will enter into a Registration Rights Agreement (the "Registration Rights Agreement"), substantially in the form attached hereto as Exhibit A. Pursuant to the Registration Rights Agreement, the Company and the Guarantors will agree, among other things, to file with, and use its reasonable best efforts to cause to be declared effective by, the Securities and Exchange Commission (the "Commission") a registration statement with respect to a registered exchange offer under the Securities Act, relating to the offer to exchange the Notes for a like principal amount of debt securities of the Company (the "Exchange Notes") identical in all material respects to the Notes except that the Exchange Notes will have been registered under the Securities Act (the "Exchange Offer"). This Agreement, the Indenture, the Notes, the Subsidiary Guarantees and the Registration Rights Agreement are hereinafter sometimes referred to collectively as the "Operative Documents." SECTION 1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY AND THE GUARANTORS The Company and each of the Guarantors represents and warrants to, and agrees with, the Initial Purchasers that as of the date hereof: (a) The Preliminary Offering Memorandum, as of its date did not, and the Offering Memorandum as of the date hereof does not and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties set forth in this Section 1(a) do not apply to statements or omissions in the Preliminary Offering Memorandum or the Offering Memorandum made in reliance on and in conformity with information furnished to the Company in writing by or on behalf of the Initial Purchasers expressly for use therein. (b) Assuming the Notes are issued, sold and delivered under the circumstances contemplated by the Offering Memorandum and in this Agreement, (i) the registration under the Securities Act of the Notes or the Subsidiary Guarantees or the qualification of the Indenture in respect of the Notes under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), is not required in connection with the offer and sale of the Notes to the Initial Purchasers in the manner contemplated by the Offering Memorandum or this Agreement and (ii) the initial resales of the Notes by the Initial Purchasers on the terms and in the manner set forth in the Offering Memorandum and Section 3 hereof are exempt from the registration requirements of the Securities Act. (c) The documents incorporated by reference in the Preliminary Offering Memorandum and the Offering Memorandum conformed, when such documents became effective or were filed with the Commission, in all material respects to the requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of the Commission 3 thereunder, and none of such documents, when read together with the other information in the Offering Memorandum, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Offering Memorandum when such documents became effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and none of such documents, when read together with the other information in the Offering Memorandum, will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (d) The Company is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware with full corporate power and authority to own, lease and operate its properties and conduct its business as described in the Offering Memorandum, and is duly qualified and registered as a foreign corporation for the transaction of business and is in good standing in each jurisdiction in which the character of the business conducted by it or the location of the properties owned or leased by it make such qualification or registration necessary (except where the failure to so qualify or register would not have a Material Adverse Effect (as defined below)). The Company has an authorized capitalization as set forth under the caption "Capitalization" in the Offering Memorandum. On the date hereof, all of the issued and outstanding shares of capital stock of the Company have been, and on the Closing Date will be, duly authorized and validly issued and are, and on the Closing Date will be, fully paid and nonassessable. On the date hereof, all of the issued and outstanding shares of capital stock of the Company have been, and on the Closing Date will have been, duly authorized and are, and on the Closing Date will be, validly issued and fully paid and nonassessable. As used herein, "Material Adverse Effect" means a material adverse effect on the condition (financial or otherwise), results of operations, business, earnings or prospects of the Company and the Subsidiaries (as defined below), taken as a whole. (e) Schedule III hereto is a complete and accurate schedule of the names of all corporations, partnerships and joint ventures (the "Subsidiaries") which constitute "subsidiaries," as such term is defined in Rule 405 of the rules and regulations of the Commission under the Securities Act (collectively with the rules and regulations of the Commission under the Exchange Act, the "Rules and Regulations"). Other than the Subsidiaries listed on Schedule III, no corporation, partnership or other entity in which the Company has an equity interest constitutes a "subsidiary" as defined in Rule 405 of the Rules and Regulations. Each Guarantor and each Subsidiary is duly organized, validly existing and in good standing in the jurisdiction of its incorporation or formation, as the case may be, with full corporate or other power and authority to own, lease and operate its properties and to conduct its business as described in the Offering Memorandum. Each Subsidiary is duly qualified and registered as a foreign corporation or limited partnership, as the case may be, for the transaction of business and is in good standing in each jurisdiction in which the character of the business conducted by it or the location of the properties owned or leased by it make such qualification or registration unnecessary, save where the failure to so qualify or be in good standing as a foreign corporation or limited partnership, as the case may be, would not have a Material Adverse Effect. 4 (f) All of the issued and outstanding shares of capital stock of each of the Guarantors and each of the Subsidiaries that is a corporation have been duly authorized and validly issued, are fully paid and nonassessable, and are owned by the Company (except for one share of Tesoro Petroleum (Singapore) Pte Ltd.) directly or indirectly, free and clear of any lien, adverse claim, security interest or other encumbrance (a "Lien"), except for Liens arising from the senior secured credit facility described in the Offering Memorandum. All outstanding equity interests in each Subsidiary that is not a corporation have been duly authorized and validly issued and are owned by the Company directly or indirectly, free and clear of any Lien, except for Liens arising from the senior secured credit facility described in the Offering Memorandum. Except as disclosed in the Offering Memorandum and as outstanding under employee benefit plans of the Company, there are no outstanding subscriptions, rights (preemptive or other), warrants, calls, commitments of sale or options to acquire, or instruments convertible into or exchangeable for, nor any restriction on the voting or transfer of, any capital stock or other equity interest of the Company or any Subsidiary. (g) The Company and the Guarantors have all requisite power and authority to execute, deliver and perform their respective obligations under this Agreement, each of the other Operative Documents to which they may be a party and to consummate the transactions contemplated hereby and thereby, including, without limitation, the power and authority to issue, sell and deliver the Notes and the Subsidiary Guarantees as provided herein and therein. (h) This Agreement has been duly and validly authorized, executed and delivered by the Company and each of the Guarantors and constitutes a valid and binding agreement of the Company and each of the Guarantors, enforceable against the Company and each of the Guarantors in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and subject to the applicability of general principles of equity, and except as rights to indemnity and contribution hereunder and thereunder may be limited by Federal or state securities laws or principles of public policy. (i) The Indenture has been duly authorized by the Company and each of the Guarantors and, on the Closing Date, will have been validly executed and delivered by the Company and each of the Guarantors. When the Indenture has been validly executed and delivered by the Company and each of the Guarantors, assuming due authorization, delivery and performance by the Trustee, the Indenture will constitute a valid and binding agreement of the Company and each of the Guarantors, enforceable against the Company and each of the Guarantors in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and general equity principles. On the Closing Date, the Indenture will conform in all material respects to the requirements of the Trust Indenture Act, and the rules and regulations of the Commission applicable to an indenture which is qualified thereunder. The Offering Memorandum contains an accurate summary, in all material respects, of the terms of the Indenture. (j) The Notes have been duly authorized for issuance and sale to the Initial Purchasers by the Company pursuant to this Agreement and, on the Closing Date, will have been validly executed and delivered by the Company. When the Notes have been issued, executed and 5 authenticated in accordance with the terms of the Indenture and delivered against payment therefor in accordance with the terms hereof and thereof, the Notes will constitute valid and binding obligations of the Company, enforceable against it in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and general equity principles, and entitled to the benefits of the Indenture. The Offering Memorandum contains an accurate summary, in all material respects, of the terms of the Notes. (k) The Subsidiary Guarantees to be endorsed on the Notes and the Exchange Notes by each Guarantor have been duly authorized by each Guarantor and, on the Closing Date, the Subsidiary Guarantees endorsed on the Notes will have been validly executed and delivered by each such Guarantor. When the Notes have been issued, executed and authenticated in accordance with the Indenture and delivered against payment therefor in accordance with the terms hereof and thereof, the Subsidiary Guarantees of each Guarantor endorsed thereon will constitute valid and binding obligations of such Guarantor, enforceable against such Guarantor in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and general equity principles, and entitled to the benefits of the Indenture. The Offering Memorandum contains an accurate summary, in all material respects, of the terms of the Subsidiary Guarantees to be endorsed on the Notes and the Exchange Notes. (l) The Registration Rights Agreement has been duly authorized by the Company and each of the Guarantors and, on the Closing Date, will have been validly executed and delivered by the Company and each of the Guarantors. When the Registration Rights Agreement has been duly executed and delivered by the Company and each of the Guarantors, the Registration Rights Agreement will constitute a valid and binding agreement of the Company and each of the Guarantors, enforceable against the Company and each Guarantor in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights generally and general equity principles and except as rights to indemnity and contribution may be limited by Federal or state securities laws or principles of public policy. The Offering Memorandum contains an accurate summary, in all material respects, of the terms of the Registration Rights Agreement. (m) The execution, delivery and performance of this Agreement and the other Operative Documents by the Company and each of the Guarantors, compliance by the Company and each of the Guarantors with all the provisions hereof and thereof, the issuance and sale of the Notes by the Company, the issuance of the Subsidiary Guarantees by the Guarantors and the consummation by the Company and the Guarantors of the transactions contemplated hereby and thereby (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound or to which any of the properties or assets of the Company or any Subsidiary is subject, (ii) will not result in any violation of the provisions of the charter, by-laws or other organizational documents of the Company or any Subsidiary, (iii) will not result in any violation of the provisions of any law or statute or any order, rule, regulation, judgment or decree of any court or governmental agency or body having jurisdiction over the Company or any Subsidiary or any of their respective properties or assets, or (iv) result 6 in the imposition or creation of (or the obligation to create or impose) a Lien under any agreement or instrument to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary or their respective properties or assets is bound, except in the case of clauses (i), (iii) and (iv) for such conflicts, breaches, defaults, violations or Liens which individually or in the aggregate would not result in a Material Adverse Effect. Except for such consents, approvals, authorizations, other orders, filings, qualifications or registrations (i) as have been obtained, (ii) as may be required under applicable state securities or Blue Sky laws of various jurisdictions in connection with the purchase and distribution of the Notes by the Initial Purchasers, (iii) as set forth in the Registration Rights Agreement, and (iv) which the failure to obtain would not result in a Material Adverse Effect, no consent, approval, authorization, or order of or filing, qualification or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement or the other Operative Documents by the Company and each of the Guarantors, compliance by the Company and each of the Guarantors with all the provisions hereof and thereof, the issuance and sale of the Notes by the Company, the issuance of the Subsidiary Guarantees by the Guarantors and the consummation of the transactions contemplated hereby and thereby. (n) Neither the Company nor any Subsidiary has sustained, since the date of the latest quarterly financial statements included in the Offering Memorandum, any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in the Offering Memorandum, except losses or interferences which do not, individually or in the aggregate, have a Material Adverse Effect; since such date, there has not been any material change in the capital stock or other equity interest or long-term debt or short-term debt of the Company or any Subsidiaries or any change having a Material Adverse Effect, or any development involving a prospective material adverse change, in or affecting the general affairs, management, consolidated financial position, stockholders' equity or results of operations of the Company and the Subsidiaries, otherwise than as set forth or contemplated in the Offering Memorandum; and since such date, except as otherwise disclosed in the Offering Memorandum, the Company has not (i) issued or granted any securities, other than pursuant to Company employee benefit plans, or (ii) declared or paid any dividend on its capital stock. (o) The historical consolidated financial statements (including the related notes) of the Company which appear in and are incorporated in the Preliminary Offering Memorandum and the Offering Memorandum comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Exchange Act, and the Rules and Regulations, present fairly in all material respects the consolidated financial position and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with accounting principles generally accepted in the United States of America applied on a consistent basis throughout the periods involved except as noted therein. The pro forma financial statements included in the Preliminary Offering Memorandum and the Offering Memorandum present fairly in all material respects the historical and proposed transactions contemplated by this Agreement and the Offering Memorandum; and such pro forma financial statements comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Exchange Act and the Rules and Regulations and have been prepared on a basis consistent with the historical consolidated financial statements of the Company. The other historical financial and statistical information and operating data of 7 the Company included in the Preliminary Offering Memorandum and the Offering Memorandum, historical and pro forma, are in all material respects accurately presented and prepared on a basis consistent with the financial statements included in the Preliminary Offering Memorandum and the Offering Memorandum and the books and records of the Company. The Company is not aware of any facts or circumstances that would lead it to believe that (i) the combined historical financial statements of The North Dakota and Utah Refining and Marketing Business of BP Corporation North America Inc., do not give effect to assumptions used in the preparation thereof on a reasonable basis under the circumstances and (ii) the other historical financial and statistical information and operating data of The North Dakota and Utah Refining and Marketing Business of BP Corporation North America Inc. included in the Preliminary Offering Memorandum and the Offering Memorandum are not accurately presented and prepared on a basis consistent with the financial statements included in the Preliminary Offering Memorandum and the Offering Memorandum. (p) Except for the Registration Rights Agreement, there are no contracts, agreements or understandings between the Company or any Guarantor and any person granting such person the right to require the Company or such Guarantor to file a registration statement under the Securities Act with respect to any securities of the Company or of such Guarantor, owned or to be owned by such person or to require the Company or such Guarantor to include such securities with any securities being registered pursuant to any registration statement filed by the Company under the Securities Act. (q) Deloitte & Touche LLP, who has audited the consolidated financial statements of the Company and, to the Company's knowledge, Ernst & Young LLP, who has audited the combined financial statements of The North Dakota and Utah Refining and Marketing Business of BP Corporation North America Inc., each of whose reports is included or incorporated by reference in the Offering Memorandum and who have delivered the initial letters referred to in Section 7(f) hereof, are independent public accountants under Rule 101 of the AICPA'S Code of Professional Conduct, and its interpretations and rulings. (r) Other than as set forth in the Offering Memorandum, there are no legal or governmental proceedings pending to which the Company or any Subsidiary is a party or to which any of their respective properties or assets is subject which (i) could reasonably be expected to have a Material Adverse Effect or (ii) could materially and adversely affect the consummation by the Company and each of the Guarantors of their obligations pursuant to this Agreement or, the other Operative Documents; and to the Company's and each of the Guarantors' knowledge, no such proceedings are threatened or contemplated by government authorities or threatened by others. (s) When the Notes are issued and delivered pursuant to this Agreement, the Notes will not be of the same class (within the meaning of Rule 144A(d)(3) under the Securities Act) as any security of the Company listed on any national securities exchange registered under Section 6 of the Exchange Act or quoted on an automated inter-dealer quotation system. (t) Neither the Company nor any of the Subsidiaries or any of its or their respective affiliates (as defined in Rule 501(b) of Regulation D under the Securities Act, an "Affiliate") has directly, or through any agent, (i) sold, offered for sale, solicited offers to buy or otherwise 8 negotiated in respect of, any security (as defined in the Securities Act) which is or will be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the Notes or (ii) engaged in any form of general solicitation or general advertising in connection with the offering of the Notes (as those terms are used in Regulation D under the Securities Act), or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; provided, however, no representation is made as to the Initial Purchasers or any person acting on their behalf. No securities of the same class as the Notes have been issued and sold by the Company within the six-month period immediately prior to the date hereof. (u) Neither the Company nor any of the Subsidiaries or any of its or their respective affiliates or any person acting on its or their behalf has engaged or will engage in any "directed selling efforts" within the meaning of Regulation S under the Securities Act with respect to the Notes. The Company and each of the Subsidiaries, each of their affiliates and any person acting on its or their behalf (other than the Initial Purchasers, as to whom the Company makes no representation) has complied and will comply with the offering restriction requirements of Regulation S. To the Company's knowledge, the sale of the Notes pursuant to Regulation S is not part of a plan or scheme to evade the registration provisions of the Securities Act. (v) The Company and each of the Subsidiaries has such permits, licenses, franchises and authorizations of governmental or regulatory authorities ("permits") as are necessary to own its respective properties and to conduct its business in the manner described in the Offering Memorandum, subject in each case to such qualifications as may be set forth in the Offering Memorandum and except where the failure to have such permits would not have a Material Adverse Effect; the Company and each of the Subsidiaries has fulfilled and performed in all material respects all of its current obligations with respect to such permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other material impairment of the rights of the holder of any such permits, subject in each case to such qualifications as may be set forth in the Offering Memorandum and except where the failure so to fulfill or perform or the occurrence of such an event would not have a Material Adverse Effect; and, except as described in the Offering Memorandum, none of such permits contains any restriction that is materially burdensome to the Company and the Subsidiaries, taken as a whole. (w) The Company and each of the Subsidiaries owns or possesses adequate rights to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights and licenses necessary for the conduct of their respective businesses, except where the failure to have such permits would not have a Material Adverse Effect, and have no reason to believe that the conduct of their respective businesses will conflict with, and have not received any notice of any claim of conflict with, any such rights of others which, in the aggregate, could reasonably be expected to have a Material Adverse Effect. (x) The Company and each of the Subsidiaries has good and indefeasible title in fee simple to all real property and good and defensible title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Offering Memorandum or such as do not materially adversely affect the value of such 9 property or interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries; and all real property, buildings and vessels held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases, with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property, buildings and vessels by the Company and the Subsidiaries. (y) No labor disturbance by the employees of the Company or any of the Subsidiaries exists or, to the knowledge of the Company, is imminent which might be expected to have a Material Adverse Effect; except as disclosed in the Offering Memorandum, neither the Company nor any of the Subsidiaries is party to a collective bargaining agreement; and there are no significant unfair labor practice complaints pending against the Company or any of the Subsidiaries or, to the best of the Company's knowledge, threatened against any of them which, in the aggregate, could reasonably be expected to have a Material Adverse Effect. (z) The Company and each of the Subsidiaries is in compliance in all material respects with all presently applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred with respect to any "pension plan" (as defined in ERISA) for which the Company or any of the Subsidiaries would have any liability; neither the Company nor any of the Subsidiaries has incurred and neither do any of them expect to incur liability under (i) title IV of ERISA with respect to termination of, or withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended, including the regulations and published interpretations thereunder (the "Code"); and each "pension plan" for which the Company or any Subsidiary would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification. (aa) The Company and each of the Subsidiaries has filed, and as of the Closing Date will have filed, all federal, state, local and foreign income and franchise tax returns required to be filed through the date hereof and has paid all taxes due thereon, and no tax deficiency has been determined adversely to the Company or any of the Subsidiaries which has had (nor does the Company have any knowledge of any tax deficiency which, if determined adversely to the Company or any of the Subsidiaries, might have) a Material Adverse Effect. (bb) The Company and each of the Subsidiaries (i) makes and keeps accurate books and records and (ii) maintains internal accounting controls which provide reasonable assurance that (A) transactions are executed in accordance with management's authorization, (B) transactions are recorded as necessary to permit preparation of its financial statements and to maintain accountability for its assets, (C) access to its assets is permitted only in accordance with management's authorization and (D) the reported accountability for its assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any difference. (cc) Except as described in the Offering Memorandum and except such matters as would not, singly or in the aggregate, result in a Material Adverse Effect, (A) neither the 10 Company nor any of the Subsidiaries is in violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative order, consent, decree or judgment thereof, including any judicial or administrative order, consent, decree or judgment relating to pollution or protection of human health, the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products (collectively, "Hazardous Materials") or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials (collectively, "Environmental Laws"), (B) the Company and each of the Subsidiaries has all permits, authorizations and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending or, to the knowledge of the Company, threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any of the Subsidiaries and (D) there are no events or circumstances that might reasonably be expected to form the basis of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company or any of the Subsidiaries relating to Hazardous Materials or Environmental Laws. (dd) The Company is not, and upon the issuance and sale of the Notes as herein contemplated and the application of the net proceeds therefrom as described under the caption "Use of Proceeds" in the Offering Memorandum will not be an "investment company" or an entity "controlled" by an "investment company" as such terms are defined in the Investment Company Act of 1940, as amended, and the rules and regulations thereunder. (ee) The statements set forth in the Offering Memorandum under the captions "The Acquisitions," "Business--Government Regulation and Legislation," "Description of Other Indebtedness," "Description of the Notes" and "Certain Federal Income Tax Considerations" insofar as such statements purport to summarize the provisions of the documents or agreements referred to therein, matters of law or legal conclusions or federal statutes, laws or regulations, are accurate and fairly present the information required to be shown. (ff) None of the Company or the Subsidiaries has taken, nor will any of them take, directly or indirectly, any action prohibited by Regulation M under the Securities Act. (gg) No "nationally recognized statistical rating organization" as such term is defined for purposes of Rule 436(g)(2) under the Securities Act (i) has imposed (or has informed the Company or any Guarantor that it is considering imposing) any condition (financial or otherwise) on the Company's or any Guarantor's retaining any rating assigned as of the date hereof to the Company, any Guarantor or any securities of the Company or any Guarantor or (ii) has indicated to the Company or any Guarantor that it is considering (A) the downgrading, suspension or withdrawal of, or any review for a possible change that does not indicate the direction of the possible change in, any rating so assigned or (B) any change in the outlook for any rating of the Company or any Guarantor. 11 (hh) None of the Company or the Subsidiaries nor any agent thereof acting on the behalf of them has taken, and none of them will take, any action that might cause this Agreement or the issuance or sale of the Notes to violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve System. (ii) The Company and each of the Subsidiaries has complied with, and is and will be in compliance with, the provisions of that certain Florida act relating to disclosure of doing business with Cuba, codified as Section 517.075 of the Florida statutes, and the rules and regulations thereunder or is exempt therefrom. The Company acknowledges that the Initial Purchasers and, for purposes of the opinions to be delivered to the Initial Purchasers pursuant to Section 7 hereof, counsel to the Company and the Guarantors and counsel to the Initial Purchasers, will rely upon the accuracy and truth of the foregoing representations and hereby consents to such reliance. Each certificate signed by any officer of the Company or any Guarantor and delivered to the Initial Purchasers or counsel for the Initial Purchasers shall be deemed to be a representation and warranty by the Company or such Guarantor to the Initial Purchasers as to the matters covered thereby. SECTION 2. PURCHASE OF THE NOTES BY THE INITIAL PURCHASERS (a) On the basis of the representations and warranties herein contained, and subject to the terms and conditions herein set forth, the Company agrees to sell to each Initial Purchaser, and each Initial Purchaser agrees to purchase from the Company the aggregate principal amount of the Notes set forth on Schedule I opposite the name of such Initial Purchaser, plus any additional principal amount of Notes which such Initial Purchaser may become obligated to purchase pursuant to the provisions of Section 9 hereof, at a purchase price equal to 97.75% of the principal amount of the Notes. (b) The Company shall not be obligated to deliver any of the Notes, except upon payment for all of the Notes to be purchased as hereinafter provided. SECTION 3. SALE AND RESALE OF THE NOTES BY THE INITIAL PURCHASERS (a) You have advised the Company that you propose to offer the Notes for resale upon the terms and conditions set forth in this Agreement and in the Offering Memorandum. You hereby represent and warrant to, and agree with, the Company that you (i) are purchasing the Notes pursuant to a private sale exempt from registration under the Securities Act, (ii) will not solicit offers for, or offer or sell, the Notes by means of any form of general solicitation or general advertising or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act, and (iii) will solicit offers for the Notes only from, and will offer, sell or deliver the Notes, as part of their initial offering, only to (A) in the case of offers inside the United States, persons whom you reasonably believe to be qualified institutional buyers ("Qualified Institutional Buyers") as defined in Rule 144A under the Securities Act, as such rule may be amended from time to time ("Rule 144A") or, if any such person is buying for one or more institutional accounts for which such person is acting as fiduciary or agent, only when such person has represented to you that each such account is a Qualified Institutional 12 Buyer, to whom notice has been given that such sale or delivery is being made in reliance on Rule 144A and (B) in the case of offers outside the United States, persons other than U.S. persons (as defined in Regulation S) in accordance with Rule 903 of Regulation S. (b) In connection with the transactions described in subsection (a)(iii)(B) of this Section 3, you have offered and sold the Notes, and will offer and sell the Notes, (i) as part of your distribution at any time and (ii) otherwise until 40 days after the later of the commencement of the offering and the Closing Date (as defined herein) (the "Distribution Compliance Period"), only in accordance with Rule 903 of Regulation S. Accordingly, the Initial Purchasers represent and agree that, with respect to the transactions described in subsection (a)(iii)(B) of this Section 3, neither they, nor any of their Affiliates, nor any person acting on their behalf has engaged or will engage in any directed selling efforts with respect to the Notes, and that they have complied and will comply with the offering restrictions requirements of Regulation S. The Initial Purchasers agree that, at or prior to the confirmation of sale of the Notes pursuant to subsection (a)(iii)(B) of this Section 3, they shall have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Notes from the Initial Purchasers during the Distribution Compliance Period a confirmation or notice to substantially the following effect: "The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the "Securities Act") and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. Persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the commencement of the offering and the time of delivery of the Securities, except in either case in accordance with Regulation S or Rule 144A under the Securities Act. The terms used above have the meaning given to them by Regulation S." SECTION 4. DELIVERY OF AND PAYMENT FOR THE NOTES (a) Payment of the purchase price for, and delivery of, the Notes shall be made at the offices of Simpson Thacher & Bartlett, 425 Lexington Avenue, New York, New York 10017 or at such other place as shall be agreed upon by the Company and you, at 9:30 a.m. (New York time), on November 6, 2001 or at such other time or date as you and the Company shall determine (such date and time of payment and delivery being herein called the "Closing Date"). (b) On the Closing Date, payment shall be made to the Company in immediately available funds by wire transfer to such account or accounts as the Company shall specify prior to the Closing Date or by such means as the parties hereto shall agree prior to the Closing Date against delivery to you of the certificates evidencing the Notes. Upon delivery, the Notes shall be registered in such names and in such denominations as the Initial Purchasers shall request in writing not less than two full business days prior to the Closing Date. For the purpose of expediting the checking and packaging of certificates evidencing the Notes, the Company agrees to make such certificates available for inspection not later than 2:00 P.M. on the business day at least 24 hours prior to the Closing Date. 13 SECTION 5. FURTHER AGREEMENTS OF THE COMPANY AND THE GUARANTORS The Company and each of the Guarantors further agrees: (a) To furnish to you, without charge, during the period referred to in paragraph (c) below, as many copies of the the Offering Memorandum and any supplements and amendments thereto as you may reasonably request. (b) Prior to making any amendment or supplement to the Offering Memorandum, the Company shall furnish a copy thereof to the Initial Purchasers and counsel to the Initial Purchasers and will not effect any such amendment or supplement to which the Initial Purchasers shall reasonably object by notice to the Company after a reasonable period to review, which shall not in any case be longer than three business days after receipt of such copy. (c) If, at any time prior to completion of the distribution of the Notes by you to purchasers, any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for you or counsel for the Company, to amend or supplement the Offering Memorandum in order that the Offering Memorandum will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in light of the circumstances existing at the time it is delivered to a purchaser, or if it is necessary to amend or supplement the Offering Memorandum to comply with applicable law, to promptly prepare such amendment or supplement as may be necessary to correct such untrue statement or omission or so that the Offering Memorandum, as so amended or supplemented, will comply with applicable law and to furnish you without charge such number of copies as you may reasonably request. (d) So long as the Notes are outstanding and are "Restricted Securities" within the meaning of Rule 144(a)(3) under the Securities Act during any period in which it is not subject to and in compliance with Section 13 or 15(d) of the Exchange Act, to furnish to holders of the Notes and prospective purchasers of Notes designated by such holders, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. (e) For a period of five years following the date of the Offering Memorandum, to furnish to the Initial Purchasers copies of all materials furnished by the Company to its stockholders and all public reports and all reports and financial statements furnished by the Company to the principal national securities exchange upon which the Notes may be listed pursuant to requirements of or agreements with such exchange or to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder. (f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale (or obtain an exemption from registration) under the securities laws of such jurisdictions as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided, however, that the Company shall not be required to qualify as a foreign corporation or a dealer in securities or to execute a general consent to service of process in any jurisdiction in any action other than one arising out of the offering or sale of the Notes. 14 (g) For a period of 90 days from the Closing Date, not to, directly of indirectly, (A) offer, sell, contract to sell or otherwise dispose of any additional securities of the Company substantially similar to the Notes or any securities convertible into or exchangeable for or that represent the right to receive any such similar securities, other than offering and exchanging the Exchange Notes to holders of the Notes in the Exchange Offer, or (B) enter into any swap or derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such securities, whether any such transaction described in clause (A) or (B) above is to be settled by delivery of Notes, or other securities, in cash or otherwise, in each case, without the prior written consent of Lehman Brothers Inc. (h) To use its best efforts to permit the Notes to be designated Private Offerings, Resales and Trading through Automated Linkages Market ("PORTAL") securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers, Inc. relating to trading in the PORTAL Market and to permit the Notes to be eligible for clearance and settlement through The Depository Trust Company (the "DTC"). (i) Except following the effectiveness of the Registration Statement (as defined in the Registration Rights Agreement), not to, and to cause its affiliates (as defined in Rule 501(b) under the Act) not to, solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act) or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act. (j) Not to, and to cause its affiliates not to, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) in a transaction that could be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the Notes. (k) To take such steps as shall be necessary to ensure that neither the Company nor any Subsidiary of the Company shall become an "investment company" within the meaning of such term under the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder. (l) To comply with the agreements in the Indenture, the Registration Rights Agreement and the other Operative Documents. (m) To apply the net proceeds from the sale of the Notes as set forth under the caption "Use of Proceeds" in the Offering Memorandum. (n) To do all things required or necessary to be done or performed under this Agreement prior to the Closing Date by such date and to satisfy the closing conditions set forth in Section 7 hereof. SECTION 6. EXPENSES Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company and the Guarantors agree to pay or cause to be paid all reasonable expenses incident to the performance of the obligations of the Company and 15 the Guarantors under this Agreement, including: (i) the fees, disbursements and expenses of counsel to the Company and the Guarantors and accountants of the Company and the Guarantors in connection with the sale and delivery of the Notes to the Initial Purchasers and pursuant to the resales thereof by the Initial Purchasers, and all other fees or expenses in connection with the preparation, printing, filing and distribution of the Preliminary Offering Memorandum and the Offering Memorandum and all amendments and supplements to any of the foregoing (including financial statements), including the mailing and delivering of copies thereof to the Initial Purchasers and persons designated by them in the quantities specified; (ii) all costs and expenses related to the delivery of the Notes to the Initial Purchasers and pursuant to the resales thereof by the Initial Purchasers; (iii) all expenses in connection with the registration or qualification of the Notes and the Subsidiary Guarantees for offer and sale under the securities or Blue Sky laws of the several states and all costs of producing any Blue Sky memorandum in connection therewith (including the filing fees and reasonable fees and disbursements of counsel for the Initial Purchasers in connection with such registration or qualification and memorandum relating thereto); (iv) the cost of printing certificates representing the Notes and the Subsidiary Guarantees, (v) all expenses and listing fees in connection with the application for quotation of the Notes on PORTAL; (vi) the fees and expenses of the Trustee and the Trustee's counsel in connection with the Indenture, the Notes and the Subsidiary Guarantees; (vii) the costs and expenses of any transfer agent, registrar and/or depositary (including DTC); (viii) any fees charged by rating agencies for the rating of the Notes; (ix) all costs and expenses of the Exchange Offer and any Registration Statement, as set forth in the Registration Rights Agreement; and (x) all other costs and expenses incident to the performance of the obligations of the Company and the Guarantors hereunder for which provision is not otherwise made in this Section; provided, however, that except as provided in this Section 6 and in Section 11, the Initial Purchasers shall pay their own costs and expenses, including the costs and expenses of their own counsel, any transfer taxes or other taxes payable thereon, and the expenses of advertising any offering of the Notes made by the Initial Purchasers. SECTION 7. CONDITIONS TO THE INITIAL PURCHASERS' OBLIGATIONS The obligations of the Initial Purchasers hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties of the Company and the Guarantors contained herein, to the performance by the Company and the Guarantors of their respective obligations hereunder, and to each of the following additional terms and conditions: (a) The Initial Purchasers shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Offering Memorandum or any amendment or supplement thereto contains any untrue statement of a fact which, in the opinion of Simpson Thacher & Bartlett, counsel for the Initial Purchasers, is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading. (b) The Offering Memorandum shall have been printed and copies distributed to the Initial Purchasers not later than 10:00 a.m., New York City time, on the day following the date of this Agreement or at such later date and time as to which the Company and the Initial Purchasers may agree. 16 (c) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Operative Documents, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonable satisfactory in all material respects to counsel for the Initial Purchasers, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (d) The Initial Purchasers shall have received from Fulbright & Jaworski L.L.P. their written opinion, as counsel to the Company, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Exhibit B hereto. (e) The Initial Purchasers shall have received from James C. Reed, Jr., general counsel of the Company, his written opinion, as counsel to the Company, addressed to the Initial Purchasers and dated the Closing Date, in form and substance reasonably satisfactory to the Initial Purchasers, to the effect set forth in Exhibit C hereto. (f) At the time of execution of this Agreement, the Initial Purchasers shall have received from each of Deloitte & Touche LLP and Ernst & Young LLP, letters, in form and substance satisfactory to the Initial Purchasers, addressed to the Initial Purchasers and dated the date hereof, (i) confirming that they are independent public accountants with respect to the Company under Rule 101 of the AICPA'S Code of Professional Conduct, and its interpretations and rulings, (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five business days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information, operating data and other matters ordinarily covered by accountants' "comfort letters" to underwriters, including the financial information contained or incorporated by reference in the Offering Memorandum as identified by you. (g) With respect to the letters of Deloitte & Touche LLP and Ernst & Young LLP referred to in the preceding paragraph and delivered to the Initial Purchasers concurrently with the execution of this Agreement (the "initial letters"), the Company shall have furnished to the Initial Purchasers letters (the "bring-down letters") of such accountants, addressed to the Initial Purchasers and dated the Closing Date, (i) confirming that they are independent public accountants with respect to the Company under Rule 101 of the AICPA'S Code of Professional Conduct, and its interpretations and rulings, (ii) stating, as of the date of the bring-down letters (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Offering Memorandum, as of a date not more than five business days prior to the date of the bring-down letters), the conclusions and findings of such firm with respect to the financial information, operating data and other matters covered by the respective initial letters and (iii) confirming in all material respects the conclusions and findings set forth in the initial letters. (h) The Company shall have furnished to the Initial Purchasers a certificate, dated the Closing Date, of (i) the Senior Vice President and Chief Financial Officer of the Company and (ii) the Vice President and Treasurer of the Company stating that: 17 (i) The representations, warranties and agreements of the Company in Section 1 are true and correct as of the Closing Date and the Company has complied with all its agreements contained herein; (ii) (A) Neither the Company nor any of the Subsidiaries has sustained since the date of the latest quarterly financial statements included in or incorporated by reference into the Offering Memorandum any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Offering Memorandum and (B) since such date there has not been any material change in the capital stock, long-term debt or short-term debt of the Company or any of the Subsidiaries or any material change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders' equity, results of operations or prospects of the Company and the Subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Offering Memorandum; and (iii) They have carefully examined the Preliminary Offering Memorandum and the Offering Memorandum and, in their opinion (A) the Preliminary Offering Memorandum and the Offering Memorandum, as of their respective dates did not include any untrue statement of a material fact and did not omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (B) since the date of the Offering Memorandum, no event has occurred which should have been set forth in a supplement or amendment to the Offering Memorandum. (i) (i) Neither the Company nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements included in or incorporated by reference into the Offering Memorandum any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Offering Memorandum and (ii) since such date there shall not have been any material change in the capital stock, long-term debt or short-term debt of the Company or any of its Subsidiaries or any material change, or any development involving a prospective material change, in or affecting the general affairs, management, consolidated financial position, stockholders' equity or results of operations of the Company and its Subsidiaries taken as a whole, otherwise than as set forth or contemplated in the Offering Memorandum, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Initial Purchasers, so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the Notes on the terms and in the manner contemplated in the Offering Memorandum. (j) Subsequent to the execution and delivery of this Agreement (i) no downgrading shall have occurred in the rating accorded the Company or any Guarantor or the securities of the Company or any Guarantor by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and Regulations and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Notes. 18 (k) The Company, the Guarantors and the Trustee shall have entered into the Indenture and the Initial Purchasers shall have received counterparts thereof. (l) The Company, the Guarantors and the Initial Purchasers shall have entered into the Registration Rights Agreement and the Initial Purchasers shall have received counterparts thereof. (m) The Initial Purchasers shall have received from Simpson Thacher & Bartlett, counsel for the Initial Purchasers, their opinion, dated the Closing Date, with respect to such matters as the Initial Purchasers may reasonably require, and the Company shall have furnished to such counsel such documents and information as they may reasonably request for the purpose of enabling them to pass upon such matters. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Initial Purchaser. SECTION 8. INDEMNIFICATION AND CONTRIBUTION (a) The Company and each Guarantor, jointly and severally, shall indemnify and hold harmless each Initial Purchaser, its officers and employees and each person, if any, who controls any Initial Purchaser within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability or action relating to purchases and sales of Notes), to which that Initial Purchaser, officer, employee or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained (A) in the Preliminary Offering Memorandum, the Offering Memorandum or in any amendment or supplement thereto, or (B) in any Blue Sky application or other document prepared or executed by the Company (or based upon any written information furnished by the Company) specifically for the purpose of qualifying any or all of the Notes under the securities laws of any state or other jurisdiction (any such application, document or information being hereinafter called a "Blue Sky Application"), (ii) the omission or alleged omission to state in the Preliminary Offering Memorandum, the Offering Memorandum or in any amendment or supplement thereto, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading or (iii) any act or failure to act, or any alleged act or failure to act, by any Initial Purchaser in connection with, or relating in any manner to, the Notes or the offering contemplated hereby, and which is included as part of or referred to in any loss, claim, damage, liability or action arising out of or based upon matters covered by clause (i) or (ii) above (provided that the Company and the Guarantors shall not be liable in the case of any matter covered by this clause (iii) to the extent that it is determined in a final judgment by a court of competent jurisdiction that such loss, claim, damage, liability or action resulted directly from any such act or failure to act undertaken or omitted to be taken by such Initial Purchaser through its gross negligence or willful misconduct), and shall reimburse that Initial Purchaser and each officer, employee and controlling person promptly upon demand for any legal or other expenses reasonably incurred by that Initial Purchaser, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, 19 damage, liability or action as such expenses are incurred; provided, however, that the Company and the Guarantors shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in the Preliminary Offering Memorandum or the Offering Memorandum, as appropriate, or in any such amendment or supplement, or in any Blue Sky Application in reliance upon and in conformity with the written information furnished to the Company by or on behalf of any Initial Purchaser specifically for inclusion therein and described in Section 8(e); provided, further, that with respect to any such untrue statement or omission made in the Preliminary Offering Memorandum, the indemnity agreement contained in this Section 8(a) shall not enure to the benefit of such Initial Purchaser from whom the person asserting any such losses, claims, damages or liabilities purchased the Securities concerned if, to the extent that such sale was an initial sale by such Initial Purchaser and any such loss claim, damage or liability of that Initial Purchaser is a result of the fact that both (A) a copy of the Offering Memorandum was not sent or given to such person at or prior to written confirmation of the sale of such Notes to such person and (B) the untrue statement or omission in the Preliminary Offering Memorandum was corrected in the Offering Memorandum unless, in either case, such failure to deliver the Offering Memorandum was a result of noncompliance by the Company with Section 5(c) hereof. The foregoing indemnity agreement is in addition to any liability which the Company or any of the Guarantors may otherwise have to any Initial Purchaser or to any officer, employee or controlling person of any Initial Purchaser. (b) Each Initial Purchaser, jointly and not severally, shall indemnify and hold harmless the Company and the Guarantors, and their respective directors, officers and employees, and each person, if any, who controls the Company within the meaning of the Securities Act, from and against any loss, claim, damage or liability, joint or several, or any action in respect thereof, to which the Company, any such director, officer or employee, or any controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained (A) in the Preliminary Offering Memorandum or the Offering Memorandum or in any amendment or supplement thereto, or (B) in any Blue Sky Application or (ii) the omission or alleged omission to state in the Preliminary Offering Memorandum or the Offering Memorandum or in any amendment or supplement thereto, or in any Blue Sky Application, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with the written information furnished to the Company by or on behalf of such Initial Purchaser specifically for inclusion therein and described in Section 8(e), and shall reimburse the Company and the Guarantors and any such director, officer or employee, or any such controlling person, for any legal or other expenses reasonably incurred by the Company and the Guarantors or any such director, officer or employee, or any controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which any Initial Purchaser may otherwise have to the Company and the Guarantors or any such director, officer or employee, or any controlling person. (c) Promptly after receipt by an indemnified party under this Section 8 of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect 20 thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the claim or the commencement of that action; provided, however, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have under this Section 8 except to the extent it has been materially prejudiced by such failure and, provided further, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to an indemnified party otherwise than under this Section 8. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that the indemnified party shall have the right to employ counsel to represent all indemnified parties who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the indemnified parties against the indemnifying party under this Section 8 if, (i) the employment of such counsel shall have been authorized by the indemnifying party in connection with the defense of such action, (ii) the indemnifying party shall not have engaged counsel reasonably promptly to take charge of the defense of such action or (iii) counsel for any of the indemnified parties shall have reasonably concluded that there may be defenses available to the indemnified parties that are in addition to or in conflict with those available to the indemnifying party, and, in that event, the fees and expenses of such separate counsel shall be paid by the indemnifying party; provided, further, that in connection with any proceedings or related proceedings in the same jurisdiction, the indemnifying party shall not be liable for the legal fees and expenses of more than one separate firm of attorneys (in addition to any local counsel). No indemnifying party shall (i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding, or (ii) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with its written consent or if there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss of liability by reason of such settlement or judgment. (d) If the indemnification provided for in this Section 8 shall for any reason be unavailable to or insufficient to hold harmless an indemnified party under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability, or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Company and the Guarantors, on the one hand, and the Initial Purchasers, on the other, from the offering of the Notes or (ii) if the 21 allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantors, on the one hand, and the Initial Purchasers, on the other, with respect to the statements or omissions which resulted in such loss, claim, damage or liability, or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantors, on the one hand, and the Initial Purchasers on the other, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Notes purchased under this Agreement (before deducting expenses) received by the Company and the Guarantors, on the one hand, and the total underwriting discounts and commissions received by the Initial Purchasers with respect to the Notes purchased under this Agreement, on the other hand, bear to the total gross proceeds from the offering of the Notes under this Agreement. The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company and the Guarantors, on the one hand, or the Initial Purchasers, on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company, the Guarantors and the Initial Purchasers agree that it would not be just and equitable if contributions pursuant to this Section 8(d) were to be determined by pro rata allocation or by any other method of allocation which does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage or liability, or action in respect thereof, referred to above in this Section 8(d) shall be deemed to include, for purposes of this Section 8(d), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(d), the Initial Purchasers shall not be required to contribute any amount in excess of the amount by which the total price at which the Notes sold and distributed by it was offered to the purchasers exceeds the amount of any damages which the Initial Purchasers have otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. (e) The Initial Purchasers severally confirm and the Company and the Guarantors acknowledge that the statements with respect to the offering and stabilization of the Notes set forth in the eighth full paragraph on page ii, the third, seventh, eighth, tenth and eleventh paragraphs and the fourth sentence of the sixth paragraph in the "Plan of Distribution" section of the Preliminary Offering Memorandum and the Offering Memorandum are correct and constitute the only information furnished in writing to the Company by or on behalf of the Initial Purchasers specifically for inclusion in the Offering Memorandum. SECTION 9. DEFAULT BY ONE OR MORE OF THE INITIAL PURCHASERS If one or more of the Initial Purchasers shall fail at the Closing Date to purchase the Notes which it or they are obligated to purchase under this Agreement (the "Defaulted Securities"), the remaining Initial Purchasers shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Initial Purchasers, or any other Initial Purchasers, to purchase all, but not less than all, of the Defaulted Securities in such amounts as 22 may be agreed upon and upon the terms herein set forth: if, however, the Representatives shall not have completed such arrangements within such 24-hour period, then: (a) if the number of Defaulted Securities does not exceed 10% of the aggregate principal amount of the Notes to be purchased hereunder, each of the non-defaulting Initial Purchasers shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Initial Purchasers; provided, however, that no non-defaulting Initial Purchaser shall be obligated by this provision to purchase more than 110% of the principal amount of Notes that it agreed to purchase pursuant to the terms of Section 2, or (b) if the number of Defaulted Securities exceeds 10% of the aggregate principal amount of the Notes to be purchased hereunder, this Agreement shall terminate without liability on the part of any non-defaulting Initial Purchaser. No action taken pursuant to this Section shall relieve any defaulting Initial Purchaser from liability in respect of its default. In the event of any such default which does not result in a termination of this Agreement, either the Initial Purchasers or the Company shall have the right to postpone the Closing Date for a period not exceeding seven days in order to effect any required changes in the Offering Memorandum or in any other documents or arrangements. As used herein, the term "Initial Purchaser" includes any person substituted for an Initial Purchaser under this Section 9. SECTION 10. TERMINATION The obligations of the Initial Purchasers hereunder may be terminated by them by notice given to and received by the Company prior to delivery of and payment for the Notes if, prior to that time, (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or minimum prices shall have been established on any such exchange or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been declared by Federal or New York State authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such); provided, however, in the case of (iii) and (iv), as to make it, in the judgment of the Initial Purchasers, impracticable or inadvisable to proceed with the offering or delivery of the Notes on the terms and in the manner contemplated in the Offering Memorandum. SECTION 11. REIMBURSEMENT OF INITIAL PURCHASERS' EXPENSES If the sale of Notes provided for herein is not consummated because any condition to the obligations of the Initial Purchasers set forth in Section 7 hereof is not satisfied, because of any termination pursuant to Section 10 hereof or because of any refusal, inability or failure on 23 the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by the Initial Purchasers, the Company shall reimburse the Initial Purchasers for the reasonable fees and expenses of its counsel and for such other out-of-pocket expenses as shall have been incurred by it in connection with this Agreement and the proposed purchase of the Notes, and upon demand the Company shall pay the full amount thereof to the Initial Purchasers. SECTION 12. NOTICES, ETC. All statements, requests, notices and agreements hereunder shall be in writing, and: (a) if to the Initial Purchasers, shall be delivered or sent by mail, telex or facsimile transmission to Lehman Brothers Inc., 101 Hudson Street, 33rd Floor, High Yield Capital Markets, Jersey City, NJ 07302 (Fax: 201-524-5833); (b) if to the Company shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company set forth in the Offering Memorandum, Attention: Vice President and Treasurer (Facsimile: 210-283-2080). Any such statements, requests, notices or agreements shall take effect at the time of receipt thereof. SECTION 13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT This Agreement shall inure to the benefit of and be binding upon the Initial Purchasers, the Company, the Guarantors and their respective successors. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that (x) the representations, warranties, indemnities and agreements of the Company contained in this Agreement shall also be deemed to be for the benefit of the officers and employees of the Initial Purchasers and the person or persons, if any, who control the Initial Purchasers within the meaning of Section 15 of the Securities Act and (y) the indemnity agreement of the Initial Purchasers contained in Section 8(b) of this Agreement shall be deemed to be for the benefit of directors, officers and employees of the Company and any person controlling the Company within the meaning of Section 15 of the Securities Act. Nothing in this Agreement is intended or shall be construed to give any person, other than the persons referred to in this Section 13, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. SECTION 14. SURVIVAL The respective indemnities, representations, warranties and agreements of the Company and the Initial Purchasers contained in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall survive the delivery of and payment for the Notes and shall remain in full force and effect, regardless of any investigation made by or on behalf of any of them or any person controlling any of them. 24 SECTION 15. DEFINITION OF "BUSINESS DAY" For purposes of this Agreement, "business day" means any day on which the New York Stock Exchange, Inc. is open for trading. SECTION 16. GOVERNING LAW THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK. SECTION 17. COUNTERPARTS This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original but all such counterparts shall together constitute one and the same instrument. SECTION 18. HEADINGS The headings herein are inserted for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement. If the foregoing correctly sets forth the agreement among the Company, the Guarantors and the Initial Purchasers, please indicate your acceptance in the space provided for that purpose below. Very truly yours, TESORO PETROLEUM CORPORATION By: /s/ Sharon L. Layman --------------------------------------- Name: Sharon L. Layman Title: Vice President and Treasurer FAR EAST MARITIME COMPANY GOLD STAR MARITIME COMPANY TESORO FINANCIAL SERVICES HOLDING COMPANY VICTORY FINANCE COMPANY By: /s/ SHARON L. LAYMAN --------------------------------------- Name: Sharon L. Layman Title: Authorized Person DIGICOMP INC. KENAI PIPE LINE COMPANY SMILEY'S SUPER SERVICE, INC. TESORO ALASKA COMPANY TESORO ALASKA PIPELINE COMPANY TESORO AVIATION COMPANY TESORO GAS RESOURCES COMPANY, INC. TESORO HAWAII CORPORATION TESORO HIGH PLAINS PIPELINE COMPANY TESORO MARINE SERVICES HOLDING COMPANY TESORO MARINE SERVICES, INC. TESORO MARITIME COMPANY TESORO NORTHSTORE COMPANY TESORO PETROLEUM COMPANIES, INC. TESORO REFINING, MARKETING & SUPPLY COMPANY TESORO SOUTH PACIFIC PETROLEUM CORPORATION TESORO TECHNOLOGY COMPANY TESORO VOSTOK COMPANY TESORO WEST COAST COMPANY By: /s/ Sharon L. Layman --------------------------------------- Name: Sharon L. Layman Title: Vice President and Treasurer Accepted: LEHMAN BROTHERS INC. ABN AMRO, INCORPORATED BANK OF AMERICA SECURITIES LLC BANC ONE CAPITAL MARKETS, INC. CREDIT LYONNAIS SECURITIES (USA), INC. SCOTIA CAPITAL (USA) INC. By: /s/ Ted Conway ---------------------------- (Authorized Representative) Ted Conway Managing Director SCHEDULE I
PRINCIPAL AMOUNT OF NAME OF INITIAL PURCHASER SECURITIES ------------------------- ------------------- Lehman Brothers Inc................................ $129,000,000 ABN AMRO, Incorporated............................. 17,200,000 Bank of America Securities LLC..................... 17,200,000 Banc One Capital Markets, Inc. .................... 17,200,000 Credit Lyonnais Securities (USA), Inc. ............ 17,200,000 Scotia Capital (USA) Inc. ......................... 17,200,000 ------------ Total..................................... $215,000,000 ============
SCHEDULE II LIST OF GUARANTORS Digicomp, Inc., a Delaware corporation Far East Maritime Company, a Delaware corporation Gold Star Maritime Company, a Delaware corporation Kenai Pipe Line Company, a Delaware corporation Smiley's Super Service, Inc., a Hawaii corporation Tesoro Alaska Company, a Delaware corporation Tesoro Alaska Pipeline Company, a Delaware corporation Tesoro Aviation Company, a Delaware corporation Tesoro Financial Services Holding Company, a Delaware corporation Tesoro Gas Resources Company, Inc., a Delaware corporation Tesoro Hawaii Corporation, a Hawaii corporation Tesoro High Plains Pipeline Company, a Delaware corporation Tesoro Marine Services Holding Company, a Delaware corporation Tesoro Marine Services, Inc., a Delaware corporation Tesoro Maritime Company, a Delaware corporation Tesoro Northstore Company, an Alaska corporation Tesoro Petroleum Companies, Inc., a Delaware corporation Tesoro Refining, Marketing & Supply Company, a Delaware corporation Tesoro South Pacific Petroleum Company, a California corporation Tesoro Technology Company, a Delaware corporation Tesoro Vostok Company, a Delaware corporation Tesoro West Coast Company, a Delaware corporation Victory Finance Company, a Delaware corporation SCHEDULE III LIST OF SUBSIDIARIES Coastwide Marine Services, Inc., a Texas corporation Digicomp, Inc., a Delaware corporation Far East Maritime Company, a Delaware corporation Gold Star Maritime Company, a Delaware corporation Interior Fuels Company, an Alaska corporation Kenai Pipe Line Company, a Delaware corporation Smiley's Super Service, Inc., a Hawaii corporation Tesoro Alaska Company, a Delaware corporation Tesoro Alaska Pipeline Company, a Delaware corporation Tesoro Aviation Company, a Delaware corporation Tesoro Crude Oil Company, a Delaware corporation Tesoro Environmental Products Company, a Delaware corporation Tesoro Environmental Resources Company, a Delaware corporation Tesoro Equipment Company, a Delaware corporation Tesoro Financial Services Holding Company, a Delaware corporation Tesoro Gas Resources Company, Inc., a Delaware corporation Tesoro Gasoline Marketing Company, a Delaware corporation Tesoro Geotech Company, a Delaware corporation Tesoro Hawaii Corporation, an Hawaii corporation Tesoro High Plains Company, a Delaware corporation Tesoro High Plains Pipeline Company, a Delaware corporation Tesoro Indonesia Petroleum Company, a Delaware corporation Tesoro Latin America Company, a Delaware corporation Tesoro Marine Services Holding Company, a Delaware corporation Tesoro Marine Services, Inc., a Delaware corporation Tesoro Maritime Company, a Delaware corporation Tesoro Northstore Company, an Alaska corporation Tesoro Petroleum Companies, Inc., a Delaware corporation Tesoro Petroleum (Singapore) Pte Ltd., a Singapore company Tesoro Pump & Valve Company, a Delaware corporation Tesoro Refining, Marketing & Supply Company, a Delaware corporation Tesoro Rockies Company, a Delaware corporation Tesoro South Pacific Petroleum Corporation, a California corporation Tesoro Technology Company, a Delaware corporation Tesoro Vostok Company, a Delaware corporation Tesoro Wastach Company, a Delaware corporation Tesoro West Coast Company, a Delaware corporation Victory Finance Company, a Delaware corporation EXHIBIT A REGISTRATION RIGHTS AGREEMENT EXHIBIT B OPINION OF FULBRIGHT & JAWORSKI L.L.P. November __, 2001 Lehman Brothers Inc. ABN AMRO, Incorporated Bank of America Securities LLC Banc One Capital Markets, Inc. Credit Lyonnais Securities (USA), Inc. Scotia Capital (USA) Inc. c/o Lehman Brothers Inc. 101 Hudson Street, 33rd Floor High Yield Capital Markets Jersey City, New Jersey 07302 Ladies and Gentlemen: We have acted as counsel to Tesoro Petroleum Corporation, a Delaware corporation (the "Company"), in connection with the sale to you of $215,000,000 aggregate principal amount of the Company's 9 5/8% Senior Subordinated Notes due 2008 (the "Notes") pursuant to a Purchase Agreement dated November 1, 2001 (the "Purchase Agreement"), among you, the Company and the Guarantors named therein. Capitalized terms used but not defined herein have the same meanings herein as such terms have in the Purchase Agreement. The opinions expressed herein are being furnished to you at the request of the Company pursuant to Section 7(d) of the Purchase Agreement. We have participated in the preparation of, and have examined, the Offering Memorandum dated November 1, 2001. We have also examined originals or copies of such corporate records, as applicable, of the Company and the Guarantors, certificates and other communications of public officials, certificates of officers of the Company and the Guarantors and such other documents as we have deemed necessary for the purpose of rendering the opinions expressed herein. As to questions of fact material to those opinions, we have, to the extent we deemed appropriate, relied on certificates of officers of the Company and the Guarantors, certificates and other communications of public officials and on the factual representations of the Company and the Guarantors contained in the Purchase Agreement. We have assumed the genuineness of all signatures on, and the authenticity of, all documents submitted to us as originals, the conformity to authentic original documents of all documents submitted to us as copies, the due authorization, execution and delivery by the parties thereto of all documents examined by us, and the legal capacity of each individual who signed any of those documents. Based upon the foregoing, and having regard for such legal considerations as we deem relevant, we are of the opinion that: (i) The Indenture constitutes, under the laws of New York, a valid and binding agreement of the Company and each of the Guarantors, assuming due authorization, delivery and performance by the Trustee, enforceable against the Company and each of the Guarantors in accordance with its terms. (ii) When the Notes have been issued, executed and authenticated in accordance with the terms of the Indenture and delivered against payment therefor in accordance with the terms of the Indenture and the Purchase Agreement, the Notes will constitute, under the laws of New York, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms. (iii) When the Notes have been issued, executed and authenticated in accordance with the Indenture and delivered against payment therefor in accordance with the terms the Indenture and the Purchase Agreement, the Subsidiary Guarantees of each Guarantor endorsed thereon will constitute, under the laws of New York, valid and binding obligations of such Guarantor, enforceable against such Guarantor in accordance with their terms. (iv) The Registration Rights Agreement constitutes, under the laws of New York, a valid and binding agreement of the Company and each of the Guarantors, enforceable against the Company and each Guarantor in accordance with its terms. (v) Except for such consents, approvals, authorizations, other orders, filings, qualifications or registrations, as have been obtained under the Securities Act or Exchange Act, and as may be required under applicable state securities or Blue Sky laws, as to which we express no opinion, no consent, approval, authorization, or order of or filing, qualification or registration with, any governmental agency or body is required by any statutory law or regulation as a condition for the execution and delivery of the Purchase Agreement or the other Operative Documents by the Company or any of the Guarantors, or for the performance by the Company or any of the Guarantors of their obligations thereunder. (vi) The Company is not, and after giving effect to the issuance and sale of the Notes and the application of the net proceeds therefrom as described in the Offering Memorandum will not be, an "investment company" or an entity "controlled" by an "investment company" as such terms are defined in the Investment Company Act of 1940, as amended, and the rules and regulations thereunder. (vii) The statements set forth in the Offering Memorandum under the caption "Certain Federal Income Tax Considerations," insofar as they refer to statements of law or legal conclusions, are accurate in all material respects and presents fairly the information described therein. (viii) To our knowledge, there are no contracts or other documents that are required to be described in the Company's filings under the Exchange Act or filed as exhibits to the Company's filings under the Exchange Act that have not been so described or filed. (ix) The Offering Memorandum (other than financial statements, schedules and other financial or statistical data included or incorporated by reference therein or omitted therefrom, as to which we express no opinion) complies as to form in all material respects with the requirements of the Securities Act and the rules and regulations of the Commission under the Securities Act. (x) Assuming (a) the Notes are not offered to you by means of any form of general solicitation or general advertising or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act and (b) neither the Company nor any affiliate (as such term is defined in Rule 501(b) of Regulation D under the Securities Act) of the Company has directly, or through any agent, sold, offered for sale, solicited offers to buy or otherwise negotiated in respect of, any security that is or could be integrated with the Notes in a manner that would require registration under the Securities Act, then no registration under the Securities Act of the Notes or qualification of the Indenture in respect of the Notes under the Trust Indenture Act is required in connection with the issuance and sale of the Notes in the manner contemplated by the Purchase Agreement. (xi) Assuming the Company uses the proceeds as described in the "Use of Proceeds" section of the Offering Memorandum, to our knowledge, neither the Purchase Agreement nor the issuance or sale of the Notes will violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve System. We have participated in conferences with certain officers and representatives of the Company, counsel to the Initial Purchasers, representatives of the independent public accountants of the Company, and representatives of the Initial Purchasers at which the contents of the Offering Memorandum and related matters were discussed and, although we are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum (except as stated in paragraph (vii) above), on the basis of the foregoing (relying as to materiality upon the statements of officers and other representatives of the Company), no information has come to our attention that has caused us to believe that the Offering Memorandum as of its date contained any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that we make no comment as to the financial statements, schedules and other financial or statistical data included in the Offering Memorandum. The opinions expressed herein are limited exclusively to the laws of the State of Texas, the laws of the State of New York, the General Corporation Law of the State of Delaware and the federal laws of the United States of America. In rendering the opinions expressed in paragraph (i), we have assumed that the Trustee has power and authority to enter into and perform its obligations under the Indenture, that the Indenture has been duly authorized, executed and delivered by the Trustee, and that the Indenture constitutes the legal, valid and binding obligation of the Trustee, enforceable against the Trustee in accordance with the terms of the Indenture. The opinions expressed in paragraphs (i), (ii), (iii) and (iv) hereof are subject to the following: (a) The enforceability of the Indenture, the Notes, the Subsidiary Guarantees of each Guarantor and the Registration Rights Agreement may be limited or affected by (i) bankruptcy, insolvency, reorganization, moratorium, liquidation, rearrangement, fraudulent transfer, fraudulent conveyance and other similar laws (including court decisions) now or hereafter in effect and affecting the rights and remedies of creditors generally or providing for the relief of debtors, (ii) the refusal of a particular court to grant equitable remedies, including without limitation specific performance and injunctive relief, and (iii) general principles of equity (regardless of whether such remedies are sought in a proceeding in equity or at law). (b) In rendering the foregoing opinions, we express no opinion as to the legality, validity, enforceability or binding effect of provisions of each of the referenced agreements relating to indemnities and rights of contribution to the extent prohibited by public policy or that might require indemnification for losses or expenses caused by negligence, gross negligence, willful misconduct, fraud or illegality of an indemnified party. (c) With respect to Section 7.07 of the Indenture, we express no opinion with respect to the enforceability of such section should limitations on the compensation of trustees be enacted in the future. As used herein, the phrase "to our knowledge" or words of similar import means conscious awareness of facts or other information by the lawyers in our firm whom we have identified, in accordance with our customary procedures, as having regularly devoted substantive attention to legal matters on behalf of the Company. The opinions expressed herein are furnished to you for your sole benefit in connection with the transactions contemplated by the Purchase Agreement. The opinions expressed herein may not be relied upon by you for any other purpose and may not be relied upon for any purpose by any other person without our prior written consent, except that the Trustee may rely upon this opinion in connection with those transactions. Very truly yours, EXHIBIT C OPINION OF JAMES C. REED, JR. November __, 2001 Lehman Brothers Inc. ABN AMRO, Incorporated Bank of America Securities LLC Banc One Capital Markets, Inc. Credit Lyonnais Securities (USA), Inc. Scotia Capital (USA) Inc. c/o Lehman Brothers Inc. 101 Hudson Street, 33rd Floor High Yield Capital Markets Jersey City, New Jersey 07302 Re: Purchase Agreement dated November 1, 2001 (the "Purchase Agreement"), among Tesoro Petroleum Corporation (the "Company"), the Guarantors named therein, and the Initial Purchasers listed on Schedule I thereto Ladies and Gentlemen: I am Executive Vice President, General Counsel and Secretary of Tesoro Petroleum Corporation, a Delaware corporation (the "Company"). This opinion is delivered to you pursuant to Section 7(e) of the Purchase Agreement. Capitalized terms not otherwise defined herein are defined as set forth in the Purchase Agreement. In connection with the opinions hereinafter expressed, I have (i) examined such corporate documents and records and certificates of public officials and the Offering Memorandum, and (ii) received such information from officers and representatives of the Company and the Guarantors, as I have deemed necessary or appropriate for the purposes of this opinion. In rendering the opinions herein set forth, I have assumed (i) the due authorization, execution and delivery of each Operative Document by all parties to such document other than the Company and the Guarantors and that each such document is valid, binding and enforceable against the parties thereto other than the Company and the Guarantors, (ii) the legal capacity of natural persons, (iii) the genuineness of all signatures, (iv) the authenticity of all documents submitted to me as originals, and (v) the conformity to original documents of all documents submitted to me as copies. As to various questions of fact material to my opinion, I have relied upon the representations made in the Purchase Agreement. Based upon the following and subject to the qualifications set forth below, I am of the opinion that: (i) The Company has been duly incorporated and is validly existing as a corporation, in good standing under the laws of the State of Delaware, duly qualified to transact business and is in good standing as a foreign corporation in each jurisdiction where it is required to be so qualified and the failure to do so would have a Material Adverse Effect and has all corporate power and authority necessary to own and lease its properties and conduct its business as described in the Offering Memorandum. (ii) Each of the Guarantors and the Subsidiaries has been duly incorporated or formed, as the case may be, and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation or formation and is in good standing as a foreign corporation in each jurisdiction where it is required to be so qualified and the failure to do so would have a Material Adverse Effect and has all corporate or other power and authority, as the case may be, necessary to own and lease its properties and conduct its respective business as described in the Offering Memorandum. (iii) All of the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable. (iv) All of the outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable, and, to my knowledge, are owned by the Company directly, or indirectly through one of the other Subsidiaries, free and clear of any consensual lien, adverse claim, security interest or other encumbrance (a "Lien"), except as described in the Offering Memorandum. All outstanding equity interests in each Subsidiary that is not a corporation have been duly authorized and, to my knowledge, are owned by the Company directly, or indirectly through one of the other Subsidiaries, free and clear of any Lien, except as described in the Offering Memorandum. Except as disclosed in the Offering Memorandum and pursuant to the Company's employee benefit plans, there are no outstanding subscriptions, rights, warrants, calls, commitments of sale or options to acquire, or instruments convertible into or exchangeable for, nor any restriction on the voting or transfer of, any capital stock or other equity interest of the Company or any Subsidiary created or held by the Company or any Subsidiary. (v) Except for the Registration Rights Agreement, to my knowledge, there are no contracts, agreements or understandings between the Company or any Subsidiary and any person granting such person the right to require the Company or such Subsidiary to file a registration statement under the Securities Act with respect to any securities of the Company or of such Subsidiary, owned or to be owned by such person or to require the Company or such Subsidiary to include such securities with any securities being registered pursuant to any registration statement filed by the Company under the Securities Act. (vi) The Purchase Agreement, the Indenture, the Notes and the Registration Rights Agreement have been duly authorized, executed and delivered by the Company; and the Indenture, the Subsidiary Guarantees and the Registration Rights Agreement have been duly authorized, executed and delivered by each of the Guarantors. (vii) The execution and delivery of the Purchase Agreement by the Company and each of the Subsidiaries party thereto, and the performance by each of them of their respective obligations thereunder, (a) will not result in a breach of, or default under, any agreement or instrument that was filed as an exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2000 or any or other registration statement or report filed by the Company since such date, and to which the Company or any of the Subsidiaries is a party or by which the Company or the Subsidiaries is bound or to which any of the properties of the Company or the Subsidiaries is subject, (b) will not violate the provisions of the charter, bylaws or other organizational documents of the Company or any Subsidiary or of any applicable statutory law or regulation as the case may be, or (c) will not to my knowledge violate any decree or order of any governmental body or agency or court having jurisdiction over any of them. (viii) To my knowledge, there is no action, suit, legal or governmental proceeding, inquiry or investigation, to which the Company or any Subsidiary is a party, or to which the property of any of the Company or any Subsidiary is subject, that is required to be described in the Offering Memorandum and is not so described or any statutes, regulations, contracts or other documents that are required to be described in the Offering Memorandum or to be filed as exhibits to the Offering Memorandum that are not described or filed as required and no such action, suit, proceeding, inquiry or investigation is threatened or contemplated. (ix) The documents incorporated by reference in the Offering Memorandum (other than the financial statements, schedules and other financial or statistical data included or incorporated by reference in the Offering Memorandum or omitted therefrom, as to which I express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act or the rules and regulations promulgated by the Commission thereunder, as applicable. The opinions expressed herein are subject to the following qualifications and limitations: (a) I am licensed to practice law in the State of Texas, and I am not expert in and express no opinion as to the laws of jurisdictions other than the State of Texas, the General Corporation Law of the State of Delaware and applicable federal law of the United States of America. (b) This opinion is delivered to you solely for your use and benefit pursuant to the Purchase Agreement and may not be relied upon in any manner by any other person or entity, except that the Trustee may rely upon this opinion in connection with those transactions. Very truly yours, James C. Reed, Jr. EX-3.9 4 h92783ex3-9.txt CERTIFICATE OF INCORPORATION OF DIGICOMP INC EXHIBIT 3.9 CERTIFICATE OF INCORPORATION OF Digicomp, Inc. 1. The name of the corporation is: Digicomp, Inc. 2. The address of its 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 its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is One Thousand (1,000) and the par value of each of such shares is ($1.00) amounting in the aggregate to One Thousand Dollars ($1,000.00). 5. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot. 6. The name and mailing address of the incorporator is: J. L. Austin Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801 I, THE UNDERSIGNED, being the incorporator herein before named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 22nd day of December, 1988. /s/ J.L. Austin -------------------------- J.L. Austin EX-3.10 5 h92783ex3-10.txt BYLAWS OF DIGICOMP INC, AS AMENDED EXHIBIT 3.10 Adopted: December 27, 1988 Amended: February 24, 1992 September 29, 1992 BY-LAWS OF DIGICOMP, INC. (As Amended September 29, 1992) BY-LAWS OF DIGICOMP, INC. ARTICLE I Meeting of Stockholders Section 1.1 Annual Meetings. The annual meeting of the stockholders, for the election of directors and for the transaction of such other business as properly may come before such meeting, shall be held on such date and at such time and place within or without of the state of Delaware as may be designated by the Board of Directors. Section 1.2 Special Meetings. Special meetings of the stockholders, for any proper purpose or purposes, may be called at any time by the Board of Directors, the Chairman of the Board of Directors, the President or any Vice President, to be held on such date and at such time and place within or without of the state of Delaware, as the Board of Directors, the Chairman of the Board of Directors, the President or any Vice President, whoever has called the meeting, shall direct. A special meeting of the stockholders shall be called by the Chairman of the Board of Directors, the President or any Vice President whenever stockholders holding shares representing a majority of the votes of the shares of the Corporation then issued and outstanding and entitled to vote on matters to be submitted to stockholders of the Corporation shall make application therefor in writing. Any such written request shall state a proper purpose or purposes of the meeting and shall be delivered to the Chairman of the Board of Directors, the President or any Vice President. Section 1.3 Notice of Meeting. Written notice, signed by the Chairman of the Board of Directors, the President, any Vice President, the Secretary or an Assistant Secretary, of every meeting of stockholders (other than an adjourned meeting unless otherwise required by statute) stating the purpose or purposes for which the meeting is called, and the date and time when and the place where it is to be held, shall be either delivered personally or mailed to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the meeting, except as otherwise provided by statute. If mailed, such notice shall be directed to a stockholder at his address as it shall appear on the stock books of the Corporation, unless he shall have filed with the Secretary a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in such request and shall be given, when deposited in the United States mail, postage prepaid. Section 1.4 Quorum. The presence at any meeting, in person or by proxy, of the holders of record of shares representing a majority of the votes of the shares then issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business, except where otherwise provided by statute. Section 1.5 Adjournments. In the absence of a quorum, a majority of the votes of the stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to vote is present in person or by proxy, any officer entitled to preside at or act as secretary of such meeting may adjourn the meeting from time to time until a quorum shall be present. Section 1.6 Voting. Directors shall be chosen by a plurality of the votes cast at the election, and except where otherwise provided by statute or the Certificate of Incorporation, all other questions shall be determined by a majority of the votes cast on such question. Section 1.7 Proxies. Any stockholders entitled to vote may vote by proxy, provided that the instrument authorizing such proxy to act shall have been executed in writing (which shall include telegraphing or cabling) by the stockholder himself or by his duly authorized attorney. Section 1.8 Judges of Election. The Board of Directors may appoint judges of election to serve at any election of directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the judges so appointed shall fail to attend, refuse or be unable to serve, then such appointment may be made by the presiding officers at the meeting. ARTICLE II Board of Directors Section 2.1 Number. The number of directors who shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors, but shall not be less than two. Section 2.2 Election and Term of Office. Directors shall be elected at the annual meeting of the stockholders. Each director (whether elected at an annual meeting or to fill a vacancy or otherwise) shall continue in office until his successor shall have been elected or until his earlier death, resignation, removal, or other incapacity in the manner hereinafter provided. Section 2.3 Vacancies and Additional Directorships. If any vacancy shall occur among the directors by reason of death, resignation, removal, or other incapacity, or as the result of an increase in the number of directorships, the directors then in office shall continue to act and may fill any such vacancy by a vote of the directors then in office, though less than a quorum. - 2 - Section 2.4 Meetings. A meeting of the Board of Directors shall be held for organization, for the election of officers, and for the transaction of such other business as may properly come before the meeting, within thirty days after each annual election of directors. The Board of Directors by resolution may provide for the holding of regular meetings and may fix the times and places at which such meetings shall be held. Notice of regular meetings shall not be required to be given, provided that, whenever the time or place of regular meetings shall be fixed or changed, notice of such action shall be mailed promptly to each director who shall not have been present at the meeting at which such action was taken, addressed to him at his residence or usual place of business. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, the President, any Vice President, or any two directors. Except as otherwise required by statute, notice of each special meeting shall be mailed to each director, addressed to him at his residence or usual place of business, sent to him at such place by telegram, radio, cable, or telecopy, or telephoned or delivered to him personally, not later than two days before the day on which the meeting is to be held. Such notice shall state the time and place of such meeting but, unless otherwise required by statute, the Certificate of Incorporation of the Corporation or these By-laws, need not state the purposes thereof. Notice of any meeting need not be given to any director who shall attend such meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable, or telecopy. Section 2.5 Quorum. One-third of the total number of members of the Board of Directors as constituted from time to time, but not less than two, shall be necessary and sufficient to constitute a quorum for the transaction of business. In the absence of a quorum, a majority of those present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present, and the meeting may be held as adjourned without further notice or waiver. A majority of those present at any meeting at which a quorum is present may decide any question brought before such meeting, except as otherwise provided by law, the Certificate of Incorporation, or these By-laws. Section 2.6 Resignation of Directors. Any director may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any Vice President or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. - 3 - Section 2.7 Removal of Directors. At any special meeting of the stockholders, duly called for the purpose of removing a director or directors as provided in these By-laws, any director or directors may, by the affirmative vote of the holders of shares representing a majority of the votes of all the shares of stock outstanding and entitled to vote for the election of directors, be removed from office, either with or without cause. At such meeting a successor or successors may be elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled by the directors as provided in Section 2.3. Section 2.8 Compensation of Directors. Directors may receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Section 2.9 Indemnification. The Corporation shall indemnify to the full extent authorized or permitted by the laws of the state of Delaware any person who is made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Corporation or serves or served any other enterprise at the request of the Corporation. ARTICLE III Committees of the Board Section 3.1 Designation, Power, Alternate Members and Term of Office. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Any such committee, to the extent provided in such resolution, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-laws of the Corporation or, unless the resolution of the Board of Directors establishing any such committee shall expressly so provide or these By-laws shall expressly so provide, declaring a dividend on the Corporation's capital stock or authorizing the issuance of the Corporation's capital stock. The Board may designate one or more directors as - 4 - alternate members of any committee who, in the order specified by the Board, may replace any absent or disqualified member at any meeting of the committee. If at a meeting of any committee one or more of the members thereof should be absent or disqualified, and if either the Board of Directors has not so designated any alternate member or members or the number of absent or disqualified members exceeds the number of alternate members who are present at such meeting, then the member or members of such committee (including alternates) present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another director to act at the meeting in place of any such absent or disqualified member. The term of office of the members of each committee shall be as fixed from time to time by the Board, subject to these By-laws; provided, however, that any committee member who ceases to be a member of the Board shall ipso facto cease to be a committee member. Each committee shall appoint a secretary, who may be the Secretary of the Corporation or an Assistant Secretary thereof. Section 3.2 Meetings, Notices and Records. Each committee may provide for the holding of regular meetings, with or without notice, and may fix the time and place at which such meetings shall be held. Special meetings of each committee shall be held upon call by or at the direction of its chairman or, if there be no chairman, by or at the direction of any two of its members, at the time and place specified in the respective notices or waivers of notice thereof. Notice of each special meeting of a committee shall be mailed to each member of such committee, addressed to him at his residence or usual place of business, at least two days before the day on which the meeting is to be held, or shall be sent by telegram, radio or cable, or telecopy, addressed to him at such place, or telephoned or delivered to him personally, not later than the day before the day on which the meeting is to be held. Notice of any meeting of a committee need not be given to any member thereof who shall attend the meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable, or telecopy. Notice of any adjourned meeting need not be given. Each committee shall keep a record of its proceedings. Section 3.3 Quorum and Manner of Acting. At each meeting of any committee the presence of one-third, but not less than two, of its members then in office shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which the quorum is present shall be the act of such committee; in the absence of a quorum, a majority of the members present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present. Subject to the foregoing and other provisions of these By-laws and except as otherwise determined by the Board of Directors, each committee may make rules for the conduct of its business. Any determination made in writing and signed by all the members of such committee shall be as effective as if made by such committee at a meeting. - 5 - Section 3.4 Resignations. Any member of a committee may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any Vice President or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 3.5 Removal. Any member of any committee may be removed at any time by the Board of Directors with or without cause. Section 3.6 Vacancies. If any vacancy shall occur in any committee by reason of death, resignation, disqualification, removal or otherwise, the remaining members of such committee, though less than a quorum, shall continue to act until such vacancy is filled by a resolution passed by a majority of the whole Board of Directors. Section 3.7 Compensation. Committee members shall receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any committee member from serving the Corporation in any other capacity and receiving compensation therefor. ARTICLE IV Officers Section 4.1 Officers. The officers of the Corporation shall be a Chairman of the Board of Directors, a President, one or more Vice Presidents, a Secretary, a Treasurer, and such other officers as may be appointed in accordance with the provisions of Section 4.3. Section 4.2 Election, Term of Office and Qualifications. Each officer (except such officers as may be appointed in accordance with the provisions of Section 4.3) shall be elected by the Board of Directors. Each such officer (whether elected at the first meeting of the Board of Directors after the annual meeting of stockholders or to fill a vacancy or otherwise) shall hold his office until the first meeting of the Board of Directors after the next annual meeting of stockholders and until his successor shall have been elected, or until his death, or until he shall have resigned in the manner provided in Section 4.4, or shall have been removed in the manner provided in Section 4.5. The Chairman of the Board of Directors must be a member of the Board of Directors. - 6 - Section 4.3 Subordinate Officers and Agents. The Board of Directors from time to time may appoint other officers or agents (including one or more assistant vice presidents, one or more assistant secretaries and one or more assistant treasurers) to hold office for such period, have such authority and perform such duties as are provided in these By-laws or as may be provided in the resolutions appointing them. The Board of Directors may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective terms of office, authorities and duties. Section 4.4 Resignations. Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any Vice President or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 4.5 Removal. Any officer specifically designated in Section 4.1 may be removed at any time, either with or without cause, at any meeting of the Board of Directors by the vote of a majority of all the directors then in office. Any officer or agent appointed in accordance with the provisions of Section 4.3 may be removed, either with or without cause, by the Board of Directors at any meeting, by the vote of a majority of the directors present at such meeting, or by any superior officer or agent upon whom such power of removal shall have been conferred by the Board of Directors. Section 4.6 Vacancies. A vacancy in any office by reason of death, resignation, removal, disqualification, or any other cause shall be filled for the unexpired portion of the term in the manner prescribed by these By-laws for regular election or appointment to such office. Section 4.7 The Chairman of the Board of Directors. The Chairman of the Board of Directors shall be the chief executive officer of the Corporation. Subject to the direction of the Board of Directors, he shall have general charge of the business affairs and property of the Corporation. He shall see that all orders and resolutions of the Board of Directors are carried into effect. If present, he shall preside at all meetings of stockholders. He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation, the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. From time to time he shall report to the Board - 7 - of Directors all matters within his knowledge which the interests of the Corporation may require to be brought to their attention. He shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors. Section 4.8 The President. The President shall be the chief operating officer of the Corporation. Subject to the direction of the Chairman of the Board of Directors, he shall have general supervision over the officers and agents of the Corporation. At the request of the Board of Directors or the Chairman of the Board of Directors, the President shall perform all the duties of the Chairman of the Board of Directors and, when so acting, shall have all the powers of and be subject to all restrictions upon the Chairman of the Board of Directors (except that the President need not be a member of the Board of Directors). He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation, the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements, or other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. He shall also perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors or the Chairman of the Board of Directors. Section 4.9 The Vice Presidents. At the request of the President or in his absence or disability, the Vice President designated by the President (or in the absence of such designation, the Vice President designated by the Board of Directors or the Chairman of the Board of Directors) shall perform all the duties of the President and, when so acting, shall have all the powers of and be subject to all restrictions upon the President. Any Vice President may also sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation, the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds and other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. Each Vice President shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors or the President. Section 4.10 The Secretary. The Secretary shall (a) Record all the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book or books to be kept for that purpose; - 8 - (b) Cause all notices to be duly given in accordance with the provisions of these By-laws and as required by statute; (c) Whenever any committee shall be appointed in pursuance of a resolution of the Board of Directors, furnish the chairman of such committee with a copy of such resolution; (d) Be custodian of the records and of the seal of the Corporation, and cause such seal to be affixed to all certificates representing stock of the Corporation prior to the issuance thereof and to all instruments the execution of which on behalf of the Corporation under its seal shall have been duly authorized; (e) See that the lists, books, reports, statements, certificates and other documents and records required by statute are properly kept and filed; (f) Have charge of the stock and transfer books of the Corporation, and exhibit such stock book at all reasonable times to such persons as are entitled by statute to have access thereto; (g) Sign (unless the Treasurer or an Assistant Secretary or an Assistant Treasurer shall sign) certificates representing stock of the Corporation, the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Secretary and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors or the President. Section 4.11 Assistant Secretaries. At the request of the Secretary, or in his absence or disability, the Assistant Secretary, designated by the Board of Directors, the Chairman of the Board of Directors or the President, shall perform all the duties of the Secretary and, when so acting, shall have all the powers of and be subject to all restrictions upon the Secretary. The Assistant Secretaries shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary. Section 4.12 The Treasurer. The Treasurer shall (a) Have charge of and supervision over and be responsible for the funds, securities, receipts, and disbursements of the Corporation; (b) Cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such banks or trust companies or with such - 9 - bankers or other depositaries as shall be selected in accordance with Section 5.3 of these By-laws, or to be otherwise dealt with in such manner as the Board of Directors may direct; (c) Cause the funds of the Corporation to be disbursed by checks or drafts upon the authorized depositaries of the Corporation, and cause to be taken and preserved proper vouchers for all monies disbursed; (d) Render to the Board of Directors, the Chairman of the Board of Directors or the President, whenever requested, a statement of the financial condition of the Corporation and of all his transactions as Treasurer; (e) Cause to be kept at the Corporation's principal office correct books of account of all its business and transactions and such duplicate books of account as he shall determine, and upon application cause such books or duplicates thereof to be exhibited to any director; (f) Be empowered, from time to time, to require from the officers or agents of the Corporation reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation; (g) Sign (unless the Secretary or an Assistant Secretary or an Assistant Treasurer shall sign) certificates representing stock of the Corporation, the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Treasurer and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors or the President. Section 4.13 Assistant Treasurers. At the request of the Treasurer or in his absence or disability, the Assistant Treasurer designated by him (or in the absence of such designation, the Assistant Treasurer designated by the Board of Directors, the Chairman of the Board of Directors or the President) shall perform all the duties of the Treasurer and, when so acting, shall have all the powers of and be subject to all restrictions upon the Treasurer. The Assistant Treasurers shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Treasurer. Section 4.14 Salaries. The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors, except that the Board of Directors may delegate to any person the power to fix the salaries or other compensation of any - 10 - officers or agents appointed in accordance with the provisions of Section 4.3. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. Section 4.15 Surety Bonds. If the Board of Directors shall so require, any officer or agent of the Corporation shall execute to the Corporation a bond in such sum and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful discharge of his duties, including responsibilities for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands. ARTICLE V Execution of Instruments and Deposit of Corporate Funds Section 5.1 Execution of Instruments Generally. The Chairman of the Board of Directors, the President, any Vice President, the Secretary, or the Treasurer, subject to the approval of the Board of Directors, may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. The Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation, and such authorization may be general or confined to specific instances. Section 5.2 Borrowing. No loans or advances shall be obtained or contracted for, by or on behalf of the Corporation, and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors. Such authorization may be general or confined to specific instances. Any officer or agent of the Corporation thereunto so authorized may obtain loans and advances for the Corporation, and for such loans and advances may make, execute and deliver promissory notes, bonds or other evidences of indebtedness of the Corporation. Any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as security for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation any and all stocks, bonds, other securities and other personal property at any time held by the Corporation, and to that end may endorse, assign and deliver the same and do every act and thing necessary or proper in connection therewith. Section 5.3 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors may select, or as may be selected by any officer or officers or agent or agents authorized to do so by the Board of Directors. Endorsements for deposit to the credit of the Corporation in any of its duly - 11 - authorized depositaries shall be made in such manner as the Board of Directors from time to time may determine. Section 5.4 Checks, Drafts, etc. All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers or agent or agents of the Corporation, and in such manner as from time to time shall be determined by the Board of Directors. Section 5.5 Proxies. Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the Chairman of the Board of Directors, the President or a Vice President, or by any other person or persons thereunto authorized by the Board of Directors. ARTICLE VI Section 6.1 Record Dates. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall be not more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. Only those stockholders of record on the date so fixed shall be entitled to any of the foregoing rights, notwithstanding the transfer of any such stock on the books of the Corporation after any such record date fixed by the Board of Directors. ARTICLE VII Section 7.1 Corporate Seal. The corporate seal shall be circular in form and shall bear the name of the Corporation and words and figures denoting its organization under the laws of the state of Delaware and the year thereof, and otherwise shall be in such form as shall be approved from time to time by the Board of Directors. ARTICLE VIII Section 8.1 Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January in each year and shall end on the 31st day of December in the same year. - 12 - ARTICLE IX Section 9.1 Amendments. All By-laws of the Corporation may be amended, altered or repealed, and new By-laws may be made, by the affirmative vote of the holders of record of shares representing a majority of the votes of the outstanding shares of stock of the Corporation entitled to vote cast at any annual or special meeting, or by the affirmative vote of a majority of the directors cast at any regular or special meeting at which a quorum is present. - 13 - EX-3.11 6 h92783ex3-11.txt CERTIFICATE OF INCORPORATION OF FAR EAST MARITIME EXHIBIT 3.11 CERTIFICATE OF INCORPORATION OF FAR EAST MARITIME COMPANY 1. The name of the corporation is: FAR EAST MARITIME COMPANY 2. The address of its registered offices in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of all classes of stock which the corporation shall be authorized to issue is one thousand (1,000) shares of common stock, $1.00 par value. 5. A director of the corporation is not liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except that this article does not eliminate or limit the liability of a director: (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 General Corporation Law of Delaware; or (iv) for any transaction from which the director derived an improper personal benefit. 6. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot. 7. The name and mailing address of the incorporator is: M. A. Brzoska ---------------------------------------- The Corporation Trust Company 1209 Orange Street Wilmington, Delaware 19901 I, the undersigned, as incorporator and for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 16th day of July, 1998. /s/ M. A. Brzoska ------------------------------ M. A. Brzoska EX-3.12 7 h92783ex3-12.txt BYLAWS OF FAR EAST MARITIME COMPANY EXHIBIT 3.12 Adopted: August 27, 1998 BY-LAWS OF FAR EAST MARITIME COMPANY BY-LAWS OF FAR EAST MARITIME COMPANY ARTICLE I Meetings of Stockholders Section 1.1 Annual Meetings. The Annual meeting of the stockholders for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held on such date and at such time and place within or without the state of Delaware as may be designated by the Board of Directors. Section 1.2 Special Meetings. Special meetings of the stockholders for any proper purpose or purposes may be called at any time by the Board of Directors, the Chairman of the Board of Directors, the President or any vice president, to be held on such date and at such time and place within or without the state of Delaware as the Board of Directors, the Chairman of the Board of Directors, the President or a vice president, whichever has called the meeting, shall direct. A special meeting of the stockholders shall be called by the Chairman of the Board of Directors, the President or any vice president whenever stockholders holding shares representing a majority of the votes of the shares of the Corporation then issued and outstanding and entitled to vote on matters to be submitted to stockholders of the Corporation shall make application therefor in writing. Any such written request shall state a proper purpose or purposes of the meeting and shall be delivered to the Chairman of the Board of Directors, the President or any vice president. Section 1.3 Notice of Meeting. Written notice, signed by the Chairman of the Board of Directors, the President, any vice president, the Secretary or an assistant secretary, of every meeting of stockholders (other than an adjourned meeting unless otherwise required by statute) stating the purpose or purposes for which the meeting is called, and the date and time when, and the place where, it is to be held shall be either delivered personally or mailed to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the meeting, except as otherwise provided by statute. If mailed, such notice shall be directed to a stockholder at his address as it shall appear on the stock books of the Corporation, unless he shall have filed with the Secretary a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in such request, and shall be given when deposited in the United States mail, postage prepaid. 1 Section 1.4 Quorum. The presence at any meeting, in person or by proxy, of the holders of record of shares representing a majority of the votes of the shares then issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business, except where otherwise provided by statute. Section 1.5 Adjournments. In the absence of a quorum, a majority of the votes of the stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to vote is present in person or by proxy, any officer entitled to preside at or act as secretary of such meeting may adjourn the meeting from time to time until a quorum shall be present. Section 1.6 Voting. Directors shall be chosen by a plurality of the votes cast at the election, and except where otherwise provided by statute, or the Certificate of Incorporation, all other questions shall be determined by a majority of the votes cast on such question. Section 1.7 Proxies. Any stockholders entitled to vote may vote by proxy, provided that the instrument authorizing such proxy to act shall have been executed in writing (which shall include telegraphing or cabling) by the stockholder himself or by his duly authorized attorney. Section 1.8 Judges of Election. The Board of Directors may appoint judges of election to serve at any election of directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the judges so appointed shall fail to attend, or refuse or be unable to serve, then such appointment may be made by the presiding officers at the meeting. ARTICLE II Board of Directors Section 2.1 Number. The number of directors which shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors but shall not be less than two. Section 2.2 Election and Term of Office. Directors shall be elected at the annual meeting of the stockholders. Each director (whether elected at an annual meeting or to fill a vacancy or otherwise) shall continue in office until his successor shall have been elected or until his earlier death, resignation, removal or other incapacity in the manner hereinafter provided. 2 Section 2.3 Vacancies and Additional Directorships. If any vacancy shall occur among the directors by reason of death, resignation, removal or other incapacity or as the result of an increase in the number of directorships, the directors then in office shall continue to act and may fill any such vacancy by a vote of the directors then in office, though less than a quorum. Section 2.4 Meetings. A meeting of the Board of Directors shall be held for organization, for the election of officers and for the transaction of such other business as may properly come before the meeting, within thirty days after each annual election of directors. The Board of Directors by resolution may provide for the holding of regular meetings and may fix the times and places at which such meetings shall be held. Notice of regular meetings shall not be required to be given, provided that whenever the time or place of regular meetings shall be fixed or changed, notice of such action shall be mailed promptly to each director who shall not have been present at the meeting at which such action was taken, addressed to him at his residence or usual place of business. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, the President, any vice president or any two directors. Except as otherwise required by statute, notice of each special meeting shall be mailed to each director, addressed to him at his residence or usual place of business, or shall be sent to him at such place by telegram, radio or cable, or telephone or delivered to him personally, not later than two days before the day on which the meeting is to be held. Such notice shall state the time and place of such meeting, but unless otherwise required by statute, the Certificate of Incorporation of the Corporation or these By-laws need not state the purposes thereof. Notice of any meeting need not be given to any director who shall attend such meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Section 2.5 Quorum. One-third of the total number of members of the Board of Directors as constituted from time to time, but not less than two, shall be necessary and sufficient to constitute a quorum for the transaction of business. In the absence of a quorum, a majority of those present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present and the meeting may be held as adjourned without further notice or waiver. A majority of those present at any meeting at which a quorum is present may decide any question brought before such meeting, except as otherwise provided, by law, the Certificate of Incorporation or these By-laws. 3 Section 2.6 Resignation of Directors. Any director may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 2.7 Removal of Directors. At any special meeting of the stockholders, duly called for the purpose of removing a director or directors as provided in these By-laws, any director or directors may, by the affirmative vote of the holders of shares representing a majority of the votes of all the shares of stock outstanding and entitled to vote for the election of directors, be removed from office, either with or without cause. At such meeting a successor or successors may be elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled by the directors as provided in Section 2.3. Section 2.8 Compensation of Directors. Directors may receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Section 2.9 Indemnification. The Corporation shall indemnify to the full extent authorized or permitted by the laws of the state of Delaware any person who is made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Corporation or serves or served any other enterprise at the request of the Corporation. ARTICLE III Committees of the Board Section 3.1 Designation, Power, Alternate Members and Term of Office. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Any such committee, to the extent provided in such resolution, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal 4 of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-laws of the Corporation or, unless the resolution of the Board of Directors establishing any such committee shall expressly so provide or these By-laws shall expressly so provide, declaring a dividend on the Corporation's capital stock or authorizing the issuance of the Corporation's capital stock. The Board may designate one or more directors as alternate members of any committee who, in the order specified by the Board, may replace any absent or disqualified member at any meeting of the committee. If at a meeting of any committee one or more of the members thereof should be absent or disqualified, and if either the Board of Directors has not so designated any alternate member or members, or the number of absent or disqualified members exceeds the number of alternate members who are present at such meeting, then the member or members of such committee (including alternates) present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another director to act at the meeting in the place of any such absent or disqualified member. The term of office of the members of each committee shall be as fixed from time to time by the Board, subject to these By-laws; provided, however, that any committee member who ceases to be a member of the Board shall ipso facto cease to be a committee member. Each committee shall appoint a secretary, who may be the Secretary of the Corporation or an assistant secretary thereof. Section 3.2 Meetings, Notices and Records. Each committee may provide for the holding of regular meetings, with or without notice, and may fix the time and place at which such meetings shall be held. Special meetings of each committee shall be held upon call by or at the direction of its chairman or, if there be no chairman, by or at the direction of any two of its members, at the time and place specified in the respective notices or waivers of notice thereof. Notice of each special meeting of a committee shall be mailed to each member of such committee, addressed to him at his residence or usual place of business, at least two days before the day on which the meeting is to be held, or shall be sent by telegram, radio or cable addressed to him at such place, or telephoned or delivered to him personally, not later than the day before the day on which the meeting is to be held. Notice of any meeting of a committee need not be given to any member thereof who shall attend the meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Notice of any adjourned meeting need not be given. Each committee shall keep a record of its proceedings. 5 Section 3.3 Quorum and Manner of Acting. At each meeting of any committee the presence of one-third but not less than two of its members then in office shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which the quorum is present shall be the act of such committee; in the absence of a quorum, a majority of the members present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present. Subject to the foregoing and other provisions of these By-laws and except as otherwise determined by the Board of Directors, each committee may make rules for the conduct of its business. Any determination made in writing and signed by all the members of such committee shall be as effective as if made by such committee at a meeting. Section 3.4 Resignations. Any member of a committee may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 3.5 Removal. Any member of any committee may be removed at any time by the Board of Directors with or without cause. Section 3.6 Vacancies. If any vacancy shall occur in any committee by reason of death, resignation, disqualification, removal or otherwise, the remaining members of such committee, though less than a quorum, shall continue to act until such vacancy is filled by a resolution passed by a majority of the whole Board of Directors. Section 3.7 Compensation. Committee members shall receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any committee member from serving the Corporation in any other capacity and receiving compensation therefor. ARTICLE IV Officers Section 4.1 Officers. The officers of the Corporation shall be a Chairman of the Board of Directors, a President, one or more 6 Vice Presidents (which may include Group Vice Presidents, Senior Vice Presidents and other categories of Vice Presidents), a Secretary, a Treasurer, and such other officers as may be appointed in accordance with the provisions of Section 4.3. Section 4.2 Election, Term of Office and Qualifications. Each officer (except such officers as may be appointed in accordance with the provisions of Section 4.3) shall be elected by the Board of Directors. Each such officer (whether elected at the first meeting of the Board of Directors after the annual meeting of stockholders or to fill a vacancy or otherwise) shall hold his office until the first meeting of the Board of Directors after the next annual meeting of stockholders and until his successor shall have been elected, or until his death, or until he shall have resigned in the manner provided in Section 4.4 or shall have been removed in the manner provided in Section 4.5. The Chairman of the Board of Directors must be a member of the Board of Directors. Section 4.3 Subordinate Officers and Agents. The Board of Directors from time to time may appoint other officers or agents (including one or more assistant vice presidents, one or more assistant secretaries and one or more assistant treasurers), to hold office for such period, have such authority and perform such duties as are provided in these By-laws or as may be provided in the resolutions appointing them. The Board of Directors may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective terms of office, authorities and duties. Section 4.4 Resignations. Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 4.5 Removal. Any officer specifically designated in Section 4.1 may be removed at any time, either with or without cause, at any meeting of the Board of Directors by the vote of a majority of all the directors then in office. Any officer or agent appointed in accordance with the provisions of Section 4.3 may be removed, either with or without cause, by the Board of Directors at any meeting, by the vote of a majority of the directors present at such meeting, or by any superior officer or agent upon whom such power of removal shall have been conferred by the Board of Directors. Section 4.6 Vacancies. A vacancy in any office by reason of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner 7 prescribed by these By-laws for regular election or appointment to such office. Section 4.7 The Chairman of the Board of Directors. The Chairman of the Board of Directors shall be the chief executive officer of the Corporation. Subject to the direction of the Board of Directors, he shall have general charge of the business affairs and property of the Corporation. He shall see that all orders and resolutions of the Board of Directors are carried into effect. If present, he shall preside at all meetings of stockholders. He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. From time to time he shall report to the Board of Directors all matters within his knowledge which the interests of the Corporation may require to be brought to their attention. He shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors. Section 4.8 The President. The President shall be the chief operating officer of the Corporation. Subject to the direction of the Chairman of the Board of Directors, he shall have general supervision over the officers and agents of the Corporation. At the request of the Board of Directors or the Chairman of the Board of Directors, the President shall perform all the duties of the Chairman of the Board of Directors and, when so acting, shall have all the powers of and be subject to all restrictions upon the Chairman of the Board of Directors (except that the President need not be a member of the Board of Directors) . He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. He shall also perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors or the Chairman of the Board of Directors. Section 4.9 The Vice Presidents. In the absence or disability of the President, any vice president designated by the President (or in the absence of such designation, the Vice President designated by the Board of Directors or the Chairman of the Board of Directors) shall perform all the duties of the President and, when so acting, shall have all the powers of and be 8 subject to all restrictions upon the President. Any vice president may also sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation deeds, mortgages, bonds and other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. Each vice president shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.10 The Secretary. The Secretary shall (a) Record all the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book or books to be kept for that purpose; (b) Cause all notices to be duly given in accordance with the provisions of these By-laws and as required by statute; (c) Whenever any committee shall be appointed in pursuance of a resolution of the Board of Directors, furnish the chairman of such committee with a copy of such resolution; (d) Be custodian of the records and of the seal of the Corporation, and cause such seal to be affixed to all certificates representing stock of the Corporation prior to the issuance thereof and to all instruments the execution of which on behalf of the Corporation under its seal shall have been duly authorized; (e) See that the lists, books, reports, statements, certificates and other documents and records required by statute are properly kept and filed; (f) Have charge of the stock and transfer books of the Corporation, and exhibit such stock book at all reasonable times to such persons as are entitled by statute to have access thereto; (g) Sign (unless the Treasurer or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Secretary and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the 9 Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.11 Assistant Secretaries. At the request of the Secretary or in his absence or disability, the Assistant Secretary designated by him (or in the absence of such designation, the Assistant Secretary designated by the Board of Directors, the Chairman of the Board of Directors or the President) shall perform all the duties of the Secretary and, when so acting, shall have all the powers of and be subject to all restrictions upon the Secretary. The assistant secretaries shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary. Section 4.12 The Treasurer. The Treasurer shall (a) Have charge of and supervision over and be responsible for the funds, securities, receipts and disbursements of the Corporation; (b) Cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such banks or trust companies or with such bankers or other depositaries as shall be selected in accordance with Section 5.3 of these By-laws or to be otherwise dealt with in such manner as the Board of Directors may direct; (c) Cause the funds of the Corporation to be disbursed by checks or drafts upon the authorized depositaries of the Corporation, and cause to be taken and preserved proper vouchers for all moneys disbursed; (d) Render to the Board of Directors, the Chairman of the Board of Directors, or the President, whenever requested, a statement of the financial condition of the Corporation and of all his transactions as Treasurer; (e) Cause to be kept at the Corporation's principal office correct books of account of all its business and transactions and such duplicate books of account as he shall determine and upon application cause such books or duplicates thereof to be exhibited to any director; (f) Be empowered, from time to time, to require from the officers or agents of the Corporation reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation; (g) Sign (unless the Secretary or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have 10 been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Treasurer and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.13 Assistant Treasurers. At the request of the Treasurer or in his absence or disability, the Assistant Treasurer designated by him (or in the absence of such designation, the Assistant Treasurer designated by the Board of Directors, the Chairman of the Board of Directors, or the President) shall perform all the duties of the Treasurer and, when so acting, shall have all the powers of and be subject to all restrictions upon the Treasurer. The Assistant Treasurers shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Treasurer. Section 4.14 Salaries. The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors, except that the Board of Directors may delegate to any person the power to fix the salaries or other compensation of any officers or agents appointed in accordance with the provisions of Section 4.3. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. Section 4.15 Surety Bonds. If the Board of Directors shall so require, any officer or agent of the Corporation shall execute to the Corporation a bond in such sum and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful discharge of his duties, including responsibilities for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands. ARTICLE V Execution of Instruments and Deposit of Corporate Funds Section 5.1 Execution of Instruments Generally. The Chairman of the Board of Directors, the President, any vice president, the Secretary or the Treasurer, subject to the approval of the Board of Directors, may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. The Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any 11 instrument in the name and on behalf of the Corporation, and such authorization may be general or confined to specific instances. Section 5.2 Borrowing. No loans or advances shall be obtained or contracted for, by or on behalf of the Corporation and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors. Such authorization may be general or confined to specific instances, Any officer or agent of the Corporation thereunto so authorized may obtain loans and advances for the Corporation, and for such loans and advances may make, execute and deliver promissory notes, bonds or other evidences of indebtedness of the Corporation. Any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as security for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation, any and all stocks, bonds, other securities and other personal property at any time held by the Corporation, and to that end may endorse, assign and deliver the same and do every act and thing necessary or proper in connection therewith. Section 5.3 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors may select, or as may be selected by any officer or officers or agent or agents authorized so to do by the Board of Directors. Endorsements for deposit to the credit of the Corporation in any of its duly authorized depositaries shall be made in such manner as the Board of Directors from time to time may determine. Section 5.4 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers or agent or agents of the Corporation, and in such manner, as from time to time shall be determined by the Board of Directors. Section 5.5 Proxies. Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the Chairman of the Board of Directors, the President or a vice president or by any other person or persons thereunto authorized by the Board of Directors. ARTICLE VI Record Dates Section 6.1. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of 12 stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall be not more than sixty nor less than ten days before the date of such meeting, nor more that sixty days prior to any other action. Only those stockholders of record on the date so fixed shall be entitled to any of the foregoing rights, notwithstanding the transfer of any such stock on the books of the Corporation after any such record date fixed by the Board of Directors. ARTICLE VII Corporate Seal Section 7.1. The corporate seal shall be circular in form and shall bear the name of the Corporation and words and figures denoting its organization under the laws of the state of Delaware and the year thereof and otherwise shall be in such form as shall be approved from time to time by the Board of Directors. ARTICLE VIII Fiscal Year Section 8.1. The fiscal year of the Corporation shall begin on the first day of January in each year and shall end on the 31st day of December in the same year. ARTICLE IX Amendments Section 9.1. All By-laws of the Corporation may be amended, altered or repealed, and new By-laws may be made, by the affirmative vote of the holders of record of shares representing a majority of the votes of the outstanding shares of stock of the Corporation entitled to vote cast at any annual or special meeting, or by the affirmative vote of a majority of the Directors cast at any regular or special meeting at which a quorum is present. 13 EX-3.13 8 h92783ex3-13.txt CERTIFICATE OF INCORPORATION OF GOLD STAR MARITIME EXHIBIT 3.13 CERTIFICATE OF INCORPORATION OF GOLD STAR MARITIME COMPANY 1. The name of the corporation is: GOLD STAR MARITIME COMPANY 2. The address of its registered offices in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of all classes of stock which the corporation shall be authorized to issue is one thousand (1,000) shares of common stock, $1.00 par value. 5. A director of the corporation is not liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except that this article does not eliminate or limit the liability of a director: (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 General Corporation Law of Delaware; or (iv) for any transaction from which the director derived an improper personal benefit. 6. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot. 7. The name and mailing address of the incorporator is: M. A. Brzoska ---------------------------------------- The Corporation Trust Company 1209 Orange Street Wilmington, Delaware 19901 I, the undersigned, as incorporator and for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 16th day of July, 1998. /s/ M. A. Brzoska ----------------------- M. A. Brzoska EX-3.14 9 h92783ex3-14.txt BYLAWS OF GOLD STAR MARITIME COMPANY EXHIBIT 3.14 Adopted: August 27, 1998 BY-LAWS OF GOLD STAR MARITIME COMPANY BY-LAWS OF GOLD STAR MARITIME COMPANY ARTICLE I Meetings of Stockholders Section 1.1 Annual Meetings. The Annual meeting of the stockholders for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held on such date and at such time and place within or without the state of Delaware as may be designated by the Board of Directors. Section 1.2 Special Meetings. Special meetings of the stockholders for any proper purpose or purposes may be called at any time by the Board of Directors, the Chairman of the Board of Directors, the President or any vice president, to be held on such date and at such time and place within or without the state of Delaware as the Board of Directors, the Chairman of the Board of Directors, the President or a vice president, whichever has called the meeting, shall direct. A special meeting of the stockholders shall be called by the Chairman of the Board of Directors, the President or any vice president whenever stockholders holding shares representing a majority of the votes of the shares of the Corporation then issued and outstanding and entitled to vote on matters to be submitted to stockholders of the Corporation shall make application therefor in writing. Any such written request shall state a proper purpose or purposes of the meeting and shall be delivered to the Chairman of the Board of Directors, the President or any vice president. Section 1.3 Notice of Meeting. Written notice, signed by the Chairman of the Board of Directors, the President, any vice president, the Secretary or an assistant secretary, of every meeting of stockholders (other than an adjourned meeting unless otherwise required by statute) stating the purpose or purposes for which the meeting is called, and the date and time when, and the place where, it is to be held shall be either delivered personally or mailed to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the meeting, except as otherwise provided by statute. If mailed, such notice shall be directed to a stockholder at his address as it shall appear on the stock books of the Corporation, unless he shall have filed with the Secretary a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in such request, and shall be given when deposited in the United States mail, postage prepaid. 1 Section 1.4 Quorum. The presence at any meeting, in person or by proxy, of the holders of record of shares representing a majority of the votes of the shares then issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business, except where otherwise provided by statute. Section 1.5 Adjournments. In the absence of a quorum, a majority of the votes of the stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to vote is present in person or by proxy, any officer entitled to preside at or act as secretary of such meeting may adjourn the meeting from time to time until a quorum shall be present. Section 1.6 Voting. Directors shall be chosen by a plurality of the votes cast at the election, and except where otherwise provided by statute, or the Certificate of Incorporation, all other questions shall be determined by a majority of the votes cast on such question. Section 1.7 Proxies. Any stockholders entitled to vote may vote by proxy, provided that the instrument authorizing such proxy to act shall have been executed in writing (which shall include telegraphing or cabling) by the stockholder himself or by his duly authorized attorney. Section 1.8 Judges of Election. The Board of Directors may appoint judges of election to serve at any election of directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the judges so appointed shall fail to attend, or refuse or be unable to serve, then such appointment may be made by the presiding officers at the meeting. ARTICLE II Board of Directors Section 2.1 Number. The number of directors which shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors but shall not be less than two. Section 2.2 Election and Term of Office. Directors shall be elected at the annual meeting of the stockholders. Each director (whether elected at an annual meeting or to fill a vacancy or otherwise) shall continue in office until his successor shall have been elected or until his earlier death, resignation, removal or other incapacity in the manner hereinafter provided. 2 Section 2.3 Vacancies and Additional Directorships. If any vacancy shall occur among the directors by reason of death, resignation, removal or other incapacity or as the result of an increase in the number of directorships, the directors then in office shall continue to act and may fill any such vacancy by a vote of the directors then in office, though less than a quorum. Section 2.4 Meetings. A meeting of the Board of Directors shall be held for organization, for the election of officers and for the transaction of such other business as may properly come before the meeting, within thirty days after each annual election of directors. The Board of Directors by resolution may provide for the holding of regular meetings and may fix the times and places at which such meetings shall be held. Notice of regular meetings shall not be required to be given, provided that whenever the time or place of regular meetings shall be fixed or changed, notice of such action shall be mailed promptly to each director who shall not have been present at the meeting at which such action was taken, addressed to him at his residence or usual place of business. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, the President, any vice president or any two directors. Except as otherwise required by statute, notice of each special meeting shall be mailed to each director, addressed to him at his residence or usual place of business, or shall be sent to him at such place by telegram, radio or cable, or telephone or delivered to him personally, not later than two days before the day on which the meeting is to be held. Such notice shall state the time and place of such meeting, but unless otherwise required by statute, the Certificate of Incorporation of the Corporation or these By-laws need not state the purposes thereof. Notice of any meeting need not be given to any director who shall attend such meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Section 2.5 Quorum. One-third of the total number of members of the Board of Directors as constituted from time to time, but not less than two, shall be necessary and sufficient to constitute a quorum for the transaction of business, In the absence of a quorum, a majority of those present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present and the meeting may be held as adjourned without further notice or waiver. A majority of those present at any meeting at which a quorum is present may decide any question brought before such meeting, except as otherwise provided by law, the Certificate of Incorporation or these By-laws. 3 Section 2.6 Resignation of Directors. Any director may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 2.7 Removal of Directors. At any special meeting of the stockholders, duly called for the purpose of removing a director or directors as provided in these By-laws, any director or directors may, by the affirmative vote of the holders of shares representing a majority of the votes of all the shares of stock outstanding and entitled to vote for the election of directors, be removed from office, either with or without cause. At such meeting a successor or successors may be elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled by the directors as provided in Section 2.3. Section 2.8 Compensation of Directors. Directors may receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Section 2.9 Indemnification. The Corporation shall indemnify to the full extent authorized or permitted by the laws of the state of Delaware any person who is made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Corporation or serves or served any other enterprise at the request of the Corporation. ARTICLE III Committees of the Board Section 3.1 Designation, Power, Alternate Members and Term of Office. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Any such committee, to the extent provided in such resolution, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal 4 of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-laws of the Corporation or, unless the resolution of the Board of Directors establishing any such committee shall expressly so provide or these By-laws shall expressly so provide, declaring a dividend on the Corporation's capital stock or authorizing the issuance of the Corporation's capital stock. The Board may designate one or more directors as alternate members of any committee who, in the order specified by the Board, may replace any absent or disqualified member at any meeting of the committee. If at a meeting of any committee one or more of the members thereof should be absent or disqualified, and if either the Board of Directors has not so designated any alternate member or members, or the number of absent or disqualified members exceeds the number of alternate members who are present at such meeting, then the member or members of such committee (including alternates) present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another director to act at the meeting in the place of any such absent or disqualified member. The term of office of the members of each committee shall be as fixed from time to time by the Board, subject to these By-laws; provided, however, that any committee member who ceases to be a member of the Board shall ipso facto cease to be a committee member. Each committee shall appoint a secretary, who may be the Secretary of the Corporation or an assistant secretary thereof. Section 3.2 Meetings, Notices and Records. Each committee may provide for the holding of regular meetings, with or without notice, and may fix the time and place at which such meetings shall be held. Special meetings of each committee shall be held upon call by or at the direction of its chairman or, if there be no chairman, by or at the direction of any two of its members, at the time and place specified in the respective notices or waivers of notice thereof. Notice of each special meeting of a committee shall be mailed to each member of such committee, addressed to him at his residence or usual place of business, at least two days before the day on which the meeting is to be held, or shall be sent by telegram, radio or cable addressed to him at such place, or telephoned or delivered to him personally, not later than the day before the day on which the meeting is to be held. Notice of any meeting of a committee need not be given to any member thereof who shall attend the meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Notice of any adjourned meeting need not be given. Each committee shall keep a record of its proceedings. 5 Section 3.3 Quorum and Manner of Acting. At each meeting of any committee the presence of one-third but not less than two of its members then in office shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which the quorum is present shall be the act of such committee; in the absence of a quorum, a majority of the members present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present. Subject to the foregoing and other provisions of these By-laws and except as otherwise determined by the Board of Directors, each committee may make rules for the conduct of its business. Any determination made in writing and signed by all the members of such committee shall be as effective as if made by such committee at a meeting. Section 3.4 Resignations. Any member of a committee may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 3.5 Removal. Any member of any committee may be removed at any time by the Board of Directors with or without cause. Section 3.6 Vacancies. If any vacancy shall occur in any committee by reason of death, resignation, disqualification, removal or otherwise, the remaining members of such committee, though less than a quorum, shall continue to act until such vacancy is filled by a resolution passed by a majority of the whole Board of Directors. Section 3.7 Compensation. Committee members shall receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any committee member from serving the Corporation in any other capacity and receiving compensation therefor. ARTICLE IV Officers Section 4.1 Officers. The officers of the Corporation shall be a Chairman of the Board of Directors, a President, one or more 6 Vice Presidents (which may include Group Vice Presidents, Senior Vice Presidents and other categories of Vice Presidents), a Secretary, a Treasurer, and such other officers as may be appointed in accordance with the provisions of Section 4.3. Section 4.2 Election, Term of Office and Qualifications. Each officer (except such officers as may be appointed in accordance with the provisions of Section 4.3) shall be elected by the Board of Directors. Each such officer (whether elected at the first meeting of the Board of Directors after the annual meeting of stockholders or to fill a vacancy or otherwise) shall hold his office until the first meeting of the Board of Directors after the next annual meeting of stockholders and until his successor shall have been elected, or until his death, or until he shall have resigned in the manner provided in Section 4.4 or shall have been removed in the manner provided in Section 4.5. The Chairman of the Board of Directors must be a member of the Board of Directors. Section 4.3 Subordinate Officers and Agents. The Board of Directors from time to time may appoint other officers or agents (including one or more assistant vice presidents, one or more assistant secretaries and one or more assistant treasurers), to hold office for such period, have such authority and perform such duties as are provided in these By-laws or as may be provided in the resolutions appointing them. The Board of Directors may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective terms of office, authorities and duties. Section 4.4 Resignations. Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 4.5 Removal. Any officer specifically designated in Section 4.1 may be removed at any time, either with or without cause, at any meeting of the Board of Directors by the vote of a majority of all the directors then in office. Any officer or agent appointed in accordance with the provisions of Section 4.3 may be removed, either with or without cause, by the Board of Directors at any meeting, by the vote of a majority of the directors present at such meeting, or by any superior officer or agent upon whom such power of removal shall have been conferred by the Board of Directors. Section 4.6 Vacancies. A vacancy in any office by reason of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed by these By-laws for regular election or appointment to such office. Section 4.7 The Chairman of the Board of Directors. The Chairman of the Board of Directors shall be the chief executive officer of the Corporation. Subject to the direction of the Board of Directors, he shall have general charge of the business affairs and property of the Corporation. He shall see that all orders and resolutions of the Board of Directors are carried into effect. If present, he shall preside at all meetings of stockholders. He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. From time to time he shall report to the Board of Directors all matters within his knowledge which the interests of the Corporation may require to be brought to their attention. He shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors. Section 4.8 The President. The President shall be the chief operating officer of the Corporation. Subject to the direction of the Chairman of the Board of Directors, he shall have general supervision over the officers and agents of the Corporation. At the request of the Board of Directors or the Chairman of the Board of Directors, the President shall perform all the duties of the Chairman of the Board of Directors and, when so acting, shall have all the powers of and be subject to all restrictions upon the Chairman of the Board of Directors (except that the President need not be a member of the Board of Directors) . He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. He shall also perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors or the Chairman of the Board of Directors. Section 4.9 The Vice Presidents. In the absence or disability of the President, any vice president designated by the President (or in the absence of such designation, the Vice President designated by the Board of Directors or the Chairman of the Board of Directors) shall perform all the duties of the President and, when so acting, shall have all the powers of and be 8 subject to all restrictions upon the President. Any vice president may also sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation deeds, mortgages, bonds and other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. Each vice president shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.10 The Secretary. The Secretary shall (a) Record all the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book or books to be kept for that purpose; (b) Cause all notices to be duly given in accordance with the provisions of these By-laws and as required by statute; (c) Whenever any committee shall be appointed in pursuance of a resolution of the Board of Directors, furnish the chairman of such committee with a copy of such resolution; (d) Be custodian of the records and of the seal of the Corporation, and cause such seal to be affixed to all certificates representing stock of the Corporation prior to the issuance thereof and to all instruments the execution of which on behalf of the Corporation under its seal shall have been duly authorized; (e) See that the lists, books, reports, statements, certificates and other documents and records required by statute are properly kept and filed; (f) Have charge of the stock and transfer books of the Corporation, and exhibit such stock book at all reasonable times to such persons as are entitled by statute to have access thereto; (g) Sign (unless the Treasurer or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Secretary and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the 9 Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.11 Assistant Secretaries. At the request of the Secretary or in his absence or disability, the Assistant Secretary designated by him (or in the absence of such designation, the Assistant Secretary designated by the Board of Directors, the Chairman of the Board of Directors or the President) shall perform all the duties of the Secretary and, when so acting, shall have all the powers of and be subject to all restrictions upon the Secretary. The assistant secretaries shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary. Section 4.12 The Treasurer. The Treasurer shall (a) Have charge of and supervision over and be responsible for the funds, securities, receipts and disbursements of the Corporation; (b) Cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such banks or trust companies or with such bankers or other depositaries as shall be selected in accordance with Section 5.3 of these By-laws or to be otherwise dealt with in such manner as the Board of Directors may direct; (c) Cause the funds of the Corporation to be disbursed by checks or drafts upon the authorized depositaries of the Corporation, and cause to be taken and preserved proper vouchers for all moneys disbursed; (d) Render to the Board of Directors, the Chairman of the Board of Directors, or the President, whenever requested, a statement of the financial condition of the Corporation and of all his transactions as Treasurer; (e) Cause to be kept at the Corporation's principal office correct books of account of all its business and transactions and such duplicate books of account as he shall determine and upon application cause such books or duplicates thereof to be exhibited to any director; (f) Be empowered, from time to time, to require from the officers or agents of the Corporation reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation; (g) Sign (unless the Secretary or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have 10 been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Treasurer and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.13 Assistant Treasurers. At the request of the Treasurer or in his absence or disability, the Assistant Treasurer designated by him (or in the absence of such designation, the Assistant Treasurer designated by the Board of Directors, the Chairman of the Board of Directors, or the President) shall perform all the duties of the Treasurer and, when so acting, shall have all the powers of and be subject to all restrictions upon the Treasurer. The Assistant Treasurers shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Treasurer. Section 4.14 Salaries. The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors, except that the Board of Directors may delegate to any person the power to fix the salaries or other compensation of any officers or agents appointed in accordance with the provisions of Section 4.3. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. Section 4.15 Surety Bonds. If the Board of Directors shall so require, any officer or agent of the Corporation shall execute to the Corporation a bond in such sum and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful discharge of his duties, including responsibilities for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands. ARTICLE V Execution of Instruments and Deposit of Corporate Funds Section 5.1 Execution of Instruments Generally. The Chairman of the Board of Directors, the President, any vice president, the Secretary or the Treasurer, subject to the approval of the Board of Directors, may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. The Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any 11 instrument in the name and on behalf of the Corporation, and such authorization may be general or confined to specific instances. Section 5.2 Borrowing. No loans or advances shall be obtained or contracted for, by or on behalf of the Corporation and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors. Such authorization may be general or confined to specific instances, Any officer or agent of the Corporation thereunto so authorized may obtain loans and advances for the Corporation, and for such loans and advances may make, execute and deliver promissory notes, bonds or other evidences of indebtedness of the Corporation. Any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as security for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation, any and all stocks, bonds, other securities and other personal property at any time held by the Corporation, and to that end may endorse, assign and deliver the same and do every act and thing necessary or proper in connection therewith. Section 5.3 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors may select, or as may be selected by any officer or officers or agent or agents authorized so to do by the Board of Directors. Endorsements for deposit to the credit of the Corporation in any of its duly authorized depositaries shall be made in such manner as the Board of Directors from time to time may determine. Section 5.4 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers or agent or agents of the Corporation, and in such manner, as from time to time shall be determined by the Board of Directors. Section 5.5 Proxies. Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the Chairman of the Board of Directors, the President or a vice president or by any other person or persons thereunto authorized by the Board of Directors. ARTICLE VI Record Dates Section 6.1. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of 12 stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall be not more than sixty nor less than ten days before the date of such meeting, nor more that sixty days prior to any other action. Only those stockholders of record on the date so fixed shall be entitled to any of the foregoing rights, notwithstanding the transfer of any such stock on the books of the Corporation after any such record date fixed by the Board of Directors. ARTICLE VII Corporate Seal Section 7.1. The corporate seal shall be circular in form and shall bear the name of the Corporation and words and figures denoting its organization under the laws of the state of Delaware and the year thereof and otherwise shall be in such form as shall be approved from time to time by the Board of Directors. ARTICLE VIII Fiscal Year Section 8.1. The fiscal year of the Corporation shall begin on the first day of January in each year and shall end on the 31st day of December in the same year. ARTICLE IX Amendments Section 9.1. All By-laws of the Corporation may be amended, altered or repealed, and new By-laws may be made, by the affirmative vote of the holders of record of shares representing a majority of the votes of the outstanding shares of stock of the Corporation entitled to vote cast at any annual or special meeting, or by the affirmative vote of a majority of the Directors cast at any regular or special meeting at which a quorum is present. 13 EX-3.15 10 h92783ex3-15.txt CERTIFICATE OF INCORPORATION OF KENAI PIPE LINE CO EXHIBIT 3.15 CERTIFICATE OF CHANGE OF REGISTERED AGENT AND REGISTERED OFFICE * * * * * KENAI PIPE LINE COMPANY, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: The present registered agent of the corporation is The Prentice-Hall Corporation System, Inc. and the present registered office of the corporation is in the county of New Castle. The Board of Directors of KENAI PIPE LINE COMPANY adopted the following resolution on the 14th day of February, 1996. Resolved, that the registered office of KENAI PIPE LINE COMPANY in the state of Delaware be and it hereby is changed to Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, and the authorization of the present registered agent of this corporation be and the same is hereby withdrawn, and THE CORPORATION TRUST COMPANY, shall be and is hereby constituted and appointed the registered agent of this corporation at the address of its registered office. IN WITNESS WHEREOF, KENAI PIPE LINE COMPANY has caused this statement to be signed by Charles S. Parrish, its Assistant Secretary*, this 14th day of February, 1996. /s/ Charles S. Parrish -------------------------- Assistant Secretary -------------------------- (Title) *Any authorized officer or the chairman or Vice-Chairman of the Board of Directors may execute this certificate. CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE AND OF REGISTERED AGENT It is hereby certified that: 1. The name of the corporation (hereinafter called the "corporation") is KENAI PIPE LINE COMPANY 2. The registered office of the corporation within the State of Delaware is hereby changed to 32 Loockerman Square, Suite L-100, City of Dover 19904, County of Kent. 3. The registered agent of the corporation within the State of Delaware is hereby changed to The Prentice-Hall Corporation System, Inc., the business office of which is identical with the registered office of the corporation as hereby changed. 4. The corporation has authorized the changes hereinbefore set forth by resolution of its Board of Directors. Signed on 10/13, 1994. /s/ Kristain M. Geusletta ---------------------------- Authorized Officer ASST. SECRETARY CERTIFICATE OF INCORPORATION OF KENAI PIPE LINE COMPANY ---ooOoo--- FIRST: The name of the corporation is KENAI PIPE LINE COMPANY. SECOND: The principal office of the corporation in the State of Delaware is located at No. 100 West Tenth Street in the City of Wilmington, in the County of New Castle. The name and address of its resident agent is The Corporation Trust Company, No. 100 West Tenth Street, Wilmington, Delaware. THIRD: The nature of the business of the corporation and the objects or purposes to be transacted, promoted or carried on are: To lay, construct, maintain, own, lease, purchase, sell or otherwise dispose of and operate a pipe line or pipe lines. To acquire, construct, maintain, own, lease, sell or otherwise dispose of and operate docks, piers, wharves, tanks and storage facilities of all kinds. To transport, store, buy and sell oil, petroleum, refined petroleum products, natural and artificial gas, salt, brine, and other mineral solutions and liquefied minerals, and all products derived therefrom or similar thereto, including casinghead and natural gasoline, and any other liquids or gases. To acquire, own, use and sell or otherwise dispose of rights of way and such other property as may be incidental to, necessary for, or useful in the establishment, maintenance, operation and conduct of such business. To acquire, own, lease, construct, maintain, sell or otherwise dispose of and operate pumping stations, compressing stations, storage stations, boosters, communication facilities, and all other facilities incidental to, necessary for, or useful in carrying out the objects and purposes above set forth. To acquire, and pay for in cash, stock or bonds of this corporation or otherwise, the good will, rights, assets and property, and to undertake or assume the whole or any part of the obligations or liabilities, of any person, firm, association or corporation. To acquire, hold, use, sell, assign, lease, grant licenses in respect of, mortgage or otherwise dispose of letters patent of the United States or any foreign country, patent rights, licenses and privileges, inventions, improvements and processes, copyrights, trademarks and trade names, relating to or useful in connection with any business of the corporation. To guarantee, purchase, hold, sell, assign, transfer, mortgage, pledge or otherwise dispose of shares of the capital stock of, or any bonds, securities or evidences of indebtedness created by any other corporation or corporations organized under the laws of this state or any other state, country, nation or government, and while the owner thereof to exercise all the rights, powers and privileges of ownership, including the right to vote thereon. 2 To enter into, make and perform contracts of every kind and description with any person, firm, association, corporation, municipality, county, state, body politic or government or colony or dependency thereof. To borrow or raise moneys for any of the purposes of the corporation and, from time to time, without limit as to amount, to draw, make, accept, endorse, execute and issue promissory notes, drafts, bills of exchange, warrants, bonds, debentures and other negotiable or non-negotiable instruments and evidences of indebtedness, and to secure the payment of any thereof and of the interest thereon by mortgage upon or pledge, conveyance or assignment in trust of the whole or any part of the property of the corporation, whether at the time owned or thereafter acquired, and to sell, pledge or otherwise dispose of such bonds or other obligations of the corporation for its corporate purposes. To buy, sell or otherwise deal in notes, open accounts, and other similar evidences of debt, and to loan money and take notes, open accounts, and other similar evidences of debt as collateral security therefor. To purchase, hold, sell, and transfer the shares of its own capital stock; provided it shall not use its funds or property for the purchase of its own shares of capital stock when such use would cause any impairment of its capital except as otherwise permitted by law, and provided further that shares of its own capital stock belonging to it shall not be voted upon directly or indirectly. 3 To have one or more offices; to carry on all or any of its operations and business and, without restriction or limit as to amount, to purchase or otherwise acquire, hold, own, mortgage, sell, convey, or otherwise dispose of real and personal property of every class and description in any of the states, districts, territories or colonies of the United States, and in any and all foreign countries, subject to the laws of such state, district, territory, colony or country; and to have and exercise all the powers of eminent domain that may be provided by the laws of each state in which the corporation is authorized to do business. In general, to carry on any other business in connection with the foregoing, and to have and exercise all the powers conferred by the laws of Delaware upon corporations formed under the General Corporation Law of the State of Delaware, and to do any or all of the things hereinbefore set forth to the same extent as natural persons might or could do; provided, however, that nothing contained in this Certificate of Incorporation shall be construed as authorizing the corporation to carry on the business of constructing or maintaining or operating public utilities in the State of Delaware or to engage in the business of banking or insurance in the State of Delaware, or as authorizing the corporation in any state to carry on any business, or exercise any powers, which a corporation organized under the laws of said state could not carry on or exercise, except to the extent permitted or authorized by the laws of said state. The objects and purposes specified in the foregoing clauses shall be construed to be powers as well as objects and purposes, and, except where otherwise expressed, shall be in no wise limited or restricted by reference to, or inference from, the terms of any other clause in this Certificate of Incorporation; but the objects and purposes specified in each of the foregoing clauses of this article shall be regarded as independent objects and purposes. FOURTH: The total number of shares of stock which the corporation is authorized to issue is twenty thousand (20,000); all of such shares shall be without par value. FIFTH: The stockholders of the corporation shall have the pre-emptive right to subscribe to arid purchase any shares of stock issued or offered for sale by the corporation and any or all issues of securities convertible into stock of the corporation in proportion to their respective stock holdings at that time. If any stockholder elects not to subscribe to or purchase his proportionate part of such additional shares of convertible Securities, the same shall be offered to the remaining stockholders in proportion to their holdings, and succeeding offers shall be made until the shares or convertible securities have either been acquired by the other stockholders or refused by all the stockholders, after which the same may be sold to non-stockholders. SIXTH: At all elections of directors of the corporation, each stockholder shall be entitled to as many votes as shall equal the number of votes which (except for this provision as to cumulative voting) he would be entitled to cast for the election of directors with respect to his shares of stock multiplied by the number of directors to be elected, and he may cast all of such votes for a 5 single director or may distribute them among the number to be voted for, or for any two or more of them as he may see fit. Unless the By-Laws otherwise provide, voting at elections of directors need not be by ballot. SEVENTH: The minimum amount of capital with which the corporation will commence business is One Thousand Dollars ($1,000.00). EIGHTH: The names and places of residence of the incorporators are as follows: Names Residence ----- --------- R.F. Westover Wilmington, Delaware L.A. Schoonmaker Wilmington, Delaware A.D. Atwell Wilmington, Delaware NINTH: The corporation is to have perpetual existence. TENTH: The private property of the stockholders shall not be subject to the payment of corporate debts to any extent whatever. ELEVENTH: The number of directors which shall constitute the whole board shall be such as from time to time shall be fixed by, or in the manner provided in, the By-Laws. Any vacancy in the Board of Directors or any newly created directorship resulting from an increase in the number of directors, may be filled by the stockholders at any annual or special meeting as shall be provided in the By-Laws. Stockholders holding shares sufficient under Article Sixth to entitle them to elect at least one director may, in the event of such vacancy or newly created directorship, at any time 6 call a meeting of stockholders for the election of all directors, and, in such event, the terms of office of all directors then in office shall expire upon the election and qualification of their respective successors. TWELFTH: In furtherance, arid not in limitation of the powers conferred by law, the board of directors is expressly authorized: To make and alter the by-laws of this corporation, without any action on the part of the stockholders; but the by-laws made by the directors and the powers so conferred may be altered or repealed by the directors or stockholders. To authorize the borrowing of funds and the execution of mortgages and liens upon the real and personal property of the corporation. To set apart out of any of the funds of the corporation available for dividends a reserve or reserves for any proper purpose or to abolish any such reserve in the manner in which it was created. To designate one or more committees, each committee to consist of two or more of the directors of the corporation, which, to the extent provided in said resolution or resolutions or in the by-laws of the corporation, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may have power to authorize the seal of the corporation to be affixed to all papers which may require it. Such committee or committees shall have such name or 7 names as may be stated in the by-laws of the corporation or as may be determined from time to time by resolution adopted by the board of directors. The directors in their discretion may submit any contract or act for approval or ratification at any annual meeting of the stockholders or at any meeting of the stockholders called for the purpose of considering any such act or contract, and any contract or act that shall be approved or be ratified at such meeting (provided that a lawful quorum of stockholders be there represented in person or by proxy) shall, insofar as permitted by law, be as valid and as binding upon the corporation and upon all the stockholders, as though it had been approved or ratified by every stockholder of the corporation. The corporation may in its by-laws confer powers upon its board of directors in addition to the foregoing, and in addition to the powers and authority expressly conferred upon it by statute. THIRTEENTH: No contract or other transaction between the corporation and any other corporation and no act of the corporation shall in any way be affected or invalidated by the fact that any of the directors of the corporation are pecuniarily or otherwise interested in, or are directors or officers of, such other corporation; any director individually, or any firm of which any director may be a member, may be a party to, or may be pecuniarily or otherwise interested in, any contract or transaction of 8 the corporation, provided that the fact that he or such firm is so interested shall be disclosed or shall have been known to the board of directors or a majority thereof; and any director of the corporation who is also a director or officer of such corporation or who is so interested may be counted in determining the existence of a quorum at any meeting of the board of directors of the corporation which shall authorize any such contract or transaction and may vote thereat to authorize any such contract or transaction with like force and effect as if he were not such director or officer of such other corporation or not so interested; and each and every person who may become a director of this corporation is hereby relieved from any liability that might otherwise exist from contracting with the corporation for the benefit of himself or any firm or corporation in which he may be in any wise interested. FOURTEENTH: Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof, or on the application of any receiver or receivers appointed for this corporation under the provisions of Section 291 of Title VIII of the Delaware Code of 1953, or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the provisions of Section 279 of Title VIII of the Delaware Code of 1953, 9 order a meeting of the creditors or class of creditors and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said Court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the Court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation. FIFTEENTH: Meetings of stockholders and of the board of directors may be held without the State of Delaware, if the by-laws so provide. The books of the corporation may be kept (subject to any provision contained in the statutes) outside of the State of Delaware at such place or places as may from time to time be designated by the board of directors or in the by-laws of the corporation. SIXTEENTH: No action required or permitted to be taken by the stockholders, by statute, by this Certificate of Incorporation or by the bylaws of this corporation, (including, but not limited to the amendment, alteration or repeal of this Certificate of Incorporation) shall be taken by the stockholders except upon the affirmative vote of the holders of not less than eighty percent 10 (80%) of the stock of the corporation entitled to vote, or upon the written consent of all of the stockholders; provided, however that the foregoing provisions of this article shall not in any way limit the right of cumulative voting as provided in this Certificate of Incorporation. WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named for the purpose of forming a corporation in pursuance of the General Corporation Law of the State of Delaware, do make this Certificate, hereby declaring and certifying that the facts herein stated are true, and accordingly have hereunto set our hands and seals this 28th day of March, 1960. R. F. Westover (SEAL) L. A. Schoonmaker (SEAL) A. D. Atwell (SEAL) 11 EX-3.16 11 h92783ex3-16.txt BYLAWS OF KENAI PIPE LINE COMPANY, AS AMENDED EXHIBIT 3.16 Adopted: March 28, 1960 Amended: March 22, 1995 BY-LAWS OF KENAI PIPE LINE COMPANY (As Amended March 22, 1995) BY-LAWS OF KENAI PIPE LINE COMPANY ARTICLE I Meetings of Stockholders SECTION 1.1 ANNUAL MEETINGS. The Annual meeting of the stockholders for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held on such date and at such time and place within or without the state of Delaware as may be designated by the Board of Directors. SECTION 1.2 SPECIAL MEETINGS. Special meetings of the stockholders for any proper purpose or purposes may be called at any time by the Board of Directors, the Chairman of the Board of Directors, the President or any vice president, to be held on such date and at such time and place within or without the state of Delaware as the Board of Directors, the Chairman of the Board of Directors, the President or a vice president, whichever has called the meeting, shall direct. A special meeting of the stockholders shall be called by the Chairman of the Board of Directors, the President or any vice president whenever stockholders holding shares representing a majority of the votes of the shares of the Corporation then issued and outstanding and entitled to vote on matters to be submitted to stockholders of the Corporation shall make application therefor in writing. Any such written request shall state a proper purpose or purposes of the meeting and shall be delivered to the Chairman of the Board of Directors, the President or any vice president. SECTION 1.3 NOTICE OF MEETING. Written notice, signed by the Chairman of the Board of Directors, the President, any vice president, the Secretary or an assistant secretary, of every meeting of stockholders (other than an adjourned meeting unless otherwise required by statute) stating the purpose or purposes for which the meeting is called, and the date and time when, and the place where, it is to be held shall be either delivered personally or mailed to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the meeting, except as otherwise provided by statute. If mailed, such notice shall be directed to a stockholder at his address as it shall appear on the stock books of the Corporation, unless he shall have filed with the Secretary a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in - 1 - such request, and shall be given when deposited in the United States mail, postage prepaid. SECTION 1.4 QUORUM. The presence at any meeting, in person or by proxy, of the holders of record of shares representing a majority of the votes of the shares then issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business, except where otherwise provided by statute. SECTION 1.5 ADJOURNMENTS. In the absence of a quorum, a majority of the votes of the stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to vote is present in person or by proxy, any officer entitled to preside at or act as secretary of such meeting may adjourn the meeting from time to time until a quorum shall be present. SECTION 1.6 VOTING. Directors shall be chosen by a plurality of the votes cast at the election, and except where otherwise provided by statute, or the Certificate of Incorporation, all other questions shall be determined by a majority of the votes cast on such question. SECTION 1.7 PROXIES. Any stockholders entitled to vote may vote by proxy, provided that the instrument authorizing such proxy to act shall have been executed in writing (which shall include telegraphing or cabling) by the stockholder himself or by his duly authorized attorney. SECTION 1.8 JUDGES OF ELECTION. The Board of Directors may appoint judges of election to serve at any election of directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the judges so appointed shall fail to attend, or refuse or be unable to serve, then such appointment may be made by the presiding officers at the meeting. ARTICLE II Board of Directors SECTION 2.1 NUMBER. The number of directors which shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors but shall not be less than two. SECTION 2.2 ELECTION AND TERM OF OFFICE. Directors shall be elected at the annual meeting of the stockholders. Each director (whether elected at an annual - 2 - meeting or to fill a vacancy or otherwise) shall continue in office until his successor shall have been elected or until his earlier death, resignation, removal or other incapacity in the manner hereinafter provided. SECTION 2.3 VACANCIES AND ADDITIONAL DIRECTORSHIPS. If any vacancy shall occur among the directors by reason of death, resignation, removal or other incapacity or as the result of an increase in the number of directorships, the directors then in office shall continue to act and may fill any such vacancy by a vote of the directors then in office, though less than a quorum. SECTION 2.4 MEETINGS. A meeting of the Board of Directors shall be held for organization, for the election of officers and for the transaction of such other business as may properly come before the meeting, within thirty days after each annual election of directors. The Board of Directors by resolution may provide for the holding of regular meetings and may fix the times and places at which such meetings shall be held. Notice of regular meetings shall not be required to be given, provided that whenever the time or place of regular meetings shall be fixed or changed, notice of such action shall be mailed promptly to each director who shall not have been present at the meeting at which such action was taken, addressed to him at his residence or usual place of business. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, the President, any vice president or any two directors. Except as otherwise required by statute, notice of each special meeting shall be mailed to each director, addressed to him at his residence or usual place of business, or shall be sent to him at such place by telegram, radio or cable, or telephone or delivered to him personally, not later than two days before the day on which the meeting is to be held. Such notice shall state the time and place of such meeting, but unless otherwise required by statute, the Certificate of Incorporation of the Corporation or these By-laws need not state the purposes thereof. Notice of any meeting need not be given to any director who shall attend such meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. SECTION 2.5 QUORUM. One-third of the total number of members of the Board of Directors as constituted from time to time, but not less than two, shall be necessary and sufficient to constitute a quorum for the transaction of business. In the absence of a quorum, a majority of those present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present and the meeting may be held as adjourned without further notice or waiver. A majority of those - 3 - present at any meeting at which a quorum is present may decide any question brought before such meeting, except as otherwise provided by law, the Certificate of Incorporation or these By-laws. SECTION 2.6 RESIGNATION OF DIRECTORS. Any director may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 2.7 REMOVAL OF DIRECTORS. At any special meeting of the stockholders, duly called for the purpose of removing a director or directors as provided in these By-laws, any director or directors may, by the affirmative vote of the holders of shares representing a majority of the votes of all the shares of stock outstanding and entitled to vote for the election of directors, be removed from office, either with or without cause. At such meeting a successor or successors may be elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled by the directors as provided in Section 2.3. SECTION 2.8 COMPENSATION OF DIRECTORS. Directors may receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. SECTION 2.9 INDEMNIFICATION. The Corporation shall indemnify to the full extent authorized or permitted by the laws of the state of Delaware any person who is made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Corporation or serves or served any other enterprise at the request of the Corporation. ARTICLE III Committees of the Board SECTION 3.1 DESIGNATION, POWER, ALTERNATE MEMBERS AND TERM OF OFFICE. The Board of Directors may, by resolution passed by a majority of the whole Board, - 4 - designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Any such committee, to the extent provided in such resolution, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-laws of the Corporation or, unless the resolution of the Board of Directors establishing any such committee shall expressly so provide or these By-laws shall expressly so provide, declaring a dividend on the Corporation's capital stock or authorizing the issuance of the Corporation's capital stock. The Board may designate one or more directors as alternate members of any committee who, in the order specified by the Board, may replace any absent or disqualified member at any meeting of the committee. If at a meeting of any committee one or more of the members thereof should be absent or disqualified, and if either the Board of Directors has not so designated any alternate member or members, or the number of absent or disqualified members exceeds the number of alternate members who are present at such meeting, then the member or members of such committee (including alternates) present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another director to act at the meeting in the place of any such absent or disqualified member. The term of office of the members of each committee shall be as fixed from time to time by the Board, subject to these By-laws; provided, however, that any committee member who ceases to be a member of the Board shall ipso facto cease to be a committee member. Each committee shall appoint a secretary, who may be the Secretary of the Corporation or an assistant secretary thereof. SECTION 3.2 MEETINGS, NOTICES AND RECORDS. Each committee may provide for the holding of regular meetings, with or without notice, and may fix the time and place at which such meetings shall be held. Special meetings of each committee shall be held upon call by or at the direction of its chairman or, if there be no chairman, by or at the direction of any two of its members, at the time and place specified in the respective notices or waivers of notice thereof. Notice of each special meeting of a committee shall be mailed to each member of such committee, addressed to him at his residence or usual place of business, at least two days before the day on which the meeting is to be held, or shall be sent by telegram, radio or cable addressed to him at such place, or telephoned or delivered to him personally, not later than the day before the day on which the meeting is to be held. Notice of any meeting of a committee need not be given to any member thereof who shall attend the meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, - 5 - radio or cable. Notice of any adjourned meeting need not be given. Each committee shall keep a record of its proceedings. SECTION 3.3 QUORUM AND MANNER OF ACTING. At each meeting of any committee the presence of one-third but not less than two of its members then in office shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which the quorum is present shall be the act of such committee; in the absence of a quorum, a majority of the members present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present. Subject to the foregoing and other provisions of these By-laws and except as otherwise determined by the Board of Directors, each committee may make rules for the conduct of its business. Any determination made in writing and signed by all the members of such committee shall be as effective as if made by such committee at a meeting. SECTION 3.4 RESIGNATIONS. Any member of a committee may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 3.5 REMOVAL. Any member of any committee may be removed at any time by the Board of Directors with or without cause. SECTION 3.6 VACANCIES. If any vacancy shall occur in any committee by reason of death, resignation, disqualification, removal or otherwise, the remaining members of such committee, though less than a quorum, shall continue to act until such vacancy is filled by a resolution passed by a majority of the whole Board of Directors. SECTION 3.7 COMPENSATION. Committee members shall receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any committee member from serving the Corporation in any other capacity and receiving compensation therefor. - 6 - ARTICLE IV Officers SECTION 4.1 OFFICERS. The officers of the Corporation shall be a Chairman of the Board of Directors, a President, one or more Vice Presidents (which may include Group Vice Presidents, Senior Vice Presidents and other categories of Vice Presidents), a Secretary, a Treasurer, and such other officers as may be appointed in accordance with the provisions of Section 4.3. SECTION 4.2 ELECTION, TERM OF OFFICE AND QUALIFICATIONS. Each officer (except such officers as may be appointed in accordance with the provisions of Section 4.3) shall be elected by the Board of Directors. Each such officer (whether elected at the first meeting of the Board of Directors after the annual meeting of stockholders or to fill a vacancy or otherwise) shall hold his office until the first meeting of the Board of Directors after the next annual meeting of stockholders and until his successor shall have been elected, or until his death, or until he shall have resigned in the manner provided in Section 4.4 or shall have been removed in the manner provided in Section 4.5. The Chairman of the Board of Directors must be a member of the Board of Directors. SECTION 4.3 SUBORDINATE OFFICERS AND AGENTS. The Board of Directors from time to time may appoint other officers or agents (including one or more assistant vice presidents, one or more assistant secretaries and one or more assistant treasurers), to hold office for such period, have such authority and perform such duties as are provided in these By-laws or as may be provided in the resolutions appointing them. The Board of Directors may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective terms of office, authorities and duties. SECTION 4.4 RESIGNATIONS. Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. SECTION 4.5 REMOVAL. Any officer specifically designated in Section 4.1 may be removed at any time, either with or without cause, at any meeting of the Board of Directors by the vote of a majority of all the directors then in office. Any officer or agent appointed in accordance with the provisions of Section 4.3 may be removed, either with or without cause, by the Board of Directors at any meeting, by the vote of - 7 - a majority of the directors present at such meeting, or by any superior officer or agent upon whom such power of removal shall have been conferred by the Board of Directors. SECTION 4.6 VACANCIES. A vacancy in any office by reason of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed by these By-laws for regular election or appointment to such office. SECTION 4.7 THE CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the Board of Directors shall be the chief executive officer of the Corporation. Subject to the direction of the Board of Directors, he shall have general charge of the business affairs and property of the Corporation. He shall see that all orders and resolutions of the Board of Directors are carried into effect. If present, he shall preside at all meetings of stockholders. He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. From time to time he shall report to the Board of Directors all matters within his knowledge which the interests of the Corporation may require to be brought to their attention. He shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors. SECTION 4.8 THE PRESIDENT. The President shall be the chief operating officer of the Corporation. Subject to the direction of the Chairman of the Board of Directors, he shall have general supervision over the officers and agents of the Corporation. At the request of the Board of Directors or the Chairman of the Board of Directors, the President shall perform all the duties of the Chairman of the Board of Directors and, when so acting, shall have all the powers of and be subject to all restrictions upon the Chairman of the Board of Directors (except that the President need not be a member of the Board of Directors). He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. He shall also perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors or the Chairman of the Board of Directors. - 8 - SECTION 4.9 THE VICE PRESIDENTS. In the absence or disability of the President, any vice president designated by the President (or in the absence of such designation, the Vice President designated by the Board of Directors or the Chairman of the Board of Directors) shall perform all the duties of the President and, when so acting, shall have all the powers of and be subject to all restrictions upon the President. Any vice president may also sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation deeds, mortgages, bonds and other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. Each vice president shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. SECTION 4.10 THE SECRETARY. The Secretary shall (a) Record all the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book or books to be kept for that purpose; (b) Cause all notices to be duly given in accordance with the provisions of these By-laws and as required by statute; (c) Whenever any committee shall be appointed in pursuance of a resolution of the Board of Directors, furnish the chairman of such committee with a copy of such resolution; (d) Be custodian of the records and of the seal of the Corporation, and cause such seal to be affixed to all certificates representing stock of the Corporation prior to the issuance thereof and to all instruments the execution of which on behalf of the Corporation under its seal shall have been duly authorized; (e) See that the lists, books, reports, statements, certificates and other documents and records required by statute are properly kept and filed; (f) Have charge of the stock and transfer books of the Corporation, and exhibit such stock book at all reasonable times to such persons as are entitled by statute to have access thereto; (g) Sign (unless the Treasurer or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and - 9 - (h) In general, perform all duties incident to the office of Secretary and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. SECTION 4.11 ASSISTANT SECRETARIES. At the request of the Secretary or in his absence or disability, the Assistant Secretary designated by him (or in the absence of such designation, the Assistant Secretary designated by the Board of Directors, the Chairman of the Board of Directors or the President) shall perform all the duties of the Secretary and, when so acting, shall have all the powers of and be subject to all restrictions upon the Secretary. The assistant secretaries shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary. SECTION 4.12 THE TREASURER. The Treasurer shall (a) Have charge of and supervision over and be responsible for the funds, securities, receipts and disbursements of the Corporation; (b) Cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such banks or trust companies or with such bankers or other depositaries as shall be selected in accordance with Section 5.3 of these By-laws or to be otherwise dealt with in such manner as the Board of Directors may direct; (c) Cause the funds of the Corporation to be disbursed by checks or drafts upon the authorized depositaries of the Corporation, and cause to be taken and preserved proper vouchers for all moneys disbursed; (d) Render to the Board of Directors, the Chairman of the Board of Directors, or the President, whenever requested, a statement of the financial condition of the Corporation and of all his transactions as Treasurer; (e) Cause to be kept at the Corporation's principal office correct books of account of all its business and transactions and such duplicate books of account as he shall determine and upon application cause such books or duplicates thereof to be exhibited to any director; (f) Be empowered, from time to time, to require from the officers or agents of the Corporation reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation; - 10 - (g) Sign (unless the Secretary or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Treasurer and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. SECTION 4.13 ASSISTANT TREASURERS. At the request of the Treasurer or in his absence or disability, the Assistant Treasurer designated by him (or in the absence of such designation, the Assistant Treasurer designated by the Board of Directors, the Chairman of the Board of Directors, or the President) shall perform all the duties of the Treasurer and, when so acting, shall have all the powers of and be subject to all restrictions upon the Treasurer. The Assistant Treasurers shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Treasurer. SECTION 4.14 SALARIES. The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors, except that the Board of Directors may delegate to any person the power to fix the salaries or other compensation of any officers or agents appointed in accordance with the provisions of Section 4.3. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. SECTION 4.15 SURETY BONDS. If the Board of Directors shall so require, any officer or agent of the Corporation shall execute to the Corporation a bond in such sum and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful discharge of his duties, including responsibilities for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands. ARTICLE V Execution of Instruments and Deposit of Corporate Funds SECTION 5.1 EXECUTION OF INSTRUMENTS GENERALLY. The Chairman of the Board of Directors, the President, any vice president, the Secretary or the Treasurer, subject - 11 - to the approval of the Board of Directors, may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. The Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation, and such authorization may be general or confined to specific instances. SECTION 5.2 BORROWING. No loans or advances shall be obtained or contracted for, by or on behalf of the Corporation and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors. Such authorization may be general or confined to specific instances. Any officer or agent of the Corporation thereunto so authorized may obtain loans and advances for the Corporation, and for such loans and advances may make, execute and deliver promissory notes, bonds or other evidences of indebtedness of the Corporation. Any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as security for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation, any and all stocks, bonds, other securities and other personal property at any time held by the Corporation, and to that end may endorse, assign and deliver the same and do every act and thing necessary or proper in connection therewith. SECTION 5.3 DEPOSITS. All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors may select, or as may be selected by any officer or officers or agent or agents authorized so to do by the Board of Directors. Endorsements for deposit to the credit of the Corporation in any of its duly authorized depositaries shall be made in such manner as the Board of Directors from time to time may determine. SECTION 5.4 CHECKS, DRAFTS, ETC. All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers or agent or agents of the Corporation, and in such manner, as from time to time shall be determined by the Board of Directors. SECTION 5.5 PROXIES. Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the Chairman of the Board of Directors, the President or a vice president or by any other person or persons thereunto authorized by the Board of Directors. - 12 - ARTICLE VI Record Dates SECTION 6.1. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall be not more than sixty nor less than ten days before the date of such meeting, nor more that sixty days prior to any other action. Only those stockholders of record on the date so fixed shall be entitled to any of the foregoing rights, notwithstanding the transfer of any such stock on the books of the Corporation after any such record date fixed by the Board of Directors. ARTICLE VII Corporate Seal SECTION 7.1. The corporate seal shall be circular in form and shall bear the name of the Corporation and words and figures denoting its organization under the laws of the state of Delaware and the year thereof and otherwise shall be in such form as shall be approved from time to time by the Board of Directors. ARTICLE VIII Fiscal Year SECTION 8.1. The fiscal year of the Corporation shall begin on the first day of January in each year and shall end on the 31st day of December in the same year. - 13 - ARTICLE IX Amendments SECTION 9.1. All By-laws of the Corporation may be amended, altered or repealed, and new By-laws may be made, by the affirmative vote of the holders of record of shares representing a majority of the votes of the outstanding shares of stock of the Corporation entitled to vote cast at any annual or special meeting, or by the affirmative vote of a majority of the Directors cast at any regular or special meeting at which a quorum is present. - 14 - EX-3.17 12 h92783ex3-17.txt ARTICLES OF INCORPORATION OF SMILEY'S SUPER SERV EXHIBIT 3.17 ARTICLES OF INCORPORATION KNOW ALL MEN BY THESE PRESENTS: That we, the undersigned, all residents of the State of Hawaii, desiring to become a corporation under and in accordance with the laws of said State of Hawaii, and to obtain the benefits conferred by said laws upon corporations, do hereby mutually agree upon and enter into the following Articles of Incorporation, the terms whereof shall be equally obligatory upon the parties hereto as well as upon all other persons who from time to time may become stockholders of the Corporation. ARTICLE I The name of the Corporation shall be: SMILEY'S SUPER SERVICE, INC. ARTICLE II The principal office of the Corporation shall be located at: 1672 KAMEHAMEHA AVENUE, HILO, HAWAII 96720 and there may be such other offices within and without the State of Hawaii as its ,Board of Directors may from time to time deem necessary or advantageous to the Corporation, such other offices to be in charge of such person or persons as may be appointed by the Board of Directors. ARTICLE III A. The purposes for which the corporation is organized and its powers in connection therewith are as follows: 1. To conduct the business of a service station, which shall include dealing in gasoline and all other petroleum products, all manner of accessories and appliances for repairing of motor vehicles, storing of motor vehicles, and such other business as is usual, proper and necessary in such enterprises. 2. To buy, sell, build, exchange, lease and hold for investment, office buildings, homes, apartment houses, industrial property, rental units, land and improvements and thereof on an interim or permanent basis and to furnish, rebuild, redecorate and renovate homes, buildings, offices, and -1- apartments and all types of properties and to finance the same. 3. To purchase or otherwise acquire, hold, own, use, improve, develop, subdivide, cultivate, grant, bargain, sell, convey, lease, mortgage or otherwise dispose of, and in every other manner deal in and with real property and any estate and interest therein, including easements, appurtenance, licenses and water rights and privileges. 4. To loan money on real estate, bonds, stocks, notes and all other personal property and upon any and all character of collateral security. 5. To apply for, obtain, register, lease or assign, or otherwise, dispose of any trade names, trade marks, copyrights, patents, inventions, improvements, and processes. 6. To manufacture, improve, repair, work upon, buy and take leases and license of, otherwise acquire, use, hold, sell, grant leases, rental agreements and licenses of, otherwise dispose of, and otherwise deal in and with any and all kinds of vehicles, apparatus, machinery tools, mechanical devices, appliances, materials and merchandise of any and every kind, whether or not in any way relating to any other purpose or power of the Corporation. 7. To buy, sell, lease, assemble, import, export, process and deal in any and all classes of material, merchandise, supplies and commodities of every kind and nature. 8. To engage in and carry on the business of general wholesale and retail merchants, importers, exporters, commission merchants, brokers, factors, agents, manufacturers, processors, dealing in or with any and all classes of materials, merchandise, supplies and commodities of every kind and nature. 9. To act as agent, representative, broker, factor, advisor or manager of any individual, partnership corporation and, as such, to promote, develop and extend their business, or to aid in any lawful enterprise. 10. To engage generally, on its own behalf and for any individual, partnership or corporation carrying on an authorized business, in the management and administration of all kinds of businesses and property, real, personal and mixed, and without limiting the generality of the foregoing, to collect rentals, dividends and other moneys, keep and maintain books and records, prepare tax returns, and pay taxes and other obligations, to invest and reinvest principal and income and other money, to carry on any authorized business and to buy and sell or dispose of and arrange for the administration or management by others of such business or property; and 11. To undertake and carry on any business, investment, transaction, venture or enterprise which may be lawfully undertaken or carried on by a corporation and any business whatsoever which may seem to the corporation convenient or suitable -2- to be undertaken whereby directly or indirectly to promote any of its general purposes or interests or render more valuable or profitable any of its property, rights, interests or enterprises; and, for any of the purposes mentioned in these Articles, to acquire by purchase, lease or otherwise, the property rights, franchises, assets, business and goodwill of any person, firm, association, partnership or corporation engaged in or authorized to conduct any business or undertaking which may be carried on by this corporation or possessed of any property suitable or useful for any of its own purposes and carry on the same, and undertake all or any part of the obligation and liabilities in connection therewith, on such terms and conditions and for such consideration as may be agreed upon, and to pay for the same either all or partly in cash, stocks, bonds, debentures, or other forms of assets and securities, either of this corporation or otherwise; and, to effect any such acquisition or carry on any business authorized by these Articles of Incorporation, either by directly engaging therein, or indirectly by acquiring the shares, stocks or other securities of such other business or entity, and holding and voting the same and otherwise exercising and enjoying the rights and advantages incident thereto. B. In furtherance of said purposes, said corporation shall also have the following powers: 1. To sue and be sued in any court; to make and use a common seal, and to alter the same at its pleasure; to hold, purchase and convey such property as the purposes of the mortgage the same to secure any debt of the corporation; to appoint such subordinate officers and/or agents as the business of the corporation shall require; to make and adopt and from time to time amend or repeal By-Laws not inconsistent with any existing law for the management of its properties, the election and removal of its officers, the regulation of its affairs and the transfer of its stock, and for all other purposes permitted by law. 2. To borrow money or otherwise incur indebtedness with or without security and to secure any indebtedness by deed or trust, mortgage, pledge, hypothecation or other lien upon all or any part of the real or personal property of the corporation and to execute bonds, promissory notes, bills of exchange, debentures or other obligations or evidences of indebtedness of all kinds, whether secured or unsecured, and to owe debts in an amount which may at any time be in excess of its capital stock. 3. To purchase on commission or otherwise, subscribe for, hold, own, sell on commission or otherwise, or in any other manner acquire or dispose of and generally to deal in stocks, scripts, bonds, notes, debentures, commercial papers, its own issued shares of capital stock or other securities, therein, and while the owner of the same to exercise all the rights, powers and privileges of ownership. 4. To draw, make, accept, endorse, assign, discount, execute, and issue all such bills of exchange, bills of lading, promissory notes, warrants and other instruments, either assignable, negotiable or transferable by delivery or to order -3- or otherwise, as the business of the corporation shall require. 5. To lend and advance money or to give credit, with or without security, to such person, firms, or corporations, and on such terms as may be thought fit; and, if with security, then upon mortgages, deeds of trust, pledge or other hypothecations or interest therein or thereto. 6. To aid in all manner corporations of which any of the bonds or other securities or evidences of indebtedness; of stock are held by this corporation, and to do any acts or things to preserve, protect, improve or enhance the value of any such bonds or other securities of evidences of indebtedness of stock, including specifically the right and power to enter into and take the management of any business enterprise or any kind or nature, and, while so managing any such business, to do the acts and things incidental or necessary thereto. 7. To enter into partnership contracts (as a general partner or as a limited partner) with any other firm, natural or corporate person or persons, and to enter into and perform contracts, undertakings and obligations of every kind and character to the same extent as if this corporation were a natural person. 8. To promote, assist, subscribe or contribute to any association, organization, society, company, institution, or object, charitable or otherwise, calculated to benefit the corporation or any person in its employ or having dealings with the corporations, or deemed to be for the common or public welfare. 9. To become a party to and effect a merger of consolidation with another corporation or other corporations, and to enter into agreements and relationships not in contravention of law with any person, firm or corporation. 10. To become surety for or guarantee any dividends, bonds, stocks, contracts, debts or other obligations or undertakings of any other person, firm or corporation (provided, however, that nothing herein shall be deemed to authorize the corporation to engage in the banking, surety or bonding business), and to convey, transfer or assign, by way of pledge or mortgage, and future, to secure the debts or obligations, present and future, of such persons, firms, or corporations, and on such terms and conditions as the corporation may determine. 11. To do all or any of the above things in any part of the world, directly or indirectly, and as principal, agent, factor, contractor, or otherwise, and by or through trustees, agents, or otherwise either alone or in conjunction with others; and 12. The corporation shall have all the powers now provided or which may hereafter be provided by law for incorporated companies, and which may be implied therefrom. The enumeration herein of the objects and purposes -4- of this corporation shall be construed as powers as well as objects and purposes and shall not be deemed to exclude by inference any powers, objects or purposes which this corporation is empowered to exercise, whether expressly by force of the laws of the State of Hawaii now or hereafter in effect, or impliedly by the reasonable construction of said laws. ARTICLE IV 1. The authorized capital stock of the corporation shall be ONE THOUSAND AND NO/100 DOLLARS ($1,000.00) divided into ONE THOUSAND (1,000) shares of common stock of the par value of ONE AND NO/100 DOLLAR ($1.00) a share, with the privilege of subsequent increase or extension of its capital stock from time to time in the manner provided by law by the issuance of either common or preferred stock to an amount not exceeding ONE MILLION DOLLARS ($1,000,000.00) in the aggregate. 2. The Board of Directors is authorized, subject to the pre-emptive rights of the holders of common stock of the corporation as set forth in Paragraph 3 of this Article IV, to determine the consideration and the terms and conditions upon which additional shares of stock, with or without par value, may constitute capital and what portion, if any, paid-in surplus, subject to the applicable provisions of these Articles and of law. 3. In case the outstanding capital stock of the corporation be increased by the issuance or reissuance of any shares of any class, or by the issuance of any obligations or securities convertible into shares of capital stock (unless the acquisition of the property or of substantially the entire assets of a going business or in connection with a merger or consolidation), such stock, obligations or securities shall. unless otherwise provided by the vote of the holders of not less than three-fourths of the common stock issued and outstanding before being sold or offered to others, be offered to the holders of the common stock of the corporation as of the date of issuance as shown by the stock books of the corporation upon such terms (which terms shall not be less favorable than the terms upon which said shares are thereafter sold to others) as shall be determined by the Board of Directors in proportion to the shares of common stock respectively held by such stockholders at such date. 4. The corporation shall have the power from time to time to create an additional class or additional classes of stock with such preferences, voting powers, restrictions and qualifications thereof as shall be fixed in the resolution authorizing the issuance thereof in accordance with law. Subject to the pre-emptive rights of the holders of common stock as set forth in Paragraph 3 of this Article IV, the Board of Directors is authorized to determine the terms and .conditions upon which and the persons to whom authorized and unissued shares may be issued and sold. -5- ARTICLE V 1. The officers of the corporation shall be a president, one or more vice presidents. a secretary and a treasurer, who shall be elected by the Board of Directors as shall be prescribed by the By-Laws. There may also be such assistant secretaries and assistant treasurers as may be deemed desireable. The officers need not be stockholders, except as may otherwise be provided in the By-Laws of the corporation. There may also be such other subordinate officers and agents as the business of the corporation may require, who shall be elected or appointed as the By-Laws may prescribe. The same person may hold at the same time two or more offices and also be a director. 2. There shall be a Board of Directors of not less than two (2) members, who need not be stockholders, except as may otherwise be provided by the By-Laws. The directors shall be elected or appointed and any vacancies at any time occurring in the Board of Directors of any officer thereof in such manner and for such terms as the By-Laws may prescribe. 3. All the powers and authority of the corporation shall be vested in and may be exercised by the Board of Directors except as otherwise provided by law, these Articles of Incorporation or the By-Laws of the corporation; and in furtherance and not in limitation of said general powers, the Board of Directors shall have power: to acquire and dispose of property; to appoint a general manager, branch managers and such other managers, officers or agents of the corporation as in its judgment the business thereof may require, and to confer upon and to delegate to them by power of attorney or otherwise such power and authority as it shall determine; to fix the salaries or compensation of any or all of its officers, agents and employees and in its discretion require the security of any of them for the faithful performance of any of their duties; to declare dividends in accordance with law when it shall deem it expedient; to make rules and regulations not inconsistent with law or these Articles of Incorporation or the By-Laws for the transaction of business; to instruct the officers or agents of the corporation with respect to, and to authorize the voting of the stock of other corporations owned or held by this corporation; to incur indebtedness as may be deemed necessary, which indebtedness may exceed the amount of the corporation's capital stock; to create such committees (including an executive committee) and to designate as members of such committees such persons as it shall determine, and to confer upon such committees such powers and authority as may by resolution be set forth for the purpose of carrying on or exercising any of the powers of the corporation; to create and set aside reserve funds for any purpose, and to invest any funds of the corporation in such securities or other property as to it may seem proper; to remove or suspend any officer and, generally, do any and every lawful act necessary or proper to carry into effect the powers, purposes and objects of the corporation. -6- ARTICLE VI The following persons are the first officers and directors of the corporation: NAME AND OFFICE RESIDENCE ADDRESS - --------------- ----------------- NOBUYUKI KIYOTA PRESIDENT 1672 KAMEHAMEHA AVENUE DIRECTOR HILO, HAWAII 96720 LORRAINE P. SHIN VICE PRESIDENT 184 PUUEO STREET DIRECTOR HILO, HAWAII 96720 LORRAINE P. SHIN SECRETARY 184 PUUEO STREET DIRECTOR HILO, HAWAII 96720 NOBUYUKI KIYOTA TREASURER 1672 KAMEHAMEHA AVENUE DIRECTOR HILO, HAWAII 96720 ARTICLE VII SUBSCRIPTION PRICE NUMBER OF SHARES FOR THE SHARES AMOUNT OF CAPITAL NAMES OF SUBSCRIBED FOR BY SUBSCRIBED FOR BY PAID IN CASH BY SUBSCRIBERS EACH SUBSCRIBER EACH SUBSCRIBER EACH SUBSCRIBER NOBUYUKI KIYOTA 1,000 $1.00 $1,000.00 ARTICLE VIII The corporation shall have succession by its corporate name in perpetuity and shall have all the powers herein enumerated or implied herefrom and the powers now or which may hereafter be approved by law for incorporated companies. ARTICLE IX No stockholder shall be liable for the debts of the corporation beyond the amount of which may be due or unpaid upon any share or shares of stock of the corporation owned by him. IN WITNESS WHEREOF, the parties to these Articles of Incorporation have hereunto set their hands on this 10th day of September 1986. /s/ NOBUYUKI KIYOTA ----------------------------------- /s/ LORRAINE P. SHIN ----------------------------------- -7- EX-3.18 13 h92783ex3-18.txt BYLAWS OF SMILEY'S SUPER SERVICE INC EXHIBIT 3.18 BY-LAWS OF SMILEY'S SUPER SERVICE, INC. ARTICLE I Section 1. Principal Office. The principal office of the Corporation shall be such place in the State of Hawaii and the Corporation may have such other offices in the State of Hawaii and elsewhere, as the Board of Directors shall determine. Section 2. Place of Meetings. All meetings of the stockholders and of the Board of Directors shall be held at the principal office of the Corporation, unless some other place shall be stated in the notice thereof. Section 3. Seal. The seal of the Corporation shall be in such form and shall bear the name of the Corporation and such other words, devices and inscriptions as the Board of Directors from time to time shall prescribe. ARTICLE II Section 1. Annual Meeting. The annual meeting of the Stockholders of the Corporation shall be held on such day in the first four months following the close of each fiscal year as the Board of Directors shall designate, or if the Board of Directors shall not have designated such day by the end of the third month following the close of the fiscal year, then on such day as the President shall designate. At the annual meeting the Stockholder shall fix the number of Directors and of Vice-Presidents for the ensuing year, which number so fixed may be decreased or increased thereafter at any special meeting, shall elect the Directors, may transact any general business which may be brought before the meeting, and may take any corporate action. Section 2. Special Meetings. Special meetings of the Stockholders may be held at any time upon the call of the President; or upon the call of any two (2) Directors, or upon the request of a Stockholder or Stockholders owning riot less than one-fourth (1/4) of the issued and outstanding capital stock. Requests for such special meetings by the Stockholders must be in writing, shall specify the agenda, the time and the day of such meeting and must be delivered to the Secretary not less than ten (10) days prior to the day of the meeting. Section 3. Notice of Meetings. A written or printed notice of every meeting of Stockholder, stating whether it is an annual or a special meeting, the authority for the call of the meeting, the place, day and hour thereof and the purpose therefor shall be given by the Secretary or by the person or persons calling the meeting, at least three (3) days before the day set for such meeting. Such notice shall be given to each Stockholder in any of the following ways: (A) By leaving the same with him personally -1- or (B) By leaving the same at his residence or usual place of business, or (C) By mailing it, postage prepaid, addressed to him at his address as it appears on the transfer books of the Corporation, or (D) By publishing such notice in any newspapers of general circulation in the county in which the principal office of the Corporation is located, such notice to be published not less than two (2) times, on successive days, the first publication thereof to be not less than three (3) days nor more than ten (10) days prior to the day assigned for the meeting. If notice is given pursuant to the provisions of this section, the failure of any Stockholder to receive actual notice of meeting shall in no way invalidate the meeting or any proceedings thereat. Section 4. Notice Unnecessary. The presence of all of the Stockholders, in person or by proxy, at any meeting shall render the same a valid meeting, unless any stockholder shall at the opening of said meeting object to the holding of the same for non-compliance with the provisions of Section 3 immediately above. Any meeting so held without objection shall, notwithstanding the fact that no notice of meeting was given or that the notice given was improper, be valid for all purposes and at such meeting any general business may be transacted and any corporate action may be taken. Section 5. Quorum. At any meeting of Stockholders of which proper notice has been given, the owners of a majority of the shares of stock issued, outstanding and entitled to vote, present in person or by proxy, shall constitute a quorum, and the concurring vote of the holders of a majority of the shares of such stock constituting a quorum shall be valid and binding upon the Corporation, except as otherwise provided by law or by these By-Laws or by the Articles of Association of the Corporation. At any meeting of which proper notice has not been given, the presence of all of said owners, in person or by proxy, shall be required to constitute a quorum. Section 6. Voting. Any person, firm or corporation owning and holding not less an one share of common capital stock of the company duly registered in his or its name, the number and ownership whereof shall be determined by the stock ledger or other record of ownership of stock of the company, shall be a Stockholder of the company and either in person or by proxy entitled to one vote for each full share so owned at all meetings of the Stockholders of the company. The authority given by a Stockholder to any person to represent such Stockholder at meetings of the Stockholders shall be in writing and signed by such Stockholder or, if a corporation, by the proper officers thereof and shall be filed with the Secretary; and, except as otherwise provided by law, unless limited by its terms such authority shall be deemed good until revoked in writing. An executor, administrator, guardian or trustee may vote, in person or by proxy, at any meeting of the company, the stock of the company held by him in such capacity whether or not such stock shall have been transferred to his name on the books of the company. in case the stock shall not have been so transferred to his name on the books of the company, he shall satisfy the Secretary, or such other person as the Board of Directors shall designate, that he is the executory, administrator, guardian or -2- trustee holding such stock in such capacity. Where the stock is owned by two or more jointly and is so registered on the company's record of stock ownership, it may be voted by any one of the owners present in the absence of protest by the other or others. Section 7. Adjournment. Any meeting of the Stockholders, whether annual or special as may be adjourned from time to time, whether a quorum be present or not, without notice other than the announcement at the meeting. Such adjournment may be to such time and to such place as shall be determined by a majority vote of the stock present. At any such adjourned meeting at which a quorum shall be present, any business may be transacted by a quorum at the original meeting as originally called. ARTICLE III BOARD OF DIRECTORS Section 1. Election. There shall be a Board of Directors of the Corporation) to consist of not less than two (2) members. The Directors need not be Stockholders or officers of the Corporation, The number of Directors for the ensuing year shall be fixed by the Stockholders at each annual meeting and the number so designated shall then be elected by ballot by the Stockholders, to hold office until the next annual meeting and thereafter until their successors shall be duly elected, and, within the foregoing limitation as to the minimum number, the number of Directors may be decreased or increased by the Stockholders at any special meeting and, in case the number is increased, the additional Directors shall be elected by ballot as if elected at an annual meeting. Section 2. Annual Meeting. A meeting of the Board of Directors shall be held at t e of each annual meeting of the Stockholders and follow such meeting as soon as practicable. At such annual meeting the Board of Directors shall elect the officers of the Corporation for the ensuing year. Section 3. Regular Meetings. The Board of Directors may establish regular meetings to be held in such places and at such times as it may from time to time by vote determine, and when any such meeting or meetings shall be so determined no further notice thereof shall be required. Section 4. Special Meetings. Special meetings of the Board of Directors may be called at any time by the President or by any two Directors. Section 5. Notice of Meetings. Except as provided in Section 3 of this Article III, notice of each meeting of the Directors of the Corporation, stating the authority for the call of the meeting and the place, day and hour thereof, shall be given to each director by the Secretary of by the person or persons calling the meeting at least one (l) day before the date set for such meeting. Such notice shall be given to each Director in any of the four days specified in Section 3 of Article II hereof relating to notice of meetings of Stockholders. The failure of any -3- Director to receive actual notice of meeting shall in no way invalidate the meeting or any proceedings thereat, if notice shall have been given as required by this Section 5. The presence of any Director at any meeting shall be the equivalent of a waiver of the requirement of giving notice of the meeting to such Director. Section 6. Notice Unnecessary. If at any meeting of the Board of Directors, however called or wherever held, all of the Directors then in Hawaii shall be present or shall waive notice of such meeting by a writing filed with the Board of Directors, or after any such meeting shall express consent to the holding of the meeting and all actions taken thereat by a writing on or filed with the minutes of the meeting, then all actions taken at such meeting shall be legal and validly taken. Section 7. Quorum. A majority of the total number of Directors to which the Board is entitled shall constitute a quorum to transact business, except that the remaining members of the Board of Directors (although less than a quorum) may elect substitute Directors as provided in Section 8 of this Article III. To be valid, any act or business must receive the approval of a majority of such quorum. A vacancy or vacancies in the membership of the Board shall not affect the validity of any action of the Board, provided there is present at the meeting a quorum of all the members to which the Board is entitled. Section 8. Substitute Directors. In case of any vacancies in the Board of Directors, including temporary vacancies caused by illness or absence from Hawaii, the remaining members of the Board of Directors (although less than a quorum) may fill the same by the affirmative vote of a majority of such remaining members, subject, however, to the provisions of Section II of this Article III. In case of any temporary vacancy aforesaid, such temporary vacancy shall be filled only for the period of the incapacity of the Director whose place is being filled and until the termination of his illness or his return to Hawaii. Section 9. Adjournment. In the absence of a quorum at the date, time and place of a meeting duly called, and at any meeting duly called and held, the presiding officer or a majority of the Directors present may adjourn the meeting from time to time without further notice and may convene or reconvene the meeting when a quorum shall be present. Section 10. Powers. Subject to instructions by the Stockholders and to any limitations which may be set forth in the Articles of Association or in these By-Laws, the Board of Directors shall have full power to control and direct the business and affairs of the Corporation and to do and provide for any and every lawful act, whether in the ordinary course of the business of the Corporation or otherwise. Section 11. Removal. The Stockholders of the Corporation may at any special meeting depose or remove from office any Director or Directors, including any Director or Directors appointed by the Board of Directors pursuant to the provisions of Section 8 of this Article III. The Stockholders may at any special meeting, whether called for the purpose or not, fill any vacancies -4- which may then exist in the Board of Directors, whether caused by resignation, removals or otherwise, and including temporary vacancies. ARTICLE IV OFFICERS Section 1. Appointment and Term. The officers of the Corporation shall be a President, one or move vice Presidents, a Treasurer and a Secretary, and in addition thereto, at the discretion of the Board of Directors, a chairman of the Board. Each of the officers shall be appointed at the annual meeting of the Board of Directors immediately following the annual meeting of the Stockholders of the Corporation and shall hold office until the next annual meeting and until a successor shall be duly elected and qualified. No officer need be a Director or a Stockholder of the Corporation. Two or more offices may be held by the same person. Section 2. Subordinate Officers and Agents. The Board of Directors may appoint or employ such subordinate officers, including Assistant Treasurers and Assistant Secretaries, agents and employees as may be deemed proper. who shall hold their positions at the pleasure of the Board of Directors and who shall have such powers and duties as may be assigned to them by the Board of Directors. The authority to employ agents and employees and fix their powers and duties may be delegated by the Board of Directors. Any officer of the Corporation may also be a subordinate officer, agent or employee. Section 3. Salaries. The salaries and compensation of all officers, subordinate officers, agents and employees shall be determined by the Board of Directors. The authority to fix the salary and compensation of agents and employees may be delegated. Section 4. Bonds. Any officer may be required by the Board of Directors to give a surety company bond for the faithful discharge of his duties in such sum as the Board of Directors may require and such bond shall be deposited as the board may direct. ARTICLE V CHAIRMAN OF THE BOARD Section 1. Powers and Duties. The Chairman of the Board, if any, shall when present preside at all meetings of the Board of Directors. He shall have such other powers and perform such other duties as may be assigned to him by the Board of Directors. ARTICLE VI PRESIDENT Section 1. Powers and Duties. The President when -5- present shall preside at all meetings of the Stockholders and in the absence of the Chairman of the Board, if any of the Board of Directors. Subject to the control of the Board of Directors he shall be the chief executive officer of the Corporation, shall exercise general supervision and direction over the management and conduct of the business and affairs of the Corporation, and shall have the right to inspect at all times any and all of the records, accounts and property of the Corporation. He shall also have such other powers and duties as are given to him elsewhere by law or in these By-Laws and as may be assigned to him from time to time by the Board of Directors. ARTICLE VII VICE-PRESIDENT Section 1. Powers and Duties. The Vice President (or Vice Presidents, in the order of priority or appointment) shall assume and perform the duties of the President in the absence or disability of the President or whenever the office of President is vacant. Each Vice President shall have such other powers and duties as may be given to him by law or in these By-Laws and as may be assigned to him from time to time by the Board of Directors. ARTICLE VIII TREASURER Section 1. Powers and Duties. The Treasurer, except as the Board of Directors may otherwise order and direct from time to time and subject to its control at all times. (l) shall have charge of the financial affairs of the Corporation and have the care and custody of its seal, moneys, funds, valuable papers and documents; (2) shall keep full and accurate books of account of the Corporation's transactions and business, which books shall be and remain the property of the Corporation; (3) shall deposit to the credit of the Corporation all moneys and funds of the Corporation in such bank or banks or other depositories as the Board of Directors shall designate; (4) shall pay out and disburse funds so deposited in the general course of business and under the authority of the Board of Directors; (5) shall receive all moneys and funds and sign all receipts and vouchers and endorse for collection or deposit all notes, checks, drafts and similar commercial instruments payable to the Corporation or its order received for payments made to the Corporation, and in the absence of specific instructions from the Board of Directors, may delegate this authority to any agent or employee of the Corporation; (6) shall make and render to the proper municipal, state, federal and other government officials all exhibits, returns, and reports required by law; (7) shall make and render to the Board of Directors such reports and financial statements as it may request; (8) shall, upon request, present and exhibit to the Stockholders of the Corporation and to the Board of Directors all the books, accounts, records and evidence therefor kept by him; and, (9) shall have such other powers and duties as may be incidental to the office of Treasurer else- -6- where given to him by law or in these By-Laws and as may be assigned to him from time to time by the Board of Directors. ARTICLE IX SECRETARY Section 1. Powers and Duties. The Secretary (l) shall attend and keep the minutes of all meetings of the Stockholders of the Corporation, and when requested, shall attend and keep the minutes of meetings of the Board of Directors and of any committee, in books provided for that purpose; (2) shall have charge and custody of the records for the issue and transfer of shares of the capital stock of the Corporation; (3) shall attend to the giving of all notices as provided by these By-Laws; and (4) shall have such other powers and duties as may be incidental to the office of Secretary or elsewhere given to him by law or in these By-Laws and as may be assigned to him from time to time by the Board of Directors. Section 2. Secretary Pro Tem. If the Secretary shall not be present at any meeting, the presiding officer shall appoint a Secretary pro tempore. He shall keep the minutes of such meeting and record them in the books provided for that purpose. ARTICLE X AUDITOR Section 1. Election. The Stockholders may at any annual meeting, or at any special meeting called for the purpose, appoint some person, firm or corporation engaged in the business of auditing to act as the Auditor of the Corporation. Section 2. Disqualification. No Director or officer shall be eligible to serve as Auditor of the Corporation, unless, at the time of election the Stockholders shall expressly waive the disqualification herein stated. Section 3. Duties. The Auditor shall, at least once in each fiscal year and more often if required by the Stockholders, examine the books and papers of the Corporation and compare the statements of the Treasurer with the books and vouchers of the Corporation, and otherwise make a complete audit of the books of the Corporation, and thereafter make appropriate reports to the Stockholders. ARTICLE XI ASSISTANTS Section 1. Powers and Duties. Such Assistant Secretaries and Assistant Treasurers as may be appointed or elected shall have and exercise such powers and shall perform such duties as may be prescribed in these By-Laws or as may be determined from time to time by the Stockholders or by the Board of Directors. -7- ARTICLE XII CERTIFICATES AND TRANSFER OF STOCK Section 1. Certificates. The certificates for shares of the capital stock of the corporation shall be in such form not inconsistent with law, the Articles of Association and amendments thereto and the By-Laws, as the Board of Directors may adopt; but, among other things, each shall express on its face the number of the certificate, the date of its issuance, the person to whom issued and the name of the Corporation. Section 2. Stock Records. The records of the issuance and transfer of stock shall plainly show the number of each certificate issued, the date of issuance, the number of shares represented, the person to whom issued and his mailing address, whether issued fully paid or assessable, and a receipt for the delivery of the certificate signed by the holder or his duly authorized agent. Section 3. Execution. All certificates of stock shall be sealed with the corporate seal and shall be signed either by the President or Vice President, and by either the Treasurer or Secretary, or by such other officer or subordinate officers as may be authorized to sign by the Board of Directors from time to time. Section 4. Transfer. Transfer of shares of stock may be made by indorsement and delivery of the certificate. The indorsee shall be entitled to a new certificate upon surrendering the old one and paying any tax or excise assessable on the transfer, subject to the provisions of the Articles of Association and to all provisions of these By-Laws and to all covenants and agreements set forth or incorporated in the stock certificate covering such share or shares. Section 5. Lost Certificate. In case of the loss, mutilation or destruction of certificates of shares of the capital stock, a duplicate certificate may be issued upon such terms as the Board of Directors may prescribe. Section 6. Closing of Transfer Books. The books for the transfer of shares of stock may be closed for such period, not to exceed, twenty (20) days, preceding an annual or any special meeting of the Stockholders of the corporation, or before any day appointed for the purpose of taking any action for which the determination of the number and identity of Stockholders is necessary or relevant, as the Board of Directors from time to time may determine. Section 7. Registered Stockholders. The Corporation shall be entitled to treat the holder of record of any share or shares of its capital stock as the holder in fact and complete owner thereof and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person except as may be otherwise expressly provided by law. Section 8. Fractional Shares. The Corporation may, -8- in connection with the acquisition of assets, including real estate, issue fractions of its shares and issue and deliver certificates therefor. The holders of such fractions of shares shall have full rights with respect thereto except as such rights are expressly limited in these By-Laws. No holders of full shares shall be entitled to divide the interests represented thereby into fractions of shares and no holders of fractions of shares shall be entitled to divide the interests represented thereby into smaller fractions of shares. Section 9. Option to Purchase. Each Stockholder, by accepting stock in the Corporation, agrees with the Corporation and with every other Stockholder that he will not assign, sell transfer or in any way voluntarily dispose of the whole or any part of said stock now or hereafter held by such Stockholder until he shall have first offered said stock to the Corporation for the price hereinafter provided. Every offer of stock shall be in writing and shall be delivered personally or sent by registered mail to the Secretary of the Corporation and shall provide that the Corporation shall have up to the expiration of thirty (30) days from the receipt of the offer. The purchase price of any stock offered under the provisions hereof shall be the then market value of said stock or the last book value taken by the Corporation, whichever is greater. The right of the Corporation to receive the first offer as to any stock may be waived whenever the Treasurer, with the approval of the Board of Directors, shall determine that it is to the best interests of the Corporation to waive such right, or whenever the Treasurer shall determine that the Corporation is without legal power to purchase the whole or any part of the stock. The Corporation shall have the Option to accept the whole or any part of the stock so offered and if the whole or any part of the stock have been refused the owner and holder thereof shall give the remaining Stockholders of the Corporation the option to buy the whole or any part of the stock of the Corporation at the aforesaid market or book value for a period of thirty (30) days. After the expiration of sixty (60) days if the stock has not been purchased and settled as aforesaid, the owner and holder thereof shall have the right to transfer the whole or any part of the stock to any person or persons at any price and terms as he desires. ARTICLE XIV EXECUTION OF INSTRUMENTS Section 1. Authorized Signatures. All checks, drafts, notes, bonds, acceptances, deeds, leases, contracts, certificates of stock and all other instruments shall be signed by such person or persons as shall be provided by general or special resolution of the Board of Directors, and in the absence of any such general or special resolution of the Board of Directors, and in the absence of any such general or special resolution applicable to any such instrument, then such instrument shall be signed by the President or a Vice President and by the Treasurer or Secretary or an Assistant Treasurer or an Assistant Secretary. -9- ARTICLE XV LIABILITY OF OFFICERS AND DIRECTORS Section 1. Exculpation. No Director or officer of the Corporation shall be liable for acts, defaults, or neglects of any other Director or officer, or for any loss sustained by the Corporation, unless the same has resulted from wilful misconduct, wilful neglect or negligence of the Director or officer sought to be charged with liability. Section 2. Indemnification. Every Director and officer shall be indemnified by the corporation against all reasonable costs, expenses and liabilities (including counsel fees) actually and necessarily incurred by or imposed upon him in connection with or resulting from any claim, action, suit, proceeding, investigation or inquiry of whatever nature in which he may be involved as a party or otherwise by reason of his being or having been a Director or officer of the Corporation, whether or not he continues to be such Director or officer of the Corporation at the time of the incurring or imposition of such costs, expenses or liabilities, except in relation to matters as to which he shall be finally adjudged in such action, suit, proceeding. investigation or inquiry to be liable for wilful misconduct, wilful neglect or negligence toward the Corporation in the absence of such final adjudication of the existence of such liability, the Board of Directors and each Director and officer may conclusively rely upon an opinion of legal counsel selected by or in the manner designated by the Board of Directors. The foregoing right to indemnification shall be in addition to and not in limitation of all other rights to which such person may be entitled as a matter of law, and shall inure to the benefit of the legal representatives of such person. ARTICLE XVI FISCAL YEAR Section 1. Determination. The fiscal year of the Corporation shall be such as may from time to time be established by the Board of Directors. ARTICLE XVII AMENDMENTS TO BY-LAWS Section 1. Procedure. These By-Laws may be altered, amended, added to or repealed by an affirmative vote of not less than a majority of all the shares of the capital common stock issued, outstanding and entitled to vote at any meeting of the Stockholders of the Corporation if notice of the proposed amendments shall have been given in the call for such meeting. -10- EX-3.19 14 h92783ex3-19.txt CERTIFICATE OF INCORPORATION OF TESORO ALASKA CO EXHIBIT 3.19 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF TESORO ALASKA PETROLEUM COMPANY Tesoro Alaska Petroleum Company, a corporation organized under and existing by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That by the written consent of all members of the Board of Directors of Tesoro Alaska Petroleum Company, dated September 11, 1998, and filed with the minutes of proceedings of said Board of Directors, the Board of Directors of said corporation duly adopted a resolution proposing and declaring advisable a certain amendment to the Certificate of Incorporation of said corporation, and directing that such amendment be submitted for consideration to the shareholder of said corporation. The resolution of the Board of Directors setting forth the proposed amendment is as follows: RESOLVED, that the Board of Directors declares it advisable and proposes that Article 1 of the Certificate of Incorporation of Tesoro Alaska Petroleum Company be amended so as to read in its entirety as follows: "The name of the Corporation is Tesoro Alaska Company." SECOND: That by the written consent of the sole shareholder of said corporation dated September 11, 1998, and filed with the minutes of proceedings of said shareholder, the shareholder voted in favor of said amendment. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. FOURTH: That the capital of said corporation will not be reduced under or by reason of said amendment. IN WITNESS WHEREOF, said Tesoro Alaska Petroleum Company has caused this certificate to be signed by Bruce A, Smith, its Chairman of the Board of Directors, and attested by James C. Reed, Jr., its Executive Vice President and Secretary, this 11th day of September, 1998. TESORO ALASKA PETROLEUM TESORO ALASKA PETROLEUM COMPANY COMPANY CORPORATE SEAL DELAWARE /s/ Bruce A. Smith -------------------------------------- Bruce A. Smith Chairman of the Board of Directors ATTEST: /s/ James C. Reed, Jr. - ------------------------------------------ James C. Reed, Jr. Executive Vice President and Secretary CERTIFICATE OF AMENDMENT of the CERTIFICATE OF INCORPORATION of TESORO-ALASKAN PETROLEUM COMPANY Tesoro-Alaskan Petroleum Company, a corporation organized under and existing by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That by the written consent of all members of the Board of Directors of Tesoro-Alaskan Petroleum Company dated December 31, 1978, and filed with the minutes of proceedings of said Board of Directors, the Board of Directors of said corporation duly adopted resolutions proposing and declaring advisable a certain amendment to the Certificate of Incorporation of said corporation, and directing that such amendment be submitted for consideration to the shareholder of said corporation. The resolutions of the Board of Directors setting forth the proposed amendment is as follows: RESOLVED, that the Board of Directors declares it advisable and proposes that Article I of the Certificate of Incorporation of Tesoro-Alaskan Petroleum Company be amended so as to read in its entirety as follows: "The name of the Corporation is TESORO ALASKA PETROLEUM COMPANY." SECOND: That by the written consent of all of the shareholders of said corporation dated December 31, 1978, and filed with the minutes of proceedings of said shareholders, the shareholders unanimously voted in favor of said amendment. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. FOURTH: That the capital of said corporation will not be reduced under or by reason of said amendment. IN WITNESS WHEREOF, said Tesoro-Alaskan Petroleum Company has caused this certificate to be signed by Dennis F. Juren, its President, and attested by James C. Reed, Jr., its Assistant Secretary, this 31st day of December, 1978. TESORO-ALASKAN PETROLEUM COMPANY By: /s/ Dennis F. Juren ----------------------------------- President CORPORATE SEAL ATTEST: By: /s/ James C. Reed, Jr. --------------------------------- Assistant Secretary CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF TESORO-ALASKAN PETROLEUM CORPORATION Tesoro-Alaskan Petroleum Corporation, a corporation organized and existing under and by virtue of the General Corporation Law of Delaware, by its Vice President and its Assistant Secretary does hereby certify: By unanimous written consent of the holder of all the outstanding stock of the Corporation, the following resolution was duly adopted on March 7, 1975, without a stockholders' meeting, pursuant to Section 242 & Section 228 of the General Corporation Law of Delaware: RESOLVED, that Article I of the Certificate of Incorporation be and hereby is amended to read as follows: The name of the Corporation is TESORO-ALASKAN PETROLEUM COMPANY. In witness whereof, the Corporation has caused its corporate name to be subscribed by its Vice President and duly attested by its Assistant Secretary on this 17th day of March, 1975. ATTEST: TESORO-ALASKAN PETROLEUM CORPORATION /s/ * By: /s/ Dean M. Bloyd - --------------------------------------------- --------------------------------- Assistant Secretary Dean M. Bloyd Vice President * name illegible TESORO-ALASKAN PETROLEUM CORPORATION Certificate of Incorporation THE UNDERSIGNED, in order to form a corporation for the purposes hereinafter stated, under and pursuant to the provisions of the General Corporation Law of the State of' Delaware, does hereby certify as follows: ARTICLE I The name of the Corporation is Tesoro-Alaskan Petroleum Corporation. ARTICLE II The registered office of the Corporation in the State of Delaware is located at No. 100 West 10th Street, in the City of Wilmington, County of New Castle. The name and address of the Corporation's registered agent is The Corporation Trust Company, No. 100 West 10th Street, Wilmington, Delaware. ARTICLE III 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. ARTICLE IV The total number of shares of stock which the Corporation shall have authority to issue is 1,000 shares of Common Stock and the par value of each such share is $1.00. ARTICLE V The amount of the authorized stock of the Corporation of any class or classes may be increased or decreased by the affirmative vote of the holders of a majority of the stock of the Corporation entitled to vote. ARTICLE VI Except as otherwise provided by statute, any action which might have been taken by a vote of the stockholders at a meeting thereof (including any action under Articles V, VII and VIII hereof) may be taken with the written consent of such of the holders of stock who would have been entitled to vote upon the action if a meeting were held as have not less than the minimum percentage of the total vote required for the proposed corporate action by statute, this Certificate of Incorporation or the By-laws of the Corporation, as may be applicable (but in the case of the election of a director or directors, not less than a majority of the stock of the Corporation entitled to vote); provided that prompt notice shall be given to all stockholders of the taking of such corporate action without a meeting if less than unanimous written consent is obtained. ARTICLE VII Elections of directors need not be by ballot unless 2 the By-laws of the Corporation shall so provide. Any director may be removed from office either with or without cause at any time by the affirmative vote of stockholders of record holding a majority of the outstanding shares of the stock of the Corporation entitled to vote, given at a meeting of the stockholders called for that purpose (or as provided in Article VI above). ARTICLE VIII In furtherance and not in limitation of the power conferred upon the Board of Directors by law, the Board of Directors shall have power to make, adopt, alter, amend and repeal from time to time By-laws of the Corporation, subject to the right of the stockholders entitled to vote with respect thereto to alter and repeal By-laws made by the Board of Directors. ARTICLE IX The incorporator of the Corporation is Bernard E. Kury, whose mailing address is Room 4500, 140 Broadway, New York, New York 10005. IN WITNESS WHEREOF, I have hereunto set my hand this 7th day of July, 1969. /s/ Bernard E. Kury ------------------------------------ Bernard E. Kury In the Presence of: /s/ Clive Chandler - ------------------------------------ Clive Chandler 3 EX-3.20 15 h92783ex3-20.txt BYLAWS OF TESORO ALASKA COMPANY, AS AMENDED EXHIBIT 3.20 Adopted: July 16, 1969 Amended: February 26, 1990 September 29, 1992 September 11, 1998 BY-LAWS OF TESORO ALASKA COMPANY (As Amended September 11, 1998) BY-LAWS OF TESORO ALASKA COMPANY ARTICLE I Meetings of Stockholders Section 1.1 Annual Meetings. The Annual meeting of the stockholders for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held on such date and at such time and place within or without the state of Delaware as may be designated by the Board of Directors. Section 1.2 Special Meetings. Special meetings of the stockholders for any proper purpose or purposes may be called at any time by the Board of Directors, the Chairman of the Board of Directors, the President or any vice president, to be held on such date and at such time and place within or without the state of Delaware as the Board of Directors, the Chairman of the Board of Directors, the President or a vice president, whichever has called the meeting, shall direct. A special meeting of the stockholders shall be called by the Chairman of the Board of Directors, the President or any vice president whenever stockholders holding shares representing a majority of the votes of the shares of the Corporation then issued and outstanding and entitled to vote on matters to be submitted to stockholders of the Corporation shall make application therefor in writing. Any such written request shall state a proper purpose or purposes of the meeting and shall be delivered to the Chairman of the Board of Directors, the President or any vice president. Section 1.3 Notice of Meeting. Written notice, signed by the Chairman of the Board of Directors, the President, any vice president, the Secretary or an assistant secretary, of every meeting of stockholders (other than an adjourned meeting unless otherwise required by statute) stating the purpose or purposes for which the meeting is called, and the date and time when, and the place where, it is to be held shall be either delivered personally or mailed to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the meeting, except as otherwise provided by statute. If mailed, such notice shall be directed to a stockholder at his address as it shall appear on the stock books of the Corporation, unless he shall have filed with the Secretary a written request that notices intended for him be mailed - 1 - to some other address, in which case it shall be mailed to the address designated in such request, and shall be given when deposited in the United States mail, postage prepaid. Section 1.4 Quorum. The presence at any meeting, in person or by proxy, of the holders of record of shares representing a majority of the votes of the shares then issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business, except where otherwise provided by statute. Section 1.5 Adjournments. In the absence of a quorum, a majority of the votes of the stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to vote is present in person or by proxy, any officer entitled to preside at or act as secretary of such meeting may adjourn the meeting from time to time until a quorum shall be present. Section 1.6 Voting. Directors shall be chosen by a plurality of the votes cast at the election, and except where otherwise provided by statute, or the Certificate of Incorporation, all other questions shall be determined by a majority of the votes cast on such question. Section 1.7 Proxies. Any stockholders entitled to vote may vote by proxy, provided that the instrument authorizing such proxy to act shall have been executed in writing (which shall include telegraphing or cabling) by the stockholder himself or by his duly authorized attorney. Section 1.8 Judges of Election. The Board of Directors may appoint judges of election to serve at any election of directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the judges so appointed shall fail to attend, or refuse or be unable to serve, then such appointment may be made by the presiding officers at the meeting. ARTICLE II Board of Directors Section 2.1 Number. The number of directors which shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors but shall not be less than two. Section 2.2 Election and Term of Office. Directors shall be elected at the annual meeting of the stockholders. Each director (whether elected at an annual meeting or to fill a vacancy or - 2 - otherwise) shall continue in office until his successor shall have been elected or until his earlier death, resignation, removal or other incapacity in the manner hereinafter provided. Section 2.3 Vacancies and Additional Directorships. If any vacancy shall occur among the directors by reason of death, resignation, removal or other incapacity or as the result of an increase in the number of directorships, the directors then in office shall continue to act and may fill any such vacancy by a vote of the directors then in office, though less than a quorum. Section 2.4 Meetings. A meeting of the Board of Directors shall be held for organization, for the election of officers and for the transaction of such other business as may properly come before the meeting, within thirty days after each annual election of directors. The Board of Directors by resolution may provide for the holding of regular meetings and may fix the times and places at which such meetings shall be held. Notice of regular meetings shall not be required to be given, provided that whenever the time or place of regular meetings shall be fixed or changed, notice of such action shall be mailed promptly to each director who shall not have been present at the meeting at which such action was taken, addressed to him at his residence or usual place of business. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, the President, any vice president or any two directors. Except as otherwise required by statute, notice of each special meeting shall be mailed to each director, addressed to him at his residence or usual place of business, or shall be sent to him at such place by telegram, radio or cable, or telephone or delivered to him personally, not later than two days before the day on which the meeting is to be held. Such notice shall state the time and place of such meeting, but unless otherwise required by statute, the Certificate of Incorporation of the Corporation or these By-laws need not state the purposes thereof. Notice of any meeting need not be given to any director who shall attend such meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Section 2.5 Quorum. One-third of the total number of members of the Board of Directors as constituted from time to time, but not less than two, shall be necessary and sufficient to constitute a quorum for the transaction of business. In the absence of a quorum, a majority of those present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present and the meeting may be held as adjourned without further notice or waiver. A majority of those present at any meeting at which a quorum is present may decide any question brought before such meeting, except as otherwise provided by law, the Certificate of Incorporation or these By-laws. - 3 - Section 2.6 Resignation of Directors. Any director may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 2.7 Removal of Directors. At any special meeting of the stockholders, duly called for the purpose of removing a director or directors as provided in these By-laws, any director or directors may, by the affirmative vote of the holders of shares representing a majority of the votes of all the shares of stock outstanding and entitled to vote for the election of directors, be removed from office, either with or without cause. At such meeting a successor or successors may be elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled by the directors as provided in Section 2.3. Section 2.8 Compensation of Directors. Directors may receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Section 2.9 Indemnification. The Corporation shall indemnify to the full extent authorized or permitted by the laws of the state of Delaware any person who is made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Corporation or serves or served any other enterprise at the request of the Corporation. ARTICLE III Committees of the Board Section 3.1 Designation, Power, Alternate Members and Term of Office. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Any such committee, to the extent provided in such resolution, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal - 4 - of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-laws of the Corporation or, unless the resolution of the Board of Directors establishing any such committee shall expressly so provide or these By-laws shall expressly so provide, declaring a dividend on the Corporation's capital stock or authorizing the issuance of the Corporation's capital stock. The Board may designate one or more directors as alternate members of any committee who, in the order specified by the Board, may replace any absent or disqualified member at any meeting of the committee. If at a meeting of any committee one or more of the members thereof should be absent or disqualified, and if either the Board of Directors has not so designated any alternate member or members, or the number of absent or disqualified members exceeds the number of alternate members who are present at such meeting, then the member or members of such committee (including alternates) present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another director to act at the meeting in the place of any such absent or disqualified member. The term of office of the members of each committee shall be as fixed from time to time by the Board, subject to these By-laws; provided, however, that any committee member who ceases to be a member of the Board shall ipso facto cease to be a committee member. Each committee shall appoint a secretary, who may be the Secretary of the Corporation or an assistant secretary thereof. Section 3.2 Meetings, Notices and Records. Each committee may provide for the holding of regular meetings, with or without notice, and may fix the time and place at which such meetings shall be held. Special meetings of each committee shall be held upon call by or at the direction of its chairman or, if there be no chairman, by or at the direction of any two of its members, at the time and place specified in the respective notices or waivers of notice thereof. Notice of each special meeting of a committee shall be mailed to each member of such committee, addressed to him at his residence or usual place of business, at least two days before the day on which the meeting is to be held, or shall be sent by telegram, radio or cable addressed to him at such place, or telephoned or delivered to him personally, not later than the day before the day on which the meeting is to be held. Notice of any meeting of a committee need not be given to any member thereof who shall attend the meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Notice of any adjourned meeting need not be given. Each committee shall keep a record of its proceedings. - 5 - Section 3.3 Quorum and Manner of Acting. At each meeting of any committee the presence of one-third but not less than two of its members then in office shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which the quorum is present shall be the act of such committee; in the absence of a quorum, a majority of the members present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present. Subject to the foregoing and other provisions of these By-laws and except as otherwise determined by the Board of Directors, each committee may make rules for the conduct of its business. Any determination made in writing and signed by all the members of such committee shall be as effective as if made by such committee at a meeting. Section 3.4 Resignations. Any member of a committee may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 3.5 Removal. Any member of any committee may be removed at any time by the Board of Directors with or without cause. Section 3.6 Vacancies. If any vacancy shall occur in any committee by reason of death, resignation, disqualification, removal or otherwise, the remaining members of such committee, though less than a quorum, shall continue to act until such vacancy is filled by a resolution passed by a majority of the whole Board of Directors. Section 3.7 Compensation. Committee members shall receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any committee member from serving the Corporation in any other capacity and receiving compensation therefor. ARTICLE IV Officers Section 4.1 Officers. The officers of the Corporation shall be a Chairman of the Board of Directors, a President, one or more - 6 - Vice Presidents (which may include Group Vice Presidents, Senior Vice Presidents and other categories of Vice Presidents), a Secretary, a Treasurer, and such other officers as may be appointed in accordance with the provisions of Section 4.3. Section 4.2 Election, Term of Office and Qualifications. Each officer (except such officers as may be appointed in accordance with the provisions of Section 4.3) shall be elected by the Board of Directors. Each such officer (whether elected at the first meeting of the Board of Directors after the annual meeting of stockholders or to fill a vacancy or otherwise) shall hold his office until the first meeting of the Board of Directors after the next annual meeting of stockholders and until his successor shall have been elected, or until his death, or until he shall have resigned in the manner provided in Section 4.4 or shall have been removed in the manner provided in Section 4.5. The Chairman of the Board of Directors must be a member of the Board of Directors. Section 4.3 Subordinate Officers and Agents. The Board of Directors from time to time may appoint other officers or agents (including one or more assistant vice presidents, one or more assistant secretaries and one or more assistant treasurers), to hold office for such period, have such authority and perform such duties as are provided in these By-laws or as may be provided in the resolutions appointing them. The Board of Directors may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective terms of office, authorities and duties. Section 4.4 Resignations. Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 4.5 Removal. Any officer specifically designated in Section 4.1 may be removed at any time, either with or without cause, at any meeting of the Board of Directors by the vote of a majority of all the directors then in office. Any officer or agent appointed in accordance with the provisions of Section 4.3 may be removed, either with or without cause, by the Board of Directors at any meeting, by the vote of a majority of the directors present at such meeting, or by any superior officer or agent upon whom such power of removal shall have been conferred by the Board of Directors. Section 4.6 Vacancies. A vacancy in any office by reason of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner - 7 - prescribed by these By-laws for regular election or appointment to such office. Section 4.7 The Chairman of the Board of Directors. The Chairman of the Board of Directors shall be the chief executive officer of the Corporation. Subject to the direction of the Board of Directors, he shall have general charge of the business affairs and property of the Corporation. He shall see that all orders and resolutions of the Board of Directors are carried into effect. If present, he shall preside at all meetings of stockholders. He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. From time to time he shall report to the Board of Directors all matters within his knowledge which the interests of the Corporation may require to be brought to their attention. He shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors. Section 4.8 The President. The President shall be the chief operating officer of the Corporation. Subject to the direction of the Chairman of the Board of Directors, he shall have general supervision over the officers and agents of the Corporation. At the request of the Board of Directors or the Chairman of the Board of Directors, the President shall perform all the duties of the Chairman of the Board of Directors and, when so acting, shall have all the powers of and be subject to all restrictions upon the Chairman of the Board of Directors (except that the President need not be a member of the Board of Directors). He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. He shall also perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors or the Chairman of the Board of Directors. Section 4.9 The Vice Presidents. In the absence or disability of the President, any vice president designated by the President (or in the absence of such designation, the Vice President designated by the Board of Directors or the Chairman of the Board of Directors) shall perform all the duties of the President and, when so acting, shall have all the powers of and be - 8 - subject to all restrictions upon the President. Any vice president may also sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation deeds, mortgages, bonds and other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. Each vice president shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.10 The Secretary. The Secretary shall (a) Record all the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book or books to be kept for that purpose; (b) Cause all notices to be duly given in accordance with the provisions of these By-laws and as required by statute; (c) Whenever any committee shall be appointed in pursuance of a resolution of the Board of Directors, furnish the chairman of such committee with a copy of such resolution; (d) Be custodian of the records and of the seal of the Corporation, and cause such seal to be affixed to all certificates representing stock of the Corporation prior to the issuance thereof and to all instruments the execution of which on behalf of the Corporation under its seal shall have been duly authorized; (e) See that the lists, books, reports, statements, certificates and other documents and records required by statute are properly kept and filed; (f) Have charge of the stock and transfer books of the Corporation, and exhibit such stock book at all reasonable times to such persons as are entitled by statute to have access thereto; (g) Sign (unless the Treasurer or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Secretary and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the - 9 - Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.11 Assistant Secretaries. At the request of the Secretary or in his absence or disability, the Assistant Secretary designated by him (or in the absence of such designation, the Assistant Secretary designated by the Board of Directors, the Chairman of the Board of Directors or the President) shall perform all the duties of the Secretary and, when so acting, shall have all the powers of and be subject to all restrictions upon the Secretary. The assistant secretaries shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary. Section 4.12 The Treasurer. The Treasurer shall (a) Have charge of and supervision over and be responsible for the funds, securities, receipts and disbursements of the Corporation; (b) Cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such banks or trust companies or with such bankers or other depositaries as shall be selected in accordance with Section 5.3 of these By-laws or to be otherwise dealt with in such manner as the Board of Directors may direct; (c) Cause the funds of the Corporation to be disbursed by checks or drafts upon the authorized depositaries of the Corporation, and cause to be taken and preserved proper vouchers for all moneys disbursed; (d) Render to the Board of Directors, the Chairman of the Board of Directors, or the President, whenever requested, a statement of the financial condition of the Corporation and of all his transactions as Treasurer; (e) Cause to be kept at the Corporation's principal office correct books of account of all its business and transactions and such duplicate books of account as he shall determine and upon application cause such books or duplicates thereof to be exhibited to any director; (f) Be empowered, from time to time, to require from the officers or agents of the Corporation reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation; (g) Sign (unless the Secretary or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have - 10 - been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Treasurer and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.13 Assistant Treasurers. At the request of the Treasurer or in his absence or disability, the Assistant Treasurer designated by him (or in the absence of such designation, the Assistant Treasurer designated by the Board of Directors, the Chairman of the Board of Directors, or the President) shall perform all the duties of the Treasurer and, when so acting, shall have all the powers of and be subject to all restrictions upon the Treasurer. The Assistant Treasurers shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Treasurer. Section 4.14 Salaries. The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors, except that the Board of Directors may delegate to any person the power to fix the salaries or other compensation of any officers or agents appointed in accordance with the provisions of Section 4.3. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. Section 4.15 Surety Bonds. If the Board of Directors shall so require, any officer or agent of the Corporation shall execute to the Corporation a bond in such sum and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful discharge of his duties, including responsibilities for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands. ARTICLE V Execution of Instruments and Deposit of Corporate Funds Section 5.1 Execution of Instruments Generally. The Chairman of the Board of Directors, the President, any vice president, the Secretary or the Treasurer, subject to the approval of the Board of Directors, may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. The Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any - 11 - instrument in the name and on behalf of the Corporation, and such authorization may be general or confined to specific instances. Section 5.2 Borrowing. No loans or advances shall be obtained or contracted for, by or on behalf of the Corporation and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors. Such authorization may be general or confined to specific instances. Any officer or agent of the Corporation thereunto so authorized may obtain loans and advances for the Corporation, and for such loans and advances may make, execute and deliver promissory notes, bonds or other evidences of indebtedness of the Corporation. Any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as security for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation, any and all stocks, bonds, other securities and other personal property at any time held by the Corporation, and to that end may endorse, assign and deliver the same and do every act and thing necessary or proper in connection therewith. Section 5.3 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors may select, or as may be selected by any officer or officers or agent or agents authorized so to do by the Board of Directors. Endorsements for deposit to the credit of the Corporation in any of its duly authorized depositaries shall be made in such manner as the Board of Directors from time to time may determine. Section 5.4 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers or agent or agents of the Corporation, and in such manner, as from time to time shall be determined by the Board of Directors. Section 5.5 Proxies. Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the Chairman of the Board of Directors, the President or a vice president or by any other person or persons thereunto authorized by the Board of Directors. ARTICLE VI Record Dates Section 6.1. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of - 12 - stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall be not more than sixty nor less than ten days before the date of such meeting, nor more that sixty days prior to any other action. Only those stockholders of record on the date so fixed shall be entitled to any of the foregoing rights, notwithstanding the transfer of any such stock on the books of the Corporation after any such record date fixed by the Board of Directors. ARTICLE VII Corporate Seal Section 7.1. The corporate seal shall be circular in form and shall bear the name of the Corporation and words and figures denoting its organization under the laws of the state of Delaware and the year thereof and otherwise shall be in such form as shall be approved from time to time by the Board of Directors. ARTICLE VIII Fiscal Year Section 8.1. The fiscal year of the Corporation shall begin on the 1st day of January in each year and shall end on the 31st day of December in the same year. ARTICLE IX Amendments Section 9.1. All By-laws of the Corporation may be amended, altered or repealed, and new By-laws may be made, by the affirmative vote of the holders of record of shares representing a majority of the votes of the outstanding shares of stock of the Corporation entitled to vote cast at any annual or special meeting, or by the affirmative vote of a majority of the Directors cast at any regular or special meeting at which a quorum is present. - 13 - EX-3.21 16 h92783ex3-21.txt CERT OF INCORPORATION OF TESORO ALASK PIPELINE CO EXHIBIT 3.21 CERTIFICATE OF AMENDMENT of the CERTIFICATE OF INCORPORATION of NIKISKI ALASKA PIPELINE COMPANY Nikiski Alaska Pipeline Company, a corporation organized under and existing by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That by the written consent of all members of the Board of Directors of Nikiski Alaska Pipeline Company dated December 31, 1978, and filed with the minutes of proceedings of said Board of Directors, the Board of Directors of said corporation duly adopted resolutions proposing and declaring advisable a certain amendment to the Certificate of Incorporation of said corporation, and directing that such amendment be submitted for consideration to the shareholder of said corporation. The resolutions of the Board of Directors setting forth the proposed amendment is as follows: RESOLVED, that the Board of Directors declares it advisable and proposes that Article 1. of the Certificate of Incorporation of Nikiski Alaska Pipeline Company be amended so as to read in its entirety as follows: "The name of the Corporation is TESORO ALASKA PIPELINE COMPANY." SECOND: That by the written consent of all of the shareholders of said corporation dated December 31, 1978, and filed with the minutes of proceedings of said shareholders, the shareholders unanimously voted in favor of said amendment. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. FOURTH: That the capital of said corporation will not be reduced under or by reason of said amendment. IN WITNESS WHEREOF, SAID Nikiski Alaska Pipeline Company has caused this certificate to be signed by James F. Smith, its President, and attested by James C. Reed, Jr., its Assistant Secretary, this 31st day of December, 1978. NIKISKI ALASKA PIPELINE COMPANY By: /s/ James F. Smith --------------------------- President NIKISKI ALASKA PIPELINE COMPANY CORPORATE SEAL 1975 DELAWARE ATTEST: By: /s/ James C. Reed, Jr. ----------------------- Assistant Secretary CERTIFICATE OF INCORPORATION OF NIKISKI ALASKA PIPELINE COMPANY 1. The name of the corporation is NIKISKI ALASKA PIPELINE COMPANY 2. The address of its registered office in the State of Delaware is No. 100 West Tenth Street, in the City of Wilmington, County of New Castle, The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is: To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware, including, but not limited to, the transportation as a common carrier pipeline to and for the public of oil, crude oil, fuel oil, including residual fuel oil, petroleum, petroleum products and derivatives, the storage of such products and the operation of pipeline systems. 4. The total number of shares of stock which the corporation shall have authority' to issue is one thousand (1,000) and the par value of each of such shares is One Dollar ($1.00) amounting in the aggregate to One Thousand Dollars ($1,000.00). 5A. The name and mailing address of each incorporator is as follows: NAME MAILING ADDRESS ---- --------------- B.A. Pennington 100 West Tenth Street Wilmington, Delaware 19801 W.J. Reif 100 West Tenth Street Wilmington, Delaware 19801 R.F. Andrews 100 West Tenth Street Wilmington, Delaware 19801 5B. The name and mailing address of each person, who is to serve as a director until the first annual meeting of the stockholders or until a successor is elected and qualified, is as follows: NAME MAILING ADDRESS ---- --------------- C.T. Wells 915 Americana Building Houston, Texas 77002 Herman Luffman 915 Americana Building Houston, Texas 77002 Glenn W. Jones 915 Americana Building Houston, Texas 77002 6. The corporation is to have perpetual existence. 7. 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. 8. Meetings of stockholders may be held within or without the State of Delaware, as the by-laws may provide. The books of the corporation may be kept (subject to any provision contained in the statutes) outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the 2 by-laws of the corporation. Elections of directors need not be by written ballot unless the by-laws of the corporation shall so provide. 9. The corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this certificate, hereby declaring and certifying that this is our act and deed and the facts herein stated are true, and accordingly have hereunto set our hands this 15th day of October, 1975. /s/ B.A. Pennington - ------------------- /s/ W.J. Reif - ------------------- /s/ R.F. Andrews - ------------------- 2 EX-3.22 17 h92783ex3-22.txt BYLAWS OF TESORO ALASKA PIPELINE COMPANY EXHIBIT 3.22 Adopted: 10/15/75 Amended: 02/26/90 02/24/92 BY-LAWS OF TESORO ALASKA PIPELINE COMPANY (As Amended February 24, 1992) ARTICLE I Offices Section 1.1. The registered office shall be in the city of Wilmington, county of New Castle, state of Delaware. Section 1.2. The Corporation may also have offices at such other places both within and without the state of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require. ARTICLE II Meetings of Stockholders Section 2.1. All meetings of the stockholders for the election of directors shall be held at such place as may be fixed from time to time by the Board of Directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the state of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. Section 2.2. Annual meetings of stockholders shall be held on the first Tuesday in May of each year, if not a legal holiday, or, if a legal holiday, then on the next secular day following, at 10:00 a.m., or at such other date and time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a Board of Directors, and transact such other business as may properly be brought before the meeting. Section 2.3. Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten (10) nor more than fifty (50) days before the date of the meeting. Section 2.4. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 2.5. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the Certificate of Incorporation, may be called by the Chairman of the Board of Directors or the President and shall be called by the Chairman of the Board of Directors or the President or Secretary at the request in writing of a majority of the Board of Directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the Corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. Section 2.6. Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten (10) nor more than fifty (50) days before the date of the meeting, to each stockholder entitled to vote at such meeting. Section 2.7. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the Certificate of Incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. Section 2.8. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting, except as otherwise required by this Section 2.8, if the time and place thereof are announced at the meeting at which the adjournment is taken. At such adjourned meeting the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 2.9. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the Certificate of Incorporation, a different vote is required, in which case such express provision shall govern and control the decision of such question. Section 2.10. Each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. - 2 - Section 2.11. Any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Section 2.12. The Chairman of the Board of Directors or the President shall preside at and the Secretary shall keep the records of each meeting of stockholders, and in the absence of such officers, his duty shall be performed by some person appointed at the meeting. ARTICLE III Directors Section 3.1. The number of directors which shall constitute the whole Board shall be three (3). The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 3.2 of this Article, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. Section 3.2. Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and each director so chosen shall hold office until the next annual election and until his successor is duly elected and qualified or until his earlier resignation or removal. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole Board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent (10%) of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. Section 3.3. The business of the Corporation shall be managed by its Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By-laws directed or required to be exercised or done by the stockholders. - 3 - Meetings of the Board of Directors Section 3.4. The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the state of Delaware. Section 3.5. The first meeting of each newly elected Board of Directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected Board of Directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the Board of Directors, or as shall be specified in a written waiver signed by all of the directors. Section 3.6. Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board. Section 3.7. Special meetings of the Board may be called by the Chairman of the Board of Directors or the President on two (2) days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the Chairman of the Board of Directors, President or Secretary in like manner and on like notice on the written request of two directors. Section 3.8. At all meetings of the Board one-third (1/3) of the total number of directors shall constitute a quorum for the transaction of business and the vote of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, unless the Certificate of Incorporation shall require a vote of a greater number. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. Section 3.9. Unless otherwise restricted by the Certificate of Incorporation or these By-laws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee. Section 3.10. At meetings of the Board of Directors, business shall be transacted in such order as from time to time as the Board may determine. - 4 - At all meetings of the Board of Directors, the Chairman of the Board of Directors or the President of the Corporation shall preside, and in their absence a person shall be chosen by the Board from among the directors present to act as chairman of the meeting. The Secretary of the Corporation shall act as secretary of the meeting of the Board of Directors, but in the absence of the Secretary, the presiding officer may appoint any person to act as secretary of the meeting. Committees of Directors Section 3.11. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one (1) or more of the directors of the Corporation. The Board may designate one (1) or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders the dissolution of the Corporation or a revocation of a dissolution, or amending the By-laws of the Corporation and, unless the resolution or Certificate of Incorporation expressly so provides, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. Section 3.12. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required. Compensation of Directors Section 3.13. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meting of the Board of Directors or a stated salary as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special - 5 - or standing committees may be allowed like compensation for attending committee meetings. ARTICLE IV Notices Section 4.1. Whenever, under the provisions of the statutes or of the Certificate of Incorporation or of these By-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. Section 4.2. Whenever any notice is required to be given under the provisions of the statutes or of the Certificate of Incorporation or of these By-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V Officers Section 5.1. The officers of the Corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board of Directors, a President, a Vice President, a Secretary and a Treasurer. The Board of Directors may also choose additional Vice Presidents, and one or more Assistant Secretaries and Assistant Treasurers. Any number of offices may be held by the same person, unless the Certificate of Incorporation or these By-laws otherwise provide. Section 5.2. The Board of Directors at its first meeting after each annual meeting of stockholders shall choose a Chairman of the Board of Directors, a President, one or more Vice Presidents, a Secretary and a Treasurer. Section 5.3. The Board of Directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. Section 5.4. The salaries of all officers and agents of the Corporation shall be fixed by the Board of Directors. Section 5.5. The officers of the Corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the Board of Directors may be removed at - 6 - any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. Chairman of the Board of Directors Section 5.6. The Chairman of the Board of Directors shall be the chief executive officer of the Corporation, shall preside at all meetings of the stockholders and the Board of Directors, shall have general and active management of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the Corporation. The President Section 5.7. In the absence of the Chairman of the Board of Directors or in the event of his inability or refusal to act, the President shall perform the duties of the Chairman of the Board of Directors, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Chairman of the Board of Directors. The President shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. The Vice Presidents Section 5.8. In the absence of the President or in the event of his inability or refusal to act, the Vice President shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice Presidents shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. The Secretary and Assistant Secretary Section 5.9. The Secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings of the meetings of the Corporation and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or President, under whose supervision he shall be. He shall have custody of the corporate seal of the Corporation and he, or an Assistant Secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such Assistant Secretary. The Board of Directors may give general authority to - 7 - any other officer to affix the seal of the Corporation and to attest the affixing thereof by his signature. Section 5.10. The Assistant Secretary (or if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors, or, if there be no such determination, then in the order of their election) shall, in the absence of the Secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. The Treasurer and Assistant Treasurers Section 5.11. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. He shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the Chairman of the Board of Directors and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors, he shall give the Corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation. Section 5.12. The Assistant Treasurer (or, if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors, or, if there be no such determination, then in the order of their election) shall, in the absence of the Treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. ARTICLE VI Certificates of Stock Section 6.1. Every holder of stock in the Corporation shall be entitled to a certificate, signed by, or in the name of the Corporation by, the Chairman of the Board of Directors, the President or a Vice President and the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the - 8 - Corporation, certifying the number of shares owned by him in the Corporation. If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class, the designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate which the Corporation shall issue to represent such class or series of stock, provided that, except as otherwise provided in Section 202 of the General Corporation Law of Delaware, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate which the Corporation shall issue to represent such class or series of stock, a statement that the Corporation will furnish without charge to each stockholder who so requests the designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Section 6.2. Where a certificate is countersigned (1) by a transfer agent other than the Corporation or its employee, or (2) by a registrar other than the Corporation or its employee, any other signature on the certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. Lost Certificates Section 6.3. The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. Transfers of Stock Section 6.4. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled - 9 - thereto, cancel the old certificate and record the transaction upon its books. Fixing Record Date Section 6.5. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. Registered Stockholders Section 6.6. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII General Provisions Section 7.1. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation. Section 7.2. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the directors shall think conducive to the interest of the Corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. - 10 - Annual Statement Section 7.3. The Board of Directors shall present at each annual meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the business and condition of the Corporation. Checks Section 7.4. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. Fiscal Year Section 7.5. The fiscal year of the Corporation shall begin on the first day of October in each year and end on the 30th day of September in each year. Seal Section 7.6. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words "Corporate Seal, Delaware." The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise placed thereon. Interested Directors and Officers Section 7.7. (a) No contract or transaction between a corporation and one or more of its directors or officers, or between a corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose, if: (1) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (2) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the shareholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the shareholders; or - 11 - (3) The contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof, or the shareholders. (b) Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE VIII Amendments Section 8.1. These By-laws may be altered, amended or repealed or new By-laws may be adopted by the stockholders or by the Board of Directors, when such power is conferred upon the Board of Directors by the Certificate of Incorporation at any regular meeting of the stockholders or of the Board of Directors or at any special meeting of the stockholders or of the Board of Directors if notice of such alteration, amendment, repeal or adoption of new By- laws be contained in the notice of such special meeting. - 12 - EX-3.23 18 h92783ex3-23.txt CERTIFICATE OF INCORPORATION OF TESORO AVIATION CO EXHIBIT 3.23 CERTIFICATE OF INCORPORATION OF TESORO HYDROCARBONS COMPANY USA 1. The name of the corporation is: TESORO HYDROCARBONS COMPANY USA 2. The address of its registered offices in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address if The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of all classes of stock which the corporation shall be authorized to issue is one thousand (1,000) shares of common stock, $1.00 par value. 5. A director of the corporation is not liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except that this article does not eliminate or limit the liability of a director: (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 General Corporation Law of Delaware; or (iv) for any transaction from which the director derived an improper personal benefit. 6. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot. 7. The name and mailing address of the incorporator is: M. A. Brzoska The Corporation Trust Company 1209 Orange Street Wilmington, Delaware 19901 I, the undersigned, as incorporator and for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 10th day of June, 1999. /s/ M.A. Brzoska ------------------ M. A. Brzoska CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF TESORO HYDROCARBONS COMPANY USA Tesoro Hydrocarbons Company USA, a corporation organized under and existing by virtue of the General Corporation Law of the State of Delaware, does hereby certify: FIRST: That by the written consent of all members of the Board of Directors of Tesoro Hydrocarbons Company USA, dated July 6, 2001, and filed with the minutes of proceedings of said Board of Directors, the Board of Directors of said corporation duly adopted a resolution proposing and declaring advisable a certain amendment to the Certificate of Incorporation of said corporation, and directing that such amendment be submitted for consideration to the shareholder of said corporation. The resolution of the Board of Directors setting forth the proposed amendment is as follows: RESOLVED, that the Board of Directors declares it advisable and proposes that Article 1 of the Certificate of Incorporation of Tesoro Hydrocarbons Company USA be amended so as to read in its entirety as follows: "The name of the corporation is Tesoro Aviation Company." SECOND: That by written consent of the sole shareholder of said corporation dated July 6, 2001, and filed with the minutes of proceedings of said shareholder, the shareholder voted in favor of said amendment. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the Sate of Delaware. FOURTH: That the capital of said corporation will not be reduced under or by reason of said amendment. IN WITNESS WHEREOF, said Tesoro Hydrocarbons USA has caused this certificate to be signed by Bruce A. Smith, its President, and attested by James C. Reed, Jr., its Executive Vice President, General Counsel and Secretary, this 6th day of July, 2001. ATTEST: Tesoro Hydrocarbons Company USA /s/ James C. Reed, Jr. /s/ Bruce A. Smith - ------------------------------ -------------------------------- James C. Reed, Jr. Bruce A. Smith Executive Vice President President General Counsel and Secretary EX-3.24 19 h92783ex3-24.txt BYLAWS OF TESORO AVIATION COMPANY EXHIBIT 3.24 Adopted June 10, 1999 BY-LAWS OF TESORO HYDROCARBONS COMPANY USA BY-LAWS OF TESORO HYDROCARBONS COMPANY USA ARTICLE I Meetings of Stockholders Section 1.1 Annual Meetings. The Annual meeting of the stockholders for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held on such date and at such time and place within or without the state of Delaware as may be designated by the Board of Directors. Section 1.2 Special Meetings. Special meetings of the stockholders for any proper purpose or purposes may be called at any time by the Board of Directors, the Chairman of the Board of Directors, the President or any vice president, to be held on such date and at such time and place within or without the state of Delaware as the Board of Directors, the Chairman of the Board of Directors, the President or a vice president, whichever has called the meeting, shall direct. A special meeting of the stockholders shall be called by the Chairman of the Board of Directors, the President or any vice president whenever stockholders holding shares representing a majority of the votes of the shares of the Corporation then issued and outstanding and entitled to vote on matters to be submitted to stockholders of the Corporation shall make application therefor in writing. Any such written request shall state a proper purpose or purposes of the meeting and shall be delivered to the Chairman of the Board of Directors, the President or any vice president. Section 1.3 Notice of Meeting. Written notice, signed by the Chairman of the Board of Directors, the President, any vice president, the Secretary or an assistant secretary, of every meeting of stockholders (other than an adjourned meeting unless otherwise required by statute) stating the purpose or purposes for which the meeting is called, and the date and time when, and the place where, it is to be held shall be either delivered personally or mailed to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the meeting, except as otherwise provided by statute. If mailed, such notice shall be directed to a stockholder at his address as it shall appear on the stock books of the Corporation, unless he shall have filed with the Secretary a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in such request, and shall be given when deposited in the United States mail, postage prepaid. Section 1.4 Quorum. The presence at any meeting, in person or by proxy, of the holders of record of shares representing a majority of the votes of the shares then issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business, except where otherwise provided by statute. Section 1.5 Adjournments. In the absence of a quorum, a majority of the votes of the stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to vote is present in person or by proxy, any officer entitled to preside at or act as secretary of such meeting may adjourn the meeting from time to time until a quorum shall be present. Section 1.6 Voting. Directors shall be chosen by a plurality of the votes cast at the election, and except where otherwise provided by statute, or the Certificate of Incorporation, all other questions shall be determined by a majority of the votes cast on such question. Section 1.7 Proxies. Any stockholders entitled to vote may vote by proxy, provided that the instrument authorizing such proxy to act shall have been executed in writing (which shall include telegraphing or cabling) by the stockholder himself or by his duly authorized attorney. Section 1.8 Judges of Election. The Board of Directors may appoint judges of election to serve at any election of directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the judges so appointed shall fail to attend, or refuse or be unable to serve, then such appointment may be made by the presiding officers at the meeting. ARTICLE II Board of Directors Section 2.1 Number. The number of directors which shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors but shall not be less than two. Section 2.2 Election and Term of Office. Directors shall be elected at the annual meeting of the stockholders. Each director (whether elected at an annual meeting or to fill a vacancy or otherwise) shall continue in office until his successor shall have been elected or until his earlier death, resignation, removal or other incapacity in the manner hereinafter provided. 2 Section 2.3 Vacancies and Additional Directorships. If any vacancy shall occur among the directors by reason of death, resignation, removal or other incapacity or as the result of an increase in the number of directorships, the directors then in office shall continue to act and may fill any such vacancy by a vote of the directors then in office, though less than a quorum. Section 2.4 Meetings. A meeting of the Board of Directors shall be held for organization, for the election of officers and for the transaction of such other business as may properly come before the meeting, within thirty days after each annual election of directors. The Board of Directors by resolution may provide for the holding of regular meetings and may fix the times and places at which such meetings shall be held. Notice of regular meetings shall not be required to be given, provided that whenever the time or place of regular meetings shall be fixed or changed, notice of such action shall be mailed promptly to each director who shall not have been present at the meeting at which such action was taken, addressed to him at his residence or usual place of business. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, the President, any vice president or any two directors. Except as otherwise required by statute, notice of such special meeting shall be mailed to each director, addressed to him at his residence or usual place of business, or shall be sent to him at such place by telegram, radio or cable, or telephone or delivered to him personally, not later than two days before the day on which the meeting is to be held. Such notice shall state the time and place of such meeting, but unless otherwise required by statute, the Certificate of Incorporation of the Corporation or these By-laws need not state the purposes thereof. Notice of any meeting need not be given to any director who shall attend such meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Section 2.5 Quorum. One-third of the total number of members of the Board of Directors as constituted from time to time, but not less than two, shall be necessary and sufficient to constitute a quorum for the transaction of business. In the absence of a quorum, a majority of those present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present and the meeting may be held as adjourned without further notice or waiver. A majority of those present at any meeting at which a quorum is present may decide any question brought before such meeting, except as otherwise provided by law, the Certificate of Incorporation or these By-laws. 3 Section 2.6 Resignation of Directors. Any director may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 2.7 Removal of Directors. At any special meeting of the stockholders, duly called for the purpose of removing a director or directors as provided in these By-laws, any director or directors may, by the affirmative vote of the holders of shares representing a majority of the votes of all the shares of stock outstanding and entitled to vote for the election of directors, be removed from office, either with or without cause. At such meeting a successor or successors may be elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled by the directors as provided in Section 2.3. Section 2.8 Compensation of Directors. Directors may receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Section 2.9 Indemnification. The Corporation shall indemnify to the full extent authorized or permitted by the laws of the state of Delaware any person who is made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Corporation or serves or served any other enterprise at the request of the Corporation. ARTICLE III Committees of the Board Section 3.1 Designation, Power, Alternate Members and Term of Office. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Any such committee, to the extent provided in such resolution, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal 4 of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-laws of the Corporation or, unless the resolution of the Board of Directors establishing any such committee shall expressly so provide or these By-laws shall expressly so provide, declaring a dividend on the Corporation's capital stock or authorizing the issuance of the Corporation's capital stock. The Board may designate one or more directors as alternate members of any committee who, in the order specified by the Board, may replace any absent or disqualified member at any meeting of the committee. If at a meeting of any committee one or more of the members thereof should be absent or disqualified, and if either Board of Directors has not so designated any alternate member or members, or the number of absent or disqualified members exceeds the number of alternate members who are present at such meeting, then the member or members of such committee (including alternates) present at any meeting and not disqualified from voting, whether nor not he or they constitute a quorum, may unanimously appoint another director to act at the meeting in the place of any such absent or disqualified member. The term of office of the members of each committee shall be as fixed from time to time by the Board, subject to these By-laws; provided, however, that any committee member who ceases to be a member of the Board shall ipso facto cease to be a committee member. Each committee shall appoint a secretary, who may be the Secretary of the Corporation or an assistant secretary thereof. Section 3.2 Meetings, Notices and Records. Each committee may provide for the holding of regular meetings, with or without notice, and may fix the time and place at which such meetings shall be held. Special meetings of each committee shall be held upon call by or at the direction of its chairman or, if there be no chairman, by or at the direction of any two of its members, at the time and place specified in the respective notices or waivers of notice thereof. Notice of each special meeting of a committee shall be mailed to each member of such committee, addressed to him at his residence or usual place of business, at least two days before the day on which the meeting is to be held, or shall be sent by telegram, radio or cable addressed to him at such place, or telephoned or delivered to him personally, not later than the day before the day on which the meeting is held. Notice of any meeting of a committee need not be given to any member thereof who shall attend the meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Notice of any adjourned meeting need not be given. Each committee shall keep a record of its proceedings. 5 Section 3.3 Quorum and Manner of Acting. At each meeting of any committee the presence of one-third but not less than two of its members then in office shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which the quorum is present shall be the act of such committee; in the absence of a quorum, a majority of the members present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present. Subject to the foregoing and other provisions of these By-laws and except as otherwise determined by the Board of Directors, each committee may make rules for the conduct of its business. Any determination made in writing and signed by all members of such committee shall be as effective as if made by such committee at a meeting. Section 3.4 Resignations. Any member of a committee may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect a the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 3.5 Removal. Any member of any committee may be removed at any time by the Board of Directors with or without cause. Section 3.6 Vacancies. If any vacancy shall occur in any committee by reason of death, resignation, disqualification, removal or otherwise, the remaining members of such committee, though less than a quorum, shall continue to act until such vacancy is filled by a resolution passed by a majority of the whole Board of Directors. Section 3.7 Compensation. Committee members shall receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any committee member from serving the Corporation in any other capacity and receiving compensation therefor. ARTICLE IV Officers Section 4.1 Officers. The officers of the Corporation shall be a Chairman of the Board of Directors, a President, one or more 6 Vice Presidents (which may include Group Vice Presidents, Senior Vice Presidents and other categories of Vice Presidents), a Secretary, a Treasurer, and such other officers as may be appointed in accordance with the provisions of Section 4.3. Section 4.2 Election, Term of Office and Qualifications. Each officer (except such officers as may be appointed in accordance with the provisions of Section 4.3) shall be elected by the Board of Directors. Each such officer (whether elected at the first meeting of the Board of Directors after the annual meeting of stockholders or to fill a vacancy or otherwise) shall hold his office until the first meeting of the Board of Directors after the next annual meeting of stockholders and until his successor shall have been elected, or until his death, or until he shall have resigned in the manner provided in Section 4.4 or shall have been removed in the manner provided in Section 4.5. The Chairman of the Board of Directors must be a member of the Board of Directors. Section 4.3 Subordinate Officers and Agents. The Board of Directors from time to time may appoint other officers or agents (including one or more assistant vice presidents, one or more assistant secretaries and one or more assistant treasurers), to hold office for such period, have such authority and perform such duties as are provided in these By-laws or as may be provided in the resolutions appointing them. The Board of Directors may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective terms of office, authorities and duties. Section 4.4 Resignations. Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 4.5 Removal. Any officer specifically designated in Section 4.1 may be removed at any time, either with or without cause, at any meeting of the Board of Directors by the vote of a majority of all the directors then in office. Any officer or agent appointed in accordance with the provisions of Section 4.3 may be removed, either with or without cause, by the Board of Directors at any meeting, by the vote of a majority of the directors present at such meeting, or by any superior officer or agent upon whom such power of removal shall have been conferred by the Board of Directors. Section 4.6 Vacancies. A vacancy in any office by reason of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner 7 prescribed by these By-laws for regular election or appointment to such office. Section 4.7 The Chairman of the Board of Directors. The Chairman of the Board of Directors shall be the chief executive officer of the Corporation. Subject to the direction of the Board of Directors, he shall have general charge of the business affairs and property of the Corporation. He shall see that all orders and resolutions of the Board of Directors are carried into effect. If present, he shall preside at all meetings or stockholders. He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. From time to time he shall report to the Board of Directors all matters within is knowledge which the interests of the Corporation may require to be brought to their attention. He shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors. Section 4.8 The President. The President shall be the chief operating officer of the Corporation. Subject to the direction of the Chairman of the Board of Directors, he shall have general supervision over the officers and agents of the Corporation. At the request of the Board of Directors or the Chairman of the Board of Directors, the President shall perform all the duties of the Chairman of the Board of Directors and, when so acting, shall have all the powers of and be subject to all restrictions upon the Chairman of the Board of Directors (except that the President need not be a member of the Board of Directors). He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. He shall also perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors or the Chairman of the Board of Directors. Section 4.9 The Vice Presidents. In the absence or disability of the President, any vice president designated by the President (or in the absence of such designation, the Vice President designated by the Board of Directors or the Chairman of the Board of Directors) shall perform all the duties of the President and, when so acting, shall have all the powers of and be 8 subject to all restrictions upon the President. Any vice president may also sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds and other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. Each vice president shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.10 The Secretary. The Secretary shall (a) Record all the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book or books to be kept for that purpose; (b) Cause all notices to be duly given in accordance with the provisions of these By-laws and as required by statute; (c) Whenever any committee shall be appointed in pursuance of a resolution of the Board of Directors, furnish the chairman of such committee with a copy of such resolution; (d) Be custodian of the records and of the seal of the Corporation, and cause such seal to be affixed to all certificates representing stock of the Corporation prior to the issuance thereof and to all instruments the execution of which on behalf of the Corporation under its seal shall have been duly authorized; (e) See that the lists, books, reports, statements, certificates and other documents and records required by statute are properly kept and filed; (f) Have charge of the stock and transfer books of the Corporation, and exhibit such stock book at all reasonable times to such persons as are entitled by statute to have access thereto; (g) Sign (unless the Treasurer or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Secretary and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the 9 Board of Directors, the Chairman of the Board of Directors, or the President Section 4.11 Assistant Secretaries. At the request of the Secretary or in his absence or disability, the Assistant Secretary designated by him (or in the absence of such designation, the Assistant Secretary designated by the Board of Directors, the Chairman of the Board of Directors or the President) shall perform all the duties of the Secretary and, when so acting, shall have all the powers of and be subject to all restrictions upon the Secretary. The assistant secretaries shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary. Section 4.12 The Treasurer. The Treasurer shall (a) Have charge of and supervision over and be responsible for the funds, securities, receipts and disbursements of the Corporation; (b) Cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such banks or trust companies or with such bankers or other depositaries as shall be selected in accordance with Section 5.3 of these By-laws or to be otherwise dealt with in such manner as the Board of Directors may direct; (c) Cause the funds of the Corporation to be disbursed by checks or drafts upon the authorized depositaries of the Corporation, and cause to be taken and preserved proper vouchers for all moneys disbursed; (d) Render to the Board of Directors, the Chairman of the Board of Directors, or the President, whenever requested, a statement of the financial condition of the Corporation and all of his transactions as Treasurer; (e) Cause to be kept at the Corporation's principal office correct books of account of all its business and transactions and such duplicate books of account as he shall determine and upon application cause such books or duplicates thereof to be exhibited to any director; (f) Be empowered, from time to time, to require from the officers or agents of the Corporation reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation; (g) Sign (unless the Secretary or any assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have 10 been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Treasurer and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.13 Assistant Treasurers. At the request of the Treasurer or in his absence or disability, the Assistant Treasurer designated by him (or in the absence of such designation, the Assistant Treasurer designated by the Board of Directors, the Chairman of the Board of Directors, or the President) shall perform all the duties of the Treasurer and, when so acting, shall have all the powers of and be subject to all restrictions upon the Treasurer. The Assistant Treasurers shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Treasurer. Section 4.14 Salaries. The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors, except that the Board of Directors may delegate to any person the power to fix the salaries or other compensation of any officers or agents appointed in accordance with the provisions of Section 4.3. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. Section 4.15 Surety Bonds. If the Board of Directors shall so require, any officer or agent of the Corporation shall execute to the Corporation a bond in such sum and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful discharge of his duties, including responsibilities for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands. ARTICLE V Execution of Instruments and Deposit of Corporate Funds Section 5.1 Execution of Instruments Generally. The Chairman of the Board of Directors, the President, any vice President, the Secretary or the Treasurer, subject to the approval of the Board of Directors, may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. The Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any 11 instrument in the name and on behalf of the Corporation, and such authorization may be general or confined to specific instances. Section 5.2 Borrowing. No loans or advances shall be obtained or contracted for, by or on behalf of the Corporation and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors. Such authorization may be general or confined to specific instances. Any officer or agent of the Corporation thereunto so authorized may obtain loans and advances for the Corporation, and for such loans and advances may make, execute and deliver promissory notes, bonds or other evidences of indebtedness of the Corporation. Any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as security for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation, any and all stocks, bonds, other securities and other personal property at any time held by the Corporation, and to that end may endorse, assign and deliver the same and do every act and thing necessary or proper in connection therewith. Section 5.3 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors may select, or as may be selected by any officer or officers or agent or agents authorized so to do by the Board of Directors. Endorsements for deposit to the credit of the Corporation in any of its duly authorized depositaries shall be made in such manner as the Board of Directors from time to time may determine. Section 5.4 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers or agent or agents of the Corporation, and in such manner, as from time to time shall be determined by the Board of Directors. Section 5.5 Proxies. Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the Chairman of the Board of Directors, the President or a vice president or by any other person or persons thereunto authorized by the Board of Directors. ARTICLE VI Record Dates Section 6.1 In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of 12 stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall be not more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. Only those stockholders of record on the date so fixed shall be entitled to any of the foregoing rights, notwithstanding the transfer of any such stock on the books of the Corporation after any such record date fixed by the Board of Directors. ARTICLE VII Corporate Seal Section 7.1 The corporate seal shall be circular in form and shall bear the name of the Corporation and words and figures denoting its organization under the laws of the state of Delaware and the year thereof and otherwise shall be in such form as shall be approved from time to time by the Board of Directors. ARTICLE VIII Fiscal Year Section 8.1 The fiscal year of the Corporation shall begin on the first day of January in each year and shall end on the 31st day of December in the same year. ARTICLE IX Amendments Section 9.1 All By-laws of the Corporation may be amended, altered or repealed, and new By-laws may be made, by the affirmative vote of the holders of record of shares representing a majority of the votes of the outstanding shares of stock of the Corporation entitled to vote cast at any annual or special meeting, or by the affirmative vote of a majority of the Directors cast at any regular or special meeting at which a quorum is present. 13 EX-3.25 20 h92783ex3-25.txt CERT OF INCORPORATION OF TESORO FINANCIAL SERVICES EXHIBIT 3.25 CERTIFICATE OF INCORPORATION OF TESORO FINANCIAL SERVICES HOLDING COMPANY 1. The name of the corporation is: Tesoro Financial Services Holding Company 2. The address of its registered offices in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act and activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of all classes of stock which the corporation shall be authorized to issue is two thousand (2,000), of which (1,000) shares is common stock, $1.00 par value and one thousand (1,000) is preferred stock, no par value. 5. A director of the corporation is not liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except that this article does not eliminate or limit the liability of a director (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 General Corporation Law of Delaware; or (iv) for any transaction from which the director derived an improper personal benefit. 6. The board of directors is authorized to make, alter or repeal the bylaws of the corporation. Election of directors need not be by written ballot. 7. The name and mailing address of the incorporator is: K. A. Widdoes The Corporation Trust Company 1209 Orange Street Wilmington, Delaware 19901 -1- I, the undersigned, as incorporator and for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 10th of September, 1996. /s/ K. A. Widdoes ----------------------------------- K. A. Widdoes -2- EX-3.26 21 h92783ex3-26.txt BYLAWS OF TESORO FINANCIAL SERVICES HOLDING CO EXHIBIT 3.26 BY-LAWS OF TESORO FINANCIAL SERVICES HOLDING COMPANY ARTICLE I Meetings of Stockholders Section 1.1 Annual Meetings. The Annual meeting of the stockholders for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held on such date and at such time and place within or without the state of Delaware as may be designated by the Board of Directors. Section 1.2 Special Meetings. Special meetings of the stockholders for any proper purpose or purposes may be called at any time by the Board of Directors, the Chairman of the Board of Directors, the President or any vice president, to be held on such date and at such time and place within or without the state of Delaware as the Board of Directors, the Chairman of the Board of Directors, the President or a vice president, whichever has called the meeting, shall direct. A special meeting of the stockholders shall be called by the Chairman of the Board of Directors, the President or any vice president whenever stockholders holding shares representing a majority of the votes of the shares of the Corporation then issued and outstanding and entitled to vote on matters to be submitted to stockholders of the Corporation shall make application therefor in writing. Any such written request shall state a proper purpose or purposes of the meeting and shall be delivered to the Chairman of the Board of Directors, the President or any vice president. Section 1.3 Notice of Meeting. Written notice, signed by the Chairman of the Board of Directors, the President, any vice president, the Secretary or an assistant secretary, of every meeting of stockholders (other than an adjourned meeting unless otherwise required by statute) stating the purpose or purposes for which the meeting is called, and the date and time when, and the place where, it is to be held shall be either delivered personally or mailed to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the meeting, except as otherwise provided by statute. If mailed, such notice shall be directed to a stockholder at his address as it shall appear on the stock books of the Corporation, unless he shall have filed with the Secretary a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in such request, and shall be given when deposited in the United States mail, postage prepaid. -1- Section 1.4 Quorum. The presence at any meeting, in person or by proxy, of the holders of record of shares representing a majority of the votes of the shares then issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business, except where otherwise provided by statute. Section 1.5 Adjournments. In the absence of a quorum, a majority of the votes of the stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to vote is present in person or by proxy, any officer entitled to preside at or act as secretary of such meeting may adjourn the meeting from time to time until a quorum shall be present. Section 1.6 Voting. Directors shall be chosen by a plurality of the votes cast at the election, and except where otherwise provided by statute, or the Certificate of Incorporation, all other questions shall be determined by a majority of the votes cast on such question. Section 1.7 Proxies. Any stockholders entitled to vote may vote by proxy, provided that the instrument authorizing such proxy to act shall have been executed in writing (which shall include telegraphing or cabling) by the stockholder himself or by his duly authorized attorney. Section 1.8 Judges of Election. The Board of Directors may appoint judges of election to serve at any election of directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the judges so appointed shall fail to attend, or refuse or be unable to serve, then such appointment may be made by the presiding officers at the meeting. ARTICLE II Board of Directors Section 2.1 Number. The number of directors which shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors but shall not be less than two. Section 2.2 Election and Term of Office. Directors shall be elected at the annual meeting of the stockholders. Each director (whether elected at an annual meeting or to fill a vacancy or otherwise) shall continue in office until his successor shall have been elected or until his earlier death, resignation, removal or other incapacity in the manner hereinafter provided. - 2 - Section 2.3 Vacancies and Additional Directorships. If any vacancy shall occur among the directors by reason of death, resignation, removal or other incapacity or as the result of an increase in the number of directorships, the directors then in office shall continue to act and may fill any such vacancy by a vote of the directors then in office, though less than a quorum. Section 2.4 Meetings. A meeting of the Board of Directors shall be held for organization, for the election of officers and for the transaction of such other business as may properly come before the meeting, within thirty days after each annual election of directors. The Board of Directors by resolution may provide for the holding of regular meetings and may fix the times and places at which such meetings shall be held. Notice of regular meetings shall not be required to be given, provided that whenever the time or place of regular meetings shall be fixed or changed, notice of such action shall be mailed promptly to each director who shall not have been present at the meeting at which such action was taken, addressed to him at his residence or usual place of business. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, the President, any vice president or any two directors. Except as otherwise required by statute, notice of each special meeting shall be mailed to each director, addressed to him at his residence or usual place of business, or shall be sent to him at such place by telegram, radio or cable, or telephone or delivered to him personally, not later than two days before the day on which the meeting is to be held. Such notice shall state the time and place of such meeting, but unless otherwise required by statute, the Certificate of Incorporation of the Corporation or these By-laws need not state the purposes thereof. Notice of any meeting need not be given to any director who shall attend such meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Section 2.5 Quorum. One-third of the total number of members of the Board of Directors as constituted from time to time, but not less than two, shall be necessary and sufficient to constitute a quorum for the transaction of business. In the absence of a quorum, a majority of those present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present and the meeting may be held as adjourned without further notice or waiver. A majority of those present at any meeting at which a quorum is present may decide any question brought before such meeting, except as otherwise provided by law, the Certificate of Incorporation or these By-laws. - 3 - Section 2.6 Resignation of Directors. Any director may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 2.7 Removal of Directors. At any special meeting of the stockholders, duly called for the purpose of removing a director or directors as provided in these By-laws, any director or directors may, by the affirmative vote of the holders of shares representing a majority of the votes of all the shares of stock outstanding and entitled to vote for the election of directors, be removed from office, either with or without cause. At such meeting a successor or successors may be elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled by the directors as provided in Section 2.3. Section 2.8 Compensation of Directors. Directors may receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Section 2.9 Indemnification. The Corporation shall indemnify to the full extent authorized or permitted by the laws of the state of Delaware any person who is made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Corporation or serves or served any other enterprise at the request of the Corporation. ARTICLE III Committees of the Board Section 3.1 Designation, Power, Alternate Members and Term of Office. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Any such committee, to the extent provided in such resolution, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal - 4 - of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to thestockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-laws of the Corporation or, unless the resolution of the Board of Directors establishing any such committee shall expressly so provide or these By-laws shall expressly so provide, declaring a dividend on the Corporation's capital stock or authorizing the issuance of the Corporation's capital stock. The Board may designate one or more directors as alternate members of any committee who, in the order specified by the Board, may replace any absent or disqualified member at any meeting of the committee. If at a meeting of any committee one or more of the members thereof should be absent or disqualified, and if either the Board of Directors has not so designated any alternate member or members, or the number of absent or disqualified members exceeds the number of alternate members who are present at such meeting, then the member or members of such committee (including alternates) present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another director to act at the meeting in the place of any such absent or disqualified member. The term of office of the members of each committee shall be as fixed from time to time by the Board, subject to these By-laws; provided, however, that any committee member who ceases to be a member of the Board shall ipso facto cease to be a committee member. Each committee shall appoint a secretary, who may be the Secretary of the Corporation or an assistant secretary thereof. Section 3.2 Meetings, Notices and Records. Each committee may provide for the holding of regular meetings, with or without notice, and may fix the time and place at which such meetings shall be held. Special meetings of each committee shall be held upon call by or at the direction of its chairman or, if there be no chairman, by or at the direction of any two of its members, at the time and place specified in the respective notices or waivers of notice thereof. Notice of each special meeting of a committee shall be mailed to each member of such committee, addressed to him at his residence or usual place of business, at least two days before the day on which the meeting is to be held, or shall be sent by telegram, radio or cable addressed to him at such place, or telephoned or delivered to him personally, not later than the day before the day on which the meeting is to be held. Notice of any meeting of a committee need not be given to any member thereof who shall attend the meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Notice of any adjourned meeting need not be given. Each committee shall keep a record of its proceedings. - 5 - Section 3.3 Quorum and Manner of Acting. At each meeting of any committee the presence of one-third but not less than two of its members then in office shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which the quorum is present shall be the act of such committee; in the absence of a quorum, a majority of the members present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present. Subject to the foregoing and other provisions of these By-laws and except as otherwise determined by the Board of Directors, each committee may make rules for the conduct of its business. Any determination made in writing and signed by all the members of such committee shall be as effective as if made by such committee at a meeting. Section 3.4 Resignations. Any member of a committee may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 3.5 Removal. Any member of any committee may be removed at any time by the Board of Directors with or without cause. Section 3.6 Vacancies. If any vacancy shall occur in any committee by reason of death, resignation, disqualification, removal or otherwise, the remaining members of such committee, though less than a quorum, shall continue to act until such vacancy is filled by a resolution passed by a majority of the whole Board of Directors. Section 3.7 Compensation. Committee members shall receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any committee member from serving the Corporation in any other capacity and receiving compensation therefor. ARTICLE IV Officers Section 4.1 Officers. The officers of the Corporation shall be a Chairman of the Board of Directors, a President, one or more - 6 - Vice Presidents (which may include Group Vice Presidents, Senior Vice Presidents and other categories of Vice Presidents), a Secretary, a Treasurer, and such other officers as may be appointed in accordance with the provisions of Section 4.3. Section 4.2 Election, Term of Office and Qualifications. Each officer (except such officers as may be appointed in accordance with the provisions of Section 4.3) shall be elected by the Board of Directors. Each such officer (whether elected at the first meeting of the Board of Directors after the annual meeting of stockholders or to fill a vacancy or otherwise) shall hold his office until the first meeting of the Board of Directors after the next annual meeting of stockholders and until his successor shall have been elected, or until his death, or until he shall have resigned in the manner provided in Section 4.4 or shall have been removed in the manner provided in Section 4.5. The Chairman of the Board of Directors must be a member of the Board of Directors. Section 4.3 Subordinate Officers and Agents. The Board of Directors from time to time may appoint other officers or agents (including one or more assistant vice presidents, one or more assistant secretaries and one or more assistant treasurers), to hold office for such period, have such authority and perform such duties as are provided in these By-laws or as may be provided in the resolutions appointing them. The Board of Directors may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective terms of office, authorities and duties. Section 4.4 Resignations. Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 4.5 Removal. Any officer specifically designated in Section 4.1 may be removed at any time, either with or without cause, at any meeting of the Board of Directors by the vote of a majority of all the directors then in office. Any officer or agent appointed in accordance with the provisions of Section 4.3 may be removed, either with or without cause, by the Board of Directors at any meeting, by the vote of a majority of the directors present at such meeting, or by any superior officer or agent upon whom such power of removal shall have been conferred by the Board of Directors. Section 4.6 Vacancies. A vacancy in any office by reason of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner - 7 - prescribed by these By-laws for regular election or appointment to such office. Section 4.7 The Chairman of the Board of Directors. The Chairman of the Board of Directors shall be the chief executive officer of the Corporation. Subject to the direction of the Board of Directors, he shall have general charge of the business affairs and property of the Corporation. He shall see that all orders and resolutions of the Board of Directors are carried into effect. If present, he shall preside at all meetings of stockholders. He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. From time to time he shall report to the Board of Directors all matters within his knowledge which the interests of the Corporation may require to be brought to their attention. He shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors. Section 4.8 The President. The President shall be the chief operating officer of the Corporation. Subject to the direction of the Chairman of the Board of Directors, he shall have general supervision over the officers and agents of the Corporation. At the request of the Board of Directors or the Chairman of the Board of Directors, the President shall perform all the duties of the Chairman of the Board of Directors and, when so acting, shall have all the powers of and be subject to all restrictions upon the Chairman of the Board of Directors (except that the President need not be a member of the Board of Directors). He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. He shall also perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors or the Chairman of the Board of Directors. Section 4.9 The Vice Presidents. In the absence or disability of the President, any vice president designated by the President (or in the absence of such designation, the Vice President designated by the Board of Directors or the Chairman of the Board of Directors) shall perform all the duties of the President and, when so acting, shall have all the powers of and be - 8 - subject to all restrictions upon the President. Any vice president may also sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of Corporation deeds, mortgages, bonds and other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. Each vice president shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.10 The Secretary. The Secretary shall (a) Record all the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book or books to be kept for that purpose; (b) Cause all notices to be duly given in accordance with the provisions of these By-laws and as required by statute; (c) Whenever any committee shall be appointed in pursuance of a resolution of the Board of Directors, furnish the chairman of such committee with a copy of such resolution; (d) Be custodian of the records and of the seal of the Corporation, and cause such seal to be affixed to all certificates representing stock of the Corporation prior to the issuance thereof and to all instruments the execution of which on behalf of the Corporation under its seal shall have been duly authorized; (e) See that the lists, books, reports, statements, certificates and other documents and records required by statute are properly kept and filed; (f) Have charge of the stock and transfer books of the Corporation, and exhibit such stock book at all reasonable times to such persons as are entitled by statute to have access thereto; (g) Sign (unless the Treasurer or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Secretary and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the - 9 - Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.11 Assistant Secretaries. At the request of the Secretary or in his absence or disability, the Assistant Secretary designated by him (or in the absence of such designation, the Assistant Secretary designated by the Board of Directors, the Chairman of the Board of Directors or the President) shall perform all the duties of the Secretary and, when so acting, shall have all the powers of and be subject to all restrictions upon the Secretary. The assistant secretaries shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary. Section 4.12 The Treasurer. The Treasurer shall (a) Have charge of and supervision over and be responsible for the funds, securities, receipts and disbursements of the Corporation; (b) Cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such banks or trust companies or with such bankers or other depositaries as shall be selected in accordance with Section 5.3 of these By-laws or to be otherwise dealt with in such manner as the Board of Directors may direct; (c) Cause the funds of the Corporation to be disbursed by checks or drafts upon the authorized depositaries of the Corporation, and cause to be taken and preserved proper vouchers for all moneys disbursed; (d) Render to the Board of Directors, the Chairman of the Board of Directors, or the President, whenever requested, a statement of the financial condition of the Corporation and of all his transactions as Treasurer; (e) Cause to be kept at the Corporation's principal office correct books of account of all its business and transactions and such duplicate books of account as he shall determine and upon application cause such books or duplicates thereof to be exhibited to any director; (f) Be empowered, from time to time, to require from the officers or agents of the Corporation reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation; (g) Sign (unless the Secretary or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have - 10 - been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Treasurer and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.13 Assistant Treasurers. At the request of the Treasurer or in his absence or disability, the Assistant Treasurer designated by him (or in the absence of such designation, the Assistant Treasurer designated by the Board of Directors, the Chairman of the Board of Directors, or the President) shall perform all the duties of the Treasurer and, when so acting, shall have all the powers of and be subject to all restrictions upon the Treasurer. The Assistant Treasurers shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Treasurer. Section 4.14 Salaries. The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors, except that the Board of Directors may delegate to any person the power to fix the salaries or other compensation of any officers or agents appointed in accordance with the provisions of Section 4.3. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. Section 4.15 Surety Bonds. If the Board of Directors shall so require, any officer or agent of the Corporation shall execute to the Corporation a bond in such sum and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful discharge of his duties, including responsibilities for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands. ARTICLE V Execution of Instruments and Deposit of Corporate Funds Section 5.1 Execution of Instruments Generally. The Chairman of the Board of Directors, the President, any vice president, the Secretary or the Treasurer, subject to the approval of the Board of Directors, may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. The Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any - 11 - instrument in the name and on behalf of the Corporation, and such authorization may be general or confined to specific instances. Section 5.2 Borrowing. No loans or advances shall be obtained or contracted for, by or on behalf of the Corporation and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors. Such authorization may be general or confined to specific instances. Any officer or agent of the Corporation thereunto so authorized may obtain loans and advances for the Corporation, and for such loans and advances may make, execute and deliver promissory notes, bonds or other evidences of indebtedness of the Corporation. Any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as security for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation, any and all stocks, bonds, other securities and other personal property at any time held by the Corporation, and to that end may endorse, assign and deliver the same and do every act and thing necessary or proper in connection therewith. Section 5.3 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors may select, or as may be selected by any officer or officers or agent or agents authorized so to do by the Board of Directors. Endorsements for deposit to the credit of the Corporation in any of its duly authorized depositaries shall be made in such manner as the Board of Directors from time to time may determine. Section 5.4 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers or agent or agents of the Corporation, and in such manner, as from time to time shall be determined by the Board of Directors. Section 5.5 Proxies. Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the Chairman of the Board of Directors, the President or a vice president or by any other person or persons thereunto authorized by the Board of Directors. ARTICLE VI Record Dates Section 6.1. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of - 12 - stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall be not more than sixty nor less than ten days before the date of such meeting, nor more that sixty days prior to any other action. Only those stockholders of record on the date so fixed shall be entitled to any of the foregoing rights, notwithstanding the transfer of any such stock on the books of the Corporation after any such record date fixed by the Board of Directors. ARTICLE VII Corporate Seal Section 7.1. The corporate seal shall be circular in form and shall bear the name of the Corporation and words and figures denoting its organization under the laws of the state of Delaware and the year thereof and otherwise shall be in such form as shall be approved from time to time by the Board of Directors. ARTICLE VIII Fiscal Year Section 8.1. The fiscal year of the Corporation shall begin on the first day of January in each year and shall end on the 31st day of December in the same year. ARTICLE IX Amendments Section 9.1. All By-laws of the Corporation may be amended, altered or repealed, and new By-laws may be made, by the affirmative vote of the holders of record of shares representing a majority of the votes of the outstanding shares of stock of the Corporation entitled to vote cast at any annual or special meeting, or by the affirmative vote of a majority of the Directors cast at any regular or special meeting at which a quorum is present. - 13 - EX-3.27 22 h92783ex3-27.txt CERT OF INCORPORATION OF TESORO GAS RESOURCES CO EXHIBIT 3.27 CERTIFICATE OF INCORPORATION OF TESORO GAS RESOURCES COMPANY, INC. THE UNDERSIGNED, acting as the incorporator of a corporation under and in accordance with the General Corporation Law of the State of Delaware, hereby adopts the following Certificate of incorporation for such corporation: 1. Name. The name of the corporation is Tesoro Gas Resources Company, Inc. (the "Corporation"). 2. Duration. The Corporation is to have perpetual existence. 3. Purpose. The Purpose for which the Corporation is organized is to engage in any and all lawful acts and activities for which corporations may be organized under the General Corporation Law of the State of Delaware. 4. Authorized Shares. The aggregate number of shares that the Corporation shall have authority to issue is 1,000 with the par value of $1.00 per share. All of such shares shall be designated "Common Stock." 5. Registered Office, Agent. The registered office of the Corporation is to be located at 1209 Orange Street, Wilmington, New Castle County, Delaware, 19801. The name of its registered agent at such address is The Corporation Trust Company. 6. Incorporator. The name and address of the incorporator is as follows: Louis R. Thomason 3230 C Street Anchorage, Alaska 99519-6272 7. Initial Directors. The powers of the incorporator shall terminate upon the filing of this certificate and the following persons shall serve as the sole director of the corporation until their successors are duly elected and qualified: Louis R. Thomason Mark S. Necessary 3230 C Street P.O. Box 3369 Anchorage, Alaska 99519-6272 Kenai, Alaska 99611 8. Director Liability. To the fullest extent permitted by the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended, a director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. 9. Indemnification. The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (whether or not by or in the right of the Corporation) by reason of the fact that he is or was a director, officer, employee, or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), liability, loss, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding to the fullest extent permitted by either (i) any applicable law in effect on the date of incorporation of the Corporation, or (ii) any law which becomes effective during the existence of the Corporation and which is applicable to it. 10. By-Laws. In furtherance of 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. 11. Election of Directors. Elections of directors need not be by written ballot unless the by-laws of the Corporation shall so provide. I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the Slate of Delaware, hereby declaring and certifying that the facts herein stated are true, and accordingly have hereunto set my hand this 19th day of April, 1994. /s/ Louis R. Thompson ---------------------------------- Louis R. Thompson EX-3.28 23 h92783ex3-28.txt BYLAWS OF TESORO GAS RESOURCES COMPANY INC EXHIBIT 3.28 Adopted: April 19, 1994 BY-LAWS OF TESORO GAS RESOURCES COMPANY, INC. BY-LAWS OF TESORO GAS RESOURCES COMPANY, INC. ARTICLE I Meetings of Stockholders Section 1.1 Annual Meetings. The Annual meeting of the stockholders for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held on such date and at such time and place within or without the state of Delaware as may be designated by the Board of Directors. Section 1.2 Special Meetings. Special meetings of the stockholders for any proper purpose or purposes may be called at any time by the Board of Directors, the Chairman of the Board of Directors, the President or any vice president, to be held on such date and at such time and place within or without the state of Delaware as the Board of Directors, the Chairman of the Board of Directors, the President or a vice president, whichever has called the meeting, shall direct. A special meeting of the stockholders shall be called by the Chairman of the Board of Directors, the President or any vice president whenever stockholders holding shares representing a majority of the votes of the shares of the Corporation then issued and outstanding and entitled to vote on matters to be submitted to stockholders of the Corporation shall make application therefor in writing. Any such written request shall state a proper purpose or purposes of the meeting and shall be delivered to the Chairman of the Board of Directors, the President or any vice president. Section 1.3 Notice of Meeting. Written notice, signed by the Chairman of the Board of Directors, the President, any vice president, the Secretary or an assistant secretary, of every meeting of stockholders (other than an adjourned meeting unless otherwise required by statute) stating the purpose or purposes for which the meeting is called, and the date and time when, and the place where, it is to be held shall be either delivered personally or mailed to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the meeting, except as otherwise provided by statute. If mailed, such notice shall be directed to a stockholder at his address as it shall appear on the stock books of the Corporation, unless he shall have filed with the Secretary a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in such request, and shall be given when deposited in the United States mail, postage prepaid. - 1 - Section 1.4 Quorum. The presence at any meeting, in person or by proxy, of the holders of record of shares representing a majority of the votes of the shares then issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business, except where otherwise provided by statute. Section 1.5 Adjournments. In the absence of a quorum, a majority of the votes of the stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to vote is present in person or by proxy, any officer entitled to preside at or act as secretary of such meeting may adjourn the meeting from time to time until a quorum shall be present. Section 1.6 Voting. Directors shall be chosen by a plurality of the votes cast at the election, and except where otherwise provided by statute, or the Certificate of Incorporation, all other questions shall be determined by a majority of the votes cast on such question. Section 1.7 Proxies. Any stockholders entitled to vote may vote by proxy, provided that the instrument authorizing such proxy to act shall have been executed in writing (which shall include telegraphing or cabling) by the stockholder himself or by his duly authorized attorney. Section 1.8 Judges of Election. The Board of Directors may appoint judges of election to serve at any election of directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the judges so appointed shall fail to attend, or refuse or be unable to serve, then such appointment may be made by the presiding officers at the meeting. ARTICLE II Board of Directors Section 2.1 Number. The number of directors which shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors but shall not be less than two. Section 2.2 Election and Term of Office. Directors shall be elected at the annual meeting of the stockholders. Each director (whether elected at an annual meeting or to fill a vacancy or otherwise) shall continue in office until his successor shall have been elected or until his earlier death, resignation, removal or other incapacity in the manner hereinafter provided. - 2 - Section 2.3 Vacancies and Additional Directorships. If any vacancy shall occur among the directors by reason of death, resignation, removal or other incapacity or as the result of an increase in the number of directorships, the directors then in office shall continue to act and may fill any such vacancy by a vote of the directors then in office, though less than a quorum. Section 2.4 Meetings. A meeting of the Board of Directors shall be held for organization, for the election of officers and for the transaction of such other business as may properly come before the meeting, within thirty days after each annual election of directors. The Board of Directors by resolution may provide for the holding of regular meetings and may fix the times and places at which such meetings shall be held. Notice of regular meetings shall not be required to be given, provided that whenever the time or place of regular meetings shall be fixed or changed, notice of such action shall be mailed promptly to each director who shall not have been present at the meeting at which such action was taken, addressed to him at his residence or usual place of business. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, the President, any vice president or any two directors. Except as otherwise required by statute, notice of each special meeting shall be mailed to each director, addressed to him at his residence or usual place of business, or shall be sent to him at such place by telegram, radio or cable, or telephone or delivered to him personally, not later than two days before the day on which the meeting is to be held. Such notice shall state the time and place of such meeting, but unless otherwise required by statute, the Certificate of Incorporation of the Corporation or these By-laws need not state the purposes thereof. Notice of any meeting need not be given to any director who shall attend such meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Section 2.5 Quorum. One-third of the total number of members of the Board of Directors as constituted from time to time, but not less than two, shall be necessary and sufficient to constitute a quorum for the transaction of business. In the absence of a quorum, a majority of those present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present and the meeting may be held as adjourned without further notice or waiver. A majority of those present at any meeting at which a quorum is present may decide any question brought before such meeting, except as otherwise provided by law, the Certificate of Incorporation or these By-laws. Section 2.6 Resignation of Directors. Any director may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of - 3 - the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 2.7 Removal of Directors. At any special meeting of the stockholders, duly called for the purpose of removing a director or directors as provided in these By-laws, any director or directors may, by the affirmative vote of the holders of shares representing a majority of the votes of all the shares of stock outstanding and entitled to vote for the election of directors, be removed from office, either with or without cause. At such meeting a successor or successors may be elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled by the directors as provided in Section 2.3. Section 2.8 Compensation of Directors. Directors may receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Section 2.9 Indemnification. The Corporation shall indemnify to the full extent authorized or permitted by the laws of the state of Delaware any person who is made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Corporation or serves or served any other enterprise at the request of the Corporation. ARTICLE III Committees of the Board Section 3.1 Designation, Power, Alternate Members and Term of Office. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Any such committee, to the extent provided in such resolution, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, - 4 - recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-laws of the Corporation or, unless the resolution of the Board of Directors establishing any such committee shall expressly so provide or these By-laws shall expressly so provide, declaring a dividend on the Corporation's capital stock or authorizing the issuance of the Corporation's capital stock. The Board may designate one or more directors as alternate members of any committee who, in the order specified by the Board, may replace any absent or disqualified member at any meeting of the committee. If at a meeting of any committee one or more of the members thereof should be absent or disqualified, and if either the Board of Directors has not so designated any alternate member or members, or the number of absent or disqualified members exceeds the number of alternate members who are present at such meeting, then the member or members of such committee (including alternates) present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another director to act at the meeting in the place of any such absent or disqualified member. The term of office of the members of each committee shall be as fixed from time to time by the Board, subject to these By-laws; provided, however, that any committee member who ceases to be a member of the Board shall ipso facto cease to be a committee member. Each committee shall appoint a secretary, who may be the Secretary of the Corporation or an assistant secretary thereof. Section 3.2 Meetings, Notices and Records. Each committee may provide for the holding of regular meetings, with or without notice, and may fix the time and place at which such meetings shall be held. Special meetings of each committee shall be held upon call by or at the direction of its chairman or, if there be no chairman, by or at the direction of any two of its members, at the time and place specified in the respective notices or waivers of notice thereof. Notice of each special meeting of a committee shall be mailed to each member of such committee, addressed to him at his residence or usual place of business, at least two days before the day on which the meeting is to be held, or shall be sent by telegram, radio or cable addressed to him at such place, or telephoned or delivered to him personally, not later than the day before the day on which the meeting is to be held. Notice of any meeting of a committee need not be given to any member thereof who shall attend the meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Notice of any adjourned meeting need not be given. Each committee shall keep a record of its proceedings. Section 3.3 Quorum and Manner of Acting. At each meeting of any committee the presence of one-third but not less than two of its members then in office shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which the quorum is present shall be the act of such committee; in the absence of a quorum, a majority of the members present at the time and place of any meeting may adjourn - 5 - the meeting from time to time until a quorum shall be present. Subject to the foregoing and other provisions of these By-laws and except as otherwise determined by the Board of Directors, each committee may make rules for the conduct of its business. Any determination made in writing and signed by all the members of such committee shall be as effective as if made by such committee at a meeting. Section 3.4 Resignations. Any member of a committee may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 3.5 Removal. Any member of any committee may be removed at any time by the Board of Directors with or without cause. Section 3.6 Vacancies. If any vacancy shall occur in any committee by reason of death, resignation, disqualification, removal or otherwise, the remaining members of such committee, though less than a quorum, shall continue to act until such vacancy is filled by a resolution passed by a majority of the whole Board of Directors. Section 3.7 Compensation. Committee members shall receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any committee member from serving the Corporation in any other capacity and receiving compensation therefor. ARTICLE IV Officers Section 4.1 Officers. The officers of the Corporation shall be a Chairman of the Board of Directors, a President, one or more Vice Presidents (which may include Group Vice Presidents, Senior Vice Presidents and other categories of Vice Presidents), a Secretary, a Treasurer, and such other officers as may be appointed in accordance with the provisions of Section 4.3. Section 4.2 Election, Term of Office and Qualifications. Each officer (except such officers as may be appointed in accordance with the provisions of Section 4.3) shall be elected by the Board of Directors. Each such officer (whether elected at the - 6 - first meeting of the Board of Directors after the annual meeting of stockholders or to fill a vacancy or otherwise) shall hold his office until the first meeting of the Board of Directors after the next annual meeting of stockholders and until his successor shall have been elected, or until his death, or until he shall have resigned in the manner provided in Section 4.4 or shall have been removed in the manner provided in Section 4.5. The Chairman of the Board of Directors must be a member of the Board of Directors. Section 4.3 Subordinate Officers and Agents. The Board of Directors from time to time may appoint other officers or agents (including one or more assistant vice presidents, one or more assistant secretaries and one or more assistant treasurers), to hold office for such period, have such authority and perform such duties as are provided in these By-laws or as may be provided in the resolutions appointing them. The Board of Directors may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective terms of office, authorities and duties. Section 4.4 Resignations. Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 4.5 Removal. Any officer specifically designated in Section 4.1 may be removed at any time, either with or without cause, at any meeting of the Board of Directors by the vote of a majority of all the directors then in office. Any officer or agent appointed in accordance with the provisions of Section 4.3 may be removed, either with or without cause, by the Board of Directors at any meeting, by the vote of a majority of the directors present at such meeting, or by any superior officer or agent upon whom such power of removal shall have been conferred by the Board of Directors. Section 4.6 Vacancies. A vacancy in any office by reason of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed by these By-laws for regular election or appointment to such office. Section 4.7 The Chairman of the Board of Directors. The Chairman of the Board of Directors shall be the chief executive officer of the Corporation. Subject to the direction of the Board of Directors, he shall have general charge of the business affairs and property of the Corporation. He shall see that all orders and resolutions of the Board of Directors are carried into effect. If present, he shall preside at all meetings of stockholders. He may sign, with any other officer thereunto duly - 7 - authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. From time to time he shall report to the Board of Directors all matters within his knowledge which the interests of the Corporation may require to be brought to their attention. He shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors. Section 4.8 The President. The President shall be the chief operating officer of the Corporation. Subject to the direction of the Chairman of the Board of Directors, he shall have general supervision over the officers and agents of the Corporation. At the request of the Board of Directors or the Chairman of the Board of Directors, the President shall perform all the duties of the Chairman of the Board of Directors and, when so acting, shall have all the powers of and be subject to all restrictions upon the Chairman of the Board of Directors (except that the President need not be a member of the Board of Directors). He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. He shall also perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors or the Chairman of the Board of Directors. Section 4.9 The Vice Presidents. In the absence or disability of the President, any vice president designated by the President (or in the absence of such designation, the Vice President designated by the Board of Directors or the Chairman of the Board of Directors) shall perform all the duties of the President and, when so acting, shall have all the powers of and be subject to all restrictions upon the President. Any vice president may also sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation deeds, mortgages, bonds and other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. Each vice president shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.10 The Secretary. The Secretary shall - 8 - (a) Record all the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book or books to be kept for that purpose; (b) Cause all notices to be duly given in accordance with the provisions of these By-laws and as required by statute; (c) Whenever any committee shall be appointed in pursuance of a resolution of the Board of Directors, furnish the chairman of such committee with a copy of such resolution; (d) Be custodian of the records and of the seal of the Corporation, and cause such seal to be affixed to all certificates representing stock of the Corporation prior to the issuance thereof and to all instruments the execution of which on behalf of the Corporation under its seal shall have been duly authorized; (e) See that the lists, books, reports, statements, certificates and other documents and records required by statute are properly kept and filed; (f) Have charge of the stock and transfer books of the Corporation, and exhibit such stock book at all reasonable times to such persons as are entitled by statute to have access thereto; (g) Sign (unless the Treasurer or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Secretary and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.11 Assistant Secretaries. At the request of the Secretary or in his absence or disability, the Assistant Secretary designated by him (or in the absence of such designation, the Assistant Secretary designated by the Board of Directors, the Chairman of the Board of Directors or the President) shall perform all the duties of the Secretary and, when so acting, shall have all the powers of and be subject to all restrictions upon the Secretary. The assistant secretaries shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary. Section 4.12 The Treasurer. The Treasurer shall (a) Have charge of and supervision over and be responsible for the funds, securities, receipts and disbursements of the Corporation; - 9 - (b) Cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such banks or trust companies or with such bankers or other depositaries as shall be selected in accordance with Section 5.3 of these By-laws or to be otherwise dealt with in such manner as the Board of Directors may direct; (c) Cause the funds of the Corporation to be disbursed by checks or drafts upon the authorized depositaries of the Corporation, and cause to be taken and preserved proper vouchers for all moneys disbursed; (d) Render to the Board of Directors, the Chairman of the Board of Directors, or the President, whenever requested, a statement of the financial condition of the Corporation and of all his transactions as Treasurer; (e) Cause to be kept at the Corporation's principal office correct books of account of all its business and transactions and such duplicate books of account as he shall determine and upon application cause such books or duplicates thereof to be exhibited to any director; (f) Be empowered, from time to time, to require from the officers or agents of the Corporation reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation; (g) Sign (unless the Secretary or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Treasurer and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.13 Assistant Treasurers. At the request of the Treasurer or in his absence or disability, the Assistant Treasurer designated by him (or in the absence of such designation, the Assistant Treasurer designated by the Board of Directors, the Chairman of the Board of Directors, or the President) shall perform all the duties of the Treasurer and, when so acting, shall have all the powers of and be subject to all restrictions upon the Treasurer. The Assistant Treasurers shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Treasurer. Section 4.14 Salaries. The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors, except that the Board of Directors may delegate to any person the power to fix the salaries or other compensation of any - 10 - officers or agents appointed in accordance with the provisions of Section 4.3. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. Section 4.15 Surety Bonds. If the Board of Directors shall so require, any officer or agent of the Corporation shall execute to the Corporation a bond in such sum and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful discharge of his duties, including responsibilities for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands. ARTICLE V Execution of Instruments and Deposit of Corporate Funds Section 5.1 Execution of Instruments Generally. The Chairman of the Board of Directors, the President, any vice president, the Secretary or the Treasurer, subject to the approval of the Board of Directors, may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. The Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation, and such authorization may be general or confined to specific instances. Section 5.2 Borrowing. No loans or advances shall be obtained or contracted for, by or on behalf of the Corporation and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors. Such authorization may be general or confined to specific instances. Any officer or agent of the Corporation thereunto so authorized may obtain loans and advances for the Corporation, and for such loans and advances may make, execute and deliver promissory notes, bonds or other evidences of indebtedness of the Corporation. Any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as security for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation, any and all stocks, bonds, other securities and other personal property at any time held by the Corporation, and to that end may endorse, assign and deliver the same and do every act and thing necessary or proper in connection therewith. Section 5.3 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors may select, or as may be selected by any officer or officers or agent or agents authorized so to do by - 11 - the Board of Directors. Endorsements for deposit to the credit of the Corporation in any of its duly authorized depositaries shall be made in such manner as the Board of Directors from time to time may determine. Section 5.4 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers or agent or agents of the Corporation, and in such manner, as from time to time shall be determined by the Board of Directors. Section 5.5 Proxies. Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the Chairman of the Board of Directors, the President or a vice president or by any other person or persons thereunto authorized by the Board of Directors. ARTICLE VI Record Dates Section 6.1. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall be not more than sixty nor less than ten days before the date of such meeting, nor more that sixty days prior to any other action. Only those stockholders of record on the date so fixed shall be entitled to any of the foregoing rights, notwithstanding the transfer of any such stock on the books of the Corporation after any such record date fixed by the Board of Directors. ARTICLE VII Corporate Seal Section 7.1. The corporate seal shall be circular in form and shall bear the name of the Corporation and words and figures denoting its organization under the laws of the state of Delaware and the year thereof and otherwise shall be in such form as shall be approved from time to time by the Board of Directors. - 12 - ARTICLE VIII Fiscal Year Section 8.1. The fiscal year of the Corporation shall begin on the first day of January in each year and shall end on the 31st day of December in the same year. ARTICLE IX Amendments Section 9.1. All By-laws of the Corporation may be amended, altered or repealed, and new By-laws may be made, by the affirmative vote of the holders of record of shares representing a majority of the votes of the outstanding shares of stock of the Corporation entitled to vote cast at any annual or special meeting, or by the affirmative vote of a majority of the Directors cast at any regular or special meeting at which a quorum is present. - 13 - EX-3.29 24 h92783ex3-29.txt ARTICLES OF INCORPORATION OF TESORO HAWAII CORP EXHIBIT 3.29 ARTICLES OF AMENDMENT TO CHANGE CORPORATE NAME (Section 415-61, Hawaii Revised Statutes) The undersigned, duly authorized officers of the corporation submitting these Articles of Amendment certify as follows: 1. The present name of the corporation is: BHP Petroleum Americas Refining Inc. 2. The name of the corporation is changed to: Tesoro Hawaii Corporation 3. Total number of shares outstanding is: 500 4. If adoption of the amendment to change the corporate name was at a meeting, complete the following: The meeting of the shareholders was held on . --------------------------- Class/Series Number Voting for Amendment Number Voting Against Amendment ---------- ---------- ---------- 5. If adoption of the amendment to change the corporate name was by unanimous written consent of the shareholders, complete the following: By written consent dated May 29, 1998, the shareholders unanimously adopted the amendment to change the corporate name. We certify under the penalties of Section 415-136, Hawaii Revised Statutes, that we have read the above statements, and that the same are true and correct. Witness our hands this 29th day of May, 1998. James C. Reed, Jr. Charles L. Magee Executive Vice President Vice President, General Counsel and Assistant Secretary /s/ James C. Reed, Jr. /s/ Charles L. Magee - ---------------------------------- ------------------------------ ARTICLES OF AMENDMENT TO CHANGE CORPORATE NAME (Section 415-61, Hawaii Revised Statutes) The undersigned, duly authorized officers of the corporation submitting these Articles of Amendment certify as follows: 1. The present name of the corporation is: Hawaiian Independent Refinery, Inc. 2. The name of the corporation is changed to: BHP Petroleum Americas Refining Inc. 3. Total number of shares outstanding is: 500 common shares 4. If adoption of the amendment to change the corporate name was at a meeting, complete the following: The meeting of the shareholders was held on N/A . --------------------------- Class/Series Number Voting for Amendment Number Voting Against Amendment ---------- ---------- ---------- 5. If adoption of the amendment to change the corporate name was by unanimous written consent of the shareholders, complete the following: By written consent dated January 4, 1993, the shareholders unanimously adopted the amendment to change the corporate name. We certify under the penalties of Section 415-136, Hawaii Revised Statutes, that we have read the above statements, and that the same are true and correct. Witness our hands this 8 day of February, 1993. Thomas E. Pyle Terry N. Yoshinaga Vice President-Finance Secretary and Treasurer /s/ Thomas E. Pyle /s/ Terry Yoshinaga - --------------------------------- ----------------------------- IN THE DEPARTMENT OF REGULATORY AGENCIES STATE OF HAWAII IN THE MATTER OF THE INCORPORATION ) ) ) ) HAWAIIAN INDEPENDENT REFINERY, INC. )As Amended To July 11, 1979 ARTICLES OF INCORPORATION The undersigned parties intending to organize a corporation under the laws of the State of Hawaii relating to corporations and to obtain the rights and benefits conferred by law upon corporations, hereby adopt these Articles of Incorporation, the terms whereof it is agreed shall be equally binding upon them and upon all others who from time to time become members of the corporation and hold stock therein. ARTICLE I The name of the corporation is: HAWAIIAN INDEPENDENT REFINERY, INC. ARTICLE II The principal office and place of business of the corporation shall be at 1060 Bishop Street, Honolulu, Hawaii 96813. ARTICLE III The purposes for which this corporation is organized are the following: (a) To acquire rights to establish and operate or cause to be established or operated a crude oil refinery to be located in the Pacific area in or outside of a foreign-trade zone; to construct, finance and operate or cause to be constructed, financed and operated a crude oil refinery, pipelines, terminal storage facilities, tank farms, peripheral equipment and installations of all types; to arrange for crude oil supplies and for the sale of refinery products directly or through distributors or both; and to obtain Federal and State permits, licenses and quotas and to perform all acts and services necessary for these objectives; (b) To produce, manufacture, refine, buy, sell, exchange, deal, store and transport, natural resources and energy therefrom including crude oil and natural gas and all their products, solar energy, electrical energy and all other forms of energy and all materials used in such business and transact all other business collateral thereto; (c) To buy or otherwise acquire, own, use, improve, develop, subdivide, mortgage, lease or take on lease, sell, convey and in any and every other manner deal in and with or dispose of real estate, buildings, other improvements, easements and appurtenances to real estate, and personal property and minerals, of every kind or any estate or interest therein of any tenure or description, to the fullest extent permitted by law; (d) To carry on and conduct a general contracting, engineering and subcontracting business including the designing, planning, constructing of buildings and other structures, public improvements, roadways and highways; to engage in building, fabrication and construction work of all kinds, and to manufacture and furnish the building materials and supplies connected therewith; 2 (e) To buy, acquire, deal in and sell securities of every kind whatsoever, including its-own capital stock and the stocks of other corporations, and to buy, sell, distribute, deal in, produce, manufacture, process and prepare any and all kinds of goods, products, commodities, wares and merchandise; (f) To promote, cause to be organized, finance and aid by loan, subsidy, guaranty or otherwise, any corporation, association, partnership, syndicate, entity, person, or governmental, municipal or public authority, domestic or foreign located in or organized under the laws of any authority in any part of the world, any security of which is held directly or indirectly by or for the corporation, or in the business, financing or welfare of which the corporation shall have any interest; and in connection therewith to guarantee or become surety for the performance of any undertaking or obligation of any of the foregoing, and to guarantee by endorsement or otherwise the payment of the principal or interest or dividends on, any security, and generally to do any act or things designed to protect, preserve, improve or enhance the value of any such security; (g) To guarantee the performance, or to undertake and agree to perform any covenant, condition, undertaking or agreement contained in any mortgage, deed, deed of trust, lease, guaranty, or other obligation to which it may or may not be a party; to guarantee any dividends or bonds, or contracts, or other obligations, and to act as surety on any bond; (h) To undertake and carry on any business, investment, transaction, venture or enterprise which may be lawfully undertaken or carried on by a corporation and any business whatsoever which may seem to the corporation convenient or suitable to be undertaken whereby directly or indirectly to promote any of its general purposes or interests or render more valuable or profitable any of its property, rights, interests, or enter- 3 prises; to acquire by purchase, lease or otherwise the property, rights, franchises, assets, business and goodwill of any person, firm association, partnership or corporation engaged in or authorized to conduct any business or undertaking which may be carried on by this corporation or possessed of any property suitable or useful for any of its own purposes, and carry on the same, and undertake all or any part of the obligations and liabilities in connection therewith, on such terms and conditions and for such consideration as may be agreed upon, and to pay for the same either all or partly in cash, stocks, bonds, debentures, or other forms of assets and securities, either of this corporation or otherwise; and to effect any such acquisition or carry on any business authorized by these Articles of Incorporation, either by directly engaging therein or indirectly by acquiring the shares, stocks, or other securities of such other business or entity, and holding and voting the same and otherwise exercising and enjoying the rights and advantages incident thereto. 2. And in furtherance of said purposes, the corporation shall also have the following powers: (a) To have succession by its corporate name in perpetuity; to sue and be sued in any court; to make and use a common seal and to alter the same at its pleasure; to hold, purchase and convey such property as the purposes of the corporation shall require, without limit as to amount, and to mortgage the same to secure any debt of the corporation; to appoint such subordinate officers or agents as the business of the corporation shall require; to make and adopt, from time to time amend or repeal bylaws not inconsistent with any existing law for the management of its properties, the election and removal of its officers and regulation of its affairs and the transfer of its stock and for all other purposes permitted by law; 4 (b) To borrow money or otherwise incur indebtedness with or without security and to secure any indebtedness by deed of trust, mortgage, pledge, hypothecation or other liens upon all or any part of the real or personal property of the corporation and to execute bonds, promissory notes, bills of exchange, debentures or other obligations or evidence of indebtedness of all kinds, whether secured or unsecured, and to owe debts in an amount which may at any time be in excess of its capital stock; (c) To purchase on commission or otherwise subscribe for, bold, own, sell on commission or otherwise, acquire or dispose of and generally to deal in stocks, scrips, bonds, notes, debentures, commercial papers, obligations and securities, including, so far as, permitted by law, its own issued share of capital stock or other securities, and also any other securities, or evidences of indebtedness whatsoever, or any interest therein, and while the owner of the same to exercise all the rights, powers and privileges of ownership; (d) To draw, make, accept, endorse, assign, discount, execute and issue all such bills of exchange, bills of lading, promissory notes, warrants and other instruments to be assignable, negotiable or transferable by delivery or to order, or otherwise, as the business of the corporation shall require; (e) To enter into partnership contracts (as a general partner or as a limited partner) with any other person or persons (natural or corporate), to enter into agreements of joint venture with any such natural or corporate person or persons, and to enter into and perform contracts, undertakings and obligations of every kind and character to the same extent as if this corporation were a natural person; (f) To promote, assist, subscribe or contribute to any association, organization, society, company, institution or object, charitable or otherwise, calculated to benefit the corpo- 5 ration or any persons in its employ or having dealings with the corporation or deemed to before the common public welfare; (g) To become a party to and effect a merger or consolidation with another corporation or other corporations and to enter into agreements and relationships not in contravention of law with any persons, firms or corporations and to enter into agreements and relationships not in contravention of law with any persons, firms or corporations; (h) To do all or any of the above things in any part of the world, directly or indirectly, and as principal, agent, factor, contractor or otherwise, and by or through trustees, agents or otherwise, and either alone or in conjunction with others. 3. The enumeration therein of the objects and purposes of this corporation shall be constructed as powers as well as objects and purposes and shall be liberally construed both as to purposes and powers and shall not be deemed to exclude by inference any powers, objects or purposes which this corporation is empowered to exercise, whether expressly by force of the laws of the State of Hawaii now or hereafter in effect, or impliedly by the reasonable construction of said laws. ARTICLE IV 1. The authorized capital stock of the corporation shall be five hundred (500) shares of common stock of no par value. The corporation shall have the privilege of subsequent extension of its capital from time to time in the manner provided by law by the issuance of either common stock or preferred stock or both to an amount not exceeding one million shares (1,000,000). 2. The Board of Directors is empowered to authorize and issue additional shares of stock and to determine the con- 6 sideration and the terms and conditions upon which such shares with or without par value, 'may be issued, and what portion, if any, is paid-in surplus, subject to the applicable provisions of these Articles and of law. 3. The corporation shall have power from time to time to create additional classes of stock with such preferences, voting powers, restrictions and qualifications thereof as shall be fixed in the resolution authorizing the issuance thereof in accordance with law. The Board of Directors is authorized to determine the terms and conditions upon which and the persons to whom authorized and unissued shares may be issued and sold. 4. No holder of the shares of stock of any class shall have any preemptive or preferential right of subscription for or to purchase any shares of any class of stock or other securities of the corporation whether now or hereafter authorized, other than such right or rights, if any, as the Board of Directors, in its discretion, from time to time may determine. ARTICLE V 1. The officers of the corporation shall be a president and chief executive officer, one or more vice presidents, a secretary and a treasurer, who shall be appointed by the Board of Directors as prescribed by the bylaws. There may also be a chairman of the board, a controller, a general counsel and such other officers and assistant officers as may be deemed desirable. The officers need not be stockholders, except as may otherwise be provided in the bylaws of the corporation. The same person may hold at the same time two or more offices and also be a director. 2. The Board of Directors shall be of not less than three members, who need not be stockholders, except as may otherwise be provided by the bylaws. The directors shall be elected or appointed and any vacancies at any time occurring in the Board 7 of Directors shall be filled by the stockholders or the Board of Directors or any thereof in such manner and for such terms as the bylaws may prescribe. 3. The first officers and directors of HAWAIIAN INDEPENDENT REFINERY, INC. are: JAMES F. GARY President and Chief Executive Officer and Director 1060 Bishop Street Honolulu, Hawaii JEROME A. REHBERG Executive Vice President 1060 Bishop Street Honolulu, Hawaii ALAN S. HOLZMAN Senior Vice President - Finance 1060 Bishop Street Honolulu, Hawaii WILLIAM F. MURDY Senior Vice President - Operations 1060 Bishop Street Honolulu, Hawaii LEWIS N. LEVY Vice President - Refinery Operations 1060 Bishop Street Honolulu, Hawaii LOWELL E. MEE Vice President and Treasurer 1060 Bishop Street Honolulu, Hawaii MARIO A. ROBERTI Vice President and General Counsel 1060 bishop Street Honolulu, Hawaii MICHAEL L. LEVINE Controller 1060 Bishop Street Honolulu, Hawaii DAVID C. VAUGHAN Secretary 1060 Bishop Street Honolulu, Hawaii WALTER CHUCK Director Chuck & Pai 1022 Bethel St., Suite 202 Honolulu, Hawaii 96813 HENRY B. CLARK, JR. Director Castle & Cooke, Inc. P.O. Box 2990 Honolulu, Hawaii 96802 GILBERT E. COX Director Alexander & Baldwin, Inc. P.O. Box 3440 Honolulu, Hawaii 96801 8 HARRY E. HOWELL Director DeWitt, Pepper & Howell 1010 Vermont Ave., Suite 917 Washington, D.C. 20005 SHERIDAN C. F. ING Director Sheridan Ing Corporation 130 Merchant St., Suite 1908 Honolulu, Hawaii 96813 MAX R. LENTS Director Miller & Lents, Ltd. 2318 Bank of the Southwest Bldg. Houston, Texas 77002 FRED B. SMALES Cyprus Hawaiian Cement Corp. Director 700 Bishop St., Suite 610 Honolulu, Hawaii 96813 CHARLES M. STOCKHOLM Director 100 Alamos Road Portola Valley, California 94025 JAMES C. STOPFORD Director 4999 Kahala Avenue, #425 Honolulu, Hawaii 96815 4. All the powers and authority of the corporation shall be vested in and may be exercised by the Board of Directors except as otherwise provided by law, these Articles of Incorporation or the bylaws of the corporation; and in furtherance and not in limitation of said general powers, the Board of Directors shall have powers to acquire and dispose of property; fix the salaries or compensation of any or all of its officers, agents and employees and in its discretion require the security of any of them for the faithful performance of any of their duties; declare dividends in accordance with law when it shall deem it expedient; make rules and regulations not inconsistent with law or these Articles of Incorporation or the bylaws for the transaction of business; incur indebtedness as may be deemed necessary, which indebtedness may exceed the amount of the corporation's capital stock; create such committees (including an executive committee) and designate as members of such committees such persons as it shall determine, and confer upon such committees 9 such powers and authority as may by resolution be set forth for the purpose of carrying on or exercising any of the powers of the corporation, create and set aside reserve funds for any purpose, and invest any funds of the corporation in such securities or other property as to it may seem proper; remove or suspend any officer; and, generally, to do any and every lawful act necessary or proper to carry into effect the powers, purposes and objects of the corporation. 10 ARTICLE VI Service of process against the corporation may be made upon any of the officers of the corporation. ARTICLE VII All of the property of the corporation shall be liable for its debts, but no holder of or subscriber for shares of the capital stock of the corporation shall be individually liable beyond the amount, if any, which may be due upon the shares of capital stock held or subscribed for by him. ARTICLE VIII No contract or other transaction between the corporation and any other person, firm or corporation, and no act of the corporation, shall in any way be affected or invalidated by the fact that any of the directors or the corporation are parties to such contract or transaction or act, or are pecuniarily or otherwise interested in the same, or are directors or officers or members of any such other firm or corporation, provided that the interest of such directors shall be disclosed or shall be been known to the Board of Directors authorizing or approving the same, or to a majority thereof. Any director of the corporation who is pecuniarily or otherwise interested in, or is a director or officer or member of such other firm or corporation, may be counted in determining a quorum of any meeting of the Board of Directors which shall authorize or approve any such contract, transaction or act; and may vote thereon with like force and effect as if he were in no way interested therein, provided his interest has been disclosed or is known as hereinbefore set forth. No director or officer of the corporation being so interested in any such contract, transaction or act of the corporation which shall be approved by the Board of Directors, shall be 11 liable or accountable to the corporation or to any stockholder thereof for any loss incurred by the corporation pursuant to or by reason of such contact, transaction or act, or for any gain received by any other such party pursuant thereto or by reason thereof. IN WITNESS WHEREOF, the parties to these Articles of Incorporation have hereunto set their hands this 1st day of May, 1979. /s/ James F. Gary ----------------------------- JAMES F. GARY /s/ Lowell E. Mee ----------------------------- LOWELL E. MEE /s/ David C. Vaughan ----------------------------- DAVID C. VAUGHAN STATE OF HAWAII ) ) SS: CITY AND COUNTY OF HONOLULU ) On this 1st day of May, 1979, personally appeared before me JAMES F. GARY, LOWELL E. MEE and DAVID C. VAUGHAN, to me known to be the persons described in and who executed the foregoing instrument and who severally acknowledged that they executed the same as their free act and deed. /s/ Brenda J. Figueroa ------------------------------------ Notary Public, First Judicial Circuit, State of Hawaii My commission expires: 12-1-79 12 EX-3.30 25 h92783ex3-30.txt BYLAWS OF TESORO HAWAII CORPORATION, AS AMENDED EXHIBIT 3.30 BYLAWS OF HAWAIIAN INDEPENDENT REFINERY, INC. ARTICLE I Stockholders Section 1. Annual Meeting. The annual meeting of the Corporation shall be held within five months following the close of each fiscal year on the day and at the place the president directs. If the president does not designate such day and place by the end of the third month following the close of the fiscal year, and unless the Board of Directors designates some other date, the annual meeting for that year shall be held in the Corporation's principal office on the last Wednesday in the fifth month following the close of the fiscal year. If that day is a legal holiday, the meeting shall be held on the next succeeding day not a legal holiday. Section 2. Special Meetings. Special meetings of the stockholders may be held at any time upon the call of the president or the Board of Directors and shall be called by the president upon the written request of stockholders owning 25% or more of the shares entitled to vote at such meeting. Such request shall state the purposes of the proposed meeting. Business transacted at any special meeting of the stockholders shall be limited to the purposes stated in the notice thereof. Section 3. Notice of Meetings of Stockholders. A written or printed notice of every meeting of stockholders, stating whether it is an annual or a special meeting, the place, day and hour thereof and the purposes therefor shall be given by the secretary not less than ten days before the date of the meeting. Such notice shall be given to each stockholder entitled to vote at the meeting by mailing it, postage prepaid, addressed to such stockholder at his address as it appears on the transfer books of the corporation. The notice shall be deemed given upon deposit in the United States mail. If notice is given pursuant to the provisions of this section, the failure of any stockholder to receive actual notice of meeting shall in no way invalidate the meeting or any proceedings thereat. Section 4. Notice Unnecessary. Any stockholder may in writing waive notice of a meeting before or after the meeting. The attendance of any stockholder at a meeting, in person or by proxy, shall be deemed a waiver of notice of meeting unless at the opening of the meeting, he objects to the holding of the meeting due to improper notice. Section 5. Quorum. At any duly called meeting of stockholders, the owners of a majority of the fully paid non-assessable shares of stock issued, outstanding and entitled to vote, present in person or represented by proxy, shall constitute a quorum. When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which a different vote is required by express provision of the statutes or of the Articles of Incorporation, in which case the express provision shall govern and control the decision of the question. Section 6. Voting. Each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each fully paid non-assessable share of the capital stock having voting power held by such stockholder. At any meeting of the stockholders an executor, administrator, guardian or trustee may vote in person or by proxy the stock of the Corporation held by him in such capacity, whether or not such stock has been transferred to his name on the books of the Corporation. In 2 case the stock has not been so transferred to his name on the books of the company, he shall satisfy the secretary that he is the executor, administrator, guardian or trustee holding such stock in such capacity before being entitled to vote the stock. Where the stock is owned by two or more jointly, and is so registered on the Corporation's record of stock ownership, it may be voted by any one of the owners in person or by proxy, in the absence of protest by the others or others. Section 7. Adjournment. Any meeting of the stockholders, whether annual or special, may be adjourned from time to time, whether a quorum be present or not, without notice other than announcement at the meeting. At any such adjourned meeting at which a quorum is present or represented any business may be transacted which might have been transacted at the meeting as originally notified. ARTICLE II Board of Directors Section 1. Powers. The business and affairs of the Corporation shall be under the direction of its Board of Directors, which may exercise all powers of the Corporation and do all lawful acts and things as are not by statute or by the Articles of Incorporation or by these Bylaws required to be exercised or done by the stockholders. Section 2. Election. The number of directors of the Corporation which shall constitute the whole Board shall be fixed by the by the stockholders at each annual meeting, but in no event shall there be less than three directors. The directors shall be elected at the annual meeting of the stockholders, except as provided in Article IV, and each director elected shall hold office until his successor is elected or until his earlier resignation or removal. 3 Section 3. Organizational Meeting. An organizational meeting of the Board of Directors shall be held as soon as practicable after the annual meeting of the stockholders. At such meeting the Board of Directors shall appoint the officers of the Corporation for the ensuing year and transact any other business. Section 4. Regular Meetings. The Board of Directors may establish regular meetings to be held without notice on such days and at such places as it determines. Any business of the Corporation may be transacted at any such regular meeting. Section 5. Special Meetings. Special meetings of the Board of Directors may be called at any time by the chairman of the board, the president, any vice president, or any two directors. Section 6. Notice of Meetings of Directors. Except as provided in Section 4 of this Article II, the secretary shall give notice of each meeting of the Board of Directors orally or in writing at least one day before the meeting, stating the place, day and hour thereof. The failure to receive notice shall not invalidate any action at a meeting of the Board of Directors if a quorum is present. The presence of any director at a meeting shall constitute waiver of notice of the meeting. Any director may give written waiver of notice of a meeting before or after the meeting. Section 7. Quorum. At all meetings of the Board of Directors a majority of directors then in office shall constitute a quorum to transact business, and the majority vote of the directors constituting the quorum shall be the act of the Board of Directors, except as otherwise specifically provided by statute or by the Articles of Incorporation or by these Bylaws. If a quorum is not present at any meeting of the Board of Directors, the directors present may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present. 4 Section 8. Committees. The Board of Directors may, by resolution, designate one or more committees, each committee to consist of two or more of the directors of the Corporation. The Board may also designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee shall have and may exercise the powers provided in the resolution. Each committee shall keep regular minutes of its meetings and report its actions to the Board of Directors when required. Section 9. Compensation. Directors, and members of any committee of the Board of Directors, shall be entitled to reasonable compensation for their services as directors and committee members as fixed by resolution of the Board of Directors. A director receiving compensation under these provisions shall not be barred from serving the Corporation in any other capacity and receiving reasonable compensation for such other services. Directors and committee members shall also be entitled to reimbursement for reasonable expenses incurred in attending meetings. Section 10. Reliance on Experts. In addition to any rights or duties prescribed by statute, any director shall perform his duties as such in good faith, in a manner he reasonably believes to be in the best interest of the Corporation, and with such care as an ordinarily prudent person in a like position would use under similar circumstances. In performing his duties, a director shall be entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, in each case prepared or presented by counsel, public accountants, or other persons as to matters which the director reasonably believes to be within such person's professional or expert competence, but he shall not be considered to be 5 acting in good faith if he has knowledge concerning the matter in question that would cause such reliance to be unwarranted. A person who so performs his duties shall have no liability by reason of being or having been a director of the Corporation. ARTICLE III Officers Section 1. Appointment and Term. The officers of the Corporation shall be a president, one or more vice presidents, a secretary, a treasurer and such other officers as the Board of Directors may appoint. There may also be a chairman of the board, a controller and a general counsel as officers. Officers may be appointed at any meeting of the Board of Directors. Each officer shall hold office at the pleasure of the Board of Directors until its next organizational meeting or until a successor is duly appointed. No officer is required to be a director or a stockholder of the corporation. Any person may hold two or more offices except the president may not also be a vice president. Section 2. Voting of Stock. Unless the Board of Directors otherwise directs, the president or any vice president shall have full authority to vote the stock of other corporations owned by the Corporation at all meetings of such other corporations. Section 3. Chairman of the Board. If one is appointed, the chairman of the board shall preside at meetings of the Board of Directors at which he is present and shall have such other powers and duties as the Board of Directors assigns. Section 4. President. The president when present shall preside at all meetings of the stockholders, and in the absence of a chairman of the board at all meetings of the Board of Directors. Subject to the authority of the Board of Directors, he shall be the chief executive officer of the Corporation, 6 shall have general and active charge, control and supervision of all its business and affairs. He shall have such other powers and duties as are given to him elsewhere by law or in these Bylaws and as the Board of Directors assigns. Section 5. Vice President. The vice president (or vice presidents, in the order of priority designated by the Board of Directors) shall assume and perform the duties of the president in the absence or disability of the president or whenever the office of president is vacant. Each vice president shall have such other powers and duties as may be given to him by law or in these Bylaws and as the Board of Directors assigns. Section 6. Secretary. The secretary shall attend and keep the minutes of all meetings of the stockholders and the Board of Directors, in books provided for that purpose and perform like duties for the standing committees when required; have charge and custody of the records for the issue and transfer of shares of the capital stock of the corporation; give all notices as provided by these Bylaws or the Board of Directors; and have such other powers and duties as may be incidental to the office of secretary or elsewhere given to him by law or in these Bylaws and as the Board of Directors assigns. Section 7. Treasurer. The treasurer shall have the custody of the corporate securities, maintain banking arrangements, and provide insurance coverage, as required for the corporation. He shall render to the President and to the Board of Directors, such accountings as they require. He shall have such other powers and duties as the Board of Directors assigns. He shall have the functions of the controller if no person is appointed to that position. Section 8. Controller. The controller, if appointed, shall be the chief accounting officer of the Corporation and shall keep or supervise the keeping of all financial records and 7 accounts of the Corporation, disburse funds in payment of corporate debts, and render to the president and Board of Directors such statements and accountings as they require. He shall have such other powers and duties as the Board of Directors assigns. Section 9. Other Officers. Any other officer appointed by the Board of Directors shall have such duties as the Board of Directors assigns. Section 10. Reliance on Experts. In addition to any rights or duties prescribed by statute, any officer shall perform his duties as such in good faith, in a manner he reasonably believes to be in-the best interests of the Corporation, and with such care as an ordinarily prudent person in a like position would use under similar circumstances. In performing his duties, an officer shall be entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, in each case prepared or presented by counsel, public accountants, or other persons as to matters which the officer reasonably believes to be within such person's professional or expert competence, but he shall not be considered to be acting in good faith if he has knowledge concerning the matter in question that would cause his reliance to be unwarranted. A person who so performs his duties shall have no liability by reason of being or having an officer of the Corporation. ARTICLE IV Removals, Vacancies Section 1. Removals. The stockholders of the Corporation may remove from office, for or without cause, any director. The Board of Directors may at any time, for or without cause, remove from office or discharge from employment any officer, agent or employee. 8 Section 2. Vacancies. In case of any vacancy occurring in the Board of Directors between meetings of the stockholders, because of death, resignation, disqualification, removal or other cause, the remaining directors, although less than a majority of the Board of Directors, may appoint successors to hold the vacant offices for the unexpired terms thereof, respectively, or until the stockholders by election fill them. ARTICLE V Capital Stock Section 1. Certificates. The certificates for shares of the capital stock of the corporation shall be in such form not inconsistent with law, the Articles of Incorporation and the Bylaws, as the Board of Directors determines. Section 2. Stock Records. The records of the issuance and transfer of stock shall plainly show the number of each certificate issued, the date of issuance, the number of shares represented, the person to whom issued and his mailing address whether issued fully paid or assessable. Section 3. Execution. All stock certificates shall be sealed with the corporate seal and shall be signed either by the president or a vice president, and by either the secretary or treasurer, or by such other officers as may be authorized to sign by the Board of Directors. Section 4. Transfer. Transfer of shares of stock may be made by endorsement and delivery of the certificate to the Corporation or its transfer agent. The endorsee shall be entitled to a new certificate upon surrendering the old certificate and paying any tax or excise assessable on the transfer. No such transaction shall be valid, except between parties thereto, until the new certificate is issued and the transfer is recorded on the books of the Corporation, or transfer agent so as to show the 9 names of the parties thereto, their addresses, and the number and description of the shares transferred. A certificate shall be cancelled upon its surrender for transfer. Section 5. Lost Certificates. In case of the loss, mutilation or destruction of stock certificates, a duplicate certificate may be issued upon such terms as the Board of Directors prescribes. Section 6. Fixing a Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders, to express consent to corporate action in writing without a meeting, to receive payment of any dividend or other distribution or allotment of any rights, or to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. Section 7. Registered Stockholders. The Corporation shall be entitled to treat the stockholder of record of any shares of its capital stock as the holder in fact and complete owner thereof, shall not be bound to recognize any equitable or other claim to or interest in such shares on the part of any other person except as may be otherwise expressly provided by law. Section 8. Transfer Agent. Notwithstanding any provisions of this Article or of these By-Laws, the Board of Directors may appoint a transfer agent and a registrar of transfers and may require all stock certificates to bear the signature of 10 the transfer agent or the registrar of transfers, or both, or otherwise as the Board of Directors may direct. Section 9. Fractional Shares. No holders of shares shall be entitled to divide the interests represented thereby into fractions of shares. ARTICLE VI Execution of Instruments Section 1. Authorized Signatures. All checks, drafts, notes, bonds, acceptances, deeds, leases, contracts, stock certificates and all other instruments shall be signed by the person or persons as provided by general or special resolution of the Board of Directors or in the absence of any such general or special resolution applicable to the instrument, then it shall be signed by the president, a vice president, the secretary or treasurer. Section 2. Facsimile Signatures and Seal. The Board of Directors may provide for the execution of checks, dividend warrants, stock certificates, securities and all other instruments by facsimile signature or signatures of the person or persons authorized to sign such instruments and for the facsimile seal of the corporation on such instruments. ARTICLE VII Liability of Officers and Directors Section 1. Exculpation. No director or officer of the Corporation shall be liable for acts, defaults, or neglects of any other director or officer, or for any loss sustained by the Corporation, unless the same has resulted from his own gross and wilful misconduct, or gross and wilful neglect. Section 2. Indemnification. (a) The Corporation indemnifies each person who was or is a party or is threatened to be made a party to any 11 civil, criminal, administrative or investigative action, suit or proceeding (other than action by or in the rights of the Corporation), by reason of the fact that he is or was a director, officer, employee or agent of the Corporation or is or was serving in such capacity at the request of the Corporation in any other corporation, partnership, joint venture, trust or other enterprise, against expenses, attorneys' fees, judgments, fines and settlements, which were actually and reasonably incurred by him in such action, suit or proceedings, if he acted in good faith and in a manner he reasonably believed to be in the best interests of this Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in the best interest of this Corporation and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. (b) The Corporation indemnifies each person who is a party or is threatened to be made a party to any action or suit by or in the right of the Corporation by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving in such capacity at the request of the Corporation in any other corporation, partnership, joint venture, trust or other enterprise, against expenses and attorneys' fees actually and reasonably incurred by him in the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in the best interest of this Corporation provided that no indemnification shall be made in respect of any claim, issue or matter as to 12 which such person is adjudged to be liable for negligence or misconduct in the performance of his duty to this Corporation unless and only to the extent that the court in which such action or suit was brought determines upon application that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses and attorneys' fees which such court deems proper. (c) To the extent that a person seeking indemnification under subparagraphs (a) or (b) has been successful on the merits or otherwise in defense of any action, suit or proceeding, or any claim, issue or matter related thereto, the Corporation shall indemnify him against expenses and attorneys' fees actually and reasonably incurred by the person. (d) The Corporation shall make indemnification payments to or on behalf of the person seeking them only if authorized in the case in question upon a determination that indemnification of such person is proper because such person meets the applicable standards set forth in subparagraphs (a) or (b). Such determination may be made (l) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceedings, or (2) by independent legal counsel in a written opinion to the Corporation if such a quorum is not available or if a quorum of disinterested directors so directs, or (3) by a majority vote of stockholders. Notwithstanding this subparagraph (d) the Board of Directors shall not withhold indemnification payments if the person is entitled to indemnification under subparagraph (c). (e) The Board of Directors may authorize payment in advance of final disposition of an action suit or proceeding for the expenses incurred by a person seeking indemnification under subparagraphs (a) or (b) provided that such person delivers a 13 written undertaking to repay all amounts advanced to him or on his behalf unless it is ultimately determined that such person is entitled to indemnification hereunder. (f) The indemnification provided by this Section 2 shall not be deemed exclusive of any other rights to which those indemnified are entitled and shall continue to a person who ceases to be a director, officer, employee or agent and shall inure to the benefit of his heirs, executors and administrators. (g) The Corporation may purchase and maintain insurance on behalf of any person described in subparagraphs (a) and (b) against liability asserted against him and incurred by him in any such capacity or arising out of his status as such. Such insurance may be procured from any insurance company designated by the Board of Directors. ARTICLE VIII General Section 1. Fiscal Year. The fiscal year of the Corporation shall be a calendar year unless otherwise fixed by the Board of Directors. Section 2. Reserve Fund. The Board of Directors may set aside out of the funds of the Corporation available for dividends such sum or sums as they deem proper, as a reserve fund, from which to meet contingencies or for equalizing dividends, or extending or maintaining the works, business, trade, or property of the Corporation, or any part thereof, or for any other purpose as the directors deem proper and conducive to the interest of the Corporation, and the directors may modify or abolish any such reserve at any time and in any manner as it determines. The Board of Directors may invest the sum or sums set apart as a reserve fund in such securities or other invest- 14 ments as it deems proper, and it may add the income from the investments to the reserve fund. Section 3. Seal. The seal of the Corporation shall be circular in form and shall bear the name of the Corporation and such other words, devices and inscription as the Board of Directors prescribes. ARTICLE IX Conformity with Hawaii Statutes Section 1. Amendment of Bylaws. These Bylaws may be altered, amended, added to or repealed as provided by Hawaii Statute. Section 2. Other. Any provision of these Bylaws to the contrary notwithstanding, this Corporation and its Board of Directors may take any actions and shall have all powers and authority permitted by the Articles of Incorporation and Hawaii Statutes then in effect. * * * * ADOPTION OF BYLAWS We, the undersigned on this first day of May , 1979, having executed the Articles of Incorporation of the above-named corporation for the purpose of incorporating the same under and in accordance with the laws of 15 the State of Hawaii, do hereby, pursuant to said laws, adopt the foregoing provisions as the Bylaws of said corporation. /s/ JAMES S. GARY ---------------------------------------- JAMES F. GARY /s/ LOWELL E. MEE ---------------------------------------- LOWELL E. MEE /s/ DAVID C. VAUGHAN ---------------------------------------- DAVID C. VAUGHAN 16 EX-3.31 26 h92783ex3-31.txt CERT OF INC OF TESORO HIGH PLAINS PIPELINE CO EXHIBIT 3.31 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF TESORO NORTH WOODS COMPANY Tesoro North Woods Company, a corporation organized under and existing by virtue of the General Corporation Law of the State of Delaware, does hereby certify: FIRST: That by the written consent of all members of the Board of Directors of Tesoro North Woods Company, dated July 26, 2001, and filed with the minutes of proceedings of said Board of Directors, the Board of Directors of said corporation duly adopted a resolution proposing and declaring advisable a certain amendment to the Certificate of Incorporation of said corporation, and directing that such amendment be submitted for consideration to the shareholder of said corporation. The resolution of the Board of Directors setting forth the proposed amendment is as follows: RESOLVED, that the Board of Directors declares it advisable and proposes that Article 1 of the Certificate of Incorporation of Tesoro North Woods Company be amended so as to read in its entirety as follows: "The name of the Corporation is Tesoro High Plains Pipeline Company." SECOND: That by written consent of the sole shareholder of said corporation dated July 26, 2001, and filed with the minutes of proceedings of said shareholder, the shareholder voted in favor of said amendment. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the Sate of Delaware. FOURTH: That the capital of said corporation will not be reduced under or by reason of said amendment. IN WITNESS WHEREOF, said Tesoro North Woods Company has caused this certificate to be signed by Bruce A. Smith, its Chairman of the Board of Directors, President and Chief Executive Officer, and attested by James C. Reed, Jr., its Executive Vice President, General Counsel and Secretary, this 27th day of July, 2001. ATTEST: Tesoro Hydrocarbons Company USA /s/ James C. Reed, Jr. /s/ Bruce A. Smith - ----------------------------- -------------------------------- James C. Reed, Jr. Bruce A. Smith Executive Vice President President General Counsel and Secretary CERTIFICATE OF INCORPORATION OF TESORO NORTH WOODS COMPANY 1. The name of the corporation is: TESORO NORTH WOODS COMPANY 2. The address of its registered offices in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address if The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of all classes of stock which the corporation shall be authorized to issue is one thousand (1,000) shares of common stock, $1.00 par value. 5. A director of the corporation is not liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except that this article does not eliminate or limit the liability of a director: (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 General Corporation Law of Delaware; or (iv) for any transaction from which the director derived an improper personal benefit. 6. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot. 7. The name and mailing address of the incorporator is: Charles S. Parrish 300 Concord Plaza Drive San Antonio, Texas 78216 I, the undersigned, as incorporator and for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 20th day of July, 2001. /s/ Charles S. Parrish ----------------------- Charles S. Parrish EX-3.32 27 h92783ex3-32.txt BYLAWS OF TESORO HIGH PLAINS PIPELINE CO EXHIBIT 3.32 Adopted July 20, 2001 BY-LAWS OF TESORO NORTH WOODS COMPANY BY-LAWS OF TESORO NORTH WOODS COMPANY ARTICLE I Meetings of Stockholders Section 1.1 Annual Meetings. The Annual meeting of the stockholders for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held on such date and at such time and place within or without the state of Delaware as may be designated by the Board of Directors. Section 1.2 Special Meetings. Special meetings of the stockholders for any proper purpose or purposes may be called at any time by the Board of Directors, the Chairman of the Board of Directors, the President or any vice president, to be held on such date and at such time and place within or without the state of Delaware as the Board of Directors, the Chairman of the Board of Directors, the President or a vice president, whichever has called the meeting, shall direct. A special meeting of the stockholders shall be called by the Chairman of the Board of Directors, the President or any vice president whenever stockholders holding shares representing a majority of the votes of the shares of the Corporation then issued and outstanding and entitled to vote on matters to be submitted to stockholders of the Corporation shall make application therefor in writing. Any such written request shall state a proper purpose or purposes of the meeting and shall be delivered to the Chairman of the Board of Directors, the President or any vice president. Section 1.3 Notice of Meeting. Written notice, signed by the Chairman of the Board of Directors, the President, any vice president, the Secretary or an assistant secretary, of every meeting of stockholders (other than an adjourned meeting unless otherwise required by statute) stating the purpose or purposes for which the meeting is called, and the date and time when, and the place where, it is to be held shall be either delivered personally or mailed to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the meeting, except as otherwise provided by statute. If mailed, such notice shall be directed to a stockholder at his address as it shall appear on the stock books of the Corporation, unless he shall have filed with the Secretary a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in such request, and shall be given when deposited in the United States mail, postage prepaid. 1 Section 1.4 Quorum. The presence at any meeting, in person or by proxy, of the holders of record of shares representing a majority of the votes of the shares then issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business, except where otherwise provided by statute. Section 1.5 Adjournments. In the absence of a quorum, a majority of the votes of the stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to vote is present in person or by proxy, any officer entitled to preside at or act as secretary of such meeting may adjourn the meeting from time to time until a quorum shall be present. Section 1.6 Voting. Directors shall be chosen by a plurality of the votes cast at the election, and except where otherwise provided by statute, or the Certificate of Incorporation, all other questions shall be determined by a majority of the votes cast on such question. Section 1.7 Proxies. Any stockholders entitled to vote may vote by proxy, provided that the instrument authorizing such proxy to act shall have been executed in writing (which shall include telegraphing or cabling) by the stockholder himself or by his duly authorized attorney. Section 1.8 Judges of Election. The Board of Directors may appoint judges of election to serve at any election of directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the judges so appointed shall fail to attend, or refuse or be unable to serve, then such appointment may be made by the presiding officers at the meeting. ARTICLE II Board of Directors Section 2.1 Number. The number of directors which shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors but shall not be less than two. Section 2.2 Election and Term of Office. Directors shall be elected at the annual meeting of the stockholders. Each director (whether elected at an annual meeting or to fill a vacancy or otherwise) shall continue in office until his successor shall have been elected or until his earlier death, resignation, removal or other incapacity in the manner hereinafter provided. 2 Section 2.3 Vacancies and Additional Directorships. If any vacancy shall occur among the directors by reason of death, resignation, removal or other incapacity or as the result of an increase in the number of directorships, the directors then in office shall continue to act and may fill any such vacancy by a vote of the directors then in office, though less than a quorum. Section 2.4 Meetings. A meeting of the Board of Directors shall be held for organization, for the election of officers and for the transaction of such other business as may properly come before the meeting, within thirty days after each annual election of directors. The Board of Directors by resolution may provide for the holding of regular meetings and may fix the times and places at which such meetings shall be held. Notice of regular meetings shall not be required to be given, provided that whenever the time or place of regular meetings shall be fixed or changed, notice of such action shall be mailed promptly to each director who shall not have been present at the meeting at which such action was taken, addressed to him at his residence or usual place of business. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, the President, any vice president or any two directors. Except as otherwise required by statute, notice of such special meeting shall be mailed to each director, addressed to him at his residence or usual place of business, or shall be sent to him at such place by telegram, radio or cable, or telephone or delivered to him personally, not later than two days before the day on which the meeting is to be held. Such notice shall state the time and place of such meeting, but unless otherwise required by statute, the Certificate of Incorporation of the Corporation or these By-laws need not state the purposes thereof. Notice of any meeting need not be given to any director who shall attend such meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Section 2.5 Quorum. One-third of the total number of members of the Board of Directors as constituted from time to time, but not less than two, shall be necessary and sufficient to constitute a quorum for the transaction of business. In the absence of a quorum, a majority of those present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present and the meeting may be held as adjourned without further notice or waiver. A majority of those present at any meeting at which a quorum is present may decide any question brought before such meeting, except as otherwise provided by law, the Certificate of Incorporation or these By-laws. 3 Section 2.6 Resignation of Directors. Any director may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 2.7 Removal of Directors. At any special meeting of the stockholders, duly called for the purpose of removing a director or directors as provided in these By-laws, any director or directors may, by the affirmative vote of the holders of shares representing a majority of the votes of all the shares of stock outstanding and entitled to vote for the election of directors, be removed from office, either with or without cause. At such meeting a successor or successors may be elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled by the directors as provided in Section 2.3. Section 2.8 Compensation of Directors. Directors may receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Section 2.9 Indemnification. The Corporation shall indemnify to the full extent authorized or permitted by the laws of the state of Delaware any person who is made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Corporation or serves or served any other enterprise at the request of the Corporation. ARTICLE III Committees of the Board Section 3.1 Designation, Power, Alternate Members and Term of Office. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Any such committee, to the extent provided in such resolution, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal 4 of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-laws of the Corporation or, unless the resolution of the Board of Directors establishing any such committee shall expressly so provide or these By-laws shall expressly so provide, declaring a dividend on the Corporation's capital stock or authorizing the issuance of the Corporation's capital stock. The Board may designate one or more directors as alternate members of any committee who, in the order specified by the Board, may replace any absent or disqualified member at any meeting of the committee. If at a meeting of any committee one or more of the members thereof should be absent or disqualified, and if either Board of Directors has not so designated any alternate member or members, or the number of absent or disqualified members exceeds the number of alternate members who are present at such meeting, then the member or members of such committee (including alternates) present at any meeting and not disqualified from voting, whether nor not he or they constitute a quorum, may unanimously appoint another director to act at the meeting in the place of any such absent or disqualified member. The term of office of the members of each committee shall be as fixed from time to time by the Board, subject to these By-laws; provided, however, that any committee member who ceases to be a member of the Board shall ipso facto cease to be a committee member. Each committee shall appoint a secretary, who may be the Secretary of the Corporation or an assistant secretary thereof. Section 3.2 Meetings, Notices and Records. Each committee may provide for the holding of regular meetings, with or without notice, and may fix the time and place at which such meetings shall be held. Special meetings of each committee shall be held upon call by or at the direction of its chairman or, if there be no chairman, by or at the direction of any two of its members, at the time and place specified in the respective notices or waivers of notice thereof. Notice of each special meeting of a committee shall be mailed to each member of such committee, addressed to him at his residence or usual place of business, at least two days before the day on which the meeting is to be held, or shall be sent by telegram, radio or cable addressed to him at such place, or telephoned or delivered to him personally, not later than the day before the day on which the meeting is held. Notice of any meeting of a committee need not be given to any member thereof who shall attend the meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Notice of any adjourned meeting need not be given. Each committee shall keep a record of its proceedings. 5 Section 3.3 Quorum and Manner of Acting. At each meeting of any committee the presence of one-third but not less than two of its members then in office shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which the quorum is present shall be the act of such committee; in the absence of a quorum, a majority of the members present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present. Subject to the foregoing and other provisions of these By-laws and except as otherwise determined by the Board of Directors, each committee may make rules for the conduct of its business. Any determination made in writing and signed by all members of such committee shall be as effective as if made by such committee at a meeting. Section 3.4 Resignations. Any member of a committee may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect a the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 3.5 Removal. Any member of any committee may be removed at any time by the Board of Directors with or without cause. Section 3.6 Vacancies. If any vacancy shall occur in any committee by reason of death, resignation, disqualification, removal or otherwise, the remaining members of such committee, though less than a quorum, shall continue to act until such vacancy is filled by a resolution passed by a majority of the whole Board of Directors. Section 3.7 Compensation. Committee members shall receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any committee member from serving the Corporation in any other capacity and receiving compensation therefor. ARTICLE IV Officers Section 4.1 Officers. The officers of the Corporation shall be a Chairman of the Board of Directors, a President, one or more 6 Vice Presidents (which may include Group Vice Presidents, Senior Vice Presidents and other categories of Vice Presidents), a Secretary, a Treasurer, and such other officers as may be appointed in accordance with the provisions of Section 4.3. Section 4.2 Election, Term of Office and Qualifications. Each officer (except such officers as may be appointed in accordance with the provisions of Section 4.3) shall be elected by the Board of Directors. Each such officer (whether elected at the first meeting of the Board of Directors after the annual meeting of stockholders or to fill a vacancy or otherwise) shall hold his office until the first meeting of the Board of Directors after the next annual meeting of stockholders and until his successor shall have been elected, or until his death, or until he shall have resigned in the manner provided in Section 4.4 or shall have been removed in the manner provided in Section 4.5. The Chairman of the Board of Directors must be a member of the Board of Directors. Section 4.3 Subordinate Officers and Agents. The Board of Directors from time to time may appoint other officers or agents (including one or more assistant vice presidents, one or more assistant secretaries and one or more assistant treasurers), to hold office for such period, have such authority and perform such duties as are provided in these By-laws or as may be provided in the resolutions appointing them. The Board of Directors may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective terms of office, authorities and duties. Section 4.4 Resignations. Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 4.5 Removal. Any officer specifically designated in Section 4.1 may be removed at any time, either with or without cause, at any meeting of the Board of Directors by the vote of a majority of all the directors then in office. Any officer or agent appointed in accordance with the provisions of Section 4.3 may be removed, either with or without cause, by the Board of Directors at any meeting, by the vote of a majority of the directors present at such meeting, or by any superior officer or agent upon whom such power of removal shall have been conferred by the Board of Directors. Section 4.6 Vacancies. A vacancy in any office by reason of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner 7 prescribed by these By-laws for regular election or appointment to such office. Section 4.7 The Chairman of the Board of Directors. The Chairman of the Board of Directors shall be the chief executive officer of the Corporation. Subject to the direction of the Board of Directors, he shall have general charge of the business affairs and property of the Corporation. He shall see that all orders and resolutions of the Board of Directors are carried into effect. If present, he shall preside at all meetings or stockholders. He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. From time to time he shall report to the Board of Directors all matters within is knowledge which the interests of the Corporation may require to be brought to their attention. He shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors. Section 4.8 The President. The President shall be the chief operating officer of the Corporation. Subject to the direction of the Chairman of the Board of Directors, he shall have general supervision over the officers and agents of the Corporation. At the request of the Board of Directors or the Chairman of the Board of Directors, the President shall perform all the duties of the Chairman of the Board of Directors and, when so acting, shall have all the powers of and be subject to all restrictions upon the Chairman of the Board of Directors (except that the President need not be a member of the Board of Directors). He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. He shall also perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors or the Chairman of the Board of Directors. Section 4.9 The Vice Presidents. In the absence or disability of the President, any vice president designated by the President (or in the absence of such designation, the Vice President designated by the Board of Directors or the Chairman of the Board of Directors) shall perform all the duties of the President and, when so acting, shall have all the powers of and be 8 subject to all restrictions upon the President. Any vice president may also sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds and other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. Each vice president shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.10 The Secretary. The Secretary shall (a) Record all the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book or books to be kept for that purpose; (b) Cause all notices to be duly given in accordance with the provisions of these By-laws and as required by statute; (c) Whenever any committee shall be appointed in pursuance of a resolution of the Board of Directors, furnish the chairman of such committee with a copy of such resolution; (d) Be custodian of the records and of the seal of the Corporation, and cause such seal to be affixed to all certificates representing stock of the Corporation prior to the issuance thereof and to all instruments the execution of which on behalf of the Corporation under its seal shall have been duly authorized; (e) See that the lists, books, reports, statements, certificates and other documents and records required by statute are properly kept and filed; (f) Have charge of the stock and transfer books of the Corporation, and exhibit such stock book at all reasonable times to such persons as are entitled by statute to have access thereto; (g) Sign (unless the Treasurer or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Secretary and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the 9 Board of Directors, the Chairman of the Board of Directors, or the President Section 4.11 Assistant Secretaries. At the request of the Secretary or in his absence or disability, the Assistant Secretary designated by him (or in the absence of such designation, the Assistant Secretary designated by the Board of Directors, the Chairman of the Board of Directors or the President) shall perform all the duties of the Secretary and, when so acting, shall have all the powers of and be subject to all restrictions upon the Secretary. The assistant secretaries shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary. Section 4.12 The Treasurer. The Treasurer shall (a) Have charge of and supervision over and be responsible for the funds, securities, receipts and disbursements of the Corporation; (b) Cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such banks or trust companies or with such bankers or other depositaries as shall be selected in accordance with Section 5.3 of these By-laws or to be otherwise dealt with in such manner as the Board of Directors may direct; (c) Cause the funds of the Corporation to be disbursed by checks or drafts upon the authorized depositaries of the Corporation, and cause to be taken and preserved proper vouchers for all moneys disbursed; (d) Render to the Board of Directors, the Chairman of the Board of Directors, or the President, whenever requested, a statement of the financial condition of the Corporation and all of his transactions as Treasurer; (e) Cause to be kept at the Corporation's principal office correct books of account of all its business and transactions and such duplicate books of account as he shall determine and upon application cause such books or duplicates thereof to be exhibited to any director; (f) Be empowered, from time to time, to require from the officers or agents of the Corporation reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation; (g) Sign (unless the Secretary or any assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have 10 been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Treasurer and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.13 Assistant Treasurers. At the request of the Treasurer or in his absence or disability, the Assistant Treasurer designated by him (or in the absence of such designation, the Assistant Treasurer designated by the Board of Directors, the Chairman of the Board of Directors, or the President) shall perform all the duties of the Treasurer and, when so acting, shall have all the powers of and be subject to all restrictions upon the Treasurer. The Assistant Treasurers shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Treasurer. Section 4.14 Salaries. The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors, except that the Board of Directors may delegate to any person the power to fix the salaries or other compensation of any officers or agents appointed in accordance with the provisions of Section 4.3. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. Section 4.15 Surety Bonds. If the Board of Directors shall so require, any officer or agent of the Corporation shall execute to the Corporation a bond in such sum and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful discharge of his duties, including responsibilities for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands. ARTICLE V Execution of Instruments and Deposit of Corporate Funds Section 5.1 Execution of Instruments Generally. The Chairman of the Board of Directors, the President, any vice President, the Secretary or the Treasurer, subject to the approval of the Board of Directors, may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. The Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any 11 instrument in the name and on behalf of the Corporation, and such authorization may be general or confined to specific instances. Section 5.2 Borrowing. No loans or advances shall be obtained or contracted for, by or on behalf of the Corporation and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors. Such authorization may be general or confined to specific instances. Any officer or agent of the Corporation thereunto so authorized may obtain loans and advances for the Corporation, and for such loans and advances may make, execute and deliver promissory notes, bonds or other evidences of indebtedness of the Corporation. Any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as security for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation, any and all stocks, bonds, other securities and other personal property at any time held by the Corporation, and to that end may endorse, assign and deliver the same and do every act and thing necessary or proper in connection therewith. Section 5.3 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors may select, or as may be selected by any officer or officers or agent or agents authorized so to do by the Board of Directors. Endorsements for deposit to the credit of the Corporation in any of its duly authorized depositaries shall be made in such manner as the Board of Directors from time to time may determine. Section 5.4 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers or agent or agents of the Corporation, and in such manner, as from time to time shall be determined by the Board of Directors. Section 5.5 Proxies. Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the Chairman of the Board of Directors, the President or a vice president or by any other person or persons thereunto authorized by the Board of Directors. ARTICLE VI Record Dates Section 6.1 In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of 12 stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall be not more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. Only those stockholders of record on the date so fixed shall be entitled to any of the foregoing rights, notwithstanding the transfer of any such stock on the books of the Corporation after any such record date fixed by the Board of Directors. ARTICLE VII Corporate Seal Section 7.1 The corporate seal shall be circular in form and shall bear the name of the Corporation and words and figures denoting its organization under the laws of the state of Delaware and the year thereof and otherwise shall be in such form as shall be approved from time to time by the Board of Directors. ARTICLE VIII Fiscal Year Section 8.1 The fiscal year of the Corporation shall begin on the first day of January in each year and shall end on the 31st day of December in the same year. ARTICLE IX Amendments Section 9.1 All By-laws of the Corporation may be amended, altered or repealed, and new By-laws may be made, by the affirmative vote of the holders of record of shares representing a majority of the votes of the outstanding shares of stock of the Corporation entitled to vote cast at any annual or special meeting, or by the affirmative vote of a majority of the Directors cast at any regular or special meeting at which a quorum is present. 13 EX-3.33 28 h92783ex3-33.txt CERT OF INCORPORATION OF TESORO MARINE SERV HLDG EXHIBIT 3.33 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF TESORO MARINE SERVICES COMPANY Tesoro Marine Services Company, a corporation organized under and existing by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That by the written consent of all members of the Board of Directors of Tesoro Coastwide Services Company, dated October 6th, 1997, and filed with the minutes of proceedings of said Board of Directors, the Board of Directors of said corporation duly adopted a resolution proposing and declaring advisable a certain amendment to the Certificate of Incorporation of said corporation, and directing that such amendment be submitted for consideration to the shareholder of said corporation. The resolution of the Board of Directors setting forth the proposed amendment is as follows: RESOLVED, that the Board of Directors declares it advisable and proposes that Article 1 of the Certificate of Incorporation of Tesoro Marine Services Company be amended so as to read in its entirety as follows: "The name of the corporation is Tesoro Marine Services Holding Company" SECOND: That by the written consent of the sole shareholder of said corporation dated October 6th, 1997, and filed with the minutes of proceedings of said corporation, the shareholder voted in favor of said amendment. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. FOURTH: That the capital of said corporation will not be reduced under or by reason of said amendment. IN WITNESS WHEREOF, said Tesoro Marine Services Company has caused this certificate to be signed by Donald A. Nyberg, its President, and attested by James C. Reed, Jr., its Executive Vice President, General Counsel and Secretary, this 6th day of October, 1997. TESORO MARINE SERVICES TESORO MARINE SERVICES COMPANY COMPANY CORPORATE SEAL DELAWARE /s/ Donald A. Nyberg -------------------------------- Donald A. Nyberg President ATTEST: /s/ James C. Reed, Jr. - ----------------------------------------- James C. Reed, Jr. Executive Vice President, General Counsel and Secretary CERTIFICATE OF INCORPORATION OF TESORO MARINE SERVICES COMPANY 1. The name of the corporation is: TESORO MARINE SERVICES COMPANY 2. The address of its 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 its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is one thousand (1,000) shares of common stock, $1.00 par value. 5. A director of the corporation is not liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except that this article does not eliminate of limit the liability of a director: (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 General Corporation Law of Delaware; or (iv) for any transaction from which the director derived an improper personal benefit. 6. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot. 7. The name and mailing address of the incorporator is: K. A. Widdoes The Corporation Trust Company 1209 Orange Street Wilmington, Delaware 19801 I, the undersigned, as incorporator and for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 11th day of December, 1996. K.A. Widdoes -------------------------------------------- K. A. Widdoes EX-3.34 29 h92783ex3-34.txt BYLAWS OF TESORO MARINE SERVICES HOLDING CO EXHIBIT 3.34 BY-LAWS OF TESORO MARINE SERVICES COMPANY ARTICLE I Meetings of Stockholders Section 1.1 Annual Meetings. The Annual meeting of the stockholders for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held on such date and at such time and place within or without the state of Delaware as may be designated by the Board of Directors. Section 1.2 Special Meetings. Special meetings of the stockholders for any proper purpose or purposes may be called at any time by the Board of Directors, the Chairman of the Board of Directors, the President or any vice president, to be held on such date and at such time and place within or without the state of Delaware as the Board of Directors, the Chairman of the Board of Directors, the President or a vice president, whichever has called the meeting, shall direct. A special meeting of the stockholders shall be called by the Chairman of the Board of Directors, the President or any vice president whenever stockholders holding shares representing a majority of the votes of the shares of the Corporation then issued and outstanding and entitled to vote on matters to be submitted to stockholders of the Corporation shall make application therefor in writing. Any such written request shall state a proper purpose or purposes of the meeting and shall be delivered to the Chairman of the Board of Directors, the President or any vice president. Section 1.3 Notice of Meeting. Written notice, signed by the Chairman of the Board of Directors, the President, any vice president, the Secretary or an assistant secretary, of every meeting of stockholders (other than an adjourned meeting unless otherwise required by statute) stating the purpose or purposes for which the meeting is called, and the date and time when, and the place where, it is to be held shall be either delivered personally or mailed to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the meeting, except as otherwise provided by statute. If mailed, such notice shall be directed to a stockholder at his address as it shall appear on the stock books of the Corporation unless he shall have filed with the Secretary a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in such request, and shall be given when deposited in the United States mail, postage prepaid. Section 1.4 Quorum. The presence at any meeting, in person or by proxy, of the holders of record of shares representing a majority of the votes of the shares then issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business, except where otherwise provided by statute. Section 1.5 Adjournments. In the absence of a quorum, a majority of the votes of the stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to vote is present in person or by proxy, any officer entitled to preside at or act as secretary of such meeting may adjourn the meeting from time to time until a quorum shall be present. Section 1.6 Voting. Directors shall be chosen by a plurality of the votes cast at the election, and except where otherwise provided by statute, or the Certificate of Incorporation, all other questions shall be determined by a majority of the votes cast on such question. Section 1.7 Proxies. Any stockholders entitled to vote may vote by proxy, provided that the instrument authorizing such proxy to act shall have been executed in writing (which shall include telegraphing or cabling) by the stockholder himself or by his duly authorized attorney. Section 1.8 Judges of Election. The Board of Directors may appoint judges of election to serve at any election of directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the judges so appointed shall fail to attend, or refuse or be unable to serve, then such appointment may be made by the presiding officers at the meeting. 2 ARTICLE II Board of Directors Section 2.1 Number. The number of directors which shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors but shall not be less than two. Section 2.2 Election and Term of Office. Directors shall be elected at the annual meeting of the stockholders. Each director (whether elected at an annual meeting or to fill a vacancy or otherwise) shall continue in office until his successor shall have been elected or until his earlier death, resignation, removal or other incapacity in the manner hereinafter provided. Section 2.3 Vacancies and Additional Directorships. If any vacancy shall occur among the directors by reason of death, resignation, removal or other incapacity or as the result of an increase in the number of directorships, the directors then in office shall continue to act and may fill any such vacancy by a vote of the directors then in office, though less than a quorum. Section 2.4 Meetings. A meeting of the Board of Directors shall be held for organization, for the election of officers and for the transaction of such other business as may properly come before the meeting, within thirty days after each annual election of directors. The Board of Directors by resolution may provide for the holding of regular meetings and may fix the times and places at which such meetings shall be held. Notice of regular meetings shall not be required to be given, provided that whenever the time or place of regular meetings shall be fixed or changed, notice of such action shall be mailed promptly to each director who shall not have been present at the meeting at which such action was taken, addressed to him at his residence or usual place of business. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, the President, any vice president or any two directors. Except as otherwise required by statute, notice of each special meeting shall be mailed to each director, addressed to him at his residence or usual place of 3 business, or shall be sent to him at such place by telegram, radio or cable, or telephone or delivered to him personally, not later than two days before the day on which the meeting is to be held. Such notice shall state the time and place of such meeting, but unless otherwise required by statute, the Certificate of Incorporation of the Corporation or these By-laws need not state the purposes thereof. Notice of any meeting need not be given to any director who shall attend such meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Section 2.5 Quorum. One-third of the total number of members of the Board of Directors as constituted from time to time, but not less than two, shall be necessary and sufficient to constitute a quorum for the transaction of business. In the absence of a quorum, a majority of those present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present and the meeting may be held as adjourned without further notice or waiver. A majority of those present at any meeting at which a quorum is present may decide any question brought before such meeting, except as otherwise provided by law, the Certificate of Incorporation or these By-laws. Section 2.6 Resignation of Directors. Any director may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 2.7 Removal of Directors. At any special meeting of the stockholders, duly called for the purpose of removing a director or directors as provided in these By-laws, any director or directors may, by the affirmative vote of the holders of shares representing a majority of the votes of all the shares of stock outstanding and entitled to vote for the election of directors, be removed from office, either with or without cause. At such meeting a successor or successors may be elected by a plurality of the 4 votes cast, or if any such vacancy is not so filled, it may be filled by the directors as provided in Section 2.3. Section 2.8 Compensation of Directors. Directors may receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Section 2.9 Indemnification. The Corporation shall indemnify to the full extent authorized or permitted by the laws of the state of Delaware any person who is made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Corporation or serves or served any other enterprise at the request of the Corporation. ARTICLE III Committees of the Board Section 3.1 Designation, Power, Alternate Members and Term of Office. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Any such committee, to the extent provided in such resolution, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-laws of the Corporation or, unless the resolution of the Board of Directors establishing any such 5 committee shall expressly so provide or these By-laws shall expressly so provide, declaring a dividend on the Corporation's capital stock or authorizing the issuance of the Corporation's capital stock. The Board may designate one or more directors as alternate members of any committee who, in the order specified by the Board, may replace any absent or disqualified member at any meeting of the committee. If at a meeting of any committee one or more of the members thereof should be absent or disqualified, and if either the Board of Directors has not so designated any alternate member or members, or the number of absent or disqualified members exceeds the number of alternate members who are present at such meeting, then the member or members of such committee (including alternates) present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another director to act at the meeting in the place of any such absent or disqualified member. The term of office of the members of each committee shall be as fixed from time to time by the Board, subject to these By-laws; provided, however, that any committee member who ceases to be a member of the Board shall ipso facto cease to be a committee member. Each committee shall appoint a secretary, who may be the Secretary of the Corporation or an assistant secretary thereof. Section 3.2 Meetings, Notices and Records. Each committee may provide for the holding of regular meetings, with or without notice, and may fix the time and place at which such meetings shall be held. Special meetings of each committee shall be held upon call by or at the direction of its chairman or, if there be no chairman, by or at the direction of any two of its members, at the time and place specified in the respective notices or waivers of notice thereof. Notice of each special meeting of a committee shall be mailed to each member of such committee, addressed to him at his residence or usual place of business, at least two days before the day on which the meeting is to be held, or shall be sent by telegram, radio or cable addressed to him at such place, or telephoned or delivered to him personally, not later than the day before the day on which the meeting is to be held. Notice of any meeting of a committee need not be given to any member thereof who shall attend the meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Notice of any adjourned meeting need not be given. Each committee shall keep a record of its proceedings. 6 Section 3.3 Quorum and Manner of Acting. At each meeting of any committee the presence of one-third but not less than two of its members then in office shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which the quorum is present shall be the act of such committee; in the absence of a quorum, a majority of the members present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present. Subject to the foregoing and other provisions of these By-laws and except as otherwise determined by the Board of Directors, each committee may make rules for the conduct of its business. Any determination made in writing and signed by all the members of such committee shall be as effective as if made by such committee at a meeting. Section 3.4 Resignations. Any member of a committee may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 3.5 Removal. Any member of any committee may be removed at any time by the Board of Directors with or without cause. Section 3.6 Vacancies. If any vacancy shall occur in any committee by reason of death, resignation, disqualification, removal or otherwise, the remaining members of such committee, though less than a quorum, shall continue to act until such vacancy is filled by a resolution passed by a majority of the whole Board of Directors. Section 3.7 Compensation. Committee members shall receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any committee member from serving the Corporation in any other capacity and receiving compensation therefor. 7 ARTICLE IV Officers Section 4.1 Officers. The officers of the Corporation shall be a Chairman of the Board of Directors, a President, one or more Vice Presidents (which may include Group Vice Presidents, Senior Vice Presidents and other categories of Vice Presidents), a Secretary, a Treasurer, and such other officers as may be appointed in accordance with the provisions of Section 4.3. Section 4.2 Election, Term of Office and Qualifications. Each officer (except such officers as may be appointed in accordance with the provisions of Section 4.3) shall be elected by the Board of Directors. Each such officer (whether elected at the first meeting of the Board of Directors after the annual meeting of stockholders or to fill a vacancy or otherwise) shall hold his office until the first meeting of the Board of Directors after the next annual meeting of stockholders and until his successor shall have been elected, or until his death, or until he shall have resigned in the manner provided in Section 4.4 or shall have been removed in the manner provided in Section 4.5. The Chairman of the Board of Directors must be a member of the Board of Directors. Section 4.3 Subordinate Officers and Agents. The Board of Directors from time to time may appoint other officers or agents (including one or more assistant vice presidents, one or more assistant secretaries and one or more assistant treasurers), to hold office for such period, have such authority and perform such duties as are provided in these By-laws or as may be provided in the resolutions appointing them. The Board of Directors may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective terms of office authorities and duties. Section 4.4 Resignations. Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of 8 the above-named officers; and unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 4.5 Removal. Any officer specifically designated in Section 4.1 may be removed at any time, either with or without cause, at any meeting of the Board of Directors by the vote of a majority of all the directors then in office. Any officer or agent appointed in accordance with the provisions of Section 4.3 may be removed, either with or without cause, by the Board of Directors at any meeting, by the vote of a majority of the directors present at such meeting, or by any superior officer or agent upon whom such power of removal shall have been conferred by the Board of Directors. Section 4.6 Vacancies. A vacancy in any office by reason of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed by these By-laws for regular election or appointment to such office. Section 4.7 The Chairman of the Board of Directors. The Chairman of the Board of Directors shall be the chief executive officer of the Corporation. Subject to the direction of the Board of Directors, he shall have general charge of the business affairs and property of the Corporation. He shall see that all orders and resolutions of the Board of Directors are carried into effect. If present, he shall preside at all meetings of stockholders. He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. From time to time he shall report to the Board of Directors all matters within his knowledge which the interests of the Corporation may require to be brought to their attention. He shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors. 9 Section 4.8 The President. The President shall be the chief operating officer of the Corporation. Subject to the direction of the Chairman of the Board of Directors, he shall have general supervision over the officers and agents of the Corporation. At the request of the Board of Directors or the Chairman of the Board of Directors, the President shall perform all the duties of the Chairman of the Board of Directors and, when so acting, shall have all the powers of and be subject to all restrictions upon the Chairman of the Board of Directors (except that the President need not be a member of the Board of Directors). He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. He shall also perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors or the Chairman of the Board of Directors. Section 4.9 The Vice Presidents. In the absence or disability of the President, any vice president designated by the President (or in the absence of such designation, the Vice President designated by the Board of Directors or the Chairman of the Board of Directors) shall perform all the duties of the President and, when so acting, shall have all the powers of and be subject to all restrictions upon the President. Any vice president may also sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation deeds, mortgages, bonds and other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. Each vice president shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.10 The Secretary. The Secretary shall 10 (a) Record all the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book or books to be kept for that purpose; (b) Cause all notices to be duly given in accordance with the provisions of these By-laws and as required by statute; (c) Whenever any committee shall be appointed in pursuance of a resolution of the Board of Directors, furnish the chairman of such committee with a copy of such resolution; (d) Be custodian of the records and of the seal of the Corporation, and cause such seal to be affixed to all certificates representing stock of the Corporation prior to the issuance thereof and to all instruments the execution of which on behalf of the Corporation under its seal shall have been duly authorized; (e) See that the lists, books, reports, statements, certificates and other documents and records required by statute are properly kept and filed; (f) Have charge of the stock and transfer books of the Corporation, and exhibit such stock book at all reasonable times to such persons as are entitled by statute to have access thereto; (g) Sign (unless the Treasurer or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Secretary and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.11 Assistant Secretaries. At the request of the Secretary or in his absence or disability, the Assistant Secretary designated by him (or in the absence of such designation, the Assistant Secretary designated by the Board of Directors, the 11 Chairman of the Board of Directors or the President) shall perform all the duties of the Secretary and, when so acting, shall have all the powers of and be subject to all restrictions upon the Secretary. The assistant secretaries shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary. Section 4.12 The Treasurer. The Treasurer shall (a) Have charge of and supervision over and be responsible for the funds, securities, receipts and disbursements of the Corporation; (b) Cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such banks or trust companies or with such bankers or other depositaries as shall be selected in accordance with Section 5.3 of these By-laws or to be otherwise dealt with in such manner as the Board of Directors may direct; (c) Cause the funds of the Corporation to be disbursed by checks or drafts upon the authorized depositaries of the Corporation, and cause to be taken and preserved proper vouchers for all moneys disbursed; (d) Render to the Board of Directors, the Chairman of the Board of Directors, or the President, whenever requested, a statement of the financial condition of the Corporation and of all his transactions as Treasurer; (e) Cause to be kept at the Corporation's principal office correct books of account of all its business and transactions and such duplicate books of account as he shall determine and upon application cause such books or duplicates thereof to be exhibited to any director; (f) Be empowered, from time to time, to require from the officers or agents of the Corporation reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation; 12 (g) Sign (unless the Secretary or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Treasurer and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.13 Assistant Treasurers. At the request of the Treasurer or in his absence or disability, the Assistant Treasurer designated by him (or in the absence of such designation, the Assistant Treasurer designated by the Board of Directors, the Chairman of the Board of Directors, or the President) shall perform all the duties of the Treasurer and, when so acting, shall have all the powers of and be subject to all restrictions upon the Treasurer. The Assistant Treasurers shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Treasurer. Section 4.14 Salaries. The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors, except that the Board of Directors may delegate to any person the power to fix the salaries or other compensation of any officers or agents appointed in accordance with the provisions of Section 4.3. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. Section 4.15 Surety Bonds. If the Board of Directors shall so require, any officer or agent of the Corporation shall execute to the Corporation a bond in such sum and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful discharge of his duties, including responsibilities for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands. 13 ARTICLE V Execution of Instruments and Deposit of Corporate Funds Section 5.1 Execution of Instruments Generally. The Chairman of the Board of Directors, the President, any vice president, the Secretary or the Treasurer, subject to the approval of the Board of Directors, may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. The Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation, and such authorization may be general or confined to specific instances. Section 5.2 Borrowing. No loans or advances shall be obtained or contracted for, by or on behalf of the Corporation and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors. Such authorization may be general or confined to specific instances, Any officer or agent of the Corporation thereunto so authorized may obtain loans and advances for the Corporation, and for such loans and advances may make, execute and deliver promissory notes, bonds or other evidences of indebtedness of the Corporation. Any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as security for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation, any and all stocks, bonds, other securities and other personal property at any time held by the Corporation, and to that end may endorse, assign and deliver the same and do every act and thing necessary or proper in connection therewith. Section 5.3 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors may select, or as may be selected by any officer or officers or agent or agents authorized so to do by the Board of Directors. Endorsements for deposit to the credit of the Corporation in any of its duly authorized depositaries shall be made in such manner as the Board of Directors from time to time may determine. 14 Section 5.4 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers or agent or agents of the Corporation, and in such manner, as from time to time shall be determined by the Board of Directors. Section 5.5 Proxies. Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the Chairman of the Board of Directors, the President or a vice president or by any other person or persons thereunto authorized by the Board of Directors. ARTICLE VI Record Dates Section 6.1. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall be not more than sixty nor less than ten days before the date of such meeting, nor more that sixty days prior to any other action. Only those stockholders of record on the date so fixed shall be entitled to any of the foregoing rights, notwithstanding the transfer of any such stock on the books of the Corporation after any such record date fixed by the Board of Directors. ARTICLE VII Corporate Seal 15 Section 7.1. The corporate seal shall be circular in form and shall bear the name of the corporation and words and figures denoting its organization under the laws of the state of Delaware and the year thereof and otherwise shall be in such form as shall be approved from time to time by the Board of Directors. ARTICLE VIII Fiscal Year Section 8.1. The fiscal year of the Corporation shall begin on the first day of January in each year and shall end on the 31st day of December in the same year. ARTICLE IX Amendments Section 9.1. All By-laws of the Corporation may be amended, altered or repealed, and new By-laws may be made, by the affirmative vote of the holders of record of shares representing a majority of the votes of the outstanding shares of stock of the Corporation entitled to vote cast at any annual or special meeting, or by the affirmative vote of a majority of the Directors cast at any regular or special meeting at which a quorum is present. 16 EX-3.35 30 h92783ex3-35.txt CERT OF INCORPORATION OF TESORO MARINE SERVICES EXHIBIT 3.35 CERTIFICATE OF FORMATION OF TESORO MARINE SERVICES, LLC This Certificate of Formation of Tesoro Marine Services, LLC (the "LLC"), dated December 12, 2001, is being duly executed and filed to form a limited liability company under the Delaware Limited Liability Company Act (6Del.C. ss. 18-101, et seq.). FIRST. The name of the limited liability company formed hereby is Tesoro Marine Services, LLC. SECOND. The address of the registered office of the LLC in the State of Delaware is c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. THIRD. The name and address of the registered agent for service of process on the LLC in the State of Delaware is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation as of the date first above written. /s/ CHARLES S. PARRISH ------------------------------------------ Charles S. Parrish, Assistant Secretary EX-3.36 31 h92783ex3-36.txt BYLAWS OF TESORO MARINE SERVICES, AS AMENDED EXHIBIT 3.36 LIMITED LIABILITY COMPANY AGREEMENT OF TESORO MARINE SERVICES, LLC This Limited Liability Company Agreement (this "Agreement") of Tesoro Marine Services, LLC (the "Company"), is entered into by Tesoro Marine Services Holding Company to hereby form a Delaware limited liability company pursuant to and in accordance with the Delaware Limited Liability Company Act (6 Del.C. ss. 18-101, et seq.) (the "Act"), which hereby agrees as follows: 1. Name. The name of the limited liability company formed hereby is Tesoro Marine Services, LLC. 2. Purpose. The purpose for which the Company is organized is to transact any and all lawful business for which limited liability companies may be organized under the Act. 3. No State Law Partnership. The Company is not intended to be a partnership (including a limited partnership) or joint venture for any purposes other than U.S. federal and state tax purposes, and this Agreement may not be construed to suggest otherwise. 4. Registered Office. The registered office of the Company in the State of Delaware is c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. 5. Registered Agent. The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. 6. Member. The Member shall refer to the owner of all the outstanding ownership interests of the Company. The name and the mailing address of the initial Member is as follows: Tesoro Marine Services Holding Company 300 Concord Plaza Dr. San Antonio, TX 78216-6999 7. Powers. The Company shall have the power and authority to take any and all actions necessary, appropriate, proper, advisable, convenient or incidental to or for the furtherance of the purposes set forth in Section 2. 8. Term. The term of the Company shall commence on the date of the filing of a Certificate of Formation in the Office of the Secretary of State of the State of Delaware and shall be perpetual, unless it is dissolved sooner as a result of (a) the written election of the Member, (b) the Company selling or otherwise disposing of its interest in all or substantially all of its property or (c) any other event causing dissolution under the Act. 9. Capital Contributions. The Member shall make capital contributions to the Company at such times and in such amounts as determined by the Member. All capital contributions made by the Member to the Company shall be credited to the Member's account. 10. Management. The Company shall be managed by its Member. 11. Officers. (a) Appointment and Tenure. (i) The Member shall, from time to time, designate officers of the Company to carry out the day-to-day business of the Company, such designation to be reflected by written action of the Member and filed in the minute books of the Company. (ii) The officers of the Company shall be comprised of one or more individuals designated from time to time by the Member. No officer need be a resident of the State of Delaware. Each officer shall hold his offices for such terms and shall have such authority and exercise such powers and perform such duties as shall be determined from time to time by the Member. Any number of offices may be held by the same individual. The salaries or other compensation, if any, of the officers and agents of the Company shall be fixed from time to time by the Member. (iii) The officers of the Company may consist of a president, a secretary and a treasurer. The Member may also designate one or more vice presidents, assistant secretaries, and assistant treasurers. The Member may designate such other officers and assistant officers and agents as the Member shall deem necessary. (b) Removal. Any officer may be removed as such at any time by the Member, either with or without cause, in the discretion of the Member. (c) President. The president, if one is designated, shall be the chief executive officer of the Company, shall have general and active management of the day-to-day business and affairs of the Company as authorized from time to time by the Member and shall be authorized and directed to implement all orders, resolutions and business plans adopted by the Member. (d) Vice Presidents. The vice presidents, if any are designated, in the order of their seniority, unless otherwise determined by the Member, shall, in the absence or disability of the president, perform the duties and have the authority and exercise the powers of the president. They shall perform such other duties and have such other authority and powers as the Member may from time to time prescribe. -2- (e) Secretary; Assistant Secretaries. The secretary, if one is designated, shall perform such duties and have such powers as the Member may from time to time prescribe. The assistant secretaries, if any are designated, in the order of their seniority, unless otherwise determined by the Member, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary. They shall perform such other duties and have such other powers as the Member may from time to time prescribe. (f) Treasurer; Assistant Treasurers. The treasurer, if one is designated, shall have custody of the Company's funds and securities and shall keep full and accurate accounts and records of receipts, disbursements and other transactions in books belonging to the Company, and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated from time to time by the Member. The treasurer shall disburse the funds of the Company as may be ordered by the Member, taking proper vouchers for such disbursements, and shall render the president and the Member, when so directed, an account of all his transactions as treasurer and of the financial condition of the Company. The treasurer shall perform such other duties and have such other powers as the Member may from time to time prescribe. If required by the Member, the treasurer shall give the Company a bond of such type, character and amount as the Member may require. The assistant treasurers, if any are designated, in the order of their seniority, unless otherwise determined by the Member, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer. They shall perform such other duties and have such other powers as the Member may from time to time prescribe. 12. Distributions. The Company shall distribute to the Member any cash held by it which is not reasonably necessary for the operation of the Company. 13. Securities Act Notice. The membership interests of the Member referenced herein have not been registered under the Securities Act of 1933, as amended, or under the provisions of any state securities act. 14. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware, all rights and remedies being governed by said laws. 15. Severability. If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby. 16. Certificates. Certificates representing membership interests of the Company shall be in such form or forms as the Member shall approve. -3- 17. Free Transferability of Membership Interests; Effect of Transfer. The membership interest in the Company including without limitation, the membership interest owned by the Member, shall be fully and freely transferable. Upon transfer of the certificates representing a membership interest, the transferee shall succeed immediately to all rights of the membership interest represented thereby, including without limitation, all rights to receive distributions and management rights. -4- IN WITNESS WHEREOF, the undersigned, intending to be bound hereby, has duly executed this Limited Liability Company Agreement as of this 12th day of December, 2001. TESORO MARINE SERVICES HOLDING COMPANY By: /s/ CHARLES S. PARRISH ----------------------------------- Name: Charles S. Parrish Title: Assistant Secretary -6- EX-3.37 32 h92783ex3-37.txt CERTIFICATE OF INCORPORATION OF TESORO MARITIME CO EXHIBIT 3.37 CERTIFICATE OF INCORPORATION OF TESORO MARITIME COMPANY 1. The name of the corporation is: TESORO MARITIME COMPANY 2. The address of its registered offices in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County of New Castle, The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of all classes of stock which the corporation shall be authorized to issue is one thousand (1,000) shares of common stock, $1.00 par value. 5. A director of the corporation is not liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except that this article does not eliminate or limit the liability of a director: (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 General Corporation Law of Delaware; or (iv) for any transaction from which the director derived an improper personal benefit. 6. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot. 7. The name and mailing address of the incorporator is: M. A. Brzoska ------------------------------------------- The Corporation Trust Company 1209 Orange Street Wilmington, Delaware 19901 I, the undersigned, as incorporator and for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 16th day of July, 1998. /s/ M. A. Brzoska ------------------------ M. A. Brzoska EX-3.38 33 h92783ex3-38.txt BYLAWS OF TESORO MARITIME COMPANY EXHIBIT 3.38 Adopted: August 27, 1998 BY-LAWS OF TESORO MARITIME COMPANY BY-LAWS OF TESORO MARITIME COMPANY ARTICLE I Meetings of Stockholders Section 1.1 Annual Meetings. The Annual meeting of the stockholders for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held on such date and at such time and place within or without the state of Delaware as may be designated by the Board of Directors. Section 1.2 Special Meetings. Special meetings of the stockholders for any proper purpose or purposes may be called at any time by the Board of Directors, the Chairman of the Board of Directors, the President or any vice president, to be held on such date and at such time and place within or without the state of Delaware as the Board of Directors, the Chairman of the Board of Directors, the President or a vice president, whichever has called the meeting, shall direct. A special meeting of the stockholders shall be called by the Chairman of the Board of Directors, the President or any vice president whenever stockholders holding shares representing a majority of the votes of the shares of the Corporation then issued and outstanding and entitled to vote on matters to be submitted to stockholders of the Corporation shall make application therefor in writing. Any such written request shall state a proper purpose or purposes of the meeting and shall be delivered to the Chairman of the Board of Directors, the President or any vice president. Section 1.3 Notice of Meeting. Written notice, signed by the Chairman of the Board of Directors, the President, any vice president, the Secretary or an assistant secretary, of every meeting of stockholders (other than an adjourned meeting unless otherwise required by statute) stating the purpose or purposes for which the meeting is called, and the date and time when, and the place where, it is to be held shall be either delivered personally or mailed to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the meeting, except as otherwise provided by statute. If mailed, such notice shall be directed to a stockholder at his address as it shall appear on the stock books of the Corporation, unless he shall have filed with the Secretary a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in such request, and shall be given when deposited in the United States mail, postage prepaid. 1 Section 1.4 Quorum. The presence at any meeting, in person or by proxy, of the holders of record of shares representing a majority of the votes of the shares then issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business, except where otherwise provided by statute. Section 1.5 Adjournments. In the absence of a quorum, a majority of the votes of the stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to vote is present in person or by proxy, any officer entitled to preside at or act as secretary of such meeting may adjourn the meeting from time to time until a quorum shall be present. Section 1.6 Voting. Directors shall be chosen by a plurality of the votes cast at the election, and except where otherwise provided by statute, or the Certificate of Incorporation, all other questions shall be determined by a majority of the votes cast on such question. Section 1.7 Proxies. Any stockholders entitled to vote may vote by proxy, provided that the instrument authorizing such proxy to act shall have been executed in writing (which shall include telegraphing or cabling) by the stockholder himself or by his duly authorized attorney. Section 1.8 Judges of Election. The Board of Directors may appoint judges of election to serve at any election of directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the judges so appointed shall fail to attend, or refuse or be unable to serve, then such appointment may be made by the presiding officers at the meeting. ARTICLE II Board of Directors Section 2.1 Number. The number of directors which shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors but shall not be less than two. Section 2.2 Election and Term of Office. Directors shall be elected at the annual meeting of the stockholders. Each director (whether elected at an annual meeting or to fill a vacancy or otherwise) shall continue in office until his successor shall have been elected or until his earlier death, resignation, removal or other incapacity in the manner hereinafter provided. 2 Section 2.3 Vacancies and Additional Directorships. If any vacancy shall occur among the directors by reason of death, resignation, removal or other incapacity or as the result of an increase in the number of directorships, the directors then in office shall continue to act and may fill any such vacancy by a vote of the directors then in office, though less than a quorum. Section 2.4 Meetings. A meeting of the Board of Directors shall be held for organization, for the election of officers and for the transaction of such other business as may properly come before the meeting, within thirty days after each annual election of directors. The Board of Directors by resolution may provide for the holding of regular meetings and may fix the times and places at which such meetings shall be held. Notice of regular meetings shall not be required to be given, provided that whenever the time or place of regular meetings shall be fixed or changed, notice of such action shall be mailed promptly to each director who shall not have been present at the meeting at which such action was taken, addressed to him at his residence or usual place of business. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, the President, any vice president or any two directors. Except as otherwise required by statute, notice of each special meeting shall be mailed to each director, addressed to him at his residence or usual place of business, or shall be sent to him at such place by telegram, radio or cable, or telephone or delivered to him personally, not later than two days before the day on which the meeting is to be held. Such notice shall state the time and place of such meeting, but unless otherwise required by statute, the Certificate of Incorporation of the Corporation or these By-laws need not state the purposes thereof. Notice of any meeting need not be given to any director who shall attend such meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Section 2.5 Quorum. One-third of the total number of members of the Board of Directors as constituted from time to time, but not less than two, shall be necessary and sufficient to constitute a quorum for the transaction of business, In the absence of a quorum, a majority of those present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present and the meeting may be held as adjourned without further notice or waiver. A majority of those present at any meeting at which a quorum is present may decide any question brought before such meeting, except as otherwise provided by law, the Certificate of Incorporation or these By-laws. 3 Section 2.6 Resignation of Directors. Any director may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 2.7 Removal of Directors. At any special meeting of the stockholders, duly called for the purpose of removing a director or directors as provided in these By-laws, any director or directors may, by the affirmative vote of the holders of shares representing a majority of the votes of all the shares of stock outstanding and entitled to vote for the election of directors, be removed from office, either with or without cause. At such meeting a successor or successors may be elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled by the directors as provided in Section 2.3. Section 2.8 Compensation of Directors. Directors may receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Section 2.9 Indemnification. The Corporation shall indemnify to the full extent authorized or permitted by the laws of the state of Delaware any person who is made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Corporation or serves or served any other enterprise at the request of the Corporation. ARTICLE III Committees of the Board Section 3.1 Designation, Power, Alternate Members and Term of Office. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Any such committee, to the extent provided in such resolution, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal 4 of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-laws of the Corporation or, unless the resolution of the Board of Directors establishing any such committee shall expressly so provide or these By-laws shall expressly so provide, declaring a dividend on the Corporation's capital stock or authorizing the issuance of the Corporation's capital stock. The Board may designate one or more directors as alternate members of any committee who, in the order specified by the Board, may replace any absent or disqualified member at any meeting of the committee. If at a meeting of any committee one or more of the members thereof should be absent or disqualified, and if either the Board of Directors has not so designated any alternate member or members, or the number of absent or disqualified members exceeds the number of alternate members who are present at such meeting, then the member or members of such committee (including alternates) present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another director to act at the meeting in the place of any such absent or disqualified member. The term of office of the members of each committee shall be as fixed from time to time by the Board, subject to these By-laws; provided, however, that any committee member who ceases to be a member of the Board shall ipso facto cease to be a committee member. Each committee shall appoint a secretary, who may be the Secretary of the Corporation or an assistant secretary thereof. Section 3.2 Meetings, Notices and Records. Each committee may provide for the holding of regular meetings, with or without notice, and may fix the time and place at which such meetings shall be held. Special meetings of each committee shall be held upon call by or at the direction of its chairman or, if there be no chairman, by or at the direction of any two of its members, at the time and place specified in the respective notices or waivers of notice thereof. Notice of each special meeting of a committee shall be mailed to each member of such committee, addressed to him at his residence or usual place of business, at least two days before the day on which the meeting is to be held, or shall be sent by telegram, radio or cable addressed to him at such place, or telephoned or delivered to him personally, not later than the day before the day on which the meeting is to be held. Notice of any meeting of a committee need not be given to any member thereof who shall attend the meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Notice of any adjourned meeting need not be given. Each committee shall keep a record of its proceedings. 5 Section 3.3 Quorum and Manner of Acting. At each meeting of any committee the presence of one-third but not less than two of its members then in office shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which the quorum is present shall be the act of such committee; in the absence of a quorum, a majority of the members present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present. Subject to the foregoing and other provisions of these By-laws and except as otherwise determined by the Board of Directors, each committee may make rules for the conduct of its business. Any determination made in writing and signed by all the members of such committee shall be as effective as if made by such committee at a meeting. Section 3.4 Resignations. Any member of a committee may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 3.5 Removal. Any member of any committee may be removed at any time by the Board of Directors with or without cause. Section 3.6 Vacancies. If any vacancy shall occur in any committee by reason of death, resignation, disqualification, removal or otherwise, the remaining members of such committee, though less than a quorum, shall continue to act until such vacancy is filled by a resolution passed by a majority of the whole Board of Directors. Section 3.7 Compensation. Committee members shall receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any committee member from serving the Corporation in any other capacity and receiving compensation therefor. ARTICLE IV Officers Section 4.1 Officers. The officers of the Corporation shall be a Chairman of the Board of Directors, a President, one or more 6 Vice Presidents (which may include Group Vice Presidents, Senior Vice Presidents and other categories of Vice Presidents), a Secretary, a Treasurer, and such other officers as may be appointed in accordance with the provisions of Section 4.3. Section 4.2 Election, Term of Office and Qualifications. Each officer (except such officers as may be appointed in accordance with the provisions of Section 4.3) shall be elected by the Board of Directors. Each such officer (whether elected at the first meeting of the Board of Directors after the annual meeting of stockholders or to fill a vacancy or otherwise) shall hold his office until the first meeting of the Board of Directors after the next annual meeting of stockholders and until his successor shall have been elected, or until his death, or until he shall have resigned in the manner provided in Section 4.4 or shall have been removed in the manner provided in Section 4.5. The Chairman of the Board of Directors must be a member of the Board of Directors. Section 4.3 Subordinate Officers and Agents. The Board of Directors from time to time may appoint other officers or agents (including one or more assistant vice presidents, one or more assistant secretaries and one or more assistant treasurers), to hold office for such period, have such authority and perform such duties as are provided in these By-laws or as may be provided in the resolutions appointing them. The Board of Directors may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective terms of office, authorities and duties. Section 4.4 Resignations. Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 4.5 Removal. Any officer specifically designated in Section 4.1 may be removed at any time, either with or without cause, at any meeting of the Board of Directors by the vote of a majority of all the directors then in office. Any officer or agent appointed in accordance with the provisions of Section 4.3 may be removed, either with or without cause, by the Board of Directors at any meeting, by the vote of a majority of the directors present at such meeting, or by any superior officer or agent upon whom such power of removal shall have been conferred by the Board of Directors. Section 4.6 Vacancies. A vacancy in any office by reason of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner 7 prescribed by these By-laws for regular election or appointment to such office. Section 4.7 The Chairman of the Board of Directors. The Chairman of the Board of Directors shall be the chief executive officer of the Corporation. Subject to the direction of the Board of Directors, he shall have general charge of the business affairs and property of the Corporation. He shall see that all orders and resolutions of the Board of Directors are carried into effect. If present, he shall preside at all meetings of stockholders. He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature) , and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. From time to time he shall report to the Board of Directors all matters within his knowledge which the interests of the Corporation may require to be brought to their attention. He shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors. Section 4.8 The President. The President shall be the chief operating officer of the Corporation. Subject to the direction of the Chairman of the Board of Directors, he shall have general supervision over the officers and agents of the Corporation. At the request of the Board of Directors or the Chairman of the Board of Directors, the President shall perform all the duties of the Chairman of the Board of Directors and, when so acting, shall have all the powers of and be subject to all restrictions upon the Chairman of the Board of Directors (except that the President need not be a member of the Board of Directors) . He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. He shall also perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors or the Chairman of the Board of Directors. Section 4.9 The Vice Presidents. In the absence or disability of the President, any vice president designated by the President (or in the absence of such designation, the Vice President designated by the Board of Directors or the Chairman of the Board of Directors) shall perform all the duties of the President and, when so acting, shall have all the powers of and be 8 subject to all restrictions upon the President. Any vice president may also sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation deeds, mortgages, bonds and other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. Each vice president shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.10 The Secretary. The Secretary shall (a) Record all the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book or books to be kept for that purpose; (b) Cause all notices to be duly given in accordance with the provisions of these By-laws and as required by statute; (c) Whenever any committee shall be appointed in pursuance of a resolution of the Board of Directors, furnish the chairman of such committee with a copy of such resolution; (d) Be custodian of the records and of the seal of the Corporation, and cause such seal to be affixed to all certificates representing stock of the Corporation prior to the issuance thereof and to all instruments the execution of which on behalf of the Corporation under its seal shall have been duly authorized; (e) See that the lists, books, reports, statements, certificates and other documents and records required by statute are properly kept and filed; (f) Have charge of the stock and transfer books of the Corporation, and exhibit such stock book at all reasonable times to such persons as are entitled by statute to have access thereto; (g) Sign (unless the Treasurer or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Secretary and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the 9 Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.11 Assistant Secretaries. At the request of the Secretary or in his absence or disability, the Assistant Secretary designated by him (or in the absence of such designation, the Assistant Secretary designated by the Board of Directors, the Chairman of the Board of Directors or the President) shall perform all the duties of the Secretary and, when so acting, shall have all the powers of and be subject to all restrictions upon the Secretary. The assistant secretaries shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary. Section 4.12 The Treasurer. The Treasurer shall (a) Have charge of and supervision over and be responsible for the funds, securities, receipts and disbursements of the Corporation; (b) Cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such banks or trust companies or with such bankers or other depositaries as shall be selected in accordance with Section 5.3 of these By-laws or to be otherwise dealt with in such manner as the Board of Directors may direct; (c) Cause the funds of the Corporation to be disbursed by checks or drafts upon the authorized depositaries of the Corporation, and cause to be taken and preserved proper vouchers for all moneys disbursed; (d) Render to the Board of Directors, the Chairman of the Board of Directors, or the President, whenever requested, a statement of the financial condition of the Corporation and of all his transactions as Treasurer; (e) Cause to be kept at the Corporation's principal office correct books of account of all its business and transactions and such duplicate books of account as he shall determine and upon application cause such books or duplicates thereof to be exhibited to any director; (f) Be empowered, from time to time, to require from the officers or agents of the Corporation reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation; (g) Sign (unless the Secretary or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have 10 been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Treasurer and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.13 Assistant Treasurers. At the request of the Treasurer or in his absence or disability, the Assistant Treasurer designated by him (or in the absence of such designation, the Assistant Treasurer designated by the Board of Directors, the Chairman of the Board of Directors, or the President) shall perform all the duties of the Treasurer and, when so acting, shall have all the powers of and be subject to all restrictions upon the Treasurer. The Assistant Treasurers shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Treasurer. Section 4.14 Salaries. The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors, except that the Board of Directors may delegate to any person the power to fix the salaries or other compensation of any officers or agents appointed in accordance with the provisions of Section 4.3. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. Section 4.15 Surety Bonds. If the Board of Directors shall so require, any officer or agent of the Corporation shall execute to the Corporation a bond in such sum and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful discharge of his duties, including responsibilities for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands. ARTICLE V Execution of Instruments and Deposit of Corporate Funds Section 5.1 Execution of Instruments Generally. The Chairman of the Board of Directors, the President, any vice president, the Secretary or the Treasurer, subject to the approval of the Board of Directors, may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. The Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any 11 instrument in the name and on behalf of the Corporation, and such authorization may be general or confined to specific instances. Section 5.2 Borrowing. No loans or advances shall be obtained or contracted for, by or on behalf of the Corporation and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors. Such authorization may be general or confined to specific instances, Any officer or agent of the Corporation thereunto so authorized may obtain loans and advances for the Corporation, and for such loans and advances may make, execute and deliver promissory notes, bonds or other evidences of indebtedness of the Corporation. Any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as security for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation, any and all stocks, bonds, other securities and other personal property at any time held by the Corporation, and to that end may endorse, assign and deliver the same and do every act and thing necessary or proper in connection therewith. Section 5.3 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors may select, or as may be selected by any officer or officers or agent or agents authorized so to do by the Board of Directors. Endorsements for deposit to the credit of the Corporation in any of its duly authorized depositaries shall be made in such manner as the Board of Directors from time to time may determine. Section 5.4 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers or agent or agents of the Corporation, and in such manner, as from time to time shall be determined by the Board of Directors. Section 5.5 Proxies. Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the Chairman of the Board of Directors, the President or a vice president or by any other person or persons thereunto authorized by the Board of Directors. ARTICLE VI Record Dates Section 6.1. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of 12 stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall be not more than sixty nor less than ten days before the date of such meeting, nor more that sixty days prior to any other action. Only those stockholders of record on the date so fixed shall be entitled to any of the foregoing rights, notwithstanding the transfer of any such stock on the books of the Corporation after any such record date fixed by the Board of Directors. ARTICLE VII Corporate Seal Section 7.1. The corporate seal shall be circular in form and shall bear the name of the Corporation and words and figures denoting its organization under the laws of the state of Delaware and the year thereof and otherwise shall be in such form as shall be approved from time to time by the Board of Directors. ARTICLE VIII Fiscal Year Section 8.1. The fiscal year of the Corporation shall begin on the first day of January in each year and shall end on the 31st day of December in the same year. ARTICLE IX Amendments Section 9.1. All By-laws of the Corporation may be amended, altered or repealed, and new By-laws may be made, by the affirmative vote of the holders of record of shares representing a majority of the votes of the outstanding shares of stock of the Corporation entitled to vote cast at any annual or special meeting, or by the affirmative vote of a majority of the Directors cast at any regular or special meeting at which a quorum is present. 13 EX-3.39 34 h92783ex3-39.txt ARTICLES OF INCORPORATION OF TESORO NORTHSTORE CO Exhibit 3.39 ARTICLES OF AMENDMENT TO THE ARTICLES OF INCORPORATION OF NORTHSTORE CORPORATION Pursuant to the provisions of the ALASKA CORPORATIONS CODE, the undersigned corporation adopts the following Articles of Amendment to its Articles of Incorporation: FIRST: The name of the corporation is Northstore Corporation. SECOND: The following amendment to the Articles of Incorporation was adopted by the corporation in the manner prescribed by the Alaska Corporations Code: RESOLVED, that Article One of the Articles of Incorporation of Northstore Corporation is hereby amended as follows: ARTICLE ONE Name: The name of the Corporation shall be: TESORO NORTHSTORE COMPANY THIRD: The Amendment to the Articles of Incorporation was approved by the Board of Directors on the 10th day of September, 1991 and by the shareholders on the 10th day of September, 1991. FOURTH: The number of shares of the corporation outstanding at the time of the adoption of the amendment was 800, and the number of shares entitled to vote thereon was 800. The designation and number of outstanding shares of each class entitled to vote thereon as a class is as follows: none. FIFTH: The number of shares that voted for such amendment was 800 and the number of shares that voted against such amendment was 0. The number of shares for such amendment was at least two-thirds of the shares entitled to vote. The number of shares of each class entitled to vote thereon as a class voted for and against such amendment, respectively, was none. SIXTH: The manner in which an exchange, reclassification or cancellation of issued shares is to be carried out if the amendment provides for an exchange, reclassification or cancellation of issued shares and is not set out in the amendment is as follows: "No change." DATED this 16th day of September, 1991. NORTHSTORE CORPORATION By: /s/ E. William Cromey --------------------------- E. William Cromey Senior Vice President By: /s/ Larry B. Douglas --------------------------- Larry B. Douglas Assistant Secretary 2 VERIFICATION STATE OF ALASKA ) ) ss. THIRD JUDICIAL DISTRICT ) E. William Cromey, being first duly sworn, deposes and states that he is the Senior Vice President of Northstore Corporation; that he has read the foregoing Articles of Amendment to the Articles of Incorporation; that he verifies by this instrument that the information contained therein is complete, true and correct; and that he executed the foregoing document on behalf of said corporation as its free and voluntary act and deed, for the uses and purposes therein mentioned. /s/ E. William Cromey -------------------------------------------- E. William Cromey SUBSCRIBED and SWORN to before me this 16th day of September 1991. /s/ Shirley White -------------------------------------------- Notary Public in and for Alaska My Commission expires: 7/3/94 3 PLEASE COMPLETE EACH ITEM (TYPED OR PRINTED). STATEMENT OF CHANGE OF REGISTERED OFFICE OR REGISTERED AGENT, OR BOTH Pursuant to the provisions of Alaska Statute Title 10, the undersigned Corporation, organized under the laws of the State of Alaska, submits the following statement for the purpose of changing the registered office or its registered agent, or both, in the State of Alaska. 1. Name of Corporation NORTHSTORE CORPORATION -------------------------------------------------------- 2. Address of its old registered office 4450 Cordova #200 --------------------------------------- Anchorage, Alaska 99503 ---------------------------------------------------------------------------- 3. ADDRESS TO WHICH REGISTERED OFFICE IS TO BE CHANGED c/o C T CORPORATION SYSTEM ----------------------------------------------- Suite 800, 240 Main Street, Juneau, Alaska 99801 ---------------------------------------------------------------------------- 4. Name of new registered agent Peter Miller [STAMP] ---------------------------------------------- 5. Name of new registered agent C T CORPORATION SYSTEM ---------------------------------------------- The address of the registered office and the address of the business office of the registered agent, as changed, will be identical. Such change was authorized by resolution duly adopted by the board of directors of this corporation. Dated May 7, 1991 RETURN FORM AND $15.00 FILING FEE TO: /s/ James R. Hyslop ------------------------------------ Vice President Corporations Section P.O. Box D Subscribed and sworn to or Juneau, Alaska 99811 5-16-91 affirmed before me on Telephone (907) 465-2530 $15.00 7th day of May, 1991 [STAMP] /s/ Michelle D. Smith ------------------------------------ Notary Public in and for the State of Texas My commission expires: 3/6/93 08-184 (Rev. 3/89) (ALASKA - 2405 - 7/2/89) AMENDMENT TO THE ARTICLES OF INCORPORATION OF MEDICAL DATA BANC, INC. We, the undersigned duly appointed officers of Medical Data Banc, Inc., in compliance with and pursuant to the authority granted in Alaska Business Corporation Act Section 10.05.285, adopt the following amendments to the Articles of Incorporation. FIRST: The name of the corporation is Medical Data Banc, Inc. SECOND: The amendments to be adopted are as follows and in each case the following Article replaces in its entirety the Article of the same number now existing of record in the Articles of Incorporation of Medical Data Banc. The amendments are as follows: Article I Article I shall be restated to read as follows: "Name: The name of the corporation shall be: Northstore Corporation." Article III Article Ill shall be restated as follows: "Purposes and Powers: The purposes for which the corporation is organized is any lawful purpose and the Standard Industrial Code which most closely describes the initial activities of the corporation is 5410. In addition to the foregoing and without limiting the powers in anyway, the corporation shall have the power, to such extent as a corporation organized under the Alaska Business Corporations Act may now or hereafter lawfully have, to do, either as principal or agent and either alone or in connection with other corporations, firms or individuals, all and everything necessary, suitable, convenient or proper for, or in connection with, or incident to, the accomplishment of any purposes for the attainment of any one or more of the objects herein enumerated, designed directly or indirectly to promote the interests of the corporation or to enhance the value of its properties; and in general to do any and all things and exercise any and all powers, rights and privileges which a corporation may now or hereafter be organized to do or to exercise under the Alaska Business Corporations Act or under any Act amendatory thereof, supplemental thereto or substituted therefor." Article IV Article IV shall be restated to read as follows: "Capitalization: The aggregate number of shares of the corporation shall have authority to issue shall be one thousand shares of common stock, all of which will be without par value." Article V Article V shall be restated to read as follows: "Pre-emptive Rights: No shareholder of this corporation shall have the pre-emptive right to acquire additional or treasury shares of the corporation that may from time-to-time be issued whether or not presently authorized." 2 Article VI Article VI shall be restated to read as follows: "Limitation on Transfer of Stock: No shareholder shall encumber, sell, transfer or otherwise dispose of any of the shares of this corporation which may now or hereafter may be held or owned by him until he shall have first acquired the written consent of The Southland Corporation. Before issuance of any stock there shall be inscribed thereon notice of this restriction. This restriction shall not be deleted or amended without the prior written consent of The Southland Corporation." Article VII Article VII shall be restated to read as follows: "Registered Office and Registered Agent: The address of the corporation's registered office shall be 3600 West 40th, #B, Anchorage, Alaska 99503 and the name of the corporation's registered agent at such address shall be Bruce Chambers." THIRD: The foregoing amendments to the Articles of Incorporation were adopted by the Shareholders at a special meeting held the 20th day of March, 1984. FOURTH: The number of shares outstanding and entitled to vote in the matter of this Amendment to the Articles of Incorporation are 500 shares issued and outstanding all of one class, common stock with no par value. FIFTH: The number of shares voting for or against the Amendment to the Articles of Incorporation by class are as follows: 3 Shares Voting Shares Voting Name of Class for Plan Against Plan ------------- -------- ------------ Common Stock (no par value) 500 0 SIXTH: These Amendments to the Articles of Incorporation in no way change the amount of stated capital of the corporation but rather only change the number of shares available for issue. IN WITNESS WHEREOF, the undersigned has executed the foregoing Amendments to the Articles of Incorporation of Medical Data Banc, Inc. now to be known as Northstore Corporation on this the 20th day of March, 1984. /s/ Bruce A. Chambers -------------------------------------------- Bruce A. Chambers, President /s/ John R. Morrison -------------------------------------------- John R. Morrison, Secretary VERIFICATION STATE OF ALASKA ) ) ss. THIRD JUDICIAL DISTRICT ) BRUCE A. CHAMBERS, first being duly sworn upon oath, deposes and says, that he has read the foregoing Amendment to the Articles of Incorporation of Medical Data Banc, Inc. to be known as Northstore Corporation, knows the contents thereof, and believes the same to be true and correct to the best of his knowledge and belief. /s/ Bruce A. Chambers -------------------------------------------- Bruce A. Chambers, President SUBSCRIBED AND SWORN to before me this 20th day of March, 1984. /s/ Kenneth P. Egge -------------------------------------------- Notary Public in and for Alaska My commission expires: 1/22/86 4 ARTICLES OF MERGER OF NORTHSTORE CORPORATION (An Alaska Corporation) INTO MEDICAL DATA BANC, INC. (An Alaska Corporation) Pursuant to the provisions of Title X, Chapter 5, Article 4 of the Alaska Statutes, the undersigned corporations adopt the following Articles of Merger for the purpose of merging Northstore Corporation (an Alaska corporation) into Medical Data Banc, Inc. (an Alaska corporation) with Medical Data Banc, Inc. being the surviving corporation. FIRST: The following Plan of Merger was approved by the Shareholders of each of the undersigned corporations in the manner prescribed by Section 10.05.390 of the Alaska Business Corporations Act: ARTICLE I Name and Continued Corporate Existence of Surviving Corporation Medical Data Banc, Inc., the constituent corporation whose corporate existence is to survive this merger and continue thereafter as the surviving corporation, and its identity, existence, purposes, powers, objects, franchises, rights and immunities shall continue unaffected and unimpaired by the merger. The corporate identity, existence, purposes and powers, objects, franchises, rights and immunities of Northstore Corporation shall be wholly merged into Medical Data Banc, Inc. Accordingly, on the merger date, the separate existence of Northstore Corporation, except insofar as continued by statute, shall cease. ARTICLE II Certificate of Incorporation From and after the merger date, the Certificate of Incorporation of Medical Data Banc, Inc., (which Certificate of Incorporation of Medical Data Banc, Inc., filed in the office of the Commissioner, Department of Commerce & Economic Development, State of Alaska, on the 29th day of June, 1981) shall be the Certificate of Incorporation of the surviving corporation. In addition to the powers conferred upon it by law, the surviving corporation shall have the powers set forth in the Articles of Incorporation and be governed by the Provisions thereof. ARTICLE III By-laws of the Surviving Corporation From and after the merger date, the present By-laws of Medical Data Banc, Inc., as amended, shall be and become the Bylaws of the surviving corporation until the same shall be altered, amended or repealed, or until new By--laws shall be adopted, in accordance to the Provisions of law, the By-laws and the Certificate of Incorporation of the surviving corporation. ARTICLE IV Directors and Officers 1. The directors of the surviving corporation, who shall hold office until their successors shall have been duly elected and shall have qualified, are as otherwise provided in the 2 Certificate of Incorporation of the surviving corporation or by its By-laws, shall be the directors of Medical Data Banc, Inc. until changed by action of the board of directors of the surviving corporation pursuant to its By-laws; and the names of the first directors of the surviving corporation are: Name Address ---- ------- Bruce A. Chambers 1435 "L" Street Anchorage, Alaska John E. Niemneyer 6342 S.W. Macadam Portland, Oregon John R. Morrison 1435 "L" Street Anchorage, Alaska 2. The first annual meeting of the shareholders of the surviving corporation after the merger date shall be the annual meeting provided by the By-laws of the surviving corporation in effect immediately following merger for the year 1984. 3. The officers of the surviving corporation, who shall hold office until their successors shall have been elected or appointed and shall have Qualified? are as otherwise provided in its By-laws, are the officers of Northstore Corporation immediately prior to the merger date. 4. If, on or after the merger date, a vacancy shall for any reason exist in the board of directors of the surviving corporation, or in any of the offices, such vacancies shall thereafter be filled in the manner provided in the Certificate of Incorporation of the surviving corporation or in its By-laws. 3 ARTICLE V Capital Stock of the Surviving Corporation The capitalization of the surviving corporation upon the merger date shall be as set forth in the Certificate of Incorporation of the surviving corporation. ARTICLE VI Conversion of Securities on Merger The manner and basis of converting the shares of stock of each of the constituent corporations into shares of stock of the surviving corporation are as follows: 1. Each issued share of common stock, of no par value, of Medical Data Banc, Inc., including shares held in treasury, if any, shall, on the merger date continue to be issued shares of common stock of the surviving corporation. Each of the shares of common stock, with no par value, of Northstore Corporation outstanding on the merger date (hereinafter sometimes called "Northstore stock"), and all rights and respect thereof shall upon the merger date be converted into approximately 0.86 share(s) of common stock, no par value, of the surviving corporation. 2. At any time and from time-to-time after the merger date, each holder of an outstanding certificate or certificates theretofore representing shares of Northstore Corporation stock shall be entitled, upon the surrender of such certificate or certificates at the office of the transfer agent of the surviving corporation to receive in exchange therefor a certificate or certificates representing the number of shares of no par value 4 surviving corporation common stock pursuant to Paragraph 1 above. No dividend shall be paid by the surviving corporation to the holders of outstanding certificates expressed to represent shares of Northstore Corporation stock, upon surrender and exchange thereof as herein provided there shall be paid to the record holder of a certificate or certificates of no par value surviving corporation stock an amount with respect to each such share equal to all dividends which shall have been paid or become payable to holders of record between the merger date and the date of such exchange. ARTICLE VII Assets and Liabilities On the merger date, all property, real, personal and mixed, and all debts due to either of the constituent corporations on whatever account, as well for stock subscriptions as all other choses in action, and all and every other interest of or belonging to either of constituent corporations shall be taken by and deemed to be transferred to and vested in the surviving corporation without further act or deed; and all property and every other interest shall be thereafter as effectually the property of the surviving corporation as it was of the respective constituent corporations, and the title to any real estate or any interest therein, whether vested by deed or otherwise, in either of the constituent corporations shall not revert or be in any way impaired by reason of the merger; provided, however, that all rights of creditors and all liens upon the property of either of 5 the constituent corporations shall be preserved unimpaired, and all debts, liabilities, obligations and duties of the respective constituent corporations shall thenceforth attach to the surviving corporation, and may be enforced against it to the same extent as if said debts, liabilities, obligations and duties had been incurred or contracted by it. Any action or proceeding pending by or against either of the constituent corporations may be prosecuted to judgment as if the merger had not taken place, or the surviving corporation may be submitted in place of either of the constituent corporations. The parties hereby respectively agree that from time to time, when requested by the surviving corporation or by its successors or assigns, they will execute and deliver or cause to be executed and delivered all such deeds and instruments, and will take or cause to be taken all such further or other action, as the surviving corporation may deem necessary or desirable in order to vest in and confirm to the surviving corporation or its successors or assigns title to and possession of all the aforesaid property and rights and otherwise carry out the intent and purposes of this agreement. ARTICLE VIII Conduct of Business by Constituent Corporation Prior to the merger date Northstore Corporation shall conduct its business in its usual and ordinary manner. ARTICLE IX Resident Agent The respective names of the city and location therein where the principal office of the surviving corporation is to be 6 located in the State of Alaska, street number of its principal office, the name of the registered agent will, as of the merger date, be set forth in the Articles of Incorporation of the surviving corporation. ARTICLE X Right to Amend Certificate of Incorporation The surviving corporation hereby reserves the right to amend, alter, change or repeal its certificate of incorporation in a manner now or hereafter prescribed by statute or otherwise authorized by law; and all rights and powers conferred in the certificate of incorporation on the shareholders, directors or officers of the surviving corporation, or any other person whomsoever, are subject to this reserved power. SECOND: The number of shares outstanding and entitled to vote in the matter of this merger of corporations is as follows: Number of Shares Entitled Name of Corporation to Vote - ------------------- ------------------------- Medical Data Banc, Inc. 70 Northstore Corporation 500 Each corporation has but one class of stock, that being common stock bearing no par value. THIRD: The number of shares voting for or against the Plan of Merger by each class are as follows: Those Voting Those Voting Name of Corporation for Plan Against Plan - ------------------- ------------ ------------ Medical Data Banc, Inc. 70 0 Northstore Corporation 500 0 7 Each Corporation has but one class of stock, that being common stock bearing no par value. Effective date of this merger shall be the date accepted and filed with the State of Alaska. MEDICAL DATA BANC, INC. Dated: 3/19/84 By: /s/ BRUCE A. CHAMBERS ---------------------------- ---------------------------------- Bruce A. Chambers President Dated: March 19, 1984 By: /s/ ILLEGIBLE ---------------------------- ---------------------------------- ILLEGIBLE Secretary NORTHSHORE CORPORATION Dated: 3/19/84 By: /s/ BRUCE A. CHAMBERS ---------------------------- ---------------------------------- Bruce A. Chambers President Dated: March 19, 1984 By: /s/ ILLEGIBLE ---------------------------- ---------------------------------- ILLEGIBLE Secretary VERIFICATION ------------ STATE OF ALASKA ) ) ss. THIRD JUDICIAL DISTRICT ) BRUCE A. CHAMBERS, first being duly sworn upon oath, deposes and says, that he is President of Northshore Corporation and Medical Data Banc, Inc., that he has read the foregoing Articles of Merger of Northshore Corporation into Medical Data Banc, Inc., knows the contents thereof, and believes the same to be true and correct to the best of his knowledge and belief. /s/ BRUCE A. CHAMBERS -------------------------------------- Bruce A. Chambers SUBSCRIBED AND SWORN to before me this 19th day of March, 1984. ------ ------- /s/ ILLEGIBLE -------------------------------------- Notary Public in and for Alaska My Commission Expires: 1-22-86 --------------- 8 ARTICLES OF INCORPORATION of MEDICAL DATA BANC, INC. I, the undersigned, a natural person of the age of nineteen (19) years or more, acting as incorporator under the Alaska Business Corporation Act, adopts the following Articles of Incorporation for such corporation. ARTICLE ONE NAME: The name of the corporation shall be: MEDICAL DATA BANC, INC. ARTICLE TWO DURATION: This corporation shall commence at the time that a certificate of incorporation shall be issued and shall continue thereafter without limit. ARTICLE THREE PURPOSES AND POWERS: The purposes for which the corporation is organized are to sell and promote services and products relating to medical data. This corporation shall have the power, to such extent as a corporation organized under the Alaska Business Corporation Act may now or hereafter lawfully do, to do, either as principal or agent and either alone or in connection with other corporations, firms, or individuals, all and everything necessary, suitable, convenient, or proper for, or in connection with, or incident to, the accomplishment of any of the purposes for the attainment, of any one or more of the objects herein enumerated, or designed directly or indirectly to promote the interests of this corporation or to enhance the value of its properties; and in general to do any and all things and exercise any and all powers, rights, and privileges which a corporation may now or hereafter be organized to do or to exercise under the Alaska Business Corporation Act or under any Act amendatory thereof, supplemental thereto, or substituted therefor. ARTICLE FOUR CAPITALIZATION: The aggregate number of shares that the corporation shall have authority to issue shall be Five Hundred (500) shares, all of such shares being without par value. ARTICLE FIVE PRE-EMPTIVE RIGHTS: After each of the original stockholders shall have reached parity concerning the number of shares they shall hold, each stockholder of this corporation shall have the right to purchase shares of this corporation that may from time to time be issued whether or not presently authorized, including shares from the treasury of this corporation, in the ratio that the number of shares the 2 stockholder holds at the time of issue bears to the total number of shares outstanding, exclusive of treasury shares. This right shall have been deemed waived by any stockholder who does not exercise it and pay for the shares pre-emptive within thirty (30) days of receipt of a notice in writing from the corporation stating the prices, terms and conditions of the issue of shares and inviting him to exercise his preemptive rights. Until each of the stockholders shall have reached parity, stockholders of this corporation shall have no pre-emptive or preferential right of subscription to any shares of this corporation, whether now or hereafter authorized. The acceptance of shares in this corporation shall be a waiver of any such pre-emptive or preferential right which, in the absence of this provision, might otherwise be asserted by stockholders of this corporation, or any of them. ARTICLE SIX LIMITATION ON TRANSFER OF STOCK: In case any stockholder of this corporation should desire to sell, transfer, pledge, encumber, or in any manner dispose of his shares of stock during his lifetime, he must offer for sale to the corporation, in writing, the said share or shares of the corporation at the same price and on the same terms as would govern upon a transfer to a person not a stockholder. 3 The corporation shall have ninety (90) days from the receipt of said offer within which to exercise its option to purchase said stock. Said notice shall be given by the stockholders to the company by a letter sent by United States registered mail, addressed to the company at its registered office. The purchase of such stock may be made by the company only out of earned surplus, but such purchase may be made by action of the Board of Directors and without any action of the stockholders of the corporation. (A) In the event that the corporation should fail, refuse or be unable to exercise, within ninety (90) days after receipt of the aforesaid offer, its option to purchase all or a part of such stock, the remaining stockholders of the corporation shall have the option to purchase said stock or the portion thereof not purchased by the corporation, said option to be exercised within sixty (60) days after there has been mailed to each stockholder of the corporation a notice in writing giving the number of shares being offered for sale and the price at which said shares are being offered. This notice shall be sent by United States mail, addressed to each stockholder as shown by the corporation's records, and shall be sent within five (5) days after the expiration of the period granted the corporation within which to exercise its prior option. Stockholders of the corporation, so desiring to purchase said stock, 4 shall send to the corporation, within the period aforesaid, written subscriptions for the number of shares desired by them. (B) If no part of the shares offered for sale, or if less than the total number of shares so offered for sale, is purchased by the corporation or stockholders, or both, then the stock not so purchased shall be returned to the stockholders who offered the same for sale, and the said stockholders shall thereafter have the right to sell said stock to whomsoever will purchase same, provided, however, that the sale of such stock shall not be made at any lower price than that which was offered to the corporation originally, as aforesaid, and provided further that the sale of such stock shall not be made later than one hundred eighty (180) days after the date upon which said stock was offered to the corporation originally as aforesaid. If more than the total number of shares so offered for sale and available for purchase by the stockholders of the corporation is desired by the stockholders of the corporation, then the stockholders, so desiring to purchase same, shall be entitled to purchase said stock in the proportions in which the common stockholding of each stockholder purchasing the same bears to each other, In the event that the proportion to which any stockholder should be entitled, determined in this manner, should be more than the 5 number of shares desired to be purchased by said stockholder, then the overplus shall be distributed to the remaining stockholders, so desiring to purchase, in the proportion in which the common stockholdings of such remaining stockholders bear to each other. No fractional shares shall be issued in connection with any offerings under this Article but only whole shares will be issued to the stockholders. At the option of the corporation, (l) the sum total of the fractional shares may be purchased by the corporation at the price at which the stock was offered originally, provided that such purchase shall be made only out of earned surplus, or (2) the sum total of the fractional shares may be returned to the stockholder who offered the same for sale and the said stockholder shall have the right to sell said stock to whomsoever will purchase the same provided, however, the sale of such stock shall not be made at any lower price than that which it was offered to the corporation originally, and provided further that the sale of such stock shall not be made later than one hundred eighty (180) days after the date upon which the said stock was offered to the corporation originally, as aforesaid. (C) All stock so purchased by the corporation under and pursuant to the provisions of this Article shall be cancelled by the corporation forthwith. (D) No transfer of stock shall be binding 6 upon the corporation unless made and recorded upon its stock books. (E) A reference to this Article shall be printed on each certificate of common stock issued by the corporation and the provisions of this Article shall be binding upon every person now or hereafter becoming a stockholder of this corporation, all of whom shall take such common stock subject to the provisions hereof; and all pledges, hypothecations, or other encumbrances of said stock, or dealing with regard thereto, shall likewise be subject to the provisions hereof. (F) Nothing contained herein shall prevent the stockholders of this corporation from entering into an agreement for the sale and purchase of stock as long as the terms of said agreement are not inconsistent herewith. In this regard, any agreement which establishes the price at which a stockholder must offer the stock to the corporation under this Article, or which provides that said stock shall be offered at an established price to the corporation upon termination of a stockholder's employment, or upon a stockholder's death, shall not be deemed to be inconsistent herewith. ARTICLE SEVEN REGISTERED OFFICE AND REGISTERED AGENT: The address of the corporation's initial registered office shall 7 be 711 "H" Street, Suite 600, Anchorage, Alaska 99501 and the name of the corporation's initial registered agent at such address shall be LANCE E. GIDCUMB. ARTICLE EIGHT INITIAL DIRECTORS: The management of this corporation shall be vested in a Board of Directors. The number of directors shall be fixed from time to time by the By-laws of the corporation. At such time as the corporation has less than three (3) shareholders, it may have the same number of directors as it has shareholders. Directors shall be elected at the annual meeting of the shareholders. Until such time as the first meeting of the Board of Directors has been held and the By-laws of the corporation shall have been adopted, the directors of the corporation shall be three (3) in number, and shall be: Patsy L. Tampke 3303 West 64th Avenue Anchorage, Alaska 99502 Fred A. Tampke 3303 West 64th Avenue Anchorage, Alaska 99502 Debra G. Clay 2707 West 29th Avenue Anchorage, Alaska 99503 ARTICLE NINE INCORPORATORS:The name and address of the incorporator of this corporation is as follows: 8 Patsy L. Tampke 3303 W. 64th Avenue Anchorage, Alaska 99502 ARTICLE TEN There are no non-resident aliens or corporations organized outside the United States who are affiliated with this corporation. IN WITNESS WHEREOF, I have executed these Articles of Incorporation in duplicate on this 24th day of June, 1981. /s/ Patsy L. Tampke ----------------------------- PATSY L. TAMPKE STATE OF ALASKA ) ss. THIRD JUDICIAL DISTRICT ) PATSY L. TAMPKE, first being duly sworn upon oath, deposes and says that she has read the foregoing Articles of Incorporation, knows the contents thereof, and believes the same to be true and correct to the best of her knowledge and belief. /s/ Patsy L. Tampke ----------------------------- PATSY L. TAMPKE SUBSCRIBED AND SWORN to before me this 24th day of June, 1981. /s/ Linda L. Kingkade --------------------------------------- Notary Public in and for Alaska My Commission Expires: 2/5/84 9 STATEMENT OF STANDARD INDUSTRIAL CLASSIFICATION CODE of MEDICAL DATA BANC, INC. The purpose or purposes of MEDICAL DATA BANC, INC. are best described by S.I.C. No. 8090, Health and Allied Services, nec. DATED this 24th day of June, 1981. /s/ Pasty L. Tampke ------------------------------------ PATSY L. TAMPKE 24 EX-3.40 35 h92783ex3-40.txt BYLAWS OF TESORO NORTHSTORE COMPANY, AS AMENDED EXHIBIT 3.40 Adopted: July 7, 1981 Amended: February 8, 1984 March 20, 1984 September 29, 1992 BY-LAWS OF TESORO NORTHSTORE COMPANY (As Amended September 29, 1992) BY-LAWS OF TESORO NORTHSTORE COMPANY ARTICLE I Meetings of Stockholders Section 1.1 Annual Meetings. The Annual meeting of the stockholders for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held on such date and at such time and place within or without the state of Alaska as may be designated by the Board of Directors. Section 1.2 Special Meetings. Special meetings of the stockholders for any proper purpose or purposes may be called at any time by the Board of Directors, the Chairman of the Board of Directors, the President or any Vice President, to be held on such date and at such time and place within or without the state of Alaska as the Board of Directors, the Chairman of the Board of Directors, the President or a Vice President, whichever has called the meeting, shall direct. A special meeting of the stockholders shall be called by the Chairman of the Board of Directors, the President or any Vice President whenever stockholders holding shares representing not less than one-tenth (1/10) of all of the shares of the Corporation entitled to vote on matters to be submitted to stockholders of the Corporation shall make application therefor in writing. Any such written request shall state a proper purpose or purposes of the meeting and shall be delivered to the Chairman of the Board of Directors, the President or any Vice President. Section 1.3 Notice of Meeting. Written notice, signed by the Chairman of the Board of Directors, the President, any Vice President, the Secretary or an Assistant Secretary, of every meeting of stockholders (other than an adjourned meeting unless otherwise required by statute) stating the purpose or purposes for which the meeting is called, and the date and time when, and the place where, it is to be held shall be either delivered personally or mailed to each stockholder entitled to vote at such meeting not less than twenty nor more than sixty days before the meeting, except as otherwise provided by statute. If mailed, such notice shall be directed to a stockholder at his address as it shall appear on the stock books of the Corporation, unless he shall have filed with the Secretary a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in such request, and shall be given when deposited in the United States mail, postage prepaid. Section 1.4 Quorum. The presence at any meeting, in person or by proxy, of the holders of record of shares representing a majority of the votes of the shares then issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business, except where otherwise provided by statute. Section 1.5 Adjournments. In the absence of a quorum, a majority of the votes of the stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to vote is present in person or by proxy, any officer entitled to preside at or act as secretary of such meeting may adjourn the meeting from time to time until a quorum shall be present. Section 1.6 Voting. At an election for directors, each shareholder entitled to vote at the election may vote the number of shares owned by the shareholder for as many persons as there are directors to be elected and for whose election the shareholder has a right to vote, or to cumulate votes by giving one candidate votes equal to the number of directors multiplied by the number of shares of the shareholder, or by distributing votes on the same principal among any number of candidates. Section 1.7 Proxies. Any stockholders entitled to vote may vote in person or by proxy, provided that the instrument authorizing such proxy to act shall have been executed in writing (which shall include telegraphing or cabling) by the stockholder himself or by his duly authorized attorney-in-fact. Section 1.8 Judges of Election. The Board of Directors may appoint judges of election to serve at any election of directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the judges so appointed shall fail to attend, or refuse or be unable to serve, then such appointment may be made by the presiding officers at the meeting. ARTICLE II Board of Directors Section 2.1 Number. The number of directors which shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors but shall not be less than two. A majority of the entire Board of Directors shall be required to change the number of directors. A decrease in the number of directors shall not shorten the term of an incumbent director. Section 2.2 Election and Term of Office. Directors shall be elected at the annual meeting of the stockholders. Each director (whether elected at an annual meeting or to fill a vacancy or otherwise) shall continue in office until his successor shall have - 2 - been elected or until his earlier death, resignation, removal or other incapacity in the manner hereinafter provided. Section 2.3 Vacancies and Additional Directorships. If any vacancy shall occur among the directors by reason of death, resignation, removal or other incapacity or as the result of an increase in the number of directorships, the directors then in office shall continue to act and may fill any such vacancy by a vote of the directors then in office, though less than a quorum. Section 2.4 Meetings. A meeting of the Board of Directors shall be held for organization, for the election of officers and for the transaction of such other business as may properly come before the meeting, within thirty days after each annual election of directors. The Board of Directors by resolution may provide for the holding of regular meetings and may fix the times and places at which such meetings shall be held. Notice of regular meetings shall not be required to be given, provided that whenever the time or place of regular meetings shall be fixed or changed, notice of such action shall be mailed promptly to each director who shall not have been present at the meeting at which such action was taken, addressed to him at his residence or usual place of business. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, the President, a Vice President, the Secretary or a director. Except as otherwise required by statute, notice of a special meeting may either be in writing sent ten (10) days before the meeting or be given by electronic means, personal messenger, or comparable person to person communication given at least seventh-two (72) hours before the meeting. Such notice shall state the time and place of such meeting, but unless otherwise required by statute, the Certificate of Incorporation of the Corporation or these By-laws need not state the purposes thereof and need not disclose the business to be transacted. Notice of any meeting need not be given to any director who shall attend such meeting in person without protesting the lack of notice before the meeting or at its commencement. Section 2.5 Quorum. A majority of the total number of members of the Board of Directors as constituted from time to time, but not less than two, shall be necessary and sufficient to constitute a quorum for the transaction of business. In the absence of a quorum, a majority of those present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present and the meeting may be held as adjourned without further notice or waiver. A majority of those present at any meeting at which a quorum is present may decide any question brought before such meeting, except as otherwise provided by law, the Certificate of Incorporation or these By-laws. - 3 - Section 2.6 Resignation of Directors. Any director may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 2.7 Removal of Directors. At any special meeting of the stockholders, duly called for the purpose of removing a director or directors as provided in these By-laws, any director or directors may, by the affirmative vote of the holders of shares representing a majority of the votes of all the shares of stock outstanding and entitled to vote for the election of directors, be removed from office, either with or without cause. At such meeting a successor or successors may be elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled by the directors as provided in Section 2.3. A director may not be removed unless the entire Board is removed, if the votes cast against removal would be sufficient to elect a director if voted cumulatively at an election at which the same number of votes were cast. Section 2.8 Compensation of Directors. Directors may receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Section 2.9 Indemnification. The Corporation shall indemnify to the full extent authorized or permitted by the laws of the state of Alaska any person who is made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Corporation or serves or served any other enterprise at the request of the Corporation. ARTICLE III Committees of the Board Section 3.1 Designation, Power, Alternate Members and Term of Office. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Any such committee, to the extent provided in such - 4 - resolution, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority to: (a) Declare dividends or distributions; (b) Approve or recommend to shareholders actions or proposals required to be approved by shareholders; (c) Designate candidates for the office of director, for purposes of proxy solicitation or otherwise, or fill vacancies on the Board or any committee of the Board; (d) Amend the By-laws; (e) Approve a plan or merger not requiring shareholder approval; (f) Capitalize retained earnings; (g) Authorize or approve the reacquisition of shares unless under a general formula or method specified by the Board; (h) Authorize or approve the issuance or sale of, or a contract to issue or sell, shares or designate the terms of a series of a class of shares, unless the Board, having acted regarding general authorization for the issuance or sale of shares, a contract to issue or sell, or the designation of a series, authorizes a committee, under a general formula or method specified by the Board by resolution or by adoption of a stock option or other plan, to fix the terms of a contract for the sale of the shares and to fix the terms upon which the shares may be issued or sold, including, without limitation, the price, the dividend rate, provisions for redemption, sinking funds, conversion, voting or preferential rights, and provisions for other features of a class of shares or a series of a class of shares, with full power in the committee to adopt a final resolution setting out all the terms of a series for filing with the commissioner; or (i) Authorize, approve or ratify contracts or other transactions between the Corporation and one or more of its directors or between the Corporation and a corporation, firm or association in which one or more of its directors has a material financial interest. The Board may designate one or more directors as alternate members of any committee who, in the order specified by the Board, may replace any absent or disqualified member at any meeting of the committee. If at a meeting of any committee one or more of the members thereof should be absent or disqualified, and if either the Board of Directors has not so designated any alternate member or - 5 - members, or the number of absent or disqualified members exceeds the number of alternate members who are present at such meeting, then the member or members of such committee (including alternates) present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another director to act at the meeting in the place of any such absent or disqualified member. The term of office of the members of each committee shall be as fixed from time to time by the Board, subject to these By-laws; provided, however, that any committee member who ceases to be a member of the Board shall ipso facto cease to be a committee member. Each committee shall appoint a secretary, who may be the Secretary of the Corporation or an assistant secretary thereof. Section 3.2 Meetings, Notices and Records. Each committee may provide for the holding of regular meetings, with or without notice, and may fix the time and place at which such meetings shall be held. Special meetings of each committee shall be held upon call by or at the direction of the Chairman of the Board of Directors, the President, a Vice President, the Secretary or a director at the time and place specified in the respective notices or waivers of notice thereof. Notice of each special meeting of a committee shall be mailed to each member of such committee, addressed to him at his residence or usual place of business, at least ten days before the day on which the meeting is to be held, or shall be sent by telegram, radio or cable addressed to him at such place, or telephoned or delivered to him personally, not later than seventy-two (72) hours before the day on which the meeting is to be held. Notice of any meeting of a committee need not be given to any member thereof who shall attend the meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Notice of any adjourned meeting need not be given. Each committee shall keep a record of its proceedings. Section 3.3 Quorum and Manner of Acting. At each meeting of any committee the presence of a majority but not less than two of its members then in office shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which the quorum is present shall be the act of such committee; in the absence of a quorum, a majority of the members present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present. Subject to the foregoing and other provisions of these By-laws and except as otherwise determined by the Board of Directors, each committee may make rules for the conduct of its business. Any determination made in writing and signed by all the members of such committee shall be as effective as if made by such committee at a meeting. Section 3.4 Resignations. Any member of a committee may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the - 6 - President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 3.5 Removal. Any member of any committee may be removed at any time by the Board of Directors with or without cause. Section 3.6 Vacancies. If any vacancy shall occur in any committee by reason of death, resignation, disqualification, removal or otherwise, the remaining members of such committee, though less than a quorum, shall continue to act until such vacancy is filled by a resolution passed by a majority of the whole Board of Directors. Section 3.7 Compensation. Committee members shall receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any committee member from serving the Corporation in any other capacity and receiving compensation therefor. ARTICLE IV Officers Section 4.1 Officers. The officers of the Corporation shall be a Chairman of the Board of Directors, a President, one or more Vice Presidents (which may include Group Vice Presidents, Senior Vice Presidents and other categories of Vice Presidents), a Secretary, a Treasurer, and such other officers as may be appointed in accordance with the provisions of Section 4.3. Section 4.2 Election, Term of Office and Qualifications. Each officer (except such officers as may be appointed in accordance with the provisions of Section 4.3) shall be elected by the Board of Directors. Each such officer (whether elected at the first meeting of the Board of Directors after the annual meeting of stockholders or to fill a vacancy or otherwise) shall hold his office until the first meeting of the Board of Directors after the next annual meeting of stockholders and until his successor shall have been elected, or until his death, or until he shall have resigned in the manner provided in Section 4.4 or shall have been removed in the manner provided in Section 4.5. The Chairman of the Board of Directors must be a member of the Board of Directors. - 7 - Section 4.3 Subordinate Officers and Agents. The Board of Directors from time to time may appoint other officers or agents (including one or more assistant vice presidents, one or more assistant secretaries and one or more assistant treasurers), to hold office for such period, have such authority and perform such duties as are provided in these By-laws or as may be provided in the resolutions appointing them. The Board of Directors may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective terms of office, authorities and duties. Section 4.4 Resignations. Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 4.5 Removal. Any officer specifically designated in Section 4.1 may be removed at any time, either with or without cause, at any meeting of the Board of Directors by the vote of a majority of all the directors then in office. Any officer or agent appointed in accordance with the provisions of Section 4.3 may be removed, either with or without cause, by the Board of Directors at any meeting, by the vote of a majority of the directors present at such meeting, or by any superior officer or agent upon whom such power of removal shall have been conferred by the Board of Directors. Section 4.6 Vacancies. A vacancy in any office by reason of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed by these By-laws for regular election or appointment to such office. Section 4.7 The Chairman of the Board of Directors. The Chairman of the Board of Directors shall be the chief executive officer of the Corporation. Subject to the direction of the Board of Directors, he shall have general charge of the business affairs and property of the Corporation. He shall see that all orders and resolutions of the Board of Directors are carried into effect. If present, he shall preside at all meetings of stockholders. He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other - 8 - officer or agent. From time to time he shall report to the Board of Directors all matters within his knowledge which the interests of the Corporation may require to be brought to their attention. He shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors. Section 4.8 The President. The President shall be the chief operating officer of the Corporation. Subject to the direction of the Chairman of the Board of Directors, he shall have general supervision over the officers and agents of the Corporation. At the request of the Board of Directors or the Chairman of the Board of Directors, the President shall perform all the duties of the Chairman of the Board of Directors and, when so acting, shall have all the powers of and be subject to all restrictions upon the Chairman of the Board of Directors (except that the President need not be a member of the Board of Directors). He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. He shall also perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors or the Chairman of the Board of Directors. Section 4.9 The Vice Presidents. In the absence or disability of the President, any Vice President designated by the President (or in the absence of such designation, the Vice President designated by the Board of Directors or the Chairman of the Board of Directors) shall perform all the duties of the President and, when so acting, shall have all the powers of and be subject to all restrictions upon the President. Any Vice President may also sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation deeds, mortgages, bonds and other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. Each Vice President shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. - 9 - Section 4.10 The Secretary. The Secretary shall (a) Record all the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book or books to be kept for that purpose; (b) Cause all notices to be duly given in accordance with the provisions of these By-laws and as required by statute; (c) Whenever any committee shall be appointed in pursuance of a resolution of the Board of Directors, furnish the chairman of such committee with a copy of such resolution; (d) Be custodian of the records and of the seal of the Corporation, and cause such seal to be affixed to all certificates representing stock of the Corporation prior to the issuance thereof and to all instruments the execution of which on behalf of the Corporation under its seal shall have been duly authorized; (e) See that the lists, books, reports, statements, certificates and other documents and records required by statute are properly kept and filed; (f) Have charge of the stock and transfer books of the Corporation, and exhibit such stock book at all reasonable times to such persons as are entitled by statute to have access thereto; (g) Sign (unless the Treasurer or an Assistant Secretary or an Assistant Treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Secretary and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.11 Assistant Secretaries. At the request of the Secretary or in his absence or disability, the Assistant Secretary designated by him (or in the absence of such designation, the Assistant Secretary designated by the Board of Directors, the Chairman of the Board of Directors or the President) shall perform all the duties of the Secretary and, when so acting, shall have all the powers of and be subject to all restrictions upon the Secretary. The Assistant Secretaries shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary. - 10 - Section 4.12 The Treasurer. The Treasurer shall (a) Have charge of and supervision over and be responsible for the funds, securities, receipts and disbursements of the Corporation; (b) Cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such banks or trust companies or with such bankers or other depositaries as shall be selected in accordance with Section 5.3 of these By-laws or to be otherwise dealt with in such manner as the Board of Directors may direct; (c) Cause the funds of the Corporation to be disbursed by checks or drafts upon the authorized depositaries of the Corporation, and cause to be taken and preserved proper vouchers for all moneys disbursed; (d) Render to the Board of Directors, the Chairman of the Board of Directors, or the President, whenever requested, a statement of the financial condition of the Corporation and of all his transactions as Treasurer; (e) Cause to be kept at the Corporation's principal office correct books of account of all its business and transactions and such duplicate books of account as he shall determine and upon application cause such books or duplicates thereof to be exhibited to any director; (f) Be empowered, from time to time, to require from the officers or agents of the Corporation reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation; (g) Sign (unless the Secretary or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Treasurer and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.13 Assistant Treasurers. At the request of the Treasurer or in his absence or disability, the Assistant Treasurer designated by him (or in the absence of such designation, the Assistant Treasurer designated by the Board of Directors, the Chairman of the Board of Directors, or the President) shall perform all the duties of the Treasurer and, when so acting, shall have all - 11 - the powers of and be subject to all restrictions upon the Treasurer. The Assistant Treasurers shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Treasurer. Section 4.14 Salaries. The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors, except that the Board of Directors may delegate to any person the power to fix the salaries or other compensation of any officers or agents appointed in accordance with the provisions of Section 4.3. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. Section 4.15 Surety Bonds. If the Board of Directors shall so require, any officer or agent of the Corporation shall execute to the Corporation a bond in such sum and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful discharge of his duties, including responsibilities for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands. ARTICLE V Execution of Instruments and Deposit of Corporate Funds Section 5.1 Execution of Instruments Generally. The Chairman of the Board of Directors, the President, any Vice President, the Secretary or the Treasurer, subject to the approval of the Board of Directors, may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. The Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation, and such authorization may be general or confined to specific instances. Section 5.2 Borrowing. No loans or advances shall be obtained or contracted for, by or on behalf of the Corporation and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors. Such authorization may be general or confined to specific instances. Any officer or agent of the Corporation thereunto so authorized may obtain loans and advances for the Corporation, and for such loans and advances may make, execute and deliver promissory notes, bonds or other evidences of indebtedness of the Corporation. Any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as security for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation, any and - 12 - all stocks, bonds, other securities and other personal property at any time held by the Corporation, and to that end may endorse, assign and deliver the same and do every act and thing necessary or proper in connection therewith. Section 5.3 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors may select, or as may be selected by any officer or officers or agent or agents authorized so to do by the Board of Directors. Endorsements for deposit to the credit of the Corporation in any of its duly authorized depositaries shall be made in such manner as the Board of Directors from time to time may determine. Section 5.4 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers or agent or agents of the Corporation, and in such manner, as from time to time shall be determined by the Board of Directors. Section 5.5 Proxies. Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the Chairman of the Board of Directors, the President or a vice president or by any other person or persons thereunto authorized by the Board of Directors. ARTICLE VI Record Dates Section 6.1. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall be not more than sixty nor less than twenty days before the date of such meeting, nor more that sixty days prior to any other action. Only those stockholders of record on the date so fixed shall be entitled to any of the foregoing rights, notwithstanding the transfer of any such stock on the books of the Corporation after any such record date fixed by the Board of Directors. - 13 - ARTICLE VII Corporate Seal Section 7.1. The corporate seal shall be circular in form and shall bear the name of the Corporation and words and figures denoting its organization under the laws of the state of Alaska and the year thereof and otherwise shall be in such form as shall be approved from time to time by the Board of Directors. ARTICLE VIII Fiscal Year Section 8.1. The fiscal year of the Corporation shall begin on the first day of January in each year and shall end on the 31st day of December in the same year. ARTICLE IX Amendments Section 9.1. All By-laws of the Corporation may be amended, altered or repealed, and new By-laws may be made, by the affirmative vote of the holders of record of shares representing a majority of the votes of the outstanding shares of stock of the Corporation entitled to vote cast at any annual or special meeting, or by the affirmative vote of a majority of the Directors cast at any regular or special meeting at which a quorum is present. - 14 - EX-3.41 36 h92783ex3-41.txt CERT OF INC OF TESORO PETROLEUM COMPANIES INC EXHIBIT 3.41 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF TESORO ALASKA SHIPPING COMPANY Tesoro Alaska Shipping Company, a corporation organized under and existing by virtue of the General Corporation Law of the state of Delaware, DOES HEREBY CERTIFY: FIRST: That by the written consent of all members of the Board of Directors of Tesoro Alaska Shipping Company, dated November 29, 1988, and filed with the minutes of proceedings of said Board of Directors. the Board of Directors of said corporation duly adopted resolutions proposing and declaring advisable a certain amendment to the Certificate of Incorporation of said corporation, and directing that such amendment be submitted for consideration to the shareholder of said corporation. The resolutions of the Board of Directors setting forth the proposed amendment is as follows: RESOLVED, that the Board of Directors declares it advisable and proposes that Article 1 of the Certificate of Incorporation of Tesoro Alaska Shipping Company be amended so as to read in its entirety as follows: "The name of the Corporation is Tesoro Petroleum Companies, Inc." SECOND: That by the written consent of the sole shareholder of said corporation dated November 30. 1988. and filed with the minutes of proceedings of said shareholder, the shareholder voted in favor of said amendment. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. FOURTH: That the capital of said corporation will not be reduced under or by reason of said amendment. IN WITNESS WHEREOF, said Tesoro Alaska Shipping Company has caused this certificate to be signed by Dennis F. Juren, its President, and attested by James C. Reed, Jr., its Assistant Secretary, this 30th day of November, 1988. TESORO ALASKA TESORO ALASKA SHIPPING COMPANY SHIPPING COMPANY CORPORATE SEAL DELAWARE /s/ Dennis F. Juren ---------------------------- President ATTEST: /s/ James C. Reed, Jr. - -------------------------- Assistant Secretary CERTIFICATE OF AMENDMENT of the CERTIFICATE OF INCORPORATION of TESORO GAS PIPELINE COMPANY Tesoro Gas Pipeline Company, a corporation organized under and existing by virtue of the General Corporation Law of the State of Delaware. DOES HEREBY CERTIFY: FIRST: That by the written consent of all members of the Board of Directors of Tesoro Gas Pipeline Company effective March 10, 1986, and filed with the minutes of proceedings of said Board of Directors, the Board of Directors of said corporation duly adopted resolutions proposing and declaring advisable a certain amendment to the Certificate of Incorporation of said corporation, and directing that such amendment be submitted for consideration to the shareholder of said corporation. The resolutions of the Board of Directors setting forth the proposed amendment is as follows: RESOLVED, that the Board of Directors declares it advisable and proposes that Article FIRST of the Certificate of Incorporation of Tesoro Gas Pipeline Company be amended so as to read in its entirety as follows: "The name of the corporation is TESORO ALASKA SHIPPING COMPANY." SECOND: That by the written consent of the sole shareholder of said corporation dated effective March 10, 1986, and filed with the minutes of proceedings of said shareholder, the shareholder voted in favor of said amendment. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. FOURTH: That the capital of said corporation will not be reduced under or by reason of said amendment. IN WITNESS WHEREOF, said Tesoro Gas Pipeline Company has caused this certificate to be signed by James F. Smith its President, and attested by James C. Reed, Jr., its Assistant Secretary, this 10th day of March. 1986. TESORO GAS PIPELINE COMPANY By: /s/ James F. Smith ------------------------------------- President [SEAL] Attest: /s/ James C. Reed, Jr. - ------------------------------------- Assistant Secretary CERTIFICATE OF AMENDMENT Of CERTIFICATE OF INCORPORATION BEFORE PAYMENT OF CAPITAL OF TESORO GAS MARKETING COMPANY We, the undersigned, being all of the incorporators of Tesoro Gas Marketing Company, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware. DO HEREBY CERTIFY: FIRST: That Article 1. of the Certificate of Incorporation be and it hereby is amended to read as follows: "1. The name of the corporation is Tesoro Gas Pipeline Company" SECOND: That the corporation has not received any payment for any of its stock. THIRD: That the amendment was duly adopted in accordance with the provisions of section 241 of the General Corporation Law of the State of Delaware. IN WITNESS WHEREOF, we have signed this certificate this 6th day of November, 1985. /s/ Linda D. Giessel - --------------------------------- Linda D. Giessel, Incorporator /s/ Lawrence A. Waks - --------------------------------- Lawrence A. Waks, Incorporator /s/ James C. Reed, Jr. - --------------------------------- James C. Reed, Jr., Incorporator CERTIFICATE OF INCORPORATION OF TESORO GAS MARKETING COMPANY 1. The name of the Corporation is: TESORO GAS MARKETING COMPANY 2. The address of its registered office in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle, The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the Corporation shall have authority to issue is One Thousand (1,000) and the par value of each of such shares is One Dollar ($1.00) amounting in the aggregate to One Thousand Dollars ($1,000). 5. The name and mailing address of each incorporator is as follows: NAME MAILING ADDRESS ---- --------------- James C. Reed, Jr. 8700 Tesoro Drive San Antonio, Texas 78286 Lawrence A. Waks 8700 Tesoro Drive San Antonio, Texas 78286 Linda D. Giessel 8700 Tesoro Drive San Antonio, Texas 78286 6. The Corporation is to have perpetual existence. 7. 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. 8. Elections of directors need not be by written ballot unless the by-laws of the corporation shall so provide. Meetings of stockholders may be held within or without the State of Delaware, as the by-laws may provide. The books of the Corporation may be kept (subject to any provision contained in the statutes) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the by-laws of the Corporation. 2 9. The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. WE, THE UNDERSIGNED, being each of the incorporators hereinbefore .named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this Certificate, hereby declaring and certifying that this is our act and deed and the facts herein stated are true, and accordingly have hereunto set our hands this 30th day of October, 1985. /s/ James C. Reed, Jr. -------------------------------------- James C. Reed, Jr. /s/ Lawrence A. Waks -------------------------------------- Lawrence A. Waks /s/ Linda D. Giessel --------------------------------------- Linda D. Giessel 3 EX-3.42 37 h92783ex3-42.txt BYLAWS OF TESORO PETROLEUM COMPANIES INC EXHIBIT 3.42 Adopted: November 22, 1985 Amended: February 14, 1990 September 29, 1992 BY-LAWS OF TESORO PETROLEUM COMPANIES, INC. (As Amended September 29, 1992) BY-LAWS OF TESORO PETROLEUM COMPANIES, INC. ARTICLE I Meetings of Stockholders Section 1.1 Annual Meetings. The Annual meeting of the stockholders for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held on such date and at such time and place within or without the state of Delaware as may be designated by the Board of Directors. Section 1.2 Special Meetings. Special meetings of the stockholders for any proper purpose or purposes may be called at any time by the Board of Directors, the Chairman of the Board of Directors, the President or any vice president, to be held on such date and at such time and place within or without the state of Delaware as the Board of Directors, the Chairman of the Board of Directors, the President or a vice president, whichever has called the meeting, shall direct. A special meeting of the stockholders shall be called by the Chairman of the Board of Directors, the President or any vice president whenever stockholders holding shares representing a majority of the votes of the shares of the Corporation then issued and outstanding and entitled to vote on matters to be submitted to stockholders of the Corporation shall make application therefor in writing. Any such written request shall state a proper purpose or purposes of the meeting and shall be delivered to the Chairman of the Board of Directors, the President or any vice president. Section 1.3 Notice of Meeting. Written notice, signed by the Chairman of the Board of Directors, the President, any vice president, the Secretary or an assistant secretary, of every meeting of stockholders (other than an adjourned meeting unless otherwise required by statute) stating the purpose or purposes for which the meeting is called, and the date and time when, and the place where, it is to be held shall be either delivered personally or mailed to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the meeting, except as otherwise provided by statute. If mailed, such notice shall be directed to a stockholder at his address as it shall appear on the stock books of the Corporation, unless he shall have filed with the Secretary a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in such request, and shall be given when deposited in the United States mail, postage prepaid. - 1 - Section 1.4 Quorum. The presence at any meeting, in person or by proxy, of the holders of record of shares representing a majority of the votes of the shares then issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business, except where otherwise provided by statute. Section 1.5 Adjournments. In the absence of a quorum, a majority of the votes of the stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to vote is present in person or by proxy, any officer entitled to preside at or act as secretary of such meeting may adjourn the meeting from time to time until a quorum shall be present. Section 1.6 Voting. Directors shall be chosen by a plurality of the votes cast at the election, and except where otherwise provided by statute, or the Certificate of Incorporation, all other questions shall be determined by a majority of the votes cast on such question. Section 1.7 Proxies. Any stockholders entitled to vote may vote by proxy, provided that the instrument authorizing such proxy to act shall have been executed in writing (which shall include telegraphing or cabling) by the stockholder himself or by his duly authorized attorney. Section 1.8 Judges of Election. The Board of Directors may appoint judges of election to serve at any election of directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the judges so appointed shall fail to attend, or refuse or be unable to serve, then such appointment may be made by the presiding officers at the meeting. ARTICLE II Board of Directors Section 2.1 Number. The number of directors which shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors but shall not be less than two. Section 2.2 Election and Term of Office. Directors shall be elected at the annual meeting of the stockholders. Each director (whether elected at an annual meeting or to fill a vacancy or otherwise) shall continue in office until his successor shall have been elected or until his earlier death, resignation, removal or other incapacity in the manner hereinafter provided. - 2 - Section 2.3 Vacancies and Additional Directorships. If any vacancy shall occur among the directors by reason of death, resignation, removal or other incapacity or as the result of an increase in the number of directorships, the directors then in office shall continue to act and may fill any such vacancy by a vote of the directors then in office, though less than a quorum. Section 2.4 Meetings. A meeting of the Board of Directors shall be held for organization, for the election of officers and for the transaction of such other business as may properly come before the meeting, within thirty days after each annual election of directors. The Board of Directors by resolution may provide for the holding of regular meetings and may fix the times and places at which such meetings shall be held. Notice of regular meetings shall not be required to be given, provided that whenever the time or place of regular meetings shall be fixed or changed, notice of such action shall be mailed promptly to each director who shall not have been present at the meeting at which such action was taken, addressed to him at his residence or usual place of business. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, the President, any vice president or any two directors. Except as otherwise required by statute, notice of each special meeting shall be mailed to each director, addressed to him at his residence or usual place of business, or shall be sent to him at such place by telegram, radio or cable, or telephone or delivered to him personally, not later than two days before the day on which the meeting is to be held. Such notice shall state the time and place of such meeting, but unless otherwise required by statute, the Certificate of Incorporation of the Corporation or these By-laws need not state the purposes thereof. Notice of any meeting need not be given to any director who shall attend such meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Section 2.5 Quorum. One-third of the total number of members of the Board of Directors as constituted from time to time, but not less than two, shall be necessary and sufficient to constitute a quorum for the transaction of business. In the absence of a quorum, a majority of those present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present and the meeting may be held as adjourned without further notice or waiver. A majority of those present at any meeting at which a quorum is present may decide any question brought before such meeting, except as otherwise provided by law, the Certificate of Incorporation or these By-laws. - 3 - Section 2.6 Resignation of Directors. Any director may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 2.7 Removal of Directors. At any special meeting of the stockholders, duly called for the purpose of removing a director or directors as provided in these By-laws, any director or directors may, by the affirmative vote of the holders of shares representing a majority of the votes of all the shares of stock outstanding and entitled to vote for the election of directors, be removed from office, either with or without cause. At such meeting a successor or successors may be elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled by the directors as provided in Section 2.3. Section 2.8 Compensation of Directors. Directors may receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Section 2.9 Indemnification. The Corporation shall indemnify to the full extent authorized or permitted by the laws of the state of Delaware any person who is made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Corporation or serves or served any other enterprise at the request of the Corporation. ARTICLE III Committees of the Board Section 3.1 Designation, Power, Alternate Members and Term of Office. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Any such committee, to the extent provided in such resolution, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal - 4 - of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-laws of the Corporation or, unless the resolution of the Board of Directors establishing any such committee shall expressly so provide or these By-laws shall expressly so provide, declaring a dividend on the Corporation's capital stock or authorizing the issuance of the Corporation's capital stock. The Board may designate one or more directors as alternate members of any committee who, in the order specified by the Board, may replace any absent or disqualified member at any meeting of the committee. If at a meeting of any committee one or more of the members thereof should be absent or disqualified, and if either the Board of Directors has not so designated any alternate member or members, or the number of absent or disqualified members exceeds the number of alternate members who are present at such meeting, then the member or members of such committee (including alternates) present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another director to act at the meeting in the place of any such absent or disqualified member. The term of office of the members of each committee shall be as fixed from time to time by the Board, subject to these By-laws; provided, however, that any committee member who ceases to be a member of the Board shall ipso facto cease to be a committee member. Each committee shall appoint a secretary, who may be the Secretary of the Corporation or an assistant secretary thereof. Section 3.2 Meetings, Notices and Records. Each committee may provide for the holding of regular meetings, with or without notice, and may fix the time and place at which such meetings shall be held. Special meetings of each committee shall be held upon call by or at the direction of its chairman or, if there be no chairman, by or at the direction of any two of its members, at the time and place specified in the respective notices or waivers of notice thereof. Notice of each special meeting of a committee shall be mailed to each member of such committee, addressed to him at his residence or usual place of business, at least two days before the day on which the meeting is to be held, or shall be sent by telegram, radio or cable addressed to him at such place, or telephoned or delivered to him personally, not later than the day before the day on which the meeting is to be held. Notice of any meeting of a committee need not be given to any member thereof who shall attend the meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Notice of any adjourned meeting need not be given. Each committee shall keep a record of its proceedings. - 5 - Section 3.3 Quorum and Manner of Acting. At each meeting of any committee the presence of one-third but not less than two of its members then in office shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which the quorum is present shall be the act of such committee; in the absence of a quorum, a majority of the members present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present. Subject to the foregoing and other provisions of these By-laws and except as otherwise determined by the Board of Directors, each committee may make rules for the conduct of its business. Any determination made in writing and signed by all the members of such committee shall be as effective as if made by such committee at a meeting. Section 3.4 Resignations. Any member of a committee may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 3.5 Removal. Any member of any committee may be removed at any time by the Board of Directors with or without cause. Section 3.6 Vacancies. If any vacancy shall occur in any committee by reason of death, resignation, disqualification, removal or otherwise, the remaining members of such committee, though less than a quorum, shall continue to act until such vacancy is filled by a resolution passed by a majority of the whole Board of Directors. Section 3.7 Compensation. Committee members shall receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any committee member from serving the Corporation in any other capacity and receiving compensation therefor. ARTICLE IV Officers Section 4.1 Officers. The officers of the Corporation shall be a Chairman of the Board of Directors, a President, one or more - 6 - Vice Presidents (which may include Group Vice Presidents, Senior Vice Presidents and other categories of Vice Presidents), a Secretary, a Treasurer, and such other officers as may be appointed in accordance with the provisions of Section 4.3. Section 4.2 Election, Term of Office and Qualifications. Each officer (except such officers as may be appointed in accordance with the provisions of Section 4.3) shall be elected by the Board of Directors. Each such officer (whether elected at the first meeting of the Board of Directors after the annual meeting of stockholders or to fill a vacancy or otherwise) shall hold his office until the first meeting of the Board of Directors after the next annual meeting of stockholders and until his successor shall have been elected, or until his death, or until he shall have resigned in the manner provided in Section 4.4 or shall have been removed in the manner provided in Section 4.5. The Chairman of the Board of Directors must be a member of the Board of Directors. Section 4.3 Subordinate Officers and Agents. The Board of Directors from time to time may appoint other officers or agents (including one or more assistant vice presidents, one or more assistant secretaries and one or more assistant treasurers), to hold office for such period, have such authority and perform such duties as are provided in these By-laws or as may be provided in the resolutions appointing them. The Board of Directors may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective terms of office, authorities and duties. Section 4.4 Resignations. Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 4.5 Removal. Any officer specifically designated in Section 4.1 may be removed at any time, either with or without cause, at any meeting of the Board of Directors by the vote of a majority of all the directors then in office. Any officer or agent appointed in accordance with the provisions of Section 4.3 may be removed, either with or without cause, by the Board of Directors at any meeting, by the vote of a majority of the directors present at such meeting, or by any superior officer or agent upon whom such power of removal shall have been conferred by the Board of Directors. Section 4.6 Vacancies. A vacancy in any office by reason of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner - 7 - prescribed by these By-laws for regular election or appointment to such office. Section 4.7 The Chairman of the Board of Directors. The Chairman of the Board of Directors shall be the chief executive officer of the Corporation. Subject to the direction of the Board of Directors, he shall have general charge of the business affairs and property of the Corporation. He shall see that all orders and resolutions of the Board of Directors are carried into effect. If present, he shall preside at all meetings of stockholders. He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. From time to time he shall report to the Board of Directors all matters within his knowledge which the interests of the Corporation may require to be brought to their attention. He shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors. Section 4.8 The President. The President shall be the chief operating officer of the Corporation. Subject to the direction of the Chairman of the Board of Directors, he shall have general supervision over the officers and agents of the Corporation. At the request of the Board of Directors or the Chairman of the Board of Directors, the President shall perform all the duties of the Chairman of the Board of Directors and, when so acting, shall have all the powers of and be subject to all restrictions upon the Chairman of the Board of Directors (except that the President need not be a member of the Board of Directors). He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. He shall also perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors or the Chairman of the Board of Directors. Section 4.9 The Vice Presidents. In the absence or disability of the President, any vice president designated by the President (or in the absence of such designation, the Vice President designated by the Board of Directors or the Chairman of the Board of Directors) shall perform all the duties of the President and, when so acting, shall have all the powers of and be - 8 - subject to all restrictions upon the President. Any vice president may also sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation deeds, mortgages, bonds and other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. Each vice president shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.10 The Secretary. The Secretary shall (a) Record all the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book or books to be kept for that purpose; (b) Cause all notices to be duly given in accordance with the provisions of these By-laws and as required by statute; (c) Whenever any committee shall be appointed in pursuance of a resolution of the Board of Directors, furnish the chairman of such committee with a copy of such resolution; (d) Be custodian of the records and of the seal of the Corporation, and cause such seal to be affixed to all certificates representing stock of the Corporation prior to the issuance thereof and to all instruments the execution of which on behalf of the Corporation under its seal shall have been duly authorized; (e) See that the lists, books, reports, statements, certificates and other documents and records required by statute are properly kept and filed; (f) Have charge of the stock and transfer books of the Corporation, and exhibit such stock book at all reasonable times to such persons as are entitled by statute to have access thereto; (g) Sign (unless the Treasurer or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Secretary and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the - 9 - Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.11 Assistant Secretaries. At the request of the Secretary or in his absence or disability, the Assistant Secretary designated by him (or in the absence of such designation, the Assistant Secretary designated by the Board of Directors, the Chairman of the Board of Directors or the President) shall perform all the duties of the Secretary and, when so acting, shall have all the powers of and be subject to all restrictions upon the Secretary. The assistant secretaries shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary. Section 4.12 The Treasurer. The Treasurer shall (a) Have charge of and supervision over and be responsible for the funds, securities, receipts and disbursements of the Corporation; (b) Cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such banks or trust companies or with such bankers or other depositaries as shall be selected in accordance with Section 5.3 of these By-laws or to be otherwise dealt with in such manner as the Board of Directors may direct; (c) Cause the funds of the Corporation to be disbursed by checks or drafts upon the authorized depositaries of the Corporation, and cause to be taken and preserved proper vouchers for all moneys disbursed; (d) Render to the Board of Directors, the Chairman of the Board of Directors, or the President, whenever requested, a statement of the financial condition of the Corporation and of all his transactions as Treasurer; (e) Cause to be kept at the Corporation's principal office correct books of account of all its business and transactions and such duplicate books of account as he shall determine and upon application cause such books or duplicates thereof to be exhibited to any director; (f) Be empowered, from time to time, to require from the officers or agents of the Corporation reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation; (g) Sign (unless the Secretary or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have - 10 - been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Treasurer and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.13 Assistant Treasurers. At the request of the Treasurer or in his absence or disability, the Assistant Treasurer designated by him (or in the absence of such designation, the Assistant Treasurer designated by the Board of Directors, the Chairman of the Board of Directors, or the President) shall perform all the duties of the Treasurer and, when so acting, shall have all the powers of and be subject to all restrictions upon the Treasurer. The Assistant Treasurers shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Treasurer. Section 4.14 Salaries. The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors, except that the Board of Directors may delegate to any person the power to fix the salaries or other compensation of any officers or agents appointed in accordance with the provisions of Section 4.3. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. Section 4.15 Surety Bonds. If the Board of Directors shall so require, any officer or agent of the Corporation shall execute to the Corporation a bond in such sum and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful discharge of his duties, including responsibilities for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands. ARTICLE V Execution of Instruments and Deposit of Corporate Funds Section 5.1 Execution of Instruments Generally. The Chairman of the Board of Directors, the President, any vice president, the Secretary or the Treasurer, subject to the approval of the Board of Directors, may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. The Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any - 11 - instrument in the name and on behalf of the Corporation, and such authorization may be general or confined to specific instances. Section 5.2 Borrowing. No loans or advances shall be obtained or contracted for, by or on behalf of the Corporation and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors. Such authorization may be general or confined to specific instances. Any officer or agent of the Corporation thereunto so authorized may obtain loans and advances for the Corporation, and for such loans and advances may make, execute and deliver promissory notes, bonds or other evidences of indebtedness of the Corporation. Any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as security for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation, any and all stocks, bonds, other securities and other personal property at any time held by the Corporation, and to that end may endorse, assign and deliver the same and do every act and thing necessary or proper in connection therewith. Section 5.3 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors may select, or as may be selected by any officer or officers or agent or agents authorized so to do by the Board of Directors. Endorsements for deposit to the credit of the Corporation in any of its duly authorized depositaries shall be made in such manner as the Board of Directors from time to time may determine. Section 5.4 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers or agent or agents of the Corporation, and in such manner, as from time to time shall be determined by the Board of Directors. Section 5.5 Proxies. Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the Chairman of the Board of Directors, the President or a vice president or by any other person or persons thereunto authorized by the Board of Directors. ARTICLE VI Record Dates Section 6.1. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of - 12 - stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall be not more than sixty nor less than ten days before the date of such meeting, nor more that sixty days prior to any other action. Only those stockholders of record on the date so fixed shall be entitled to any of the foregoing rights, notwithstanding the transfer of any such stock on the books of the Corporation after any such record date fixed by the Board of Directors. ARTICLE VII Corporate Seal Section 7.1. The corporate seal shall be circular in form and shall bear the name of the Corporation and words and figures denoting its organization under the laws of the state of Delaware and the year thereof and otherwise shall be in such form as shall be approved from time to time by the Board of Directors. ARTICLE VIII Fiscal Year Section 8.1. The fiscal year of the Corporation shall begin on the first day of January in each year and shall end on the 31st day of December in the same year. ARTICLE IX Amendments Section 9.1. All By-laws of the Corporation may be amended, altered or repealed, and new By-laws may be made, by the affirmative vote of the holders of record of shares representing a majority of the votes of the outstanding shares of stock of the Corporation entitled to vote cast at any annual or special meeting, or by the affirmative vote of a majority of the Directors cast at any regular or special meeting at which a quorum is present. - 13 - EX-3.43 38 h92783ex3-43.txt CERT OF INC OF TESORO REFINNG,MARKETING,& SUPPLY EXHIBIT 3.43 CERTIFICATE OF INCORPORATION OF TESORO REFINING, MARKETING & SUPPLY COMPANY * * * * * 1. The name of the corporation is TESORO REFINING, MARKETING & SUPPLY COMPANY. 2. The address of its registered office in the State of Delaware is No. 100 West Tenth Street, in the City of Wilmington, County of New Castle, The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is one thousand (1,000) and the par value of each of such shares is One Dollar ($1.00) amounting in the aggregate to One Thousand Dollars ($1,000.00). 5A. The name and mailing address of each incorporator is as follows: NAME MAILING ADDRESS - ---- --------------- M.A. Ferrucci 100 West Tenth Street Wilmington, Delaware 19801 K.L. Husfelt 100 West Tenth Street Wilmington, Delaware 19801 W.J. Reif 100 West Tenth Street Wilmington, Delaware 19801 5B. The name and mailing address of each person, who is to. serve as a director until the first annual meeting of the stockholders or until a successor is elected and qualified, is as follows: NAME MAILING ADDRESS ---- --------------- Robert V. West, Jr. 8700 Tesoro Drive San Antonio, Texas 78286 James C. Phelps 8700 Tesoro Drive San Antonio, Texas 78286 Dennis F. Juren 8700 Tesoro Drive San Antonio, Texas 78286 6. The corporation is to have perpetual existence. 7. 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. 8. Elections of directors need not be by written ballot unless the by-laws of the corporation shall so provide. Meetings of stockholders may be held within or without the State of Delaware, as the by-laws may provide. The books of the corporation may be kept (subject to any provision contained in the statutes) outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the by-laws of the corporation. 9. The corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this certificate, hereby declaring and certifying that this is our act and deed and the facts herein stated are true, and accordingly have hereunto set our hands this 18th day of May, 1979. /s/ M. A. Ferrucci -------------------------------------- M. A. Ferrucci /s/ K. L. Husfelt -------------------------------------- K. L. Husfelt /s/ W. J. Reif -------------------------------------- W. J. Reif EX-3.44 39 h92783ex3-44.txt BYLAWS OF TESORO REFINING,MARKETING,& SUPPLY CO EXHIBIT 3.44 Adopted: June 20, 1979 Amended: February 26, 1990 September 29, 1992 BY-LAWS OF TESORO REFINING, MARKETING & SUPPLY COMPANY (As Amended September 29, 1992) BY-LAWS OF TESORO REFINING, MARKETING & SUPPLY COMPANY ARTICLE I Meetings of Stockholders Section 1.1 Annual Meetings. The Annual meeting of the stockholders for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held on such date and at such time and place within or without the state of Delaware as may be designated by the Board of Directors. Section 1.2 Special Meetings. Special meetings of the stockholders for any proper purpose or purposes may be called at any time by the Board of Directors, the Chairman of the Board of Directors, the President or any vice president, to be held on such date and at such time and place within or without the state of Delaware as the Board of Directors, the Chairman of the Board of Directors, the President or a vice president, whichever has called the meeting, shall direct. A special meeting of the stockholders shall be called by the Chairman of the Board of Directors, the President or any vice president whenever stockholders holding shares representing a majority of the votes of the shares of the Corporation then issued and outstanding and entitled to vote on matters to be submitted to stockholders of the Corporation shall make application therefor in writing. Any such written request shall state a proper purpose or purposes of the meeting and shall be delivered to the Chairman of the Board of Directors, the President or any vice president. Section 1.3 Notice of Meeting. Written notice, signed by the Chairman of the Board of Directors, the President, any vice president, the Secretary or an assistant secretary, of every meeting of stockholders (other than an adjourned meeting unless otherwise required by statute) stating the purpose or purposes for which the meeting is called, and the date and time when, and the place where, it is to be held shall be either delivered personally or mailed to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the meeting, except as otherwise provided by statute. If mailed, such notice shall be directed to a stockholder at his address as it shall appear on the stock books of the Corporation, unless he shall have filed with the Secretary a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in such request, and shall be given when deposited in the United States mail, postage prepaid. Section 1.4 Quorum. The presence at any meeting, in person or by proxy, of the holders of record of shares representing a majority of the votes of the shares then issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business, except where otherwise provided by statute. - 1 - Section 1.5 Adjournments. In the absence of a quorum, a majority of the votes of the stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to vote is present in person or by proxy, any officer entitled to preside at or act as secretary of such meeting may adjourn the meeting from time to time until a quorum shall be present. Section 1.6 Voting. Directors shall be chosen by a plurality of the votes cast at the election, and except where otherwise provided by statute, or the Certificate of Incorporation, all other questions shall be determined by a majority of the votes cast on such question. Section 1.7 Proxies. Any stockholders entitled to vote may vote by proxy, provided that the instrument authorizing such proxy to act shall have been executed in writing (which shall include telegraphing or cabling) by the stockholder himself or by his duly authorized attorney. Section 1.8 Judges of Election. The Board of Directors may appoint judges of election to serve at any election of directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the judges so appointed shall fail to attend, or refuse or be unable to serve, then such appointment may be made by the presiding officers at the meeting. ARTICLE II Board of Directors Section 2.1 Number. The number of directors which shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors but shall not be less than two. Section 2.2 Election and Term of Office. Directors shall be elected at the annual meeting of the stockholders. Each director (whether elected at an annual meeting or to fill a vacancy or otherwise) shall continue in office until his successor shall have been elected or until his earlier death, resignation, removal or other incapacity in the manner hereinafter provided. Section 2.3 Vacancies and Additional Directorships. If any vacancy shall occur among the directors by reason of death, resignation, removal or other incapacity or as the result of an increase in the number of directorships, the directors then in office shall continue to act and may fill any such vacancy by a vote of the directors then in office, though less than a quorum. Section 2.4 Meetings. A meeting of the Board of Directors shall be held for organization, for the election of officers and for the transaction of such other business as may properly come before the meeting, within thirty days after each annual election of directors. The Board of Directors by resolution may provide for the holding of regular meetings and may fix the times and places at which such meetings shall be held. Notice of regular meetings shall not be required to be given, provided that whenever - 2 - the time or place of regular meetings shall be fixed or changed, notice of such action shall be mailed promptly to each director who shall not have been present at the meeting at which such action was taken, addressed to him at his residence or usual place of business. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, the President, any vice president or any two directors. Except as otherwise required by statute, notice of each special meeting shall be mailed to each director, addressed to him at his residence or usual place of business, or shall be sent to him at such place by telegram, radio or cable, or telephone or delivered to him personally, not later than two days before the day on which the meeting is to be held. Such notice shall state the time and place of such meeting, but unless otherwise required by statute, the Certificate of Incorporation of the Corporation or these By-laws need not state the purposes thereof. Notice of any meeting need not be given to any director who shall attend such meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Section 2.5 Quorum. One-third of the total number of members of the Board of Directors as constituted from time to time, but not less than two, shall be necessary and sufficient to constitute a quorum for the transaction of business. In the absence of a quorum, a majority of those present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present and the meeting may be held as adjourned without further notice or waiver. A majority of those present at any meeting at which a quorum is present may decide any question brought before such meeting, except as otherwise provided by law, the Certificate of Incorporation or these By-laws. Section 2.6 Resignation of Directors. Any director may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 2.7 Removal of Directors. At any special meeting of the stockholders, duly called for the purpose of removing a director or directors as provided in these By-laws, any director or directors may, by the affirmative vote of the holders of shares representing a majority of the votes of all the shares of stock outstanding and entitled to vote for the election of directors, be removed from office, either with or without cause. At such meeting a successor or successors may be elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled by the directors as provided in Section 2.3. Section 2.8 Compensation of Directors. Directors may receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. - 3 - Section 2.9 Indemnification. The Corporation shall indemnify to the full extent authorized or permitted by the laws of the state of Delaware any person who is made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Corporation or serves or served any other enterprise at the request of the Corporation. ARTICLE III Committees of the Board Section 3.1 Designation, Power, Alternate Members and Term of Office. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Any such committee, to the extent provided in such resolution, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-laws of the Corporation or, unless the resolution of the Board of Directors establishing any such committee shall expressly so provide or these By-laws shall expressly so provide, declaring a dividend on the Corporation's capital stock or authorizing the issuance of the Corporation's capital stock. The Board may designate one or more directors as alternate members of any committee who, in the order specified by the Board, may replace any absent or disqualified member at any meeting of the committee. If at a meeting of any committee one or more of the members thereof should be absent or disqualified, and if either the Board of Directors has not so designated any alternate member or members, or the number of absent or disqualified members exceeds the number of alternate members who are present at such meeting, then the member or members of such committee (including alternates) present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another director to act at the meeting in the place of any such absent or disqualified member. The term of office of the members of each committee shall be as fixed from time to time by the Board, subject to these By-laws; provided, however, that any committee member who ceases to be a member of the Board shall ipso facto cease to be a committee member. Each committee shall appoint a secretary, who may be the Secretary of the Corporation or an assistant secretary thereof. Section 3.2 Meetings, Notices and Records. Each committee may provide for the holding of regular meetings, with or without notice, and may fix the time and place at which such meetings shall be held. Special meetings of each committee shall be held upon call by or at the direction of its chairman or, if there be no chairman, by or at the direction of any two of its members, at the time and place specified in the respective notices or waivers of notice thereof. Notice of each special meeting of a committee shall be mailed to each member of such committee, addressed to him at his - 4 - residence or usual place of business, at least two days before the day on which the meeting is to be held, or shall be sent by telegram, radio or cable addressed to him at such place, or telephoned or delivered to him personally, not later than the day before the day on which the meeting is to be held. Notice of any meeting of a committee need not be given to any member thereof who shall attend the meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Notice of any adjourned meeting need not be given. Each committee shall keep a record of its proceedings. Section 3.3 Quorum and Manner of Acting. At each meeting of any committee the presence of one-third but not less than two of its members then in office shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which the quorum is present shall be the act of such committee; in the absence of a quorum, a majority of the members present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present. Subject to the foregoing and other provisions of these By-laws and except as otherwise determined by the Board of Directors, each committee may make rules for the conduct of its business. Any determination made in writing and signed by all the members of such committee shall be as effective as if made by such committee at a meeting. Section 3.4 Resignations. Any member of a committee may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 3.5 Removal. Any member of any committee may be removed at any time by the Board of Directors with or without cause. Section 3.6 Vacancies. If any vacancy shall occur in any committee by reason of death, resignation, disqualification, removal or otherwise, the remaining members of such committee, though less than a quorum, shall continue to act until such vacancy is filled by a resolution passed by a majority of the whole Board of Directors. Section 3.7 Compensation. Committee members shall receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any committee member from serving the Corporation in any other capacity and receiving compensation therefor. ARTICLE IV Officers Section 4.1 Officers. The officers of the Corporation shall be a Chairman of the Board of Directors, a President, one or more Vice Presidents (which may include - 5 - Group Vice Presidents, Senior Vice Presidents and other categories of Vice Presidents), a Secretary, a Treasurer, and such other officers as may be appointed in accordance with the provisions of Section 4.3. Section 4.2 Election, Term of Office and Qualifications. Each officer (except such officers as may be appointed in accordance with the provisions of Section 4.3) shall be elected by the Board of Directors. Each such officer (whether elected at the first meeting of the Board of Directors after the annual meeting of stockholders or to fill a vacancy or otherwise) shall hold his office until the first meeting of the Board of Directors after the next annual meeting of stockholders and until his successor shall have been elected, or until his death, or until he shall have resigned in the manner provided in Section 4.4 or shall have been removed in the manner provided in Section 4.5. The Chairman of the Board of Directors must be a member of the Board of Directors. Section 4.3 Subordinate Officers and Agents. The Board of Directors from time to time may appoint other officers or agents (including one or more assistant vice presidents, one or more assistant secretaries and one or more assistant treasurers), to hold office for such period, have such authority and perform such duties as are provided in these By-laws or as may be provided in the resolutions appointing them. The Board of Directors may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective terms of office, authorities and duties. Section 4.4 Resignations. Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 4.5 Removal. Any officer specifically designated in Section 4.1 may be removed at any time, either with or without cause, at any meeting of the Board of Directors by the vote of a majority of all the directors then in office. Any officer or agent appointed in accordance with the provisions of Section 4.3 may be removed, either with or without cause, by the Board of Directors at any meeting, by the vote of a majority of the directors present at such meeting, or by any superior officer or agent upon whom such power of removal shall have been conferred by the Board of Directors. Section 4.6 Vacancies. A vacancy in any office by reason of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner prescribed by these By-laws for regular election or appointment to such office. Section 4.7 The Chairman of the Board of Directors. The Chairman of the Board of Directors shall be the chief executive officer of the Corporation. Subject to the direction of the Board of Directors, he shall have general charge of the business affairs and property of the Corporation. He shall see that all orders and resolutions of the Board of Directors are carried into effect. If present, he shall preside at all meetings of stockholders. He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have - 6 - been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. From time to time he shall report to the Board of Directors all matters within his knowledge which the interests of the Corporation may require to be brought to their attention. He shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors. Section 4.8 The President. The President shall be the chief operating officer of the Corporation. Subject to the direction of the Chairman of the Board of Directors, he shall have general supervision over the officers and agents of the Corporation. At the request of the Board of Directors or the Chairman of the Board of Directors, the President shall perform all the duties of the Chairman of the Board of Directors and, when so acting, shall have all the powers of and be subject to all restrictions upon the Chairman of the Board of Directors (except that the President need not be a member of the Board of Directors). He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. He shall also perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors or the Chairman of the Board of Directors. Section 4.9 The Vice Presidents. In the absence or disability of the President, any vice president designated by the President (or in the absence of such designation, the Vice President designated by the Board of Directors or the Chairman of the Board of Directors) shall perform all the duties of the President and, when so acting, shall have all the powers of and be subject to all restrictions upon the President. Any vice president may also sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation deeds, mortgages, bonds and other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. Each vice president shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.10 The Secretary. The Secretary shall (a) Record all the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book or books to be kept for that purpose; (b) Cause all notices to be duly given in accordance with the provisions of these By-laws and as required by statute; - 7 - (c) Whenever any committee shall be appointed in pursuance of a resolution of the Board of Directors, furnish the chairman of such committee with a copy of such resolution; (d) Be custodian of the records and of the seal of the Corporation, and cause such seal to be affixed to all certificates representing stock of the Corporation prior to the issuance thereof and to all instruments the execution of which on behalf of the Corporation under its seal shall have been duly authorized; (e) See that the lists, books, reports, statements, certificates and other documents and records required by statute are properly kept and filed; (f) Have charge of the stock and transfer books of the Corporation, and exhibit such stock book at all reasonable times to such persons as are entitled by statute to have access thereto; (g) Sign (unless the Treasurer or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Secretary and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.11 Assistant Secretaries. At the request of the Secretary or in his absence or disability, the Assistant Secretary designated by him (or in the absence of such designation, the Assistant Secretary designated by the Board of Directors, the Chairman of the Board of Directors or the President) shall perform all the duties of the Secretary and, when so acting, shall have all the powers of and be subject to all restrictions upon the Secretary. The assistant secretaries shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary. Section 4.12 The Treasurer. The Treasurer shall (a) Have charge of and supervision over and be responsible for the funds, securities, receipts and disbursements of the Corporation; (b) Cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such banks or trust companies or with such bankers or other depositaries as shall be selected in accordance with Section 5.3 of these By-laws or to be otherwise dealt with in such manner as the Board of Directors may direct; (c) Cause the funds of the Corporation to be disbursed by checks or drafts upon the authorized depositaries of the Corporation, and cause to be taken and preserved proper vouchers for all moneys disbursed; (d) Render to the Board of Directors, the Chairman of the Board of Directors, or the President, whenever requested, a statement of the financial condition of the Corporation and of all his transactions as Treasurer; - 8 - (e) Cause to be kept at the Corporation's principal office correct books of account of all its business and transactions and such duplicate books of account as he shall determine and upon application cause such books or duplicates thereof to be exhibited to any director; (f) Be empowered, from time to time, to require from the officers or agents of the Corporation reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation; (g) Sign (unless the Secretary or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Treasurer and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.13 Assistant Treasurers. At the request of the Treasurer or in his absence or disability, the Assistant Treasurer designated by him (or in the absence of such designation, the Assistant Treasurer designated by the Board of Directors, the Chairman of the Board of Directors, or the President) shall perform all the duties of the Treasurer and, when so acting, shall have all the powers of and be subject to all restrictions upon the Treasurer. The Assistant Treasurers shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Treasurer. Section 4.14 Salaries. The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors, except that the Board of Directors may delegate to any person the power to fix the salaries or other compensation of any officers or agents appointed in accordance with the provisions of Section 4.3. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. Section 4.15 Surety Bonds. If the Board of Directors shall so require, any officer or agent of the Corporation shall execute to the Corporation a bond in such sum and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful discharge of his duties, including responsibilities for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands. ARTICLE V Execution of Instruments and Deposit of Corporate Funds Section 5.1 Execution of Instruments Generally. The Chairman of the Board of Directors, the President, any vice president, the Secretary or the Treasurer, subject to the approval of the Board of Directors, may enter into any contract or execute and - 9 - deliver any instrument in the name and on behalf of the Corporation. The Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation, and such authorization may be general or confined to specific instances. Section 5.2 Borrowing. No loans or advances shall be obtained or contracted for, by or on behalf of the Corporation and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors. Such authorization may be general or confined to specific instances. Any officer or agent of the Corporation thereunto so authorized may obtain loans and advances for the Corporation, and for such loans and advances may make, execute and deliver promissory notes, bonds or other evidences of indebtedness of the Corporation. Any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as security for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation, any and all stocks, bonds, other securities and other personal property at any time held by the Corporation, and to that end may endorse, assign and deliver the same and do every act and thing necessary or proper in connection therewith. Section 5.3 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors may select, or as may be selected by any officer or officers or agent or agents authorized so to do by the Board of Directors. Endorsements for deposit to the credit of the Corporation in any of its duly authorized depositaries shall be made in such manner as the Board of Directors from time to time may determine. Section 5.4 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers or agent or agents of the Corporation, and in such manner, as from time to time shall be determined by the Board of Directors. Section 5.5 Proxies. Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the Chairman of the Board of Directors, the President or a vice president or by any other person or persons thereunto authorized by the Board of Directors. ARTICLE VI Record Dates Section 6.1. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall be not more than sixty nor less than ten days before the date of such meeting, nor more that sixty days - 10 - prior to any other action. Only those stockholders of record on the date so fixed shall be entitled to any of the foregoing rights, notwithstanding the transfer of any such stock on the books of the Corporation after any such record date fixed by the Board of Directors. ARTICLE VII Corporate Seal Section 7.1. The corporate seal shall be circular in form and shall bear the name of the Corporation and words and figures denoting its organization under the laws of the state of Delaware and the year thereof and otherwise shall be in such form as shall be approved from time to time by the Board of Directors. ARTICLE VIII Fiscal Year Section 8.1. The fiscal year of the Corporation shall begin on the first day of January in each year and shall end on the 31st day of December in the same year. ARTICLE IX Amendments Section 9.1. All By-laws of the Corporation may be amended, altered or repealed, and new By-laws may be made, by the affirmative vote of the holders of record of shares representing a majority of the votes of the outstanding shares of stock of the Corporation entitled to vote cast at any annual or special meeting, or by the affirmative vote of a majority of the Directors cast at any regular or special meeting at which a quorum is present. - 11 - EX-3.45 40 h92783ex3-45.txt CERT OF INC OF TESORO SOUTH PACIFIC PETROLEUM CO EXHIBIT 3.45 CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION OF TESORO PETROLEUM SOUTH PACIFIC COMPANY To The Secretary of State State of California Pursuant to the provisions of the California Corporations Code, the undersigned officers of the corporation hereinafter named do hereby certify as follows: 1. The name of the corporation is: TESORO PETROLEUM SOUTH PACIFIC COMPANY 2. Article 1 of the corporation's Articles of Incorporation, which relate to the name of the corporation, is hereby amended so as to read as follows: "The name of this corporation is: TESORO SOUTH PACIFIC PETROLEUM COMPANY" 3. The amendment herein provided for has been approved by the corporation's Board of Directors. 4. The amendment herein provided for was approved by the required written consent of the corporation's shareholders in accordance with the provisions of Section 902 of the California Corporations Code. The corporation's total number of shares which were outstanding and entitled to vote or to furnish written consent with respect to the amendments herein provided for at the time of the approval thereof is 1,000,000, all of which are of one class. The percentage vote of the number of the aforesaid outstanding shares which is required to vote or furnish written consent in favor of the amendments herein provided for is 100%. The number of the aforesaid outstanding shares which voted or furnished a written consent in favor of the amendments herein provided for is 1,000,000, and said number exceeded the percentage of the cote or written consent required to approve the said amendments. Signed on June 10th 1998. By: /s/ William T. Van Kleef ----------------------------------- William T. Van Kleef Executive Vice President By: /s/ James C. Reed, Jr. -------------------------------------- James C. Reed, Jr. Executive Vice President and Secretary On this 10th day of June, 1998, in the City of San Antonio, County of Bexar in the State of Texas, each of the undersigned does hereby declare under the penalty of perjury that he signed the foregoing Certificate of Amendment of Articles of Incorporation in the official capacity set forth beneath his signature, and that the statements are set forth in said Certificate are true of his own knowledge. By: /s/ William T. Van Kleef -------------------------------------- William T. Van Kleef Executive Vice President By: /s/ James C. Reed, Jr. -------------------------------------- James C. Reed, Jr. Executive Vice President and Secretary CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION OF BHP PETROLEUM SOUTH PACIFIC INC. To The Secretary of State State of California Pursuant to the provisions of the California Corporations Code, the undersigned officers of the corporation hereinafter named do hereby certify as follows: 1. The name of the corporation is: BHP PETROLEUM SOUTH PACIFIC INC. 2. Article I of the corporation's Articles of Incorporation, which relate to the name of the corporation, is hereby amended so as to read as follows: "The name of this corporation is: TESORO PETROLEUM SOUTH PACIFIC COMPANY" 3. The amendment herein provided for has been approved by the corporation's Board of Directors. 4. The amendment herein provided for was approved by the required written consent of the corporation's shareholders in accordance with the provisions of Section 902 of the California Corporations Code. The corporation's total number of shares which were outstanding and entitled to vote or to furnish written consent with respect to the amendments herein provided for at the time of the approval thereof is 1,000,000, all of which are of one class. The percentage vote of the number of the aforesaid outstanding shares which is required to vote or furnish written consent in favor of the amendments herein provided for is 100%. The number of the aforesaid outstanding shares which voted or furnished a written consent in favor of the amendments herein provided for is 1,000,000, and said number exceeded the percentage of the vote or written consent required to approve the said amendments. Signed on May 29th, 1998. By: /s/ Bruce A. Smith ----------------------------------- Bruce A. Smith, Chairman of the Board of Directors By: /s/ James C. Reed, Jr. ----------------------------------- James C. Reed, Jr., Executive Vice President and Secretary On this 29th day of May, 1998, in the City and County of Honolulu in the State of Hawaii, each of the undersigned does hereby declare under the penalty of perjury that he signed the foregoing Certificate of Amendment of Articles of Incorporation in the official capacity set forth beneath his signature, and that the statements set forth in said Certificate are true of his own knowledge. By: /s/ BRUCE A. SMITH -------------------------------- Bruce A. Smith, Chairman of the Board of Directors By: /s/ JAMES C. REED, JR. -------------------------------- James C. Reed, Jr., Executive Vice President and Secretary CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION JOSEPH A. PELLETIER and DAVID C. VAUGHAN certify that: 1. They are the President and the Secretary, respectively, of Marlex Petroleum of American Samoa, Inc., a California corporation. 2. Article I of the articles of incorporation of this corporation is amended to read as follows: "The name of the Corporation shall be: South Pacific Resources, Inc." 3. The foregoing amendment of articles of incorporation has been duly approved by the board of directors. 4. The foregoing amendment of articles of incorporation has been duly approved by the required vote of shareholders in accordance with Section 902 of the Corporations Code. The total number of outstanding shares of the corporation is 100,000. The number of shares voting in favor of the amendment equaled or exceeded the vote required. The percentage vote required was more than 50%. We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge. Date: March 25, 1983. /s/ Joseph A. Pelletier ------------------------------ Joseph A. Pelletier, President /s/ David C. Vaughan ------------------------------ David C. Vaughan, Secretary The number of the aforesaid outstanding shares which voted or furnished a written consent in favor of the amendments herein provided for is 100,000, and said number exceeded the percentage of the vote or written consent required to approve the said amendments. Signed on March 19, 1993. By: /s/ ----------------------- its Vice President By: /s/ ------------------------ its Assistant Secretary On this 19th day of March, 1993, in the City and County of Honolulu in the State of Hawaii, each of the undersigned does hereby declare under the penalty of perjury that he signed the foregoing Certificate of Amendment of Articles of Incorporation in the official capacity set forth beneath his signature, and that the statements set forth in said certificate are true of his own knowledge. /s/ ------------------------------------- /s/ ------------------------------------- CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION OF SOUTH PACIFIC RESOURCES, INC. To The Secretary of State State of California Pursuant to the provisions of the General Corporation Law of the State of California, the undersigned officers of the corporation hereinafter named do hereby certify as follows: 1. The name of the corporation is: SOUTH PACIFIC RESOURCES, INC. 2. Article I of the corporation's Articles of Incorporation, which relate to the name of the corporation, is hereby amended so as to read as follows: "The name of this corporation is: BHP PETROLEUM SOUTH PACIFIC INC." 3. The amendment herein provided for has been approved by the corporation's Board of Directors. 4. The amendment herein provided for was approved by the required written consent of the corporation's shareholders in accordance with the provisions of Section 902 of the General Corporation Law. The corporation's total number of shares which were outstanding and entitled to vote or to furnish written consent with respect to the amendments herein provided for at the time of the approval thereof is 100,000, all of which are of one class. The percentage vote of the number of the aforesaid outstanding shares which is required to vote or furnish written consent in favor of the amendments herein provided for is 100%. ARTICLES OF INCORPORATION OF MARLEX PETROLEUM OF AMERICAN SAMOA, INC. I. The name of this corporation is MARLEX PETROLEUM OF AMERICAN SAMOA, INC. II. The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the general Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporation Code. III. The name and address in the State of California of this corporation's initial agent for service of process is Noel G. Conway, 666 E. Ocean Boulevard, Suite 2208, Long Beach, California 90802. -1- IV. This corporation is authorized to issue only one class of shares of stock and the total number of shares which this corporation is authorized to issue is one million (1,000,000). DATED: February 27, 1981 /s/ Miles R. Rosedale ----------------------------- Miles R. Rosedale I hereby declare that I am the person who executed the foregoing Articles of Incorporation, which execution is my act and deed. /s/ Miles R. Rosedale ----------------------------- Miles R. Rosedale - 2 - EX-3.46 41 h92783ex3-46.txt BYLAWS OF TESORO SOUTH PACIFIC PETROLEUM CO EXHIBIT 3.46 BY-LAWS of MARLEX PETROLEUM OF AMERICAN SAMOA, INC. a California corporation ARTICLE I DIRECTORS; MANAGEMENT Section 1. a. Powers. Subject to the provisions of the General Corporation Law of California, effective January 1, 1977 (to which the various Section numbers quoted herein relate) and subject to any limitation in the Articles of Incorporation and the By-Laws relating to action required to be approved by the Shareholders (Sec. 153) or by the outstanding shares (Sec. 152), the business and affairs of this corporation shall be managed by and all corporate powers shall be exercised by or under direction of the Board of Directors. b. Standard of Care. Each Director shall exercise such powers and otherwise perform such duties in good faith, in the manner such Director believes to be in the best interests of the corporation, and with such care, including reasonable inquiry, using ordinary prudence, as a person in a like position would use under similar circumstances. (Sec. 309) c. Exception for Close Corporation. Notwithstanding the provisions of Section 1, in the event that this corporation shall elect to become a close corporation as defined in Sec. 186, its Shareholders may enter into a Shareholders' Agreement as provided in Sec. 300 (b). Said agreement may provide for the exercise of corporate powers and the management of the business and affairs of this corporation by the Shareholders, provided however such agreement shall, to the extent and so long as the discretion or the powers of the Board in its management of corporate affairs are controlled by such agreement, impose upon each Shareholder who is a party thereof, liability for managerial acts performed or omitted by such person pursuant thereto otherwise imposed upon Directors as provided in Sec. 300(d). Section 2. Number and Qualification. The authorized number of Directors of the corporation shall be four (4). This number may be changed by amendment to the Articles of Incorporation or by an amendment to this Section 2, ARTICLE I, of these By-Laws, adopted by the vote or written assent of the Shareholders entitled to exercise majority Voting power as provided in Sec. 212. Section 3. Election and Tenure of Office. The Directors shall be elected by ballot at the annual meeting of the Shareholders, to serve for one year or until their successors are elected and have qualified. Their term of office shall begin immediately after election. Section 4. Vacancies. Vacancies in the Board of Directors may be filled by a majority of the remaining Directors, though less than a quorum, or by a sole remaining Director, and each Director so elected shall hold office until his successor is elected at an annual meeting of Shareholders or at a special meeting called for that purpose. The Shareholders may at any time elect a Director to fill any vacancy not filled by the Directors, and may elect the additional Directors at the meeting at which an amendment of the By-Laws is voted authorizing an increase in the number of Directors. A vacancy or vacancies shall be deemed to exist in case of the death, resignation or removal of any Director, or if the Shareholders shall increase the authorized number of Directors but shall fail at the meeting at which such increase is authorized, or at an adjournment thereof, to elect the additional Director so provided for, or in case the Shareholders fail at any time to elect the full number of authorized Directors. If the Board of Directors accepts the resignation of a Director tendered to take effect at a future time, the Board, or the Shareholders, shall have power to elect a successor to take office when the resignation shall become effective. No reduction of the number of Directors shall have the effect of removing any Director prior to the expiration of his term of office. Section 5. Removal of Directors. The entire Board of Directors or any individual Director may be removed from office as provided by Secs. 302, 303 and 304 of the Corporations Code of the State of California. In such case, the remaining Board members may elect a successor Director to fill such vacancy for the remaining unexpired term of the Director so removed. Section 6. Notice, Place and Manner of Meetings. Meetings of the Board of Directors may be called by the Chairman of the Board, or the President, or any Vice President, or the Secretary, or any two (2) Directors and shall be held at the principal executive office of the corporation in the -2- State of California, unless some other place is designated in the notice of the meeting. Members of the Board may participate in a meeting through use of a conference telephone or similar communications equipment so long as all members participating in such a meeting can hear one another. Accurate minutes of any meeting of the Board or any committee thereof, shall be maintained as required by Sec. 312 of the Code by the Secretary or other Officer designated for that purpose. Section 7. Organization Meetings. The organization meetings of the Board of Directors shall be held immediately following the adjournment of the annual meetings of the Shareholders. Section 8. Other Regular Meetings. Regular meetings of the Board of Directors shall be held at the corporate offices, or such other place as may be designated by the Board of Directors, as follows: Time of Regular Meeting: 10:00 a.m. Date of Regular Meeting: 1st Tuesday of each month If said day shall fall upon a holiday, such meetings shall be held on the next succeeding business day thereafter. No notice need be given of such regular meetings. Section 9. Special Meetings - Notices - Waivers. Special meetings of the Board may be called at any time by the President or, if he is absent or unable or refuses to act, by any Vice President or the Secretary or by any two Directors or by one Director if only one is provided. At least forty-eight (48) hours notice of the time and place of special meetings shall be delivered personally to the Directors or personally communicated to them by a corporate Officer by telephone or telegraph. If the notice is sent to a Director by letter, it shall be addressed to him at his address as it is shown upon the records of the corporation, (or if it is not so shown on such records or is not readily ascertainable, at the place in which the meetings of the Directors are regularly held). In case such notice is mailed, it shall be deposited in the United States mail, postage prepaid, in the place in which the principal executive office of the corporation is located at least four (4) days prior to the time of the holding of the meeting. Such mailing, telegraphing, telephoning or delivery as above provided shall be due, legal and personal notice to such Director. When all of the Directors are present at any Directors' meeting, however called or noticed, and either (i) sign a written consent thereto on the records of such meeting, or, (ii) if a majority of the Directors are present and if those not present -3- sign a waiver of notice of such meeting or a consent to holding the meeting or an approval of the minutes thereof, whether prior to or after the holding of such meeting, which said waiver, consent or approval shall be filed with the Secretary of the corporation or (iii) if a Director attends a meeting without notice but without protesting, prior thereto or at its commencement, the lack of notice to him, then the transactions thereof are as valid as if had at a meeting regularly called and noticed. Section 10. Sole Director Provided by Articles of Incorporation. In the event only one Director required by the By-Laws or Articles of Incorporation, then any reference herein to notices, waivers, consents, meetings or other actions by a majority quorum of the Directors shall be deemed to refer to such notice, waiver, etc., by such sole Director, who shall have all the rights and duties and shall be entitled to exercise all of the powers and shall assume all the responsibilities otherwise herein described as given to a Board of Directors. Section 11. Directors Acting by Unanimous Written Consent. Any action required or permitted to be taken by the Board of Directors may be taken without a meeting and with the same force and effect as if taken by a unanimous vote of Directors, if authorized by a writing signed individually or collectively by all members of the Board. Such consent shall be filed with the regular minutes of the Board. Section 12. Quorum. A majority of the number of Directors as fixed by the Articles of Incorporation or By-Laws shall be necessary to constitute a quorum for the transaction of business, and the action of a majority of the Directors present at any meeting at which there is a quorum, when duly assembled, is valid as a corporate act; provided that a minority of the Directors, in the absence of a quorum, may adjourn from time to time, but may not transact any business. A meeting at which a quorum is initially present may continue to transact business, notwithstanding the withdrawal of Directors, if any action taken is approved by a majority of the required quorum for such meeting. Section 13. Notice of Adjournment. Notice of the time and place of holding an adjourned meeting need not be given to absent Directors if the time and place be fixed at the meeting adjourned and held within twenty-four (24) hours, but if adjourned more than twenty-four (24) hours, notice shall be given to all Directors not present at the time of the adjournment. Section 14. Compensation of Directors. Directors, as such, shall not receive any stated salary for their services, but by resolution of the Board a fixed sum and expense of attendance, if any, may be allowed for atten- -4- dance at each regular and special meeting of the Board; provided that nothing herein contained shall be construed to preclude any Director from serving the company in any other capacity and receive compensation therefor. Section 15. Committees. Committees of the Board may be appointed by resolution passed by a majority of the whole Board. Committees shall be composed of two or more members of the Board, and shall have such powers of the Board as may be expressly delegated to it by resolution of the Board of Directors, except those powers expressly made non-delegable by Sec. 311. Section 16. Advisory Directors. The Board of Directors from time to time may elect one or more persons to be Advisory Directors who shall not by such appointment be members of the Board of Directors. Advisory Directors shall be available from time to time to perform special assignments specified by the President, to attend meetings of the Board of Directors upon invitation and to furnish consultation to the Board. The period during which the title shall be held may be prescribed by the Board of Directors. If no period is prescribed, the title shall be held at the pleasure of the Board. Section 17. Resignations. Any Director may resign effective upon giving written notice to the Chairman of the Board, the President, the Secretary or the Board of Directors of the corporation, unless the notice specifies a later time for the effectiveness of such resignation. If the resignation is effective at a future time, a successor may be elected to take office when the resignation becomes effective. ARTICLE II OFFICERS Section 1. Officers. The Officers of the corporation shall be a Chairman of the Board or a President or both, a Secretary and a Chief Financial Officer. The corporation may also have, at the discretion of the Board of Directors, one or more Vice Presidents, one or more Assistant Secretaries and such other Officers as may be appointed in accordance with the provisions of Section 3 of this Article. One person may hold two or more offices. Section 2. Election. The Officers or the corporation, except such Officers as may be appointed in accordance with the provisions of Section 3 or Section 5 of this Article shall be chosen annually by the Board of Directors, and each shall hold his office until he -5- shall resign or shall be removed or otherwise disqualified to serve, or his successor shall be elected and Qualified. Section 3. Subordinate Officers, Etc. The Board of Directors may appoint such other Office as the business of the corporation may require, each of whom shall hold office for such period, have such authority and perform such duties as are provided in the By-Laws or as the Board of Directors may from time to time determine. Section 4. Removal and Resignation. Any Officer may be removed, either with or without cause, by a majority of the Directors at the time in office, at any regular or special meeting of the Board, or, except in case of an Officer chosen by the Board of Directors, by any Officer upon whom such power of removal may be conferred by the Board of Directors. Any Officer may resign at any time by giving written notice to the Board of Directors, or to the President, or to the Secretary of the corporation. Any such resignation shall take effect at the date of the receipt of such notice or at any later time specified therein; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 5. Vacancies. A vacancy in any office because of death, resignation removal, disqualification or any other cause shall be filled in the manner prescribed in the By-Laws for regular appointments to such office. Section 6. Chairman of the Board. The Chairman of the Board, if there shall be such an Officer, shall if present, preside at all meetings of the Board of Directors, and exercise and perform such other powers and duties as may be from time to time assigned to him by the Board of Directors or prescribed by the By-Laws. Section 7. President. Subject to such supervisory powers, if any, as may be given by the Board of Directors to the Chairman of the Board, if there be such an Officer, the President shall be the Chief Executive Officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business and Officers of the corporation. He shall preside at all meetings of the Shareholders and in the absence of the Chairman of the Board, or if there be none, at all meetings of the Board of Directors. He shall be ex officio a member of all the standing committees, including the Executive Committee, if any, and shall have the general powers and duties of management usually vested in the office of President of a corporation, and -6- shall have such other powers and duties as may be prescribed by the Board of Directors or the By-Laws. Section 8. Vice President. In the absence or disability of the President, the Vice Presidents, in order of their rank as fixed by the Board of Directors, or if not ranked, the Vice President designated by the Board of Directors, shall perform all the duties of the President, and when so acting shall have all the powers of, and be subject to all the restrictions upon, the President. The Vice Presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them respectively by the Board of Directors or the By-Laws. Section 9. Secretary. The Secretary shall keep, or cause to be kept, a book of minutes at the principal office or such other place as the Board of Directors may order, of all meetings of Directors and Shareholders, with the time and place of holding, whether regular or special, and if special, how authorized, the notice thereof given, the names of those present at Directors' meetings, the number of shares present or represented at Shareholders' meetings and the proceedings thereof. The Secretary shall keep, or cause to be kept, at the principal office or at the office of the corporation's transfer agent, a share register, or duplicate share register, showing the names of the Shareholders and their addresses; the number and classes of shares held by each; the number and date of certificates issued for the same; and the number and date of cancellation of every certificate surrendered for cancellation. The Secretary shall give, or cause to be given, notice of all the meetings of the Shareholders and of the Board of Directors required by the By-Laws or by law to be given, and he shall keep the seal of the corporation in safe custody, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors or by the By-Laws. Section 10. Chief Financial Officer. This Officer shall keep and maintain, or cause to be kept and maintained in accordance with generally accepted accounting principles, adequate and correct accounts of the properties and business transactions of the corporation, including accounts of its assets, liabilities, receipts, disbursements, gain, losses, capital, earnings (or surplus) and shares. The books of account shall at all reasonable times be open to inspection by any Director. This Officer shall deposit all moneys and other valuables in the name and to the credit of the corporation with such depositaries as may be designated by the Board of Directors. He shall disburse the funds of the corporation as may be ordered by the Board of Directors, shall render to the President and Directors, -7- whenever they request it, an account of all of his transactions and of the financial condition of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the Board of Directors of the By-Laws. ARTICLE I: SHAREHOLDERS' MEETINGS Section 1. Place of Meetings. Meetings of the Shareholders shall be held at the principal executive office of the corporation, in the State of California, unless some other appropriate and convenient location be designated for that purpose from time to time by the Board of Directors. Section 2. Annual Meetings. The annual meetings of the Shareholders shall be held each year, at the time and on the day following: Time of Meeting: 10:00 a.m. Date of Meeting: 1st Monday in April of each year, commencing April, 1981. If this day shall be a legal holiday, then the meeting shall be held on the next succeeding business day, at the same hour. At the annual meeting, the Shareholders shall elect a Board of Directors, consider reports of the affairs of the corporation and transact such other business as may be properly brought before the meeting. Section 3. Special Meetings. Special meetings of the Shareholders may be called at any time by the Board of Directors, the Chairman of the Board, the President, a Vice President, the Secretary, or by one or more Shareholders holding not less than one-tenth (1/10) of the voting power of the corporation. Except as next provided, notice shall be given as for the annual meeting. Upon receipt of a written request addressed to the Chairman, President, Vice President, or Secretary, mailed or delivered personally to such Officer by any person (other than the Board) entitled to call a special meeting of Shareholders, such Officer shall cause notice to be given, to the Shareholders entitled to vote, that a meeting will be held at a time requested by the person or persons calling the meeting, not less than twenty-five nor more than sixty days after the receipt of such request. If such notice is not given within twenty days after receipt of such request, the persons calling the meeting may give notice thereof in the manner provided by these By-Laws or apply to the Superior Court as provided in Sec. 305(c). -8- Section 4. Notice of Meetings - Reports. Notice of meetings, annual or special, shall be given in writing not less than ten nor more than Sixty days before the date of the meeting, to shareholders entitled to vote thereat by the Secretary or the Assistant Secretary, or if there be no such Officer, or in the case of his neglect or refusal, by any Director or Shareholder. Such notices or any reports shall be given personally or by mail or other means of written communication as provided in Sec. 601 of the Code and shall be sent to the Shareholder's address appearing on the books of the corporation, or supplied by him to the corporation for the purpose of notice, and in the absence thereof, as provided in Sec. 601 of the Code. Notice of any meeting of Shareholders shall specify the place, the day and the hour of meeting, and (l) in case of a special meeting, the general nature of the business to be transacted and no other business may be transacted, or (2) in the case of an annual meeting, those matters which the Board at date of mailing, intends to present for action by the Shareholders. At any meetings where Directors are to be elected, notice shall include the names of the nominees, if any, intended at date of Notice to be presented by management for election. If a Shareholder supplies no address, notice shall be deemed to have been given to him if mailed to the place where the principal executive office of the company, in California, is situated, or published at least once in some newspaper of general circulation in the County of said principal office. Notice shall be deemed given at the time it is delivered personally or deposited in the mail or sent by other means of written communication. The Officer giving such notice or report shall prepare and file an affidavit or declaration thereof. When a meeting is adjourned for forty-five days or more, notice of the adjourned meeting shall be given as in case of an original meeting. Save, as aforesaid, it shall not be necessary to give any notice of adjournment or of the business to be transacted at an adjourned meeting other than by announcement at the meeting at which such adjournment is taken. Section 5. Validation of Shareholders' Meeting. The transactions of any meeting of Shareholders, however called and noticed, shall be valid as though had at a meeting duly held after regular call and notice, if a quorum be present neither in person or by proxy, and if, either before or after the meeting, each of the Shareholders entitled to vote, not present in person or by proxy, sign a written waiver of notice, or a consent to the holding of such meeting or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Attendance shall constitute a waiver of notice, unless objection shall be made as provided in Sec. 601(e). -9- Section 6. Shareholders Acting Without A Meeting - Directors. Any action which may be taken at a meeting of the Shareholders, may be taken without a meeting or notice of meeting if authorized by a writing signed by all of the Shareholder entitled to vote at a meeting for such purpose, and filed with the Secretary of the corporation, provided further that while ordinarily Directors can only be elected by unanimous written consent under Sec. 603(d), if the Directors fail to file a vacancy, then a Director to fill that vacancy may be elected by the written consent of persons holding a majority of shares entitled to vote or the election of Directors. Section 7. Other Actions Without Meeting. Unless otherwise provided in the GCL or the Articles, any action which may be taken at any annual or special meeting of Shareholders may be taken without a meeting and without prior notice of a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Unless the consents of all Shareholders entitled to vote have been solicited in writing, (l) Notice of any Shareholder approval pursuant to Secs. 310, 317, 1201 or 2007 without a meeting by less than unanimous written consent shall be given at least 10 days before the consummation of the action authorized by such approval, and (2) Prompt notice shall be given of the taking of any other corporate action approved by Shareholders without a meeting by less than unanimous written consent, to each of those Shareholders entitled to vote who have not consented in writing. Any Shareholder giving a written consent, or the Shareholder's proxyholders, or a transferee of the shares of a personal representative of the Shareholder or their respective proxyholders, may revoke the consent by a writing received by the corporation prior to the time that written consents of the number of shares required to authorize the proposed action have been filed with the Secretary of the corporation, but may not do so thereafter. Such revocation is effective upon its receipt by the Secretary of the corporation. Section 8. Quorum. The holders of a majority of the shares entitled to vote thereat, present in person, or represented by proxy, shall constitute a quorum at all meetings or the Shareholders for the transaction of business except as otherwise provided by law, by the Articles of Incorporation, or by these By-Laws. If, however such majority shall not be present or represented at any meeting the Shareholders, the Shareholders entitled to vote thereat, present in person, or by proxy, shall have the cower to adjourn the meeting from time to time, until the requisite amount of voting shares shall be present. At such adjourned meeting at which the requisite -10- amount of voting shares shall be represented, any business may be transacted which might have been transacted at a meeting as originally notified. If a quorum be initially present, the Shareholders may continue to transact business until adjournment, notwithstanding the withdrawal of enough Shareholders to leave less than a quorum, if any action taken is approved by a majority of the Shareholders required to initially constitute a quorum. Section 9. Voting Rights; Cumulative Voting. Only persons in whose names shares entitled to vote stand on the stock records of the corporation on the day of any meeting of Shareholders, unless some other day be fixed by the Board of Directors for the determination of Shareholders of record, and then on such other day, shall be entitled to vote at such meeting. Provided the candidate's name has been placed in nomination prior to the voting and one or more Shareholder has given notice at the meeting prior to the voting of the Shareholder's intent to cumulate the Shareholder's votes, every Shareholder entitled to vote at any election for Directors of any corporation for profit may cumulate his votes and give one candidate a number of votes equal to the number of Directors to be elected multiplied by the number of votes to which his shares are entitled, or distribute his votes on the same principle among as many candidates as he thinks fit. The candidates receiving the highest number of votes up to the number of Directors to be elected are elected. The Board of Directors may fix a time in the future not exceeding thirty days preceding the date of any meeting of Shareholders or the date fixed for the payment of any dividend or distribution, or for the allotment of rights, or when any change or conversion or exchange of shares shall go into effect, as a record date for the determination of the Shareholders entitled to notice of and to vote at any such meeting, or entitled to receive any such dividend or distribution, or any allotment of rights, or to exercise the rights in respect to any such change, conversion or exchange of shares. In such case only Shareholders of record on the date so fixed shall be entitled to notice of and to vote at such meeting, or to receive such dividends, distribution or allotment of rights, or to exercise such rights, as the case may be notwithstanding transfer of any share on the books of the company after any record date fixed as aforesaid. The Board of Directors may close the books of the company against transfers of shares during the whole or any part of such period. Section 10. Proxies. Every Shareholder entitled to vote, or to execute consents, may do so, either in person or by written proxy, executed in accordance with the provisions of Secs. 604 and 705 of the Code and filed with the Secretary of the corporation. -11- Section 11. Organization. The President, or in the absence of the President, any Vice President, shall call the meeting of the Shareholders to order, and shall act as chairman of the meeting. In the absence of the President and all of the Vice Presidents, Shareholders shall appoint a chairman for such meeting. The Secretary of the company shall act as Secretary of all meetings of the Shareholders, but in the absence of the Secretary at any meeting of the Shareholders, the presiding Officer may appoint any person to act as Secretary of the meeting. Section 12. Inspectors of Election. In advance of any meeting of Shareholders the Board of Directors may, if they so elect, appoint inspectors of election to act at such meeting or any adjournments thereof. If inspectors of election be not so appointed, the chairman of any such meeting may, and on the request of any Shareholder or his proxy shall, make such appointment at the meeting in which case the number of inspectors shall be either one or three as determined by a majority of the Shareholders represented at the meeting. Section 13. Shareholders' Agreements. Notwithstanding the above provisions in the event this corporation elects to become a close corporation, an agreement between two or more Shareholders thereof, if in writing and signed by the parties thereof, may provide that in exercising any voting rights the shares held by them shall be voted as provided therein or in Sec. 706, and may otherwise modify these provisions as to Shareholders' meetings and actions. ARTICLE IV CERTIFICATES AND TRANSFER OF SHARES Section 1. Certificates for Shares. Certificates for shares shall be of such form and device as the Board of Directors may designate and shall state the name of the record holder of the shares represented thereby; its number; date of issuance; the number of shares for which it is issued; a statement of the rights, privileges, preferences and restrictions, if any; a statement as to the redemption or conversion, if any; a statement of liens or restrictions upon transfer or voting, if any; of the shares be assessable or, if assessments are collectible by personal action, a plain statement of such facts. Every certificate for shares must be signed by the President or a Vice President and the Secretary or an Assistant Secretary or must be authenticated by facsimiles of the signatures of the President and Secretary or by a facsimile of the signature of its President and the written signature of its Secretary or -12- an Assistant Secretary. Before it becomes effective every certificate for shares authenticated by a facsimile of a signature must be countersigned by a transfer agent or transfer clerk and must be registered by an incorporated bank or trust company, either domestic or foreign, as registrar of transfers. Section 2. Transfer on the Books. Upon surrender to the Secretary or transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Section 3. Lost or Destroyed Certificates. Any person claiming a certificate of stock to be lost or destroyed shall make an affidavit or affirmation of that fact and shall if the Directors so require give the corporation a bond of indemnity, in form and with one or more sureties satisfactory to the Board, in at least double the value of the stock represented by said certificate, whereupon a new certificate may be issued in the same tenor and for the same number of shares as the one alleged to be lost or destroyed. Section 4. Transfer Agents and Registrars. The Board of Directors may appoint one or more transfer agents or transfer clerks, and one or more registrars, which shall be an incorporated bank or trust company either domestic or foreign, who shall be appointed at such times and places as the requirements of the corporation may necessitate and the Board of Directors may designate. Section 5. Closing Stock Transfer Books - Record Date. In order that the corporation may determine the Shareholders entitled to notice of any meeting or to vote or entitled to receive payment of any dividend or other distribution or allotment of any rights or entitled to exercise any rights in respect to any other lawful action, the Board may fix, in advance, a record date, which shall not be more than sixty nor less than ten days prior to the date of such meeting nor more than sixty days prior to any other action. If no record date is fixed: The record date for determining Shareholders entitled to notice of or to vote at a meeting of Shareholders shall be at the close of business on the business day next preceding the day on which notice is given or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held. The record date for determining Shareholders entitled to give consent to corporate action in writing without a meeting, when no prior action by the Board is necessary, shall be the day on which the first written consent is given. -13- The record date for determining Shareholders for any other purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto, or the 60th day prior to the date of such other action, whichever is later. Section 6. Legend Condition. In the event any shares of this corporation are issued pursuant to a permit or exemption therefrom requiring the imposition of a legend condition the person or persons issuing or transferring said shares shall make sure said legend appears on the certificate and on the stub relating thereto in the stock record book and shall not be required to transfer any shares free of such legend unless an amendment to such permit or a new permit be first issued so authorizing such a deletion. Section 7. Close Corporation Certificates. All certificates representing shares of this corporation, in the event it shall elect to become a close corporation, shall contain the legend required by Sec. 418 c. ARTICLE V CORPORATE RECORDS AND REPORTS - INSPECTION Section 1. Records. The corporation shall maintain, in accordance with generally accepted accounting principles, adequate and correct accounts, books and records of its business and properties. All of such books, records and accounts shall be kept at its principal executive office in the State of California, as fixed by the Board of Directors from time to time. Section 2. Inspection of Books and Records. All books and records provided for in Sec. 1500 shall be open to inspection of the Directors and Shareholders from time to time and in the manner provided in said Sec. 1600 - 1602. Section 3. Certification and Inspection of By-Laws. The original or a copy of these By-Laws, as amended or otherwise altered to date, certified by the Secretary, shall be kept at the corporation's principal executive office and shall be open to inspection by the Shareholders of the company, at all reasonable times during office hours, as provided in Sec. 213 of the Corporations Code. Section 4. Checks, Drafts, Etc. All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness, issued in the name of or payable to the corporation, shall be signed or endorsed by such person or persons and in such manner as shall be determined from time to time by resolution of the Board of Directors. -14- Section 5. Contracts, Etc. - How Executed. The Board of Directors, except as in the By-Laws otherwise provided, may authorize any Officer or Officers, agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of the corporation. Such authority may be general or confined to specific instances. Unless so authorized by the Board of Directors, no Officer, agent or employee shall have any power or authority to bind the corporation by any contract or agreement, or to pledge its credit, or to render it liable for any purpose or to any amount, except as provided in Sec. 313 of the Corporations Code. ARTICLE VI ANNUAL REPORTS Section 1. Due Date, Contents. The Board of Directors shall cause an annual report or statement to be sent to the Shareholders of this corporation not later than 120 days after the close of the fiscal or calendar year in accordance with the provisions of Secs. 1500 - 1501. Such report shall be sent to Shareholders at least fifteen days prior to the annual meeting of Shareholders. Such report shall contain a balance sheet as of the end of the fiscal year, an income statement and a statement of report thereon of independent accountant, or if there is no such report, a certificate of the Chief Financial Officer or President that such statements were prepared without audit from the books and records of the corporation. Section 2. Waiver. The foregoing requirement of an annual report may be waived by the Board so long as this corporation shall have less than 100 Shareholders. ARTICLE VII AMENDMENTS TO BY-LAWS Section 1. By Shareholders. New By-Laws may be adopted or these By-Laws may be repealed or amended at their annual meeting, or at any other meeting of the Shareholders called for that purpose, by a vote of Shareholders entitled to exercise a majority of the voting power of the corporation, or by written assent of such Shareholders. Section 2. Powers of Directors. Subject to the right of the Shareholders to adopt, amend or repeal By-Laws, as provided in Section 1 of this Article VII, and the limitations of Sec. 204(a)(5) and Sec. 212, the Board of Directors may adopt, amend or repeal any of these By-Laws other than a By-Law or amendment thereof changing the authorized number of Directors. -15- Section 3. Record of Amendments. Whenever an amendment or new By-Law is adopted, it shall be copied in the book of By-Laws with the original By-Laws in the appropriate place. If any By-Law is repealed, the fact of repeal with the date of the meeting at which the repeal was enacted or written assent was filed shall be stated in said book. ARTICLE VIII MISCELLANEOUS Section 1. References to Code Sections. "Sec." references herein refer to the equivalent Sections of the General Corporation Law effective January 1, 1977, as amended. Section 2. Effect of Shareholders' Agreement. Any Shareholders' Agreement authorized by Sec. 300(b), shall only be effective to modify the terms of these By-Laws if this corporation elects to become a close corporation with appropriate filing of or amendment to its Articles as required by Sec. 202 and shall terminate when this corporation ceases to be a close corporation. Such an agreement cannot waive or alter Secs. 158, (defining close corporations), 202 (requirements of Articles of Incorporation), 500 and 501 relative to distributions, 111 (merger), 1201(e) (reorganization) or Chapters 15 (Records and Reports), 16 (Rights of Inspection), 18 (Involuntary Dissolution) or 22 (Crimes and Penalties). Any other provisions of the Code or these By-Laws may be altered OR waived thereby, but to the extent they are not so altered or waived, these By-Laws shall be applicable. Section 3. Representation of Shares in Other Corporations. Shares of other corporations standing in the name of this corporation may be voted or represented and all incidents thereto may be exercised on behalf of the corporation by the Chairman of the Board, the President or any Vice President and the Secretary or an Assistant Secretary. Section 4. Subsidiary Corporations. Shares of this corporation owned by a subsidiary shall not be entitled to vote on any matter. A subsidiary for these purposes is defined as a corporation, the shares of which possessing more than 25% of the total combined voting power of all classes of shares entitled to vote, are owned directly or indirectly through one or more subsidiaries. Section 5. Indemnity. The corporation may indemnify any Director, Officer, agent or employee as to those liabilities and on those terms and conditions as are specified in Sec. 317. In any event, the corporation shall have the right to purchase and maintain insurance on behalf of any such persons whether or not the corporation would have the power to indemnify such person against the liability insured against. -16- CERTIFICATE OF ADOPTION OF BY-LAWS Adoption by Incorporator(s) or First Director(s). The undersigned person(s) appointed in the Articles of Incorporation to act as the Incorporated(s) or First Director(s) of the above named corporation hereby adopt the same as the By-Laws of said corporation. Executed this 2nd day of March, 1981. - ------------------------------------- Name Certificate by Secretary. I DO HEREBY CERTIFY AS FOLLOWS: That I am the duly elected, qualified and acting Secretary of the above named corporation; That the foregoing By-Laws were adopted as the By-Laws of said corporation on the date set forth above by the person(s) appointed in the Articles of Incorporation to act as the Incorporator(s) or First Director(s) of said corporation. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal this 2nd day of March, 1981. /s/ Noel G. Conway ---------------------------------------- Secretary Noel G. Conway Certificate by Secretary of Adoption by Shareholders' Vote. THIS IS TO CERTIFY: That I am the duly elected, qualified and acting Secretary of the above named corporation and that the above and foregoing Code of By-Laws was submitted to the shareholders at their first meeting held on the date set forth in the By-Laws and recorded in minutes thereof, was ratified by the vote of shareholders entitled to exercise the majority of the voting power of said corporation. IN WITNESS WHEREOF, I have hereunto set my hand this 2nd day March, 1981. /s/ Noel G. Conway ---------------------------------------- Secretary -17- EX-3.47 42 h92783ex3-47.txt CERT OF INCORPORATION OF TESORO TECHNOLOGY COMPANY EXHIBIT 3.47 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF TESORO TECHNOLOGY PARTNERS COMPANY Tesoro Technology Partners Company, a corporation organized under and existing by virtue of the General Corporation Law of the State of Delaware, does hereby certify: FIRST: That by the written consent of all members of the Board of Directors of Tesoro Technology Partners Company, dated April 30, 2001, and filed with the minutes of proceedings of said Board of Directors, the Board of Directors of said corporation duly adopted a resolution proposing and declaring advisable a certain amendment to the Certificate of Incorporation of said corporation, and directing that such amendment be submitted for consideration to the shareholder of said corporation. The resolution of the Board of Directors setting forth the proposed amendment is as follows: RESOLVED, that the Board of Directors declares it advisable and proposed that Article 1 of the Certificate of Incorporation of Tesoro Technology Partners Company be amended so as to read in its entirety as follows: "The name of the Corporation is "Tesoro Technology Company." SECOND: That by written consent of the sole shareholder of said corporation dated April 30, 2001, and filed with the minutes of proceedings of said shareholder, the shareholder voted in favor of said amendment. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. FOURTH: That the capital of said corporation will not be reduced under or by reason of said amendment. In witness whereof, said Tesoro Technology Partners Company has caused this certificate to be signed by Bruce A. Smith, its President, and attested by James C. Reed, Jr., its Executive Vice President, General Counsel and Secretary, this 30th day of April, 2001. ATTEST: Tesoro Technology Partners Company /s/ James C. Reed, Jr. /s/ Bruce A. Smith - ---------------------------------- ----------------------------------- James C. Reed, Jr. Bruce A. Smith Executive Vice President, President General Counsel and Secretary CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF EXECUCOMP CONSULTANTS, INC. Execucomp Consultants, Inc., a corporation organized under and existing by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That by the written consent of all members of the Board of Directors of Execucomp Consultants, Inc., dated January 28, 1994, and filed with the minutes of proceedings of said Board of Directors, the Board of Directors of said corporation duly adopted a resolution proposing and declaring advisable a certain amendment to the certificate of Incorporation of said corporation, and directing that such amendment be submitted for consideration to the shareholder of said corporation. The resolution of the Board of Directors setting forth the proposed amendment is as follows: RESOLVED, that the Board of Directors declares it advisable and proposes that Article 1 of the Certificate of Incorporation of Execucomp Consultants, Inc., be amended so as to read in its entirety as follows: "The name of the Corporation is Tesoro Technology Partners Company." SECOND: That by the written consent of the sole shareholder of said corporation dated January 28, 1994, and filed with the minutes of proceedings of said shareholder, the shareholder voted in favor of said amendment. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. FOURTH: That the capital of said corporation will not be reduced under or by reason of said amendment. IN WITNESS WHEREOF, said Execucomp Consultants, Inc., has caused this certificate to be signed by Michael D. Burke, its President, and attested by James C. Reed, Jr., its Vice President, General Counsel and Secretary, this 28th day of January, 1994. EXECUCOMP CONSULTANTS, INC. EXECUCOMP CONSULTANTS, INC. CORPORATE SEAL DELAWARE /s/ Michael D. Burke --------------------------------- Michael D. Burke President ATTEST: /s/ James C. Reed, Jr. - ------------------------------------------ James C. Reed, Jr., Vice President, General Counsel and Secretary CERTIFICATE OF INCORPORATION OF Execucomp Consultants, Inc. 1. The name of the corporation is: Execucomp Consultants, Inc. 2. The address of its 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 its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is One Thousand (1,000) and the par value of each of such shares is One Dollar ($1.00) amounting in the aggregate to One Thousand Dollars ($1,000.00). 5. The board of directors is authorized to make, alter or repeal the by-laws of the corporation. Election of directors need not be by written ballot. 6. The name and mailing address of the incorporator is: V.A. Brookens Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801 I, THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 16th day of December, 1988. /s/ V.A. Brookens --------------------------------------------------- V.A. Brookens EX-3.48 43 h92783ex3-48.txt BYLAWS OF TESORO TECHNOLOGY COMPANY, AS AMENDED EXHIBIT 3.48 Adopted: 12/16/88 Amended: 02/24/92 BY-LAWS OF EXECUCOMP CONSULTANTS, INC. (As Amended February 24, 1992) ARTICLE I Meeting of Stockholders Section 1.1 Annual Meetings. The annual meeting of the stockholders, for the election of directors and for the transaction of such other business as properly may come before such meeting, shall be held on such date and at such time and place within or without of the state of Delaware as may be designated by the Board of Directors. Section 1.2 Special Meetings. Special meetings of the stockholders, for any proper purpose or purposes, may be called at any time by the Board of Directors, the Chairman of the Board of Directors, the President or any Vice President, to be held on such date and at such time and place within or without of the state of Delaware, as the Board of Directors, the Chairman of the Board of Directors, the President or any Vice President, whoever has called the meeting, shall direct. A special meeting of the stockholders shall be called by the Chairman of the Board of Directors, the President or any Vice President whenever stockholders holding shares representing a majority of the votes of the shares of the Corporation then issued and outstanding and entitled to vote on matters to be submitted to stockholders of the Corporation shall make application therefor in writing. Any such written request shall state a proper purpose or purposes of the meeting and shall be delivered to the Chairman of the Board of Directors, the President or any Vice President. Section 1.3 Notice of Meeting. Written notice, signed by the Chairman of the Board of Directors, the President, any Vice President, the Secretary or an Assistant Secretary, of every meeting of stockholders (other than an adjourned meeting unless otherwise required by statute) stating the purpose or purposes for which the meeting is called, and the date and time when and the place where it is to be held, shall be either delivered personally or mailed to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the meeting, except as otherwise provided by statute. If mailed, such notice shall be directed to a stockholder at his address as it shall appear on the stock books of the Corporation, unless he shall have filed with the Secretary a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in such request and shall be given, when deposited in the United States mail, postage prepaid. Section 1.4 Quorum. The presence at any meeting, in person or by proxy, of the holders of record of shares representing a majority of the votes of the shares then issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business, except where otherwise provided by statute. 1 Section 1.5 Adjournments. In the absence of a quorum, a majority of the votes of the stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to vote is present in person or by proxy, any officer entitled to preside at or act as secretary of such meeting may adjourn the meeting from time to time until a quorum shall be present. Section 1.6 Voting. Directors shall be chosen by a plurality of the votes cast at the election, and except where otherwise provided by statute or the Certificate of Incorporation, all other questions shall be determined by a majority of the votes cast on such question. Section 1.7 Proxies. Any stockholders entitled to vote may vote by proxy, provided that the instrument authorizing such proxy to act shall have been executed in writing (which shall include telegraphing or cabling) by the stockholder himself or by his duly authorized attorney. Section 1.8 Judges of Election. The Board of Directors may appoint judges of election to serve at any election of directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the judges so appointed shall fail to attend, refuse or be unable to serve, then such appointment may be made by the presiding officers at the meeting. ARTICLE II Board of Directors Section 2.1 Number. The number of directors who shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors, but shall not be less than two. Section 2.2 Election and Term of Office. Directors shall be elected at the annual meeting of the stockholders. Each director (whether elected at an annual meeting or to fill a vacancy or otherwise) shall continue in office until his successor shall have been elected or until his earlier death, resignation, removal, or other incapacity in the manner hereinafter provided. Section 2.3 Vacancies and Additional Directorships. If any vacancy shall occur among the directors by reason of death, resignation, removal, or other incapacity, or as the result of an increase in the number of directorships, the directors then in office shall continue to act and may fill any such vacancy by a vote of the directors then in office, though less than a quorum. Section 2.4 Meetings. A meeting of the Board of Directors shall be held for organization, for the election of officers, and for the transaction of such other business as may properly come 2 before the meeting, within thirty days after each annual election of directors. The Board of Directors by resolution may provide for the holding of regular meetings and may fix the times and places at which such meetings shall be held. Notice of regular meetings shall not be required to be given, provided that, whenever the time or place of regular meetings shall be fixed or changed, notice of such action shall be mailed promptly to each director who shall not have been present at the meeting at which such action was taken, addressed to him at his residence or usual place of business. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, the President, any Vice President, or any two directors. Except as otherwise required by statute, notice of each special meeting shall be mailed to each director, addressed to him at his residence or usual place of business, sent to him at such place by telegram, radio, cable, or telecopy, or telephoned or delivered to him personally, not later than two days before the day on which the meeting is to be held. Such notice shall state the time and place of such meeting but, unless otherwise required by statute, the Certificate of Incorporation of the Corporation or these By-Laws, need not state the purposes thereof. Notice of any meeting need not be given to any director who shall attend such meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable, or telecopy. Section 2.5 Quorum. One-third of the total number of members of the Board of Directors as constituted from time to time, but not less than two, shall be necessary and sufficient to constitute a quorum for the transaction of business. In the absence of a quorum, a majority of those present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present, and the meeting may be held as adjourned without further notice or waiver. A majority of those present at any meeting at which a quorum is present may decide any question brought before such meeting, except as otherwise provided by law, the Certificate of Incorporation, or these By-laws. Section 2.6 Resignation of Directors. Any director may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any Vice President or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 2.7 Removal of Directors. At any special meeting of the stockholders, duly called for the purpose of removing a 3 director or directors as provided in these By-Laws, any director or directors may, by the affirmative vote of the holders of shares representing a majority of the votes of all the shares of stock outstanding and entitled to vote for the election of directors, be removed from office, either with or without cause. At such meeting a successor or successors may be elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled by the directors as provided in Section 2.3. Section 2.8 Compensation of Directors. Directors may receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Section 2.9 Indemnification. The Corporation shall indemnify to the full extent authorized or permitted by the laws of the state of Delaware any person who is made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Corporation or serves or served any other enterprise at the request of the Corporation. ARTICLE III Committees of the Board Section 3.1 Designation, Power, Alternate Members and Term of Office. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Any such committee, to the extent provided in such resolution, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-Laws of the Corporation or, unless the resolution of the Board of Directors establishing any such committee shall expressly so provide or these By-Laws shall expressly so provide, declaring a dividend on the Corporation's capital stock or authorizing the issuance of the Corporation's capital stock. The Board may designate one or more directors as alternate members of any committee who, in the order specified by the Board, may replace any absent or disqualified member at any 4 meeting of the committee. If at a meeting of any committee one or more of the members thereof should be absent or disqualified, and if either the Board of Directors has not so designated any alternate member or members or the number of absent or disqualified members exceeds the number of alternate members who are present at such meeting, then the member or members of such committee (including alternates) present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another director to act at the meeting in place of any such absent or disqualified member. The term of office of the members of each committee shall be as fixed from time to time by the Board, subject to these By-Laws; provided, however, that any committee member who ceases to be a member of the Board shall ipso facto cease to be a committee member. Each committee shall appoint a secretary, who may be the Secretary of the Corporation or an Assistant Secretary thereof. Section 3.2 Meetings, Notices and Records. Each committee may provide for the holding of regular meetings, with or without notice, and may fix the time and place at which such meetings shall be held. Special meetings of each committee shall be held upon call by or at the direction of its chairman or, if there be no chairman, by or at the direction of any two of its members, at the time and place specified in the respective notices or waivers of notice thereof. Notice of each special meeting of a committee shall be mailed to each member of such committee, addressed to him at his residence or usual place of business, at least two days before the day on which the meeting is to be held, or shall be sent by telegram, radio or cable, or telecopy, addressed to him at such place, or telephoned or delivered to him personally, not later than the day before the day on which the meeting is to be held. Notice of any meeting of a committee need not be given to any member thereof who shall attend the meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable, or telecopy. Notice of any adjourned meeting need not be given. Each committee shall keep a record of its proceedings. Section 3.3 Quorum and Manner of Acting. At each meeting of any committee the presence of one-third, but not less than two, of its members then in office shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which the quorum is present shall be the act of such committee; in the absence of a quorum, a majority of the members present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present. Subject to the foregoing and other provisions of these By-Laws and except as otherwise determined by the Board of Directors, each committee may make rules for the conduct of its business. Any determination made in writing and signed by all the members of such committee shall be as effective as if made by such committee at a meeting. 5 Section 3.4 Resignations. Any member of a committee may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any Vice President or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 3.5 Removal. Any member of any committee may be removed at any time by the Board of Directors with or without cause. Section 3.6 Vacancies. If any vacancy shall occur in any committee by reason of death, resignation, disqualification, removal or otherwise, the remaining members of such committee, though less than a quorum, shall continue to act until such vacancy is filled by a resolution passed by a majority of the whole Board of Directors. Section 3.7 Compensation. Committee members shall receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any committee member from serving the Corporation in any other capacity and receiving compensation therefor. ARTICLE IV Officers Section 4.1 Officers. The officers of the Corporation shall be a Chairman of the Board of Directors, a President, one or more Vice Presidents, a Secretary, a Treasurer, and such other officers as may be appointed in accordance with the provisions of Section 4.3. Section 4.2 Election, Term of Office and Qualifications. Each officer (except such officers as may be appointed in accordance with the provisions of Section 4.3) shall be elected by the Board of Directors. Each such officer (whether elected at the first meeting of the Board of Directors after the annual meeting of stockholders or to fill a vacancy or otherwise) shall hold his office until the first meeting of the Board of Directors after the next annual meeting of stockholders and until his successor shall have been elected, or until his death, or until he shall have resigned in the manner provided in Section 4.4, or shall have been removed in the manner provided in Section 4.5. The Chairman of the Board of Directors must be a member of the Board of Directors. 6 Section 4.3 Subordinate Officers and Agents. The Board of Directors from time to time may appoint other officers or agents (including one or more Assistant Vice Presidents, one or more Assistant Secretaries and one or more Assistant Treasurers) to hold office for such period, have such authority and perform such duties as are provided in these By-Laws or as may be provided in the resolutions appointing them. The Board of Directors may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective terms of office, authorities and duties. Section 4.4 Resignations. Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any Vice President or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 4.5 Removal. Any officer specifically designated in Section 4.1 may be removed at any time, either with or without cause, at any meeting of the Board of Directors by the vote of a majority of all the directors then in office. Any officer or agent appointed in accordance with the provisions of Section 4.3 may be removed, either with or without cause, by the Board of Directors at any meeting, by the vote of a majority of the directors present at such meeting, or by any superior officer or agent upon whom such power of removal shall have been conferred by the Board of Directors. Section 4.6 Vacancies. A vacancy in any office by reason of death, resignation, removal, disqualification, or any other cause shall be filled for the unexpired portion of the term in the manner prescribed by these By-Laws for regular election or appointment to such office. Section 4.7 The Chairman of the Board of Directors. The Chairman of the Board of Directors shall be the chief executive officer of the Corporation. Subject to the direction of the Board of Directors, he shall have general charge of the business affairs and property of the Corporation. He shall see that all orders and resolutions of the Board of Directors are carried into effect. If present, he shall preside at all meetings of stockholders. He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation, the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. From time to time he shall report to the Board 7 of Directors all matters within his knowledge which the interests of the Corporation may require to be brought to their attention. He shall perform such other duties as are given to him by these Bylaws or as from time to time may be assigned to him by the Board of Directors. Section 4.8 The President. The President shall be the chief operating officer of the Corporation. Subject to the direction of the Chairman of the Board of Directors, he shall have general supervision over the officers and agents of the Corporation. At the request of the Board of Directors or the Chairman of the Board of Directors, the President shall perform all the duties of the Chairman of the Board of Directors and, when so acting, shall have all the powers of and be subject to all restrictions upon the Chairman of the Board of Directors (except that the President need not be a member of the Board of Directors). He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation, the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements, or other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. He shall also perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors or the Chairman of the Board of Directors. Section 4.9 The Vice Presidents. At the request of the President or in his absence or disability, the Vice President designated by the President (or in the absence of such designation, the Vice President designated by the Board of Directors or the Chairman of the Board of Directors) shall perform all the duties of the President and, when so acting, shall have all the powers of and be subject to all restrictions upon the President. Any Vice President may also sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation, the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds and other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. Each Vice President shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors or the President. Section 4.10 The Secretary. The Secretary shall (a) record all the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book or books to be kept for that purpose; 8 (b) cause all notices to be duly given in accordance with the provisions of these By-laws and as required by statute; (c) whenever any committee shall be appointed in pursuance of a resolution of the Board of Directors, furnish the chairman of such committee with a copy of such resolution; (d) be custodian of the records and of the seal of the Corporation, and cause such seal to be affixed to all certificates representing stock of the Corporation prior to the issuance thereof and to all instruments the execution of which on behalf of the Corporation under its seal shall have been duly authorized; (e) see that the lists, books, reports, statements, certificates and other documents and records required by statute are properly kept and filed; (f) have charge of the stock and transfer books of the Corporation, and exhibit such stock book at all reasonable times to such persons as are entitled by statute to have access thereto; (g) sign (unless the Treasurer or an Assistant Secretary or an Assistant Treasurer shall sign) certificates representing stock of the Corporation, the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) in general, perform all duties incident to the office of Secretary and such other duties as are given to him by these By-Laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors or the President. Section 4.11 Assistant Secretaries. At the request of the Secretary, or in his absence or disability, the Assistant Secretary, designated by the Board of Directors, the Chairman of the Board of Directors or the President, shall perform all the duties of the Secretary and, when so acting, shall have all the powers of and be subject to all restrictions upon the Secretary. The Assistant Secretaries shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary. Section 4.12 The Treasurer. The Treasurer shall (a) have charge of and supervision over and be responsible for the funds, securities, receipts, and disbursements of the Corporation; (b) cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such banks or trust companies or with such 9 bankers or other depositaries as shall be selected in accordance with Section 5.3 of these By-Laws, or to be otherwise dealt with in such manner as the Board of Directors may direct; (c) cause the funds of the Corporation to be disbursed by checks or drafts upon the authorized depositaries of the Corporation, and cause to be taken and preserved proper vouchers for all moneys disbursed; (d) render to the Board of Directors, the Chairman of the Board of Directors or the President, whenever requested, a statement of the financial condition of the Corporation and of all his transactions as Treasurer; (e) cause to be kept at the Corporation's principal office correct books of account of all its business and transactions and such duplicate books of account as he shall determine, and upon application cause such books or duplicates thereof to be exhibited to any director; (f) be empowered, from time to time, to require from the officers or agents of the Corporation reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation; (g) sign (unless the Secretary or an Assistant Secretary or an Assistant Treasurer shall sign) certificates representing stock of the Corporation, the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) in general, perform all duties incident to the office of Treasurer and such other duties as are given to him by these By-Laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors or the President. Section 4.13 Assistant Treasurers. At the request of the Treasurer or in his absence or disability, the Assistant Treasurer designated by him (or in the absence of such designation, the Assistant Treasurer designated by the Board of Directors, the Chairman of the Board of Directors or the President) shall perform all the duties of the Treasurer and, when so acting, shall have all the powers of and be subject to all restrictions upon the Treasurer. The Assistant Treasurers shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Treasurer. Section 4.14 Salaries. The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors, except that the Board of Directors may delegate to any person the power to fix the salaries or other compensation of any 10 officers or agents appointed in accordance with the provisions of Section 4.3. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. Section 4.15 Surety Bonds. If the Board of Directors shall so require, any officer or agent of the Corporation shall execute to the Corporation a bond in such sum and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful discharge of his duties, including responsibilities for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands. ARTICLE V Execution of Instruments and Deposit of Corporate Funds Section 5.1 Execution of Instruments Generally. The Chairman of the Board of Directors, the President, any Vice President, the Secretary, or the Treasurer, subject to the approval of the Board of Directors, may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. The Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation, and such authorization may be general or confined to specific instances. Section 5.2 Borrowing. No loans or advances shall be obtained or contracted for, by or on behalf of the Corporation, and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors. Such authorization may be general or confined to specific instances, Any officer or agent of the Corporation thereunto so authorized may obtain loans and advances for the Corporation, and for such loans and advances may make, execute and deliver promissory notes, bonds or other evidences of indebtedness of the Corporation. Any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as security for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation any and all stocks, bonds, other securities and other personal property at any time held by the Corporation, and to that end may endorse, assign and deliver the same and do every act and thing necessary or proper in connection therewith. Section 5.3 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors may select, or as may be selected by any officer or officers or agent or agents authorized to do so by the Board of Directors. Endorsements for deposit to the credit of the Corporation in any of its duly 11 authorized depositaries shall be made in such manner as the Board of Directors from time to time may determine. Section 5.4 Checks, Drafts, etc. All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers or agent or agents of the Corporation, and in such manner as from time to time shall be determined by the Board of Directors. Section 5.5 Proxies. Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the Chairman of the Board of Directors, the President or a Vice President, or by any other person or persons thereunto authorized by the Board of Directors. ARTICLE VI Section 6.1 Record Dates. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall be not more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. Only those stockholders of record on the date so fixed shall be entitled to any of the foregoing rights, notwithstanding the transfer of any such stock on the books of the Corporation after any such record date fixed by the Board of Directors. ARTICLE VII Section 7.1 Corporate Seal. The corporate seal shall be circular in form and shall bear the name of the Corporation and words and figures denoting its organization under the laws of the state of Delaware and the year thereof, and otherwise shall be in such form as shall be approved from time to time by the Board of Directors. ARTICLE VIII Section 8.1 Fiscal Year. The fiscal year of the Corporation shall begin on the first day of October in each year and end on the 30th day of September in each year. 12 ARTICLE IX Section 9.1 Amendments. All By-Laws of the Corporation may be amended, altered or repealed, and new By-Laws may be made, by the affirmative vote of the holders of record of shares representing a majority of the votes of the outstanding shares of stock of the Corporation entitled to vote cast at any annual or special meeting, or by the affirmative vote of a majority of the directors cast at any regular or special meeting at which a quorum is present. 13 EX-3.49 44 h92783ex3-49.txt CERT OF INCORPORATION OF TESORO VOSTOCK COMPANY EXHIBIT 3.49 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF TESORO JAVA PETROLEUM COMPANY Tesoro Java Petroleum Company, a corporation organized under and existing by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That by the written consent of all members of the Board of Directors of Tesoro Java Petroleum Company, dated January 31, 1995, and filed with the minutes of proceedings of said Board of Directors, the Board of Directors of said corporation duly adopted a resolution proposing and declaring advisable a certain amendment to the Certificate of Incorporation of said corporation, and directing that such amendment be submitted for consideration to the shareholder of said corporation. The resolution of the Board of Directors setting forth the proposed amendment is as follows: RESOLVED, that the Board of Directors declares it advisable and proposes that Article 1 of the Certificate of Incorporation of Tesoro Java Petroleum Company be amended so as to read in its entirety as follows: "The name of the Corporation is Tesoro Vostok Company." SECOND: That by the written consent of the sole shareholder of said corporation dated January 31, 1995, and filed with the minutes of proceedings of said shareholder, the shareholder voted in favor of said amendment. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. FOURTH: That the capital of said corporation will not be reduced under or by reason of said amendment. IN WITNESS WHEREOF, said Tesoro Java Petroleum Company has caused this certificate to be signed by Michael D. Burke, its President, and attested by James C. Reed, Jr., its Vice President, General Counsel and Secretary, this 31st day of January 1995. TESORO JAVA PETROLEUM COMPANY TESORO JAVA PETROLEUM COMPANY CORPORATE SEAL DELAWARE /s/ Michael D. Burke --------------------------------- Michael D. Burke President ATTEST: /s/ James C. Reed, Jr. - --------------------------------------------- James C. Reed, Jr. Vice President, General Counsel and Secretary CERTIFICATE OF INCORPORATION OF TESORO JAVA PETROLEUM COMPANY * * * * * 1. The name of the corporation is TESORO JAVA PETROLEUM COMPANY 2. The address of its registered office in the State of Delaware is No. 100 West Tenth Street, in the City of Wilmington, County of New Castle, The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of stock which the corporation shall have authority to issue is one thousand (1000) and the par value of each of such shares is One Dollar ($1.00) amounting in the aggregate to One Thousand Dollars ($1,000.00). 5A. The name and mailing address of each incorporator is as follows: NAME MAILING ADDRESS ---- --------------- P.A. Wright 100 West Tenth Street Wilmington, Delaware 19801 S.M. Chapman 100 West Tenth Street Wilmington, Delaware 19801 S.K. Zimmerman 100 West Tenth Street Wilmington, Delaware 19801 5B. The name and mailing address of each person, who is to serve as a director until the first annual meeting of the stockholders or until a successor is elected and qualified is as follows: NAME MAILING ADDRESS ---- --------------- Robert V. West, Jr. 8700 Tesoro Drive San Antonio, Texas 78286 Z.D. Bonner 8700 Tesoro Drive San Antonio, Texas 78286 Conrad S. Preston 8700 Tesoro Drive San Antonio, Texas 78286 Dennis F.Juren 8700 Tesoro Drive San Antonio, Texas 78286 6. The corporation is to have perpetual existence. 7. In furtherance and not in limitation of the powers conferred by statute, the board of directors is ex- pressly authorized to make, alter or repeal the by-laws of the corporation. 8. Elections of directors need not be by written ballot unless the by-laws of the corporation shall so provide. Meetings of stockholders may be held within or without the State of Delaware, as the by-laws may provide. The books of the corporation may be kept (subject to any provision contained in the statutes) outside the State of Delaware at such place or places as may be designated from time to time by the board of directors or in the by-laws of the corporation. 9. The corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. WE, THE UNDERSIGNED, being each of the incorporators hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this certificate, hereby de- claring and certifying that this is our act and deed and the facts herein stated are true, and accordingly have hereunto set our hands this 22nd day of February, 1983. /s/ P. A. Wright ----------------------------------- P. A. Wright /s/ S. M. Chapman ----------------------------------- S. N. Chapman /s/ S. K. Zimmerman ----------------------------------- S. K. Zimmerman EX-3.50 45 h92783ex3-50.txt BYLAWS OF TESORO VESTOCK COMPANY, AS AMENDED EXHIBIT 3.50 Adopted: February 24, 1983 Amended: February 24, 1992 February 23, 1995 BY-LAWS OF TESORO VOSTOK COMPANY (AS AMENDED FEBRUARY 23, 1995) BY-LAWS OF TESORO VOSTOK COMPANY ARTICLE I MEETINGS OF STOCKHOLDERS Section 1.1 Annual Meetings. The annual meeting of the stockholders for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held on such date and at such time and place within or without the State of Delaware as may be designated by the Board of Directors. Section 1.2 Special Meetings. Special meetings of the stockholders for any proper purpose or purposes may be called at any time by the Board of Directors, the Chairman of the Board of Directors, the President or any Vice President to be held on such date and at such time and place within or without the State of Delaware as the Board of Directors, the Chairman of the Board of Directors, the President or a Vice President, whichever has called the meeting shall direct. A special meeting of the stockholders shall be called by the Chairman of the Board of Directors, the President or any Vice President whenever stockholders holding shares representing a majority of the votes of the shares of the Corporation then issued and outstanding and entitled to vote on matters to be submitted to stockholders of the Corporation shall make application therefor in writing. Any such written request shall state a proper purpose or purposes of the meeting and shall be delivered to the Chairman of the Board of Directors, the President or any Vice President. Section 1.3 Notice of Meeting. Written notice, signed by the Chairman of the Board of Directors, the President, any Vice President, the Secretary or an Assistant Secretary, of every meeting of stockholders (other than an adjourned meeting unless otherwise required by statute) stating the purpose or purposes for which the meeting is called, and the date and time when, and the place where, it is to be held shall be either delivered personally or mailed to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the meeting, except as otherwise provided by statute. If mailed, such notice shall be directed to a stockholder at his address as it shall appear on the stock books of the Corporation, unless he shall have filed with the Secretary a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in such request, and shall be given when deposited in the United States mail, postage prepaid. Section 1.4 Quorum. The presence at any meeting, in person or by proxy, of the holders of record of shares representing a majority of the votes of the shares then 1 issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business, except where otherwise provided by statute. Section 1.5 Adjournments. In the absence of a quorum, a majority of the votes of the stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to vote is present in person or by proxy, any officer entitled to preside at or act as Secretary of such meeting, may adjourn the meeting from time to time until a quorum shall be present. Section 1.6 Voting. Directors shall be chosen by a plurality of the votes cast at the election, and, except where otherwise provided by statute, or the Certificate of Incorporation, all other questions shall be determined by a majority of the votes cast on such question. Section 1.7 Proxies. Any stockholders entitled to vote may vote by proxy, provided that the instrument authorizing such proxy to act shall have been executed in writing (which shall include telegraphing or cabling) by the stockholder himself or by his duly authorized attorney. Section 1.8 Judges of Election. The Board of Directors may appoint judges of election to serve at any election of directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the judges so appointed shall fail to attend, or refuse or be unable to serve, then such appointment may be made by the presiding officers at the meeting. ARTICLE II BOARD OF DIRECTORS Section 2.1 Number. The number of directors which shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors but shall not be less than two. Section 2.2 Election and Term of Office. Directors shall be elected at the annual meeting of the stockholders. Each director (whether elected at an annual meeting or to fill a vacancy or otherwise) shall continue in office until his successor shall have been elected or until his earlier death, resignation, removal or other incapacity in the manner hereinafter provided. Section 2.3 Vacancies and Additional Directorships. If any vacancy shall occur among the directors by reason of death, resignation, removal or other incapacity or as the result of an increase in the number of directorships, the directors then in office shall continue to act and may fill any such vacancy by a vote of the directors then in office, though less than a quorum. 2 Section 2.4 Meetings. A meeting of the Board of Directors shall be held for organization, for the election of officers and for the transaction of such other business as may properly come before the meeting, within thirty days after each annual election of directors. The Board of Directors by resolution may provide for the holding of regular meetings and may fix the times and places at which such meetings shall be held. Notice of regular meetings shall not be required to be given, provided that whenever the time or place of regular meetings shall be fixed or changed, notice of such action shall be mailed promptly to each director who shall not have been present at the meeting at which such action was taken, addressed to him at his residence or usual place of business. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, the President, any Vice President or any two directors. Except as otherwise required by statute, notice of each special meeting shall be mailed to each director, addressed to him at his residence or usual place of business, or shall be sent to him at such place by telegram, radio or cable, or telephone or delivered to him personally, not later than two days before the day on which the meeting is to be held. Such notice shall state the time and place of such meeting, but unless otherwise required by statute, the Certificate of Incorporation of the Corporation or these Bylaws need not state the purposes thereof. Notice of any meeting need not be given to any director who shall attend such meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Section 2.5 Quorum. One-third of the total number of members of the Board of Directors as constituted from time to time, but not less than two, shall be necessary and sufficient to constitute a quorum for the transaction of business. In the absence of a quorum, a majority of those present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present and the meeting may be held as adjourned without further notice or waiver. A majority of those present at any meeting at which a quorum is present may decide any question brought before such meeting, except as otherwise provided by law, the Certificate of Incorporation or these By-laws. Section 2.6 Resignation of Directors. Any director may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any Vice President or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 2.7 Removal of Directors. At any special meeting of the stockholders, duly called for the purpose of removing a director or directors as provided in these By- 3 laws, any director or directors may, by the affirmative vote of the holders of shares representing a majority of the votes of all the shares of stock outstanding and entitled to vote for the election of directors, be removed from office, either with or without cause. At such meeting a successor or successors may be elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled by the directors as provided in Section 2.3. Section 2.8 Compensation of Directors. Directors may receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Section 2.9 Indemnification. The Corporation shall indemnify to the full extent authorized or permitted by the laws of the State of Delaware any person who is made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Corporation or serves or served any other enterprise at the request of the Corporation. ARTICLE III COMMITTEES OF THE BOARD Section 3.1 Designation, Power, Alternate Members and Term of Office. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Any such committee, to the extent provided in such resolution, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the Bylaws of the Corporation or, unless the resolution of the Board of Directors establishing any such committee shall expressly so provide or these By-laws shall expressly so provide, declaring a dividend on the Corporation's capital stock or authorizing the issuance of the Corporation's capital stock. The Board may designate one or more directors as alternate members of any committee who, in the order specified by the Board, may replace any absent or disqualified member at any meeting of the committee. If at a meeting of any committee one or more of the members thereof should be absent or disqualified, and if either the Board of Directors has not so designated any alternate member or members, or the number of absent or disqualified 4 members exceeds the number of alternate members who are present at such meeting, then the member or members of such committee (including alternates) present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another director to act at the meeting in the place of any such absent or disqualified member. The term of office of the members of each committee shall be as fixed from time to time by the Board, subject to these Bylaws; provided, however, that any committee member who ceases to be a member of the Board shall ipso facto cease to be a committee member. Each committee shall appoint a secretary, who may be the Secretary of the Corporation or an Assistant Secretary thereof. Section 3.2 Meetings, Notices and Records. Each committee may provide for the holding of regular meetings, with or without notice, and may fix the time and place at which such meetings shall be held. Special meetings of each committee shall be held upon call by or at the direction of its chairman or, if there be no chairman, by or at the direction of any two of its members, at the time and place specified in the respective notices or waivers of notice thereof. Notice of each special meeting of a committee shall be mailed to each member of such committee, addressed to him at his residence or usual place of business, at least two days before the day on which the meeting is to be held, or shall be sent by telegram, radio or cable addressed to him at such place, or telephoned or delivered to him personally, not later than the day before the day on which the meeting is to be held. Notice of any meeting of a committee need not be given to any member thereof who shall attend the meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Notice of any adjourned meeting need not be given. Each committee shall keep a record of its proceedings. Section 3.3 Quorum and Manner of Acting. At each meeting of any committee the presence of one-third, but not less than two of its members then in office, shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which a quorum is present shall be the act of such committee; in the absence of a quorum, a majority of the members present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present. Subject to the foregoing and other provisions of these By-laws and except as otherwise determined by the Board of Directors, each committee may make rules for the conduct of its business. Any determination made in writing and signed by all the members of such committee shall be as effective as if made by such committee at a meeting. Section 3.4 Resignations. Any member of a committee may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any Vice President or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. 5 Section 3.5 Removal. Any member of any committee may be removed at any time by the Board of Directors with or without cause. Section 3.6 Vacancies. If any vacancy shall occur in any committee by reason of death, resignation, disqualification, removal or otherwise, the remaining members of such committee, though less than a quorum, shall continue to act until such vacancy is filled by a resolution passed by a majority of the whole Board of Directors. Section 3.7 Compensation. Committee members shall receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any committee member from serving the Corporation in any other capacity and receiving compensation therefor. ARTICLE IV OFFICERS Section 4.1 Officers. The officers of the Corporation shall be a Chairman of the Board of Directors, a President, one or more Vice Presidents, a Secretary, a Treasurer, and such other officers as may be appointed in accordance with the provisions of Section 4.3. Section 4.2 Election, Term of Office and Qualifications. Each officer (except such officers as may be appointed in accordance with the provisions of Section 4.3) shall be elected by the Board of Directors. Each such officer (whether elected at the first meeting of the Board of Directors after the annual meeting of stockholders or to fill a vacancy or otherwise) shall hold his office until the first meeting of the Board of Directors after the next annual meeting of stockholders and until his successor shall have been elected, or until his death, or until he shall have resigned in the manner provided in Section 4.4, or shall have been removed in the manner provided in Section 4.5. Section 4.3 Subordinate Officers and Agents. The Board of Directors from time to time may appoint other officers or agents (including one or more Assistant Vice Presidents, one or more Assistant Secretaries and one or more Assistant Treasurers), to hold office for such period, have such authority and perform such duties as are provided in these By-laws or as may be provided in the resolutions appointing them. The Board of Directors may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective terms of office, authorities and duties. Section 4.4 Resignations. Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any Vice President or the Secretary. Any such resignation 6 shall take into effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 4.5 Removal. Any officer specifically designated in Section 4.1 may be removed at any time, either with or without cause, at any meeting of the Board of Directors by the vote of a majority of all the directors then in office. Any officer or agent appointed in accordance with the provisions of Section 4.3 may be removed, either with or without cause, by the Board of Directors at any meeting, by the vote of a majority of the directors present at such meeting, or by any superior officer or agent upon whom such power of removal shall have been conferred by the Board of Directors. Section 4.6 Vacancies. A vacancy in any office by reason of death, resignation, removal, disqualification, or any other cause shall be filled for the unexpired portion of the term in the manner prescribed by these By-laws for regular election or appointment to such office. Section 4.7 The Chairman of the Board of Directors. The Chairman of the Board of Directors shall be the chief executive officer of the Corporation. Subject to the direction of the Board of Directors, he shall have general charge of the business affairs and property of the Corporation. He shall see that all orders and resolutions of the Board of Directors are carried into effect. If present, he shall preside at all meetings of stockholders. He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation, the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. From time to time he shall report to the Board of Directors all matters within his knowledge which the interests of the Corporation may require to be brought to their attention. He shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors. Section 4.8 The President. The President shall be the chief operating officer of the Corporation. Subject to the direction of the Chairman of the Board of Directors, he shall have general supervision over the officers and agents of the Corporation. At the request of the Board of Directors or the Chairman of the Board of Directors, the President shall perform all the duties of the Chairman of the Board of Directors and, when so acting, shall have all the powers of and be subject to all restrictions upon the Chairman of the Board of Directors (except that the President need not be a member of the Board of Directors). He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation, the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, 7 agreements, or other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. He shall also perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors or the Chairman of the Board of Directors. Section 4.9 The Vice Presidents. At the request of the President or in his absence or disability, the Vice President designated by the President (or in the absence of such designation, the Vice President designated by the Board of Directors or the Chairman of the Board of Directors) shall perform all the duties of the President and, when so acting, shall have all the powers of and be subject to all restrictions upon the President. Any Vice President may also sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation, the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds and other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. Each Vice President shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors or the President. Section 4.10 The Secretary. The Secretary shall (a) record all the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book or books to be kept for that purpose; (b) cause all notices to be duly given in accordance with the provisions of these By-laws and as required by statute; (c) whenever any committee shall be appointed in pursuance of a resolution of the Board of Directors, furnish the chairman of such committee with a copy of such resolution; (d) be custodian of the records and of the seal of the Corporation, and cause such seal to be affixed to all certificates representing stock of the Corporation prior to the issuance thereof and to all instruments the execution of which on behalf of the Corporation under its seal shall have been duly authorized; (e) see that the lists, books, reports, statements, certificates and other documents and records required by statute are properly kept and filed; 8 (f) have charge of the stock and transfer books of the Corporation, and exhibit such stock book at all reasonable times to such persons as are entitled by statute to have access thereto; (g) sign (unless the Treasurer or an Assistant Secretary or an Assistant Treasurer shall sign) certificates representing stock of the Corporation, the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) in general, perform all duties incident to the office of Secretary and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors or the President. Section 4.11 Assistant Secretaries. At the request of the Secretary, or in his absence or disability, the Assistant Secretary designated by him (or in the absence of such designation, the Assistant Secretary designated by the Board of Directors, the Chairman of the Board of Directors or the President) shall perform all the duties of the Secretary and, when so acting, shall have all the powers of and be subject to all restrictions upon the Secretary. The Assistant Secretaries shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary. Section 4.12 The Treasurer. The Treasurer shall (a) have charge of and supervision over and be responsible for the funds, securities, receipts, and disbursements of the Corporation; (b) cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such banks or trust companies or with such bankers or with depositaries as shall be selected in accordance with Section 5.3 of these By-laws, or to be otherwise dealt with in such manner as the Board of Directors may direct; (c) cause the funds of the Corporation to be disbursed by checks or drafts upon the authorized depositaries of the Corporation, and cause to be taken and preserved proper vouchers for all moneys disbursed; (d) render to the Board of Directors, the Chairman of the Board of Directors or the President, whenever requested, a statement of the financial condition of the Corporation and of all his transactions as Treasurer; (e) cause to be kept at the Corporation's principal office correct books of account of all its business and transactions and such duplicate books of account as he shall determine, and upon application cause such books or duplicates thereof to be exhibited to any director; 9 (f) be empowered, from time to time, to require from the officers or agents of the Corporation reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation; (g) sign (unless the Secretary or an Assistant Secretary or an Assistant Treasurer shall sign) certificates representing stock of the Corporation, the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) in general, perform all duties incident to the office of Treasurer and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors or the President. Section 4.13 Assistant Treasurers. At the request of the Treasurer or in his absence or disability, the Assistant Treasurer designated by him (or in the absence of such designation, the Assistant Treasurer designated by the Board of Directors, the Chairman of the Board of Directors or the President) shall perform all the duties of the Treasurer and, when so acting, shall have all the powers of and be subject to all restrictions upon the Treasurer. The Assistant Treasurers shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Treasurer. Section 4.14 Salaries. The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors, except that the Board of Directors may delegate to any person the power to fix the salaries or other compensation of any officers or agents appointed in accordance with the provisions of Section 4.3. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. Section 4.15 Surety Bonds. If the Board of Directors shall so require, any officer or agent of the Corporation shall execute to the Corporation a bond in such sum and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful discharge of his duties, including responsibilities for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands. ARTICLE V EXECUTION OF INSTRUMENTS AND DEPOSIT OF CORPORATE FUNDS Section 5.1 Execution of Instruments Generally. The Chairman of the Board of Directors, the President, any Vice President, the Secretary, or the Treasurer, subject to the approval of the Board of Directors, may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. The Board of 10 Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation, and such authorization may be general or confined to specific instances. Section 5.2 Borrowing. No loans or advances shall be obtained or contracted for, by or on behalf of the Corporation, and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors. Such authorization may be general or confined to specific instances, Any officer or agent of the Corporation thereunto so authorized may obtain loans and advances for the Corporation, and for such loans and advances may make, execute and deliver promissory notes, bonds or other evidences of indebtedness of the Corporation. Any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as security for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation, any and all stocks, bonds, other securities and other personal property at any time held by the Corporation, and to that end may endorse, assign and deliver the same and do every act and thing necessary or proper in connection therewith. Section 5.3 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors may select, or as may be selected by any officer or officers or agent or agents authorized so to do by the Board of Directors. Endorsements for deposit to the credit of the Corporation in any of its duly authorized depositaries shall be made in such manner as the Board of Directors from time to time may determine. Section 5.4 Checks, Drafts, etc. All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers or agent or agents of the Corporation, and in such manner as from time to time shall be determined by the Board of Directors. Section 5.5 Proxies. Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the Chairman of the Board of Directors, the President or a Vice President, or by any other person or persons thereunto authorized by the Board of Directors. ARTICLE VI RECORD DATES Section 6.1 Record Dates. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of 11 any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall be not more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. Only those stockholders of record on the date so fixed shall be entitled to any of the foregoing rights, notwithstanding the transfer of any such stock on the books of the Corporation after any such record date fixed by the Board of Directors. ARTICLE VII CORPORATE SEAL Section 7.1 Corporate Seal. The corporate seal shall be circular in form and shall bear the name of the Corporation and words and figures denoting its organization under the laws of the state of Delaware and the year thereof, and otherwise shall be in such form as shall be approved from time to time by the Board of Directors. ARTICLE VIII FISCAL YEAR Section 8.1 Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January in each year and shall end on the thirty-first day of December in the same year. ARTICLE IX AMENDMENTS Section 9.1 Amendments. All By-laws of the Corporation may be amended, altered or repealed, and new By-laws may be made, by the affirmative vote of the holders of record of shares representing a majority of the votes of the outstanding shares of stock of the Corporation entitled to vote cast at any annual or special meeting, or by the affirmative vote of a majority of the directors cast at any regular or special meeting at which a quorum is present. 12 EX-3.51 46 h92783ex3-51.txt CERT OF INCORPORATION OF TESORO WEST COAST COMPANY EXHIBIT 3.51 CERTIFICATE OF AMENDMENT OF THE CERTIFICATE OF INCORPORATION OF TESORO NORTHWEST COMPANY Tesoro Northwest Company, a corporation organized under and existing by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That by the written consent of all members of the Board of Directors of Tesoro Northwest Company, dated March 23, 1999, and filed with the minutes of proceedings of said Board of Directors, the Board of Directors of said corporation duly adopted a resolution proposing and declaring advisable a certain amendment to the Certificate of Incorporation of said corporation, and directing that such amendment be submitted for consideration to the shareholder of said corporation. The resolution of the Board of Directors setting forth the proposed amendment is as follows: RESOLVED, that the Board of Directors declares it advisable and proposes that Article 1 of the Certificate of Incorporation of Tesoro Northwest Company be amended so as to read in its entirety as follows: "The name of the corporation is Tesoro West Coast Company." SECOND: That by the written consent of the sole shareholder of said corporation dated March 23, 1999, and filed with the minutes of proceedings of said shareholder, the shareholder voted in favor of said amendment. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. FOURTH: That the capital of said corporation will not be reduced under or by reason of said amendment. IN WITNESS WHEREOF, said Tesoro Northwest Company has caused this certificate to be signed by Bruce A. Smith, its Chairman of the Board of Directors, and attested by James C. Reed, Jr., its Executive Vice President, General Counsel and Secretary, this the 23rd day of March, 1998. TESORO NORTHWEST COMPANY TESORO NORTHWEST COMPANY CORPORATE SEAL DELAWARE /s/ Bruce A. Smith ---------------------------------- Bruce A. Smith Chairman of the Board of Directors ATTEST: /s/ James C. Reed, Jr. - --------------------------------------------- James C. Reed, Jr. Executive Vice President, General Counsel and Secretary CERTIFICATE OF AMENDMENT OF THE CERTIFICATE UP INCORPORATION OF SHELL ANACORTES REFINING COMPANY Shell Anacortes Refining Company, a corporation organized under and existing by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY: FIRST: That by the written consent of all members of the Board of Directors of Shell Anacortes Refining Company, dated August 10, 1998, and filed with the minutes of proceedings of said Board of Directors, the Board of Directors of said corporation duly adopted a resolution proposing and declaring advisable a certain amendment to the Certificate of Incorporation of said corporation, and directing that such amendment be submitted for consideration to the shareholder of said corporation. The resolution of the Board of Directors setting forth the proposed amendment is as follows: RESOLVED, that the Board of Directors declares it advisable and proposes that Article 1 of the Certificate of Incorporation of Shell Anacortes Refining Company be amended so as to read in its entirety as follows: "The name of the Corporation is Tesoro Northwest Company." SECOND: That by the written consent of the sole shareholder of said corporation dated August 10, 1998, and filed with the minutes of proceedings of said shareholder, the shareholder voted in favor of said amendment. THIRD: That said amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. FOURTH: That the capital of said corporation will not be reduced under or by reason of said amendment. IN WITNESS WHEREOF, said Shell Anacortes Refining Company has caused this certificate to be signed by Bruce A. Smith, its Chairman of the Board of Directors, and attested by James C. Reed, Jr., its Executive Vice President, General Counsel and Secretary, this the 10th day of August, 1998. SHELL ANACORTES REFINING SHELL ANACORTES REFINING COMPANY CORPORATE SEAL DELAWARE /s/ Bruce A. Smith --------------------------------- Bruce A. Smith Chairman of the Board of Directors ATTEST: /s/ James C. Reed, Jr. - ---------------------------------------------- James C. Reed, Jr. Executive Vice President, General Counsel and Secretary CERTIFICATE OF INCORPORATION OF SHELL ANACORTES REFINING COMPANY FIRST: The name of the corporation is Shell Anacortes Refining Company (hereinafter called "the Corporation" or "this 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 nature of the business purposes to be conducted or promoted by 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 election of directors need not be by written ballot unless the By-Laws of the Corporation shall so provide. FIFTH The total number of shares of stock which the Corporation shall have authority to issue is Three Thousand (3,000) shares of Common Stock with a par value of one dollar ($1.00) per share. SIXTH: The name and mailing address of the incorporator is as follows: Name Mailing Address ---- --------------- Charles D. Powell 1200 Smith Street, Suite 3600 Houston, Texas 77002-4595 SEVENTH: The Board of Directors of the Corporation shall direct the management of the business and the conduct of the affairs of the Corporation and shall establish policies, procedures, and controls which shall govern the conduct of the Corporation and which shall preserve the separate legal identity of the Corporation. In addition to the power conferred here or by the General Corporation Law of Delaware, the board of directors shall have the power from time to time to make, alter, amend, and repeal the By-Laws, subject to the power of the holders of the Common Stock to alter or repeat the By-Laws made by the board of directors. EIGHTH: A director of this Corporation, or any person serving as a director of another corporation at the request of this Corporation, shall not be personally liable to this Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to this Corporation (or such other 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. This Corporation shall have the authority to the full extent not prohibited by law, as provided in the By-Laws of this Corporation or otherwise authorized by the Board of Directors or by the stockholders of this Corporation, to indemnify any person who is or was a director, officer, employee or agent of this Corporation or is or was serving it at the request of this Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise or entity from and against any and all expenses, liabilities or losses asserted against, or incurred by any such person in any such capacity, or arising out of his status as such; and the indemnification authorized herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any By-Law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. This Corporation shall have the authority to the full extent not prohibited by law, as provided in the By-Laws of this Corporation or otherwise authorized by the Board of Directors or by the stockholders of this Corporation, to purchase and maintain insurance in any form from any affiliated or other insurance company and to use other arrangements (including, without limitation, trust funds, security interests, or surety arrangements) to protect itself or any person who is or was a director, officer, employee or agent of this Corporation or serving at the request of this Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise or entity against any expense, liability or loss asserted against, or incurred by any such person in any such capacity, or arising out of his status as such, whether or not this Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law. THE UNDERSIGNED, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, does make this certificate, hereby declaring and certifying that this is its act and deed and the facts herein stated are true, and accordingly has hereunto set its hand and seal this 4th day of January, 1996. /s/ Charles D. Powell --------------------------------- Charles D. Powell, Incorporator -2- EX-3.52 47 h92783ex3-52.txt BYLAWS OF TESORO WEST COAST COMPANY EXHIBIT 3.52 BY-LAWS SHELL ANACORTES REFINING COMPANY (THE "CORPORATION") ARTICLE I OFFICES The Corporation shall have offices at such places as the Board of Directors of the Corporation (referred to herein as the "Board of Directors" or the "Board") may from time to time designate or as the property, affairs or business of the Corporation may require or make advisable. ARTICLE II SHAREHOLDERS SECTION 1. Annual Meetings. An annual meeting of the shareholders shall be held for the election of directors and to transact any other business which may properly be brought before the meeting at such date, time and place as the Board of Directors may designate by resolution from time to time. SECTION 2. Special Meetings. Special meetings of the shareholders, for any purpose or purposes, may be called by the President, and shall be called by the President, or in his(1) absence by the Secretary, at the request in writing of a majority of the Board, or at the request in writing of holders of record of ten (10) per cent of the shares of Common Stock of the Corporation issued and outstanding(2) at the time of the request. Such request shall state the purpose or purposes of the proposed meeting. SECTION 3. Notice of Meetings. A written or printed notice of each meeting of the shareholders shall be given not less than ten (10) nor more than sixty (60) days before the date of such meeting to each holder of record of shares of Common Stock entitled to vote thereat, stating the place, date and hour of the meeting, and in the case of a special meeting, the purpose or purposes for which the meeting is called. Any shareholder, in person or by attorney thereunto authorized, may waive in writing notice of any meeting, whether before or after such meeting is held, and attendance at a meeting in person or by proxy shall constitute waiver of notice thereto. SECTION 4. Quorum. At each meeting of the shareholders, except where otherwise provided by law or the Certificate of Incorporation or these By-Laws, the holders of a majority of the outstanding shares of stock entitled to vote at the meeting, present in person - --------------------- (1) Masculine gender where appearing herein shall be deemed to include feminine gender. (2) Common Stock of the Corporation issued and outstanding shall be referred to herein as "Common Stock." or by proxy, shall constitute a quorum. In the absence of a quorum, the shareholders present may, by majority vote, adjourn the meeting from time to time until a quorum shall attend. SECTION 5. Organization of Meetings. At each meeting of the shareholders, the President or, in his absence, a chairman chosen by a majority vote of the holders of record of shares of Common Stock, present in person or represented by proxy, entitled to vote and voting, shall act as chairman of the meeting. The Secretary or, in his absence, any person appointed by the chairman of the meeting shall act as secretary of the meeting. SECTION 6. Written Consent. Whenever the vote of shareholders at a meeting thereof is required or permitted to be taken for, or in connection with, any corporate action, the meeting and vote of shareholders may be dispensed with if a consent in writing setting forth such corporate action being taken shall be signed by the holders of record of shares of Common Stock entitled to vote, having at least the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted; provided that prompt notice of the taking of corporate action without a meeting shall be given to all shareholders who have not consented in writing. ARTICLE III BOARD OF DIRECTORS SECTION 1. General Powers. The property, affairs and business of the Corporation shall be managed by, or under the direction of, the Board of Directors. SECTION 2. Number; Qualification; Term of Office. The number of directors shall be three (3) or such other number as shall be determined from time to time by resolution adopted by majority vote of the directors then in office. Directors need not be shareholders. The directors shall be elected annually. Each director, whether elected at an annual meeting of the shareholders or to fill a vacancy or a newly created directorship, shall continue in office until the next annual meeting of the shareholders held after his election and until his successor shall have been elected and qualified, or until he shall have resigned and his resignation shall have become effective, or until he shall have been removed in the manner prescribed by Section 6 of this Article III. SECTION 3. Chairman. The Board shall elect from among its members a Chairman of the Board, who shall have such duties as are prescribed by Section 4 of this Article III. SECTION 4. Organization. At each meeting of the Board, the Chairman of the Board or, in his absence, the President (if not the Chairman) or, in the absence of both, a chairman chosen by a majority of the directors present, shall act as chairman of the meeting. The Secretary or, in his absence, any person appointed by the chairman of the meeting, shall act as secretary of the meeting. SECTION 5. Resignations. Any director of the Corporation may resign at any time upon written notice, and such resignation shall be effective, unless otherwise agreed, upon receipt by the Secretary. 2 SECTION 6. Removal. Any director may be removed with or without cause at any time by the vote of the holders of at least a majority of the shares of Common Stock at a meeting of the shareholders called for that purpose. SECTION 7. Vacancies. In case any vacancy or newly created directorship shall occur in the Board, the Board may by vote of a majority of the directors then in office, though less than a quorum, elect a director to fill such vacancy for the unexpired portion of the term or to fill such newly created directorship. SECTION 8. Meetings. The Board may hold meetings either in or outside the State of Delaware. Regular meetings of the Board may be held, without notice at such times and places as shall be determined, or with notice in accordance with the manner established, by resolution of the Board. The next meeting of the Board following each annual election of directors shall be for the purposes of organization, election of officers and the transaction of other business. Special meetings of the Board may be called with notice on the request of the President, the Chairman of the Board or two (2) other directors. With notice, a meeting of the Board may be cancelled on the request of the President, the Chairman of the Board or two (2) other directors. Notices shall be mailed, sent by telegraph or delivered personally to each director at his address appearing on the records of the Corporation, or given by telephone, and in the case of notice of a meeting, on a day not later than the third day before the day on which the meeting is to be held. Every such notice of a meeting shall state the time and place fixed by the President, the Chairman of the Board or two (2) directors, as the case may be, but need not state the purpose or purposes of the meeting. Any required notice may be waived in writing, signed by the director entitled thereto, whether before or after the time stated therein, and attendance at a meeting shall constitute a waiver of notice of such meeting. SECTION 9. Quorum; Manner of Acting; Procedure. At any meeting of the Board, one-third (1/3) of the total number of directors fixed by or pursuant to these By-Laws, but not less than two (2), shall constitute a quorum for the transaction of business at such meeting. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board which authorizes any contract or transaction in which one or more of the directors are interested or common directors. The vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board; provided, however, where permissible by law, the vote of a majority of the disinterested directors present, even though less than a quorum, shall be the act of the Board. Directors may participate in a meeting of the Board by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. In the absence of a quorum, a majority of the directors present may, without notice other than announcement at the meeting, adjourn the meeting from time to time until a quorum be had. Any action required or permitted to be taken at any meeting of the Board may be taken without a meeting if all members of the Board consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board. The directors shall act only as a Board, and the individual directors shall have no power as such. SECTION 10. Remuneration. Each director shall be compensated for reasonable 3 expenses incurred by him in attending the meetings of the Board. Otherwise, no director shall receive compensation for acting in his capacity as such, except as provided by a resolution of the Board. ARTICLE IV COMMITTEES SECTION 1. How Constituted. The Board of Directors may, by a resolution adopted by a majority of the Board, elect two (2) or more of its members to constitute a committee of the Board. SECTION 2. Term of Office; Vacancies. Each member of a committee shall continue in office until the next annual meeting of the Board after his election, or until his earlier resignation or removal. In case any vacancy shall occur in a committee resulting from any cause whatsoever, such vacancy may be filled by vote of a majority of the Board, at any regular or special meeting. SECTION 3. Meetings. Regular meetings of a committee may be held without notice at such times and places in or outside Delaware, as shall be determined, or with notice in accordance with the manner established, by resolution of the Board or the committee. Special meetings of a committee may be held at such times and at such places as shall be specified in a notice by the Chairman, Secretary or any member of the committee. Notices shall be mailed, sent by telegraph or delivered personally to each member of the committee at his address appearing on the records of the Corporation, or given by telephone at least twenty-four (24) hours before the meeting. Every such notice of a meeting shall state the time and place fixed for, but need not state the purpose or purposes of, the meeting. Any required notice may be waived in writing, signed by the member entitled thereto, whether before or after the time stated therein, and attendance at a meeting shall constitute a waiver of notice of such meeting. SECTION 4. Quorum; Manner of Acting; Procedure. A majority of the members of a committee shall constitute a quorum for the transaction of business at any meeting thereof. The vote of a majority of the members present at any meeting at which a quorum is present shall be the act of the committee. In the absence of a quorum, a majority of the members present may, without notice other than announcement at the meeting, adjourn the meeting from time to time until a quorum be had. The committee shall elect from among its members a chairman who shall act as chairman of the meetings of the committee. In his absence at meetings of the committee, a member of the committee chosen by the members thereof present shall act as chairman of the meeting. A secretary, appointed by the committee, shall keep a record of each meeting and file a copy of that record with the records of the Corporation. Members of a committee may participate in a meeting of the committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at such meeting. Any action required or permitted to be taken at any meeting of the committee may be taken without a meeting if all members of the committee consent thereto in writing, and the writing or writings are filed with the minutes 4 of proceedings of the committee. The members shall act only as the committee, and the individual directors shall have no power as such. SECTION 5. Removal and Resignations. Any member of a committee may be removed from the committee at any time, with or without cause, by a resolution adopted by a majority of the full Board. Removal from the Board shall also constitute removal from the committee. Any member of a committee may resign from the committee at any time upon written notice and such resignation shall be effective, unless otherwise agreed, upon receipt by the chairman of the committee or the Secretary of the Corporation. Resignation from the Board shall also constitute resignation from the committee. SECTION 6. Powers and Authority. To the extent provided by resolution of the Board from time to time, any committee of the Board, upon proper constitution, shall have and may exercise all of the powers and authority of the Board in the direction of the management of the business and affairs of the Corporation, including the power and authority to declare a dividend, to authorize the issuance of stock and to authorize the seal of the Corporation to be affixed to all papers which may require it; provided, however, that no such committee shall have the power or authority to amend the Certificate of Incorporation, amend these By-Laws, adopt an agreement of merger or consolidation, recommend to the shareholders the sale or lease or exchange of all or substantially all of the Corporation's property and assets, or recommend to the shareholders a dissolution of the Corporation or a revocation of a dissolution. ARTICLE V OFFICERS SECTION 1. Number. The officers of the Corporation shall be a President, a Secretary, and one or more additional officers (the number and respective titles thereof as may be determined by the Board) and such other officers as may be elected or appointed in accordance with the provisions of Section 3 of this Article V. The same person may hold any number of offices. SECTION 2. Election; Term of Office; Vacancies. The officers of the Corporation, except as otherwise provided in this Section 2 and except for such other officers as may be appointed in accordance with the provisions of Section 3 of this Article V, shall be elected annually by the Board. Each officer shall continue in office until his successor shall have been duly elected or appointed, or until he shall have resigned and his resignation shall have become effective, or until he shall have been removed in the manner prescribed by Section 4 of this Article V. The Board may, by vote of a majority of the directors then in office, elect a person to fill any vacancy or newly created office, for the unexpired portion of the term. 5 SECTION 3. Additional Officers; Other Officers. The Board may elect additional officers, each of whom shall have such powers, authority and duties as may from time to time be delegated by resolution of the Board, the President or any authorized officer senior to such additional officer, and as are provided in these By-Laws. The Board may also authorize the President to appoint other officers of the Corporation. SECTION 4. Removal; Resignation. Any officer may be removed, with or without cause, by the Board at any meeting thereof, or by any committee or officer upon whom such power of removal may be conferred by the Board, or by any officer upon whom the power to appoint such officer may have been conferred, Any officer may resign at any time upon written notice, and such resignation shall be effective, unless otherwise agreed, upon receipt by the Board, the President, or the Secretary. SECTION 5. Remuneration. The remuneration of the officers of the Corporation shall be fixed from time to time by or under the direction of the Board. SECTION 6. The President. The President shall be the chief executive officer of the Corporation, shall have general charge of the business and affairs of the Corporation, and shall ensure that all policies of the Board and of the Board committees are effectuated. The President may also exercise all such powers of the Corporation and do all such lawful acts and things as are necessary or appropriate to the conduct or attainment of the Corporation's business or purposes as are not by law, the Corporation's Certificate of Incorporation or these By-Laws directed or required to be exercised or done by the shareholders or by the Board. The President shall preside at all meetings of the shareholders and, in the absence of the Chairman of the Board, at all meetings of the Board at which he is present. In general, the President shall perform all duties incident to the office of the President, and such other duties as may from time to time be assigned by the Board. The Board may authorize the President to prescribe in writing powers, authority and duties of any officers of the Corporation (other than the President), which he may deem advisable or appropriate, and to authorize any officer of the Corporation to delegate further in writing, with such limitations as the President or such delegating officer may deem advisable or appropriate, the powers, authority and duties delegated to such officer. SECTION 7. The Secretary. The Secretary shall perform all of the duties incident to the office of Secretary and such other duties as may from time to time be prescribed by the Board, the President or an authorized officer. ARTICLE VI AUTHORITIES; AGENTS; LOANS SECTION 1. Authorities; Agents. The President, in his management of the property, affairs and business of the Corporation, if so authorized by the Board, may authorize any officer, employee or agent of the Corporation, or may delegate in writing to any officer, employee or agent of the Corporation the authority (with authority to any officer to further delegate), to enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation, and such authority may be general or confined to specific 6 instances; and unless so authorized, no officer, employee or agent shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable pecuniarily for any purpose or to any amount. SECTION 2. Loans. No loan shall be contracted on behalf of the Corporation and no negotiable paper shall be issued in its name unless authorized by the Board. ARTICLE VII SHARES SECTION 1. Certificates of Stock. Certificates for shares of Common Stock of the Corporation shall be in such form as shall be approved by the Board. Each certificate shall be numbered in the order of its issue and shall be signed by or in the name of the Corporation by the President or a Vice President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary. Any or all of the signatures may be facsimile. In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer at the date of issue. The stock record books and the blank stock certificate books shall be kept by the Secretary or his designee for that purpose. Every certificate exchanged or returned to the Corporation shall be marked "Cancelled" with the date of cancellation. SECTION 2. Transfer of Stock. Transfer of shares of Common Stock shall be made only on the books of the Corporation by the registered holder thereof, or by his attorney thereunto duly authorized by power of attorney duly executed and filed with the Secretary of the Corporation, and on surrender of the certificate(s) for such shares properly endorsed, and the payment of all taxes thereon. ARTICLE VIII SEAL The corporate seal shall be in such form and design as the Board shall approve, and shall bear the name of the Corporation and its year of incorporation. ARTICLE IX FISCAL YEAR The fiscal year of the Corporation shall begin on the first day of January of each year. ARTICLE X LIMITATION OF LIABILITY: INDEMNIFICATION AND INSURANCE OF DIRECTORS, OFFICERS AND OTHERS SECTION 1. Limitation of Liability. Neither a director of the Corporation nor a director, officer or employee of the Corporation serving as a director of another company at the request of the Corporation (hereafter "Designated Director") shall have any personal 7 liability to the Corporation or its shareholder for monetary damages arising out of a breach of fiduciary duty in such capacity, except for (i) any breach of the director's duty of loyalty to the Corporation or its shareholder, or in the case of a Designated Director, breach of his duty of loyalty to the company of which he is a director or its shareholders, (ii) any acts or omissions not in good faith or which involve intentional misconduct or knowing violation of law, (iii) any unlawful payment of a dividend or other distribution prohibited by Section 174 of the Delaware General Corporation Law, or (iv) any transaction from which the director or Designated Director derived an improper personal benefit. SECTION 2. Indemnification: Insurance and Other Arrangements. (a) Actions Other Than Those By or in the Right of the Corporation. The Corporation shall indemnify, to the full extent not prohibited by law, any person who was or is a party or is threatened to be made party (including a witness) to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation), by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise or entity, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement, actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith, in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that such person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. (b) Action By or in the Right of the Corporation. The Corporation shall indemnify, to the full extent not prohibited by law, any person who was or is a party or is threatened to be made a party (including a witness) to any threatened, pending or completed action, suit or proceeding by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise or entity, against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of, or appearance connected with, such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation; provided, however, that no indemnification shall be made in respect of any claim, issue, or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that a court, upon application, shall determine that, despite the adjudication of liability but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnification for such expenses. 8 (c) Successful Defense of Action. Notwithstanding, and without limitation of, any other provision of this Article X, to the extent that a director, officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in paragraph (a) or (b) of this Section 2, or in defense of any claim, issue or matter included therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. (d) Determination Required. Any indemnification under paragraph (a) or (b) of this Section 2 (unless ordered by a court) shall be made promptly by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in such paragraph. Such determination shall be made, in the case of any officer or director, by a majority vote of the directors who were not parties to the particular action, suit or proceeding even if those directors constitute less than a quorum of the Board of Directors, or (ii) there are no such directors, or if such directors so direct, by legal counsel in a written opinion, or (iii) by the stockholders. Such determination shall be made, in the case of an employee or agent of the Corporation who is not an officer or director of the Corporation, as specified in the preceding sentence or by the President or by any officer authorized by the President. (e) Advance of Expenses. Expenses incurred with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, specified in paragraph (a) or (b) of this Section 2 of this Article X, shall be paid promptly by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of a satisfactory undertaking by or on behalf of the director, officer, employee or agent to repay such amount if it shall be determined that he is not entitled to be indemnified by the Corporation as authorized by the Board, in the case of any director or officer, or by the President or any officer authorized by the President, in the case of any employee of the Corporation who is not a director or officer, and as authorized in this Section 2. SECTION 3. Insurance. The Corporation shall, when authorized by the Board, purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise or entity against any liability asserted against, and incurred by, him in any such capacity, or arising out of his status as such, whether or not the Corporation would be required to indemnify him against such liability under the provisions of Section 2 of this Article X. SECTION 4. Nonexclusivity; Duration. The indemnifications, advancement of expenses and other rights and limitations of liability provided by this Article X shall not be deemed exclusive of any other indemnifications, rights, agreements regarding advancement of expenses or limitation of liability to which any person may be entitled under any statute, certificate of incorporation, by-law, agreement, vote of shareholders or disinterested directors, or otherwise, either as to action in his official capacity or as to action in any other capacity. The authorization to purchase and maintain insurance set forth in Section 3 of this Article X 9 shall likewise not be deemed exclusive. Such indemnifications, rights and limitations of liability shall continue although such person has ceased to be a director, officer, employee or agent and shall inure to the benefit of his heirs, executors and administrators. No amendment of these By-Laws shall effect adversely any rights of any person to indemnity, limitation of liability or advancement of expenses pursuant to these By-Laws, to the extent any matter as to which indemnity, limitation of liability or advancement of expenses may be sought arose prior to any such amendment becoming effective. SECTION 5. Constituent Corporations. For purposes of this Article X, references to "the Corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise or entity, shall stand in the same position under the provisions of this Article X in respect of the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. ARTICLE XI AMENDMENTS By-Laws of the Corporation may be amended, altered or repealed and new By-Laws may be made by resolution of the Board of Directors duly adopted or by the vote of the holders of record of a majority of the shares of Common Stock given at any annual or special meeting of the shareholders. 10 EX-3.53 48 h92783ex3-53.txt CERT OF INCORPORATION OF VICTORY FINANCE COMPANY EXHIBIT 3.53 CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF VICTORY FINANCE COMPANY The undersigned, Victory Finance Company, a Delaware corporation (the "Company"), for the purpose of amending the Certificate of incorporation of the Corporation, in accordance with the General Corporation Law of Delaware, does hereby make and execute this Certificate of Amendment of Certificate of Incorporation and does hereby certify that: FIRST: The following resolution adopted by the Board of Directors and consented to by the sole stockholder of the Company sets forth the amendment adopted: RESOLVED, that the Certificate of Incorporation of the Company be amended by deleting all of the present Article 4 and inserting in lieu thereof the following Article 4: The total number of shares of all classes of stock which the Company shall be authorized to issue is two thousand (2,000), of which one thousand (1,000) shares is Common Stock, $1.00 par value, and one thousand (1,000) shares is Preferred Stock, no par value. A description of the Preferred Stock and a statement of the designations, preferences, limitations and relative rights of such class of stock and the limitations on or denial of the voting rights of the shares of such class of stock are as follows: Provisions Applicable to Preferred Stock Section 1. Dividends The holders of shares of outstanding Preferred Stock shall be entitled to receive in any fiscal year, when and as declared by the Board of Directors of the Company (the "Board"), out of assets of the Company legally available therefor, distributions on a pro rata basis parallel with the holders of shares of Common Stock. Section 2. Liquidation Preference The shares of the Company's Preferred Stock shall be preferred over shares of the Company's Common Stock so that in any liquidation of the Company's assets, or any dissolution or winding up of the affairs of the Company, whether voluntary or involuntary, the holders of the Preferred Stock shall be entitled to receive out of the Company's assets available for distribution to its stockholders, whether from capital, surplus or earnings, before any distribution is made to holders of shares of the Company's Common Stock, an amount equal to Fifty-One Thousand Eight Hundred and NO/100 Dollars ($51,800.00) per share of Preferred Stock together with an amount equal to all cash dividends (whether or not declared) accrued on each share of Preferred Stock, but which have not been paid or set apart for payment on the date fixed for the aforesaid payment to the holders of Preferred Stock in the event of liquidation, before any distribution of the assets shall be made to holders of the Company's Common Stock. If, upon a liquidation or dissolution or winding up of the Company, the amounts payable on or with respect to the Preferred Stock are not paid in full, the holders of shares of the Preferred Stock shall share ratably in any distribution of the Company's assets. Section 3. Voting Rights To the extent not inconsistent with the General Corporation Law of Delaware, the holders of Preferred Stock shall have no voting rights. SECOND: Such amendment was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of Delaware, as amended. IN WITNESS WHEREOF, this Certificate of Amendment has been executed on behalf of the Corporation by its President to be effective December 19, 1996. VICTORY FINANCE COMPANY By /s/ David W. Dupert ---------------------------- David W. Dupert, President CERTIFICATE OF INCORPORATION OF VICTORY FINANCE COMPANY 1. The name of the corporation is: Victory Finance Company 2. The address of its registered offices in the State of Delaware is Corporation Trust Center,1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act and activity for which corporations may be organized under the General Corporation Law of Delaware. 4. The total number of shares of all classes of stock which the corporation shall be authorized to issue is one thousand (1,000) shares of common stock, $1.00 par value. 5. A director of the corporation is not liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except that this article does not eliminate or limit the liability of a director: (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 General Corporation Law of Delaware; or (iv) for any transaction from which the director derived an improper personal benefit. 6. The board of directors is authorized to make, alter or repeal the bylaws of the corporation. Election of directors need not be by written ballot. 7. The name and mailing address of the incorporator is: K. A. Widdoes The Corporation Trust Company 1209 Orange Street Wilmington, Delaware 19901 1 I, THE UNDERSIGNED, as incorporator and for the purpose of forming a corporation pursuant to the General Corporation Law of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this 10th day of September, 1996. /s/ K. A. Widdoes ------------------------------- K. A. Widdoes 2 EX-3.54 49 h92783ex3-54.txt BYLAWS OF VICTORY FINANCE COMPANY EXHIBIT 3.54 Adopted: September 10, 1996 BY-LAWS OF VICTORY FINANCE COMPANY BY-LAWS OF VICTORY FINANCE COMPANY ARTICLE I Meetings of Stockholders Section 1.1 Annual Meetings. The Annual meeting of the stockholders for the election of directors and for the transaction of such other business as properly may come before such meeting shall be held on such date and at such time and place within or without the state of Delaware as may be designated by the Board of Directors. Section 1.2 Special Meetings. Special meetings of the stockholders for any proper purpose or purposes may be called at any time by the Board of Directors, the Chairman of the Board of Directors, the President or any vice president, to be held on such date and at such time and place within or without the state of Delaware as the Board of Directors, the Chairman of the Board of Directors, the President or a vice president, whichever has called the meeting, shall direct. A special meeting of the stockholders shall be called by the Chairman of the Board of Directors, the President or any vice president whenever stockholders holding shares representing a majority of the votes of the shares of the Corporation then issued and outstanding and entitled to vote on matters to be submitted to stockholders of the Corporation shall make application therefor in writing. Any such written request shall state a proper purpose or purposes of the meeting and shall be delivered to the Chairman of the Board of Directors, the President or any vice president. Section 1.3 Notice of Meeting. Written notice, signed by the Chairman of the Board of Directors, the President, any vice president, the Secretary or an assistant secretary, of every meeting of stockholders (other than an adjourned meeting unless otherwise required by statute) stating the purpose or purposes for which the meeting is called, and the date and time when, and the place where, it is to be held shall be either delivered personally or mailed to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the meeting, except as otherwise provided by statute. If mailed, such notice shall be directed to a stockholder at his address as it shall appear on the stock books of the Corporation, unless he shall have filed with the Secretary a written request that notices intended for him be mailed to some other address, in which case it shall be mailed to the address designated in such request, and shall be given when deposited in the United States mail, postage prepaid. 1 Section 1.4 Quorum. The presence at any meeting, in person or by proxy, of the holders of record of shares representing a majority of the votes of the shares then issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business, except where otherwise provided by statute. Section 1.5 Adjournments. In the absence of a quorum, a majority of the votes of the stockholders entitled to vote, present in person or by proxy, or, if no stockholder entitled to vote is present in person or by proxy, any officer entitled to preside at or act as secretary of such meeting may adjourn the meeting from time to time until a quorum shall be present. Section 1.6 Voting. Directors shall be chosen by a plurality of the votes cast at the election, and except where otherwise provided by statute, or the Certificate of Incorporation, all other questions shall be determined by a majority of the votes cast on such question. Section 1.7 Proxies. Any stockholders entitled to vote may vote by proxy, provided that the instrument authorizing such proxy to act shall have been executed in writing (which shall include telegraphing or cabling) by the stockholder himself or by his duly authorized attorney. Section 1.8 Judges of Election. The Board of Directors may appoint judges of election to serve at any election of directors and at balloting on any other matter that may properly come before a meeting of stockholders. If no such appointment shall be made, or if any of the judges so appointed shall fail to attend, or refuse or be unable to serve, then such appointment may be made by the presiding officers at the meeting. ARTICLE II Board of Directors Section 2.1 Number. The number of directors which shall constitute the whole Board of Directors shall be fixed from time to time by resolution of the Board of Directors but shall not be less than two. Section 2.2 Election and Term of Office. Directors shall be elected at the annual meeting of the stockholders. Each director (whether elected at an annual meeting or to fill a vacancy or otherwise) shall continue in office until his successor shall have been elected or until his earlier death, resignation, removal or other incapacity in the manner hereinafter provided. 2 Section 2.3 Vacancies and Additional Directorships. If any vacancy shall occur among the directors by reason of death, resignation, removal or other incapacity or as the result of an increase in the number of directorships, the directors then in office shall continue to act and may fill any such vacancy by a vote of the directors then in office, though less than a quorum. Section 2.4 Meetings. A meeting of the Board of Directors shall be held for organization, for the election of officers and for the transaction of such other business as may properly come before the meeting, within thirty days after each annual election of directors. The Board of Directors by resolution may provide for the holding of regular meetings and may fix the times and places at which such meetings shall be held. Notice of regular meetings shall not be required to be given, provided that whenever the time or place of regular meetings shall be fixed or changed, notice of such action shall be mailed promptly to each director who shall not have been present at the meeting at which such action was taken, addressed to him at his residence or usual place of business. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, the President, any vice president or any two directors. Except as otherwise required by statute, notice of each special meeting shall be mailed to each director, addressed to him at his residence or usual place of business, or shall be sent to him at such place by telegram, radio or cable, or telephone or delivered to him personally, not later than two days before the day on which the meeting is to be held. Such notice shall state the time and place of such meeting, but unless otherwise required by statute, the Certificate of Incorporation of the Corporation or these By-laws need not state the purposes thereof. Notice of any meeting need not be given to any director who shall attend such meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Section 2.5 Quorum. One-third of the total number of members of the Board of Directors as constituted from time to time, but not less than two, shall be necessary and sufficient to constitute a quorum for the transaction of business, In the absence of a quorum, a majority of those present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present and the meeting may be held as adjourned without further notice or waiver. A majority of those present at any meeting at which a quorum is present may decide any question brought before such meeting, except as otherwise provided by law, the Certificate of Incorporation or these By-laws. 3 Section 2.6 Resignation of Directors. Any director may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 2.7 Removal of Directors. At any special meeting of the stockholders, duly called for the purpose of removing a director or directors as provided in these By-laws, any director or directors may, by the affirmative vote of the holders of shares representing a majority of the votes of all the shares of stock outstanding and entitled to vote for the election of directors, be removed from office, either with or without cause. At such meeting a successor or successors may be elected by a plurality of the votes cast, or if any such vacancy is not so filled, it may be filled by the directors as provided in Section 2.3. Section 2.8 Compensation of Directors. Directors may receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation thereof or. Section 2.9 Indemnification. The Corporation shall indemnify to the full extent authorized or permitted by the laws of the state of Delaware any person who is made, or threatened to be made, a party to an action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Corporation or serves or served any other enterprise at the request of the Corporation. ARTICLE III Committees of the Board Section 3.1 Designation, Power, Alternate Members and Term of Office. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Any such committee, to the extent provided in such resolution, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal 4 of the Corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-laws of the Corporation or, unless the resolution of the Board of Directors establishing any such committee shall expressly so provide or these By-laws shall expressly so provide, declaring a dividend on the Corporation's capital stock or authorizing the issuance of the Corporation's capital stock. The Board may designate one or more directors as alternate members of any committee who, in the order specified by the Board, may replace any absent or disqualified member at any meeting of the committee. If at a meeting of any committee one or more of the members thereof should be absent or disqualified, and if either the Board of Directors has not so designated any alternate member or members, or the number of absent or disqualified members exceeds the number of alternate members who are present at such meeting, then the member or members of such committee (including alternates) present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another director to act at the meeting in the place of any such absent or disqualified member. The term of office of the members of each committee shall be as fixed from time to time by the Board, subject to these By-laws; provided, however, that any committee member who ceases to be a member of the Board shall ipso facto cease to be a committee member. Each committee shall appoint a secretary, who may be the Secretary of the Corporation or an assistant secretary thereof. Section 3.2 Meetings, Notices and Records. Each committee may provide for the holding of regular meetings, with or without notice, and may fix the time and place at which such meetings shall be held. Special meetings of each committee shall be held upon call by or at the direction of its chairman or, if there be no chairman, by or at the direction of any two of its members, at the time and place specified in the respective notices or waivers of notice thereof. Notice of each special meeting of a committee shall be mailed to each member of such committee, addressed to him at his residence or usual place of business, at least two days before the day on which the meeting is to be held, or shall be sent by telegram, radio or cable addressed to him at such place, or telephoned or delivered to him personally, not later than the day before the day on which the meeting is to be held. Notice of any meeting of a committee need not be given to any member thereof who shall attend the meeting in person or who shall waive notice thereof, before or after such meeting, in writing or by telegram, radio or cable. Notice of any adjourned meeting need not be given. Each committee shall keep a record of its proceedings. 5 Section 3.3 Quorum and Manner of Acting. At each meeting of any committee the presence of one-third but not less than two of its members then in office shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the members present at any meeting at which the quorum is present shall be the act of such committee; in the absence of a quorum, a majority of the members present at the time and place of any meeting may adjourn the meeting from time to time until a quorum shall be present. Subject to the foregoing and other provisions of these By-laws and except as otherwise determined by the Board of Directors, each committee may make rules for the conduct of its business. Any determination made in writing and signed by all the members of such committee shall be as effective as if made by such committee at a meeting. Section 3.4 Resignations. Any member of a committee may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and, unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 3.5 Removal. Any member of any committee may be removed at any time by the Board of Directors with or without cause. Section 3.6 Vacancies. If any vacancy shall occur in any committee by reason of death, resignation, disqualification, removal or otherwise, the remaining members of such committee, though less than a quorum, shall continue to act until such vacancy is filled by a resolution passed by a majority of the whole Board of Directors. Section 3.7 Compensation. Committee members shall receive such reasonable compensation for their services as such, whether in the form of salary or a fixed fee for attendance at meetings, with expenses, if any, as the Board of Directors may from time to time determine. Nothing herein contained shall be construed to preclude any committee member from serving the Corporation in any other capacity and receiving compensation thereof or. ARTICLE IV Officers Section 4.1 Officers. The officers of the Corporation shall be a Chairman of the Board of Directors, a President, one or more 6 Vice Presidents (which may include Group Vice Presidents, Senior Vice Presidents and other categories of Vice Presidents), a Secretary, a Treasurer, and such other officers as may be appointed in accordance with the provisions of Section 4.3. Section 4.2 Election, Term of Office and Qualifications. Each officer (except such officers as may be appointed in accordance with the provisions of Section 4.3) shall be elected by the Board of Directors. Each such officer (whether elected at the first meeting of the Board of Directors after the annual meeting of stockholders or to fill a vacancy or otherwise) shall hold his office until the first meeting of the Board of Directors after the next annual meeting of stockholders and until his successor shall have been elected, or until his death, or until he shall have resigned in the manner provided in Section 4.4 or shall have been removed in the manner provided in Section 4.5. The Chairman of the Board of Directors must be a member of the Board of Directors. Section 4.3 Subordinate Officers and Agents. The Board of Directors from time to time may appoint other officers or agents (including one or more assistant vice presidents, one or more assistant secretaries and one or more assistant treasurers), to hold office for such period, have such authority and perform such duties as are provided in these By-laws or as may be provided in the resolutions appointing them. The Board of Directors may delegate to any officer or agent the power to appoint any such subordinate officers or agents and to prescribe their respective terms of office, authorities and duties. Section 4.4 Resignations. Any officer may resign at any time by giving written notice of such resignation to the Board of Directors, the Chairman of the Board of Directors, the President, any vice president or the Secretary. Any such resignation shall take effect at the time specified therein or, if no time be specified, upon receipt thereof by the Board of Directors or one of the above-named officers; and unless specified therein, the acceptance of such resignation shall not be necessary to make it effective. Section 4.5 Removal. Any officer specifically designated in Section 4.1 may be removed at any time, either with or without cause, at any meeting of the Board of Directors by the vote of a majority of all the directors then in office. Any officer or agent appointed in accordance with the provisions of Section 4.3 may be removed, either with or without cause, by the Board of Directors at any meeting, by the vote of a majority of the directors present at such meeting, or by any superior officer or agent upon whom such power of removal shall have been conferred by the Board of Directors. Section 4.6 Vacancies. A vacancy in any office by reason of death, resignation, removal, disqualification or any other cause shall be filled for the unexpired portion of the term in the manner 7 prescribed by these By-laws for regular election or appointment to such office. Section 4.7 The Chairman of the Board of Directors. The Chairman of the Board of Directors shall be the chief executive officer of the Corporation. Subject to the direction of the Board of Directors, he shall have general charge of the business affairs and property of the Corporation. He shall see that all orders and resolutions of the Board of Directors are carried into effect. If present, he shall preside at all meetings of stockholders. He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. From time to time he shall report to the Board of Directors all matters within his knowledge which the interests of the Corporation may require to be brought to their attention. He shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors. Section 4.8 The President. The President shall be the chief operating officer of the Corporation. Subject to the direction of the Chairman of the Board of Directors, he shall have general supervision over the officers and agents of the Corporation. At the request of the Board of Directors or the Chairman of the Board of Directors, the President shall perform all the duties of the Chairman of the Board of Directors and, when so acting, shall have all the powers of and be subject to all restrictions upon the Chairman of the Board of Directors (except that the President need not be a member of the Board of Directors). He may sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation, deeds, mortgages, bonds, contracts, agreements or other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. He shall also perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors or the Chairman of the Board of Directors. Section 4.9 The Vice Presidents. In the absence or disability of the President, any vice president designated by the President (or in the absence of such designation, the Vice President designated by the Board of Directors or the Chairman of the Board of Directors) shall perform all the duties of the President and, when so acting, shall have all the powers of and be 8 subject to all restrictions upon the President. Any vice president may also sign, with any other officer thereunto duly authorized, certificates of stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature), and may sign and execute in the name of the Corporation deeds, mortgages, bonds and other instruments duly authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by statute to some other officer or agent. Each vice president shall perform such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.10 The Secretary. The Secretary shall (a) Record all the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book or books to be kept for that purpose; (b) Cause all notices to be duly given in accordance with the provisions of these By-laws and as required by statute; (c) Whenever any committee shall be appointed in pursuance of a resolution of the Board of Directors, furnish the chairman of such committee with a copy of such resolution; (d) Be custodian of the records and of the seal of the Corporation, and cause such seal to be affixed to all certificates representing stock of the Corporation prior to the issuance thereof and to all instruments the execution of which on behalf of the Corporation under its seal shall have been duly authorized; (e) See that the lists, books, reports, statements, certificates and other documents and records required by statute are properly kept and filed; (f) Have charge of the stock and transfer books of the Corporation, and exhibit such stock book at all reasonable times to such persons as are entitled by statute to have access thereto; (g) Sign (unless the Treasurer or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Secretary and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the 9 Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.11 Assistant Secretaries. At the request of the Secretary or in his absence or disability, the Assistant Secretary designated by him (or in the absence of such designation, the Assistant Secretary designated by the Board of Directors, the Chairman of the Board of Directors or the President) shall perform all the duties of the Secretary and, when so acting, shall have all the powers of and be subject to all restrictions upon the Secretary. The assistant secretaries shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary. Section 4.12 The Treasurer. The Treasurer shall (a) Have charge of and supervision over and be responsible for the funds, securities, receipts and disbursements of the Corporation; (b) Cause the moneys and other valuable effects of the Corporation to be deposited in the name and to the credit of the Corporation in such banks or trust companies or with such bankers or other depositaries as shall be selected in accordance with Section 5.3 of these By-laws or to be otherwise dealt with in such manner as the Board of Directors may direct; (c) Cause the funds of the Corporation to be disbursed by checks or drafts upon the authorized depositaries of the Corporation, and cause to be taken and preserved proper vouchers for all moneys disbursed; (d) Render to the Board of Directors, the Chairman of the Board of Directors, or the President, whenever requested, a statement of the financial condition of the Corporation and of all his transactions as Treasurer; (e) Cause to be kept at the Corporation's principal office correct books of account of all its business and transactions and such duplicate books of account as he shall determine and upon application cause such books or duplicates thereof to be exhibited to any director; (f) Be empowered, from time to time, to require from the officers or agents of the Corporation reports or statements giving such information as he may desire with respect to any and all financial transactions of the Corporation; (g) Sign (unless the Secretary or an assistant secretary or an assistant treasurer shall sign) certificates representing stock of the Corporation the issuance of which shall have 10 been duly authorized (the signature to which may be a facsimile signature); and (h) In general, perform all duties incident to the office of Treasurer and such other duties as are given to him by these By-laws or as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, or the President. Section 4.13 Assistant Treasurers. At the request of the Treasurer or in his absence or disability, the Assistant Treasurer designated by him (or in the absence of such designation, the Assistant Treasurer designated by the Board of Directors, the Chairman of the Board of Directors, or the President) shall perform all the duties of the Treasurer and, when so acting, shall have all the powers of and be subject to all restrictions upon the Treasurer. The Assistant Treasurers shall perform such other duties as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board of Directors, the President or the Treasurer. Section 4.14 Salaries. The salaries of the officers of the Corporation shall be fixed from time to time by the Board of Directors, except that the Board of Directors may delegate to any person the power to fix the salaries or other compensation of any officers or agents appointed in accordance with the provisions of Section 4.3. No officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the Corporation. Section 4.15 Surety Bonds. If the Board of Directors shall so require, any officer or agent of the Corporation shall execute to the Corporation a bond in such sum and with such surety or sureties as the Board of Directors may direct, conditioned upon the faithful discharge of his duties, including responsibilities for negligence and for the accounting for all property, funds or securities of the Corporation which may come into his hands. ARTICLE V Execution of Instruments and Deposit of Corporate Funds Section 5.1 Execution of Instruments Generally. The Chairman of the Board of Directors, the President, any vice president, the Secretary or the Treasurer, subject to the approval of the Board of Directors, may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. The Board of Directors may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any 11 instrument in the name and on behalf of the Corporation, and such authorization may be general or confined to specific instances. Section 5.2 Borrowing. No loans or advances shall be obtained or contracted for, by or on behalf of the Corporation and no negotiable paper shall be issued in its name, unless and except as authorized by the Board of Directors. Such authorization may be general or confined to specific instances, Any officer or agent of the Corporation thereunto so authorized may obtain loans and advances for the Corporation, and for such loans and advances may make, execute and deliver promissory notes, bonds or other evidences of indebtedness of the Corporation. Any officer or agent of the Corporation thereunto so authorized may pledge, hypothecate or transfer as security for the payment of any and all loans, advances, indebtedness and liabilities of the Corporation, any and all stocks, bonds, other securities and other personal property at any time held by the Corporation, and to that end may endorse, assign and deliver the same and do every act and thing necessary or proper in connection therewith. Section 5.3 Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to its credit in such banks or trust companies or with such bankers or other depositaries as the Board of Directors may select, or as may be selected by any officer or officers or agent or agents authorized so to do by the Board of Directors. Endorsements for deposit to the credit of the Corporation in any of its duly authorized depositaries shall be made in such manner as the Board of Directors from time to time may determine. Section 5.4 Checks, Drafts, Etc. All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers or agent or agents of the Corporation, and in such manner, as from time to time shall be determined by the Board of Directors. Section 5.5 Proxies. Proxies to vote with respect to shares of stock of other corporations owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the Chairman of the Board of Directors, the President or a vice president or by any other person or persons thereunto authorized by the Board of Directors. ARTICLE VI Record Dates Section 6.1. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of 12 stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall be not more than sixty nor less than ten days before the date of such meeting, nor more that sixty days prior to any other action. Only those stockholders of record on the date so fixed shall be entitled to any of the foregoing rights, notwithstanding the transfer of any such stock on the books of the Corporation after any such record date fixed by the Board of Directors. ARTICLE VII Corporate Seal Section 7.1. The corporate seal shall be circular in form and shall bear the name of the Corporation and words and figures denoting its organization under the laws of the state of Delaware and the year thereof and otherwise shall be in such form as shall be approved from time to time by the Board of Directors. ARTICLE VIII Fiscal Year Section 8.1. The fiscal year of the Corporation shall begin on the first day of January in each year and shall end on the 31st day of December in the same year. ARTICLE IX Amendments Section 9.1. All By-laws of the Corporation may be amended, altered or repealed, and new By-laws may be made, by the affirmative vote of the holders of record of shares representing a majority of the votes of the outstanding shares of stock of the Corporation entitled to vote cast at any annual or special meeting, or by the affirmative vote of a majority of the Directors cast at any regular or special meeting at which a quorum is present. 13 EX-4.8 50 h92783ex4-8.txt INDENTURE EXHIBIT 4.8 ================================================================================ TESORO PETROLEUM CORPORATION Issuer and CERTAIN SUBSIDIARY GUARANTORS 9 5/8% SENIOR SUBORDINATED NOTES DUE 2008 INDENTURE Dated as of November 6, 2001 U.S. Bank Trust National Association Trustee ================================================================================ TABLE OF CONTENTS
PAGE ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE SECTION 1.01. Definitions...................................................................1 SECTION 1.02. Other Definitions............................................................21 SECTION 1.03. Incorporation by Reference of Trust Indenture Act............................22 SECTION 1.04. Rules of Construction........................................................22 ARTICLE II THE NOTES SECTION 2.01. Form and Dating..............................................................23 SECTION 2.02. Execution and Authentication.................................................24 SECTION 2.03. Registrar and Paying Agent...................................................25 SECTION 2.04. Paying Agent to Hold Money in Trust..........................................25 SECTION 2.05. Holder Lists.................................................................26 SECTION 2.06. Transfer and Exchange........................................................26 SECTION 2.07. Replacement Notes............................................................40 SECTION 2.08. Outstanding Notes............................................................40 SECTION 2.09. Treasury Notes...............................................................40 SECTION 2.10. Temporary Notes..............................................................41 SECTION 2.11. Cancellation.................................................................41 SECTION 2.12. Defaulted Interest...........................................................41 SECTION 2.13. CUSIP Numbers................................................................42 ARTICLE III REDEMPTION AND PREPAYMENT SECTION 3.01. Notices to Trustee...........................................................42 SECTION 3.02. Selection of Notes to be Redeemed............................................42 SECTION 3.03. Notice of Redemption.........................................................43 SECTION 3.04. Effect of Notice of Redemption...............................................44 SECTION 3.05. Deposit of Redemption Price..................................................44 SECTION 3.06. Notes Redeemed in Part.......................................................44 SECTION 3.07. Optional Redemption..........................................................44 SECTION 3.08. Mandatory Redemption.........................................................45 SECTION 3.09. Offer to Purchase by Application of Excess Proceeds..........................45
i ARTICLE IV COVENANTS SECTION 4.01. Payment of Notes.............................................................47 SECTION 4.02. Maintenance of Office or Agency..............................................47 SECTION 4.03. Reports......................................................................48 SECTION 4.04. Compliance Certificate.......................................................48 SECTION 4.05. Taxes........................................................................49 SECTION 4.06. Waiver of Stay, Extension and Usury Laws.....................................49 SECTION 4.07. Restricted Payments..........................................................49 SECTION 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries...............53 SECTION 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock...................54 SECTION 4.10. Asset Sales..................................................................55 SECTION 4.11. Transactions with Affiliates.................................................56 SECTION 4.12. Liens........................................................................57 SECTION 4.13. Business Activities..........................................................57 SECTION 4.14. Corporate Existence..........................................................57 SECTION 4.15. Offer to Repurchase upon Change of Control...................................58 SECTION 4.16. No Senior Subordinated Debt..................................................59 SECTION 4.17. Additional Subsidiary Guarantees.............................................59 SECTION 4.18. Payments for Consent.........................................................60 SECTION 4.19. Termination of Covenants.....................................................60 ARTICLE V SUCCESSORS SECTION 5.01. Merger, Consolidation, or Sale of Assets.....................................60 SECTION 5.02. Successor Corporation Substituted............................................61 ARTICLE VI DEFAULTS AND REMEDIES SECTION 6.01. Events of Default............................................................61 SECTION 6.02. Acceleration.................................................................63 SECTION 6.03. Other Remedies...............................................................63 SECTION 6.04. Waiver of Past Defaults......................................................64 SECTION 6.05. Control by Majority..........................................................64 SECTION 6.06. Limitation on Suits..........................................................64 SECTION 6.07. Rights of Holders of Notes to Receive Payment................................65 SECTION 6.08. Collection Suit by Trustee...................................................65 SECTION 6.09. Trustee May File Proofs of Claim.............................................65 SECTION 6.10. Priorities...................................................................65 SECTION 6.11. Undertaking for Costs........................................................66
ii ARTICLE VII TRUSTEE SECTION 7.01. Duties of Trustee............................................................66 SECTION 7.02. Rights of Trustee............................................................67 SECTION 7.03. Individual Rights of Trustee.................................................68 SECTION 7.04. Trustee's Disclaimer.........................................................68 SECTION 7.05. Notice of Defaults...........................................................68 SECTION 7.06. Reports by Trustee to Holders of the Notes...................................68 SECTION 7.07. Compensation and Indemnity...................................................69 SECTION 7.08. Replacement of Trustee.......................................................70 SECTION 7.09. Successor Trustee by Merger, Etc.............................................71 SECTION 7.10. Eligibility; Disqualification................................................71 SECTION 7.11. Preferential Collection of Claims Against Company............................71 ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE SECTION 8.01. Satisfaction and Discharge of Indenture......................................71 SECTION 8.02. Application of Trust Money...................................................72 SECTION 8.03. Option to Effect Legal Defeasance or Covenant Defeasance.....................73 SECTION 8.04. Legal Defeasance and Discharge...............................................73 SECTION 8.05. Covenant Defeasance..........................................................73 SECTION 8.06. Conditions to Legal or Covenant Defeasance...................................74 SECTION 8.07. Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.....................................................76 SECTION 8.08. Repayment to Company.........................................................77 SECTION 8.09. Reinstatement................................................................76 ARTICLE IX AMENDMENT, SUPPLEMENT AND WAIVER SECTION 9.01. Without Consent of Holders of Notes..........................................76 SECTION 9.02. With Consent of Holders of Notes.............................................77 SECTION 9.03. Compliance with Trust Indenture Act..........................................79 SECTION 9.04. Revocation and Effect of Consents............................................79 SECTION 9.05. Notation on or Exchange of Notes.............................................79 SECTION 9.06. Trustee to Sign Amendments, Etc..............................................79
iii ARTICLE X SUBORDINATION SECTION 10.01. Agreement to Subordinate.....................................................80 SECTION 10.02. Liquidation; Dissolution; Bankruptcy.........................................80 SECTION 10.03. Default on Designated Senior Debt............................................80 SECTION 10.04. Acceleration of Notes........................................................81 SECTION 10.05. Notice by Company............................................................81 SECTION 10.06. Subrogation..................................................................81 SECTION 10.07. Relative Rights..............................................................82 SECTION 10.08. Subordination May Not Be Impaired by Company.................................82 SECTION 10.09. Distribution or Notice to Representative.....................................82 SECTION 10.10. Rights of Trustee and Paying Agent...........................................82 SECTION 10.11. Authorization to Effect Subordination........................................83 SECTION 10.12. Amendments...................................................................83 SECTION 10.13. Continued Effectiveness......................................................83 SECTION 10.14. Cumulative Rights; No Waivers................................................83 SECTION 10.15. Trustee......................................................................84 ARTICLE XI GUARANTEES SECTION 11.01. Subsidiary Guarantees........................................................84 SECTION 11.02. Execution and Delivery of Additional Subsidiary Guarantee or Supplemental Indenture; Notation of Subsidiary Guarantee.....................85 SECTION 11.03. Guarantors May Consolidate, Etc., on Certain Terms...........................86 SECTION 11.04. Releases Following Release Under All Indebtedness or Sale of Assets..........87 SECTION 11.05. Limitation on Guarantor Liability; Contribution..............................88 SECTION 11.06. Trustee to Include Paying Agent..............................................88 SECTION 11.07. Subordination of Subsidiary Guarantee........................................88 ARTICLE XII MISCELLANEOUS SECTION 12.01. Trust Indenture Act Controls.................................................89 SECTION 12.02. Notices......................................................................89 SECTION 12.03. Communication by Holders of Notes with Other Holders of Notes................90 SECTION 12.04. Certificate and Opinion as to Conditions Precedent...........................90 SECTION 12.05. Statements Required in Certificate or Opinion................................90 SECTION 12.06. Rules by Trustee and Agents..................................................91
iv SECTION 12.07. No Personal Liability of Directors, Officers, Employees and Stockholders.....91 SECTION 12.08. Governing Law................................................................91 SECTION 12.09. No Adverse Interpretation of Other Agreements................................91 SECTION 12.10. Successors...................................................................91 SECTION 12.11. Severability.................................................................91 SECTION 12.12. Counterpart Originals........................................................92 SECTION 12.13. Table of Contents, Headings, Etc.............................................92 EXHIBIT A-1 (Face of Note).............................................................A1-1 EXHIBIT A-2 (Face of Regulation S Temporary Global Note)...............................A2-1 EXHIBIT B Form of Certificate of Transfer.............................................B-1 EXHIBIT C Form of Certificate of Exchange.............................................C-1 EXHIBIT D Form of Certificate from Acquiring Institutional Accredited Investor........D-1 EXHIBIT E Form of Supplemental Indenture..............................................E-1 EXHIBIT F Registration Rights Agreement...............................................F-1
v CROSS-REFERENCE TABLE
Trust Indenture Act Section Indenture Section 310 (a)(1) ............................................................. 7.10 (a)(2) ............................................................. 7.10 (a)(3) ............................................................. N.A. (a)(4) ............................................................. N.A. (a)(5) ............................................................. 7.10 (b) ................................................................ 7.10 (c) ................................................................ N.A. 311 (a) ................................................................ 7.11 (b) ................................................................ 7.11 (c) ................................................................ N.A. 312 (a) ................................................................ 2.05 (b) ................................................................ 12.03 (c) ................................................................ 12.03 313 (a) ................................................................ 7.06 (b)(2) ............................................................. 7.06, 7.07 (c) ................................................................ 7.06, 12.02 (d) ................................................................ 7.06 314 (a) ................................................................ 4.03 (a)(4) ............................................................. 12.04 (c)(1) ............................................................. N.A. (c)(2) ............................................................. N.A. (c)(3) ............................................................. N.A. (e) ................................................................ 12.05 (f) ................................................................ N.A. 315 (a) ................................................................ 7.01 (b) ................................................................ 7.05 (c) ................................................................ 7.01 (d) ................................................................ 7.01 (e) ................................................................ 6.11 316 (a)(last sentence) ................................................. 2.09 (a)(1)(A) .......................................................... 6.05 (a)(1)(B) .......................................................... 6.04 (a)(2) ............................................................. N.A. (b) ................................................................ 6.07 (c) ................................................................ 2.12 317 (a)(1) ............................................................. 6.09 (a)(2) ............................................................. 6.09 (b) ................................................................ 2.04 318 (a) ................................................................ 12.01 (b) ................................................................ 12.01 (c) ................................................................ 12.01
N.A. means not applicable. - ---------- This Cross-Reference Table shall not, for any purpose, be deemed to be part of this Indenture. vi INDENTURE dated as of November 6, 2001 among Tesoro Petroleum Corporation, a Delaware corporation (the "Company"), the subsidiaries of the Company listed on the signature pages hereof (the "Guarantors") and U.S. Bank Trust National Association, as trustee (the "Trustee"). The Company, the Guarantors and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of (i) the 9 5/8% Senior Subordinated Notes due 2008 (the "Initial Notes") and (ii) if and when issued, each series of the 9 5/8% Senior Subordinated Notes due 2008 issued in exchange for any Initial Notes in an Exchange Offer or upon transfer pursuant to a Shelf Registration Statement (the "Exchange Notes" and, together with the Initial Notes, the "Notes"): ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE SECTION 1.01. Definitions. "Acquired Debt" means, with respect to any specified Person, (1) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Restricted Subsidiary of such specified Person, including, without limitation, Indebtedness incurred in connection with, or in contemplation of, such other Person merging with or into or becoming a Restricted Subsidiary of such specified Person and (2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person, but excluding, in any event, Indebtedness that is extinguished, retired or repaid in connection with such Person merging with or becoming a Restricted Subsidiary of such specified Person. "Adjusted Net Assets" of a Guarantor at any date means the lesser of the amount by which (i) the fair value of the property of such Guarantor exceeds the total amount of liabilities, including contingent liabilities (after giving effect to all other fixed and contingent liabilities incurred or assumed on such date), but excluding liabilities under its Subsidiary Guarantee, of such Guarantor at such date and (ii) the present fair salable value of the assets of such Guarantor at such date exceeds the amount that will be required to pay the probable liability of such Guarantor on its debts (after giving effect to all other fixed and contingent liabilities incurred or assumed on such date and after giving effect to any collection from any Subsidiary of such Guarantor in respect of the obligations of such Subsidiary under such Subsidiary Guarantee), excluding debt in respect of such Subsidiary Guarantee, as they become absolute and matured. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, "control" (including, with correlative meanings, the terms "controlling," "controlled by" and "under common control with"), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided that, for purposes of Section 4.11 hereof and the use of the term "Affiliates" thereunder, beneficial ownership of 10% or more of the voting securities of a specified Person shall be deemed to be control by the owner thereof. "Agent" means any Registrar, Paying Agent or Authenticating Agent. "Applicable Procedures" means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange. "Asset Sale" means (i) the sale, lease, conveyance or other disposition of any assets or rights (including, without limitation, by way of a sale and leaseback) other than in the ordinary course of business (provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries taken as a whole will be governed by Sections 4.15 and 5.01 hereof and not by the provisions in Section 4.10 hereof); and (ii) the issue or sale by the Company or any of its Restricted Subsidiaries of Equity Interests of any of the Company's Restricted Subsidiaries, in the case of either clause (i) or (ii), whether in a single transaction or a series of related transactions, (a) that have a Fair Market Value in excess of $5,000,000 or (b) for Net Proceeds in excess of $5,000,000; provided that the following will not be deemed to be Asset Sales: (i) any transfer, conveyance, sale, lease or other disposition of assets or rights securing the Senior Credit Facility or other Senior Debt in connection with the enforcement of the Liens therein; (ii) any sale or exchange of production of crude oil, natural gas and natural gas liquids, or refined products or residual hydrocarbons, or any other asset or right constituting inventory, made in the ordinary course of the Permitted Business; (iii) any disposition of assets in trade or exchange for assets of comparable Fair Market Value used or usable in any Permitted Business (including, without limitation, the trade or exchange for a controlling interest in another business or all or substantially all of the assets of a business, in each case engaged in a Permitted Business or for other non-current assets to be used in a Permitted Business, including, without limitation, assets or Investments of the nature or type described in clause (m) of the definition of "Permitted Investments"), provided that (x) except for trades or exchanges of oil and gas properties and interests therein for other oil and gas properties and interests therein, if the Fair Market Value of the assets so disposed of, in a single transaction or in a series of related transactions, is in excess of $35,000,000, the Company shall obtain an opinion or report from an Independent Financial Advisor confirming that the assets received by the Company and the Restricted Subsidiaries in such trade or exchange have a fair market value of at least the fair market value of the assets so disposed and (y) any cash or Cash Equivalents received by the Company or a Restricted Subsidiary in connection with such trade or exchange (net of any transaction costs of the type deducted under the definition of "Net Proceeds") shall be treated as Net Proceeds of an Asset Sale and shall be applied in the manner set forth in Section 4.10 hereof; (iv) a transfer of assets by the Company to a Restricted Subsidiary of the Company or by a Restricted Subsidiary of the Company to the Company or to a Restricted Subsidiary of the Company; (v) an issuance or sale of Equity Interests by a Restricted Subsidiary of the Company to the Company or to another Restricted Subsidiary of the Company; (vi) (A) a Permitted Investment or (B) a Restricted Payment that is permitted by Section 4.07 hereof; (vii) the trade, sale or exchange of Cash Equivalents; (viii) the sale, exchange or other disposition of obsolete assets not integral to any Permitted Business; (ix) the abandonment or relinquishment of assets or property in the ordinary course of business, including without limitation the abandonment, relinquishment or farm-out of oil and gas leases, concessions or 2 drilling or exploration rights or interests therein; (x) any lease of assets entered into in the ordinary course of business and with respect to which the Company or any Restricted Subsidiary of the Company is the lessor and the lessee has no option to purchase such assets for less than Fair Market Value at any time the right to acquire such asset occurs; (xi) the disposition of assets received in settlement of debts accrued in the ordinary course of business; (xii) the creation or perfection of a Lien on any properties or assets (or any income or profit therefrom) of the Company or any of its Restricted Subsidiaries that is not prohibited by any provision hereof; (xiii) the surrender or waiver in the ordinary course of business of contract rights or the settlement, release or surrender of contractual, non-contractual or other claims of any kind; and (xiv) the grant in the ordinary course of business of any non-exclusive license of patents, trademarks, registrations therefor and other similar intellectual property. "Bankruptcy Code" means Title 11, U.S. Code, as amended, or any similar federal or state law for the relief of debtors. "Board of Directors" means the Board of Directors of the Company or any committee thereof duly authorized to act on behalf of such Board. "Business Day" means any day other than a Legal Holiday. "Capital Lease Obligation" means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized on a balance sheet in accordance with GAAP. "Capital Stock" means (i) in the case of a corporation, corporate stock, (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock, (iii) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited) and (iv) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person. "Cash Equivalents" means (i) United States dollars, (ii) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof having maturities of not more than one year from the date of acquisition, (iii) certificates of deposit and Eurodollar time deposits with maturities of not more than one year from the date of acquisition, bankers' acceptances with maturities of not more than one year from the date of acquisition and overnight bank deposits, in each case with any domestic commercial bank having capital and surplus in excess of $500,000,000 and a Thompson Bank Watch Rating of "B" or better, (iv) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (ii) and (iii) above entered into with any financial institution meeting the qualifications specified in clause (iii) above, (v) commercial paper having the highest rating obtainable from Moody's Investors Service, Inc. or Standard & Poor's Rating Group with maturities of not more than one year from the date of acquisition. "Change of Control" means the occurrence of one or more of the following events: (i) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all of the assets of the Company to any Person or group of related Persons 3 for purposes of Section 13(d) of the Exchange Act (a "Group") together with any Affiliates thereof (whether or not otherwise in compliance with the provisions hereof) unless immediately following such sale, lease, exchange or other transfer in compliance with this Indenture such assets are owned, directly or indirectly, by the Company or a Subsidiary of the Company; (ii) the approval by the holders of Capital Stock of the Company of any plan or proposal for the liquidation or dissolution of the Company; (iii) the acquisition in one or more transactions, of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of Voting Securities of the Company by any Person or Group that either (A) beneficially owns (within the meaning of Rule 13d-3 under the Exchange Act), directly or indirectly, at least 50% of the Company's then outstanding voting securities entitled to vote on a regular basis for the board of directors of the Company, or (B) otherwise has the ability to elect, directly or indirectly, a majority of the members of the Company's board of directors, including, without limitation, by the acquisition of revocable proxies for the election of directors; or (iv) during any period of two consecutive years, individuals who at the beginning of such period constituted the board of directors of the Company (together with any new directors whose election by such board of directors or whose nomination for election by the shareholders (or members, as applicable) of the Company was approved by a vote of 66 2/3% of the directors of the Company then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the board of directors then in office. Notwithstanding the foregoing, a Change of Control shall not be deemed to occur upon the consummation of any actions undertaken by the Company or any of its Restricted Subsidiaries solely for the purpose of changing the legal structure of the Company or such Restricted Subsidiary. "Clearstream" means Clearstream Banking, societe anonyme. "Commodity Hedging Agreements" means agreements or arrangements designed to protect such Person against fluctuations in the price of (i) crude oil, natural gas, or other hydrocarbons, including refined hydrocarbon products; (ii) electricity and other sources of energy or power used in the Company's refining or processing operations; or (iii) any other commodity; in each case in connection with the conduct of its business and not for speculative purposes. "Commodity Hedging Obligations" means, with respect to any Person, the net payment Obligations of such Person under Commodity Hedge Agreements. "Consolidated Cash Flow" means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period plus (i) an amount equal to any extraordinary, unusual or non-recurring expenses or losses (including, whether or not otherwise includable as a separate item in the statement of Consolidated Net Income for such period, losses on sales of assets outside of the ordinary course of business) plus any net loss realized in connection with an Asset Sale (to the extent such losses were deducted in computing such Consolidated Net Income), plus (ii) provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was included in computing such Consolidated Net Income, plus (iii) consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued and whether or not capitalized (including, without limitation, amortization of debt issuance costs and original 4 issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers' acceptance financings, and net payments (if any) pursuant to Hedging Obligations), to the extent that any such expense was deducted in computing such Consolidated Net Income, plus (iv) depreciation and amortization (including amortization of goodwill and other intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation and amortization were deducted in computing such Consolidated Net Income, minus (v) non-cash items increasing such Consolidated Net Income for such period, in each case, on a consolidated basis and determined in accordance with GAAP. Notwithstanding the foregoing, the provision for taxes on the income or profits of, and the depreciation and amortization and other non-cash charges of, a Restricted Subsidiary of the referent Person shall be added to Consolidated Net Income to compute Consolidated Cash Flow only to the extent (and in same proportion) that the Net Income of such Restricted Subsidiary was included in calculating the Consolidated Net Income of such Person and only if a corresponding amount would be permitted at the date of determination to be dividended to the Company by such Restricted Subsidiary without prior governmental approval (that has not been obtained), and without direct or indirect restriction pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Restricted Subsidiary or its stockholders. "Consolidated Net Income" means, with respect to any Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries (for such period, on a consolidated basis, determined in accordance with GAAP); provided that (i) the Net Income (but not loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting shall be included only to the extent of the amount of dividends or distributions paid in cash to the referent Person or a Restricted Subsidiary; (ii) the Net Income of any Restricted Subsidiary shall be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders; (iii) the Net Income of any Person acquired in a pooling of interests transaction for any period prior to the date of such acquisition shall be excluded; (iv) the cumulative effect of a change in accounting principles shall be excluded; and (v) any ceiling limitation writedowns under Securities and Exchange Commission guidelines shall be treated as capitalized costs, as if such writedown had not occurred. "Consolidated Net Worth" means, with respect to any Person as of any date, the sum of: (i) the consolidated equity of the common stockholders of such Person and its consolidated Restricted Subsidiaries as of such date, plus (ii) the respective amounts reported on such Person's balance sheet as of such date with respect to any series of preferred stock (other than Disqualified Stock) that by its terms is not entitled to the payment of dividends unless such dividends may be declared and paid only out of net earnings in respect of the year of such declaration and payment, but only to the extent of any cash received by such Person upon issuance of such preferred stock, all of the foregoing determined in accordance with GAAP. 5 "Corporate Trust Office of the Trustee" shall be at the address of the Trustee specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to the Company. "Credit Facility" means, with respect to the Company or any Restricted Subsidiary of the Company, one or more debt facilities (including, without limitation, the Senior Credit Facility) or commercial paper facilities with banks or other institutional lenders providing for revolving credit loans, other borrowings (including term loans), receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit, in each case, as amended, restated, modified, renewed, extended, refunded, replaced or refinanced (in each case, without limitation as to amount) in whole or in part from time to time. "Custodian" means any receiver, trustee, assignee, liquidator, sequester or similar official under the Bankruptcy Code. "Default" means any event that is or with the passage of time or the giving of notice (or both) would be an Event of Default. "Definitive Note" means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, in the form of Exhibit A-1 hereto except that such Note shall not bear the Global Note Legend and shall not have the "Schedule of Exchanges of Interests in the Global Note" attached thereto. "Depositary" means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture. "Designated Senior Debt" means (i) any Indebtedness outstanding under the Senior Credit Facility and (ii) any other Senior Debt permitted hereunder the principal amount of which is $25,000,000 or more and that has been designated by the Company as "Designated Senior Debt." "Disqualified Stock" means, with respect to any Person, any Capital Stock to the extent that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or upon the happening of any event, it matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the Holder thereof, in whole or in part, on or prior to the date that is 91 days after the date on which the Notes mature, except such Capital Stock that is solely redeemable with, or solely exchangeable for, any Capital Stock of such Person that is not Disqualified Stock. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the Holders thereof have the right to require the Company or any of its Restricted Subsidiaries to repurchase Capital Stock upon the occurrence of a change of control or an asset sale shall not constitute Disqualified Stock if the terms of such Capital Stock provide that the Company or such Restricted Subsidiary may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 4.07 hereof. 6 "Equity Interests" means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock). "Equity Offering" means any public or private sale of Capital Stock of the Company (other than sales made to any Restricted Subsidiary of the Company and sales of Disqualified Stock) made for cash after the Issue Date. "Euroclear" means Euroclear Bank S.A./N.V. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Exchange Notes" has the meaning set forth in the preamble of this Indenture. "Exchange Offer" has the meaning set forth in a corresponding Registration Rights Agreement. "Exchange Offer Registration Statement" has the meaning set forth in a corresponding Registration Rights Agreement. "Existing Indebtedness" means the aggregate Indebtedness of the Company and its Restricted Subsidiaries (other than Indebtedness under the Senior Credit Facility and the Notes) in existence on the Issue Date. "Fair Market Value" means, with respect to consideration received or to be received, or given or to be given, pursuant to any transaction by the Company or any Restricted Subsidiary, the fair market value of such consideration as determined in good faith by the Board of Directors of the Company. "Financial Hedging Obligations" means, with respect to any Person, the net payment Obligations of such Person under (i) interest rate swap agreements, interest rate cap agreements and interest rate collar agreements and (ii) other agreements or arrangements designed to protect such Person against fluctuations in interest rates or currency exchange rates in connection with the conduct of its business and not for speculative purposes. "Fixed Charges" means, with respect to any Person for any period, the sum, without duplication, of: (i) the consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued (including, without limitation or duplication, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers' acceptance financings, and net payments (if any) pursuant to Hedging Obligations); (ii) the consolidated interest of such Person and its Restricted Subsidiaries that was capitalized during such period; (iii) any interest expense on Indebtedness of another Person that is guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries (whether or not such guarantee or Lien is called upon); and (iv) the product of: (a) all dividend payments, whether or not in cash, on any series of preferred stock of such Person or any of its 7 Restricted Subsidiaries, other than dividend payments on Equity Interests payable solely in Equity Interests of the Company (other than Disqualified Stock), times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case, on a consolidated basis and in accordance with GAAP. "Fixed Charge Coverage Ratio" means, with respect to any Person for any period, the ratio of the Consolidated Cash Flow of such Person for such period to the Fixed Charges of such Person for such period. In the event that the Company or any of its Restricted Subsidiaries incurs, assumes, guarantees or redeems any Indebtedness (other than revolving credit borrowings under any Credit Facility) or issues or redeems preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated but on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee or redemption of Indebtedness, or such issuance or redemption of preferred stock, as if the same had occurred at the beginning of the applicable four-quarter reference period. In addition, for purposes of making the computation referred to above: (i) acquisitions that have been made by the Company or any of its Restricted Subsidiaries, including through mergers or consolidations and including any related financing transactions, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date shall be deemed to have occurred on the first day of the four-quarter reference period and Consolidated Cash Flow for such reference period shall be calculated without giving effect to clause (iii) of the proviso set forth in the definition of Consolidated Net Income; (ii) the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed of prior to the Calculation Date, shall be excluded; and (iii) the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed of prior to the Calculation Date, shall be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the referent Person or any of its Restricted Subsidiaries following the Calculation Date. "GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants, the statements and pronouncements of the Financial Accounting Standards Board and such other statements by such other entities as have been approved by a significant segment of the accounting profession, which are applicable at the date of determination. "Global Note Legend" means the legend set forth in Section 2.06(g)(ii) hereof, which is required to be placed on all Global Notes issued under this Indenture. "Global Notes" means, individually and collectively, each of the Notes (which may be either Restricted Global Notes or Unrestricted Global Notes) issued or issuable in the global form of Exhibit A-1 (or in the case of Regulation S Temporary Global Notes, Exhibit A-2) hereto issued in accordance with Section 2.01, 2.06(b)(iv), 2.06(d)(iv) or 2.06(f) hereof. 8 "Government Securities" means direct obligations of, or obligations guaranteed by, the United States of America for the payment of which guarantees or obligations the full faith and credit of the United States is pledged. "Guarantee" means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including, without limitation, letters of credit and reimbursement agreements in respect thereof or pledging assets to secure), of all or any part of any Indebtedness. "Guarantors" means (i) each of Digicomp Inc., Far East Maritime Company, Gold Star Maritime Company, Kenai Pipe Line Company, Smiley's Super Service, Inc., Tesoro Alaska Company, Tesoro Alaska Pipeline Company, Tesoro Aviation Company, Tesoro Financial Services Holding Company, Tesoro Gas Resources Company, Inc., Tesoro Hawaii Corporation, Tesoro Marine Services Holding Company, Tesoro Marine Services, Inc., Tesoro Maritime Company, Tesoro Northstore Company, Tesoro Petroleum Companies, Inc., Tesoro South Pacific Petroleum Company, Tesoro Refining, Marketing & Supply Company, Tesoro Technology Company, Tesoro Vostok Company, Tesoro West Coast Company, Tesoro High Plains Pipeline Company and Victory Finance Company; (ii) each of the Company's Restricted Subsidiaries that becomes a guarantor of the Notes pursuant to Section 4.17 hereof; and (iii) each of the Company's Restricted Subsidiaries executing a supplemental indenture in which such Restricted Subsidiary agrees to be bound by the terms of this Indenture; provided that any Person constituting a Guarantor as described above shall cease to constitute a Guarantor when its respective Subsidiary Guarantee is released in accordance with the terms thereof. "Hedging Obligations" means, with respect to any Person, collectively, the Commodity Hedging Obligations of such Person and the Financial Hedging Obligations of such Person. "Holder" means a Person in whose name a Note is registered. "Indebtedness" means, with respect to any Person, without duplication, (i) the principal of and premium, if any, with respect to indebtedness of such Person for borrowed money or evidenced by bonds, notes, debentures or similar instruments; (ii) reimbursement obligations of such Person for letters of credit or banker's acceptances; (iii) Capital Lease Obligations of such Person; (iv) obligations of such Person for the payment of the balance deferred and unpaid of the purchase price of any property except any such balance that constitutes an accrued expense or trade payable; or (v) Hedging Obligations, in each case of the foregoing clauses (i) through (v) if and to the extent any of the foregoing obligations or indebtedness (other than letters of credit, banker's acceptances and Hedging Obligations), but excluding amounts recorded in accordance with Statement of Financial Accounting Standard No. 133, would appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP. In addition, the term "Indebtedness" includes: (A) obligations or indebtedness of others of the type referred to in the foregoing clauses (i) through (v) that are secured by a Lien on any asset of such Person (whether or not such Indebtedness is assumed by such Person), but in an amount not to exceed the lesser of the amount of such other Person's obligation or indebtedness or the Fair Market Value of such asset; and (B) to the extent not otherwise included, the guarantee by such Person of any obligations or indebtedness of others of the type referred to in the foregoing clauses (i) through 9 (v), whether or not such guarantee is contingent, and whether or not such guarantee appears on the balance sheet of such Person. "Indenture" means this Indenture, as amended or supplemented from time to time. "Independent Financial Advisor" means a nationally recognized accounting, appraisal or investment banking firm that is, in the reasonable judgment of the Board of Directors, qualified to perform the task for which such firm has been engaged hereunder and disinterested and independent with respect to the Company and its Affiliates; provided, that providing accounting, appraisal or investment banking services to the Company or any of its Affiliates or having an employee, officer or other representative serving as a member of the Board of Directors of the Company or any of its Affiliates will not disqualify any firm from being an Independent Financial Advisor. "Indirect Participant" means a Person who holds a beneficial interest in a Global Note through a Participant. "Initial Notes" has the meaning set forth in the preamble of this Indenture. "Initial Purchaser" has the meaning set forth in the respective Purchase Agreement. "Institutional Accredited Investor" means an institution that is an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act. "Investment Grade Rating" means a rating equal to or higher than Baa3 (or the equivalent) by Moody's or BBB- (or the equivalent) by S&P. "Investments" means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the forms of direct or indirect loans (including guarantees of Indebtedness or other Obligations), advances (other than advances to customers in the ordinary course of business which are recorded as accounts receivable on the balance sheet of the lender and commissions, moving, travel and similar advances to employees and officers made in the ordinary course of business) or capital contributions, purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. If the Company or any of its Restricted Subsidiaries sells or otherwise disposes of any Equity Interests of any direct or indirect Restricted Subsidiary of the Company such that, after giving effect to any such sale or disposition, such Person is no longer a direct or indirect Restricted Subsidiary of the Company, the Company, or such Restricted Subsidiary, as the case may be, shall be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Equity Interests of such Restricted Subsidiary not sold or disposed of in an amount determined as provided in the fourth paragraph of Section 4.07 hereof. "Issue Date" means the first date on which the Notes are issued, authenticated and delivered under this Indenture. "Legal Holiday" means a Saturday, a Sunday or a day on which banking institutions in the City of New York or at a place of payment are authorized by law, regulation or executive 10 order to remain closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. "Letter of Transmittal" means the letter of transmittal to be prepared by the Company and sent to all Holders of Initial Notes for use by such Holders in connection with an Exchange Offer. "Lien" means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law (including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in any asset and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction). "Liquidated Damages" means all liquidated damages then owing pursuant to Section 5 of the Registration Rights Agreement. "Moody's" means Moody's Investors Service, Inc., or any successor to the rating agency business thereof. "Net Income" means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends, excluding, however, (i) any gain (but not loss), together with any related provision for taxes on such gain (but not loss), realized in connection with (a) any Asset Sale (including, without limitation, dispositions pursuant to sale and leaseback transactions); or (b) the disposition of any securities by such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries; and (ii) any extraordinary or nonrecurring gain (but not loss), together with any related provision for taxes on such extraordinary or nonrecurring gain (but not loss). "Net Proceeds" means the aggregate cash proceeds or Cash Equivalents received by the Company or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of (i) the direct costs relating to such Asset Sale (including, without limitation, legal, accounting, investment banking and brokers fees, sales and underwriting commissions and other reasonable costs incurred in preparing such asset for sale) and any relocation expenses incurred as a result thereof, and any related severance and associated costs, expenses and charges of personnel related to the sold assets and related operations, (ii) taxes paid or reserved as payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements), (iii) amounts required to be applied to the repayment of Indebtedness (other than Indebtedness under any Credit Facility the repayment of which is expressly subordinate to the Notes) secured by a Lien on the asset or assets that were the subject of such Asset Sale, (iv) distributions and payments required to be made to minority interest holders in Restricted Subsidiaries as a result of such Asset Sale and (v) any reserve for adjustment (whether or not placed in escrow) in respect of the sale price of such asset or assets established in accordance with GAAP. 11 "Non-Recourse Indebtedness" means Indebtedness (i) as to which neither the Company nor any of its Restricted Subsidiaries, (a) provides any guarantee or credit support of any kind (including any undertaking, guarantee, indemnity, agreement or instrument that would constitute Indebtedness); or (b) is directly or indirectly liable (as a guarantor or otherwise); (ii) the incurrence of which will not result in any recourse against any of the assets of the Company or its Restricted Subsidiaries; and (iii) no default with respect to which would permit (upon notice, lapse of time or both) any holder of any other Indebtedness of the Company or any of its Restricted Subsidiaries to declare pursuant to the express terms governing such Indebtedness a default on such other Indebtedness or cause the payment thereof to be accelerated or payable prior to its Stated Maturity. "Non-U.S. Person" means a person who is not a U.S. Person. "Note Custodian" means the Trustee, as custodian for the Depositary with respect to the Notes in global form, or any successor entity thereto. "Notes" has the meaning assigned to it in the preamble to this Indenture. "Obligations" means any principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company or its Restricted Subsidiaries whether or not a claim for post-filing interest is allowed in such proceeding), penalties, fees, charges, expenses, indemnifications, reimbursement obligations, damages (including Liquidated Damages), guarantees (including the Subsidiary Guarantees) and other liabilities or amounts payable under the documentation governing any Indebtedness or in respect thereof. "Offering" means the offering of the Original Notes by the Company on the Issue Date. "Offering Memorandum" means (i) the Offering Memorandum of the Company dated November 1, 2001 with respect to the Offering, and (ii) any similar document of the Company dated subsequent to the Issue Date with respect to the offering of Initial Notes other than the Original Notes. "Officer" means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person. "Officers' Certificate" means a certificate signed on behalf of the Company by two Officers of the Company, one of whom must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Company, that meets the requirements of Section 12.05 hereof. "Opinion of Counsel" means an opinion from legal counsel who is reasonably acceptable to the Trustee, that meets the requirements of Section 12.05 hereof. The counsel may be an employee of or counsel to the Company, any Subsidiary of the Company or the Trustee. 12 "Participant" means, with respect to DTC, Euroclear or Clearstream, a Person who has an account with DTC, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream). "Participating Broker-Dealer" has the meaning set forth in a Registration Rights Agreement. "Permitted Business" means, with respect to the Company and its Restricted Subsidiaries, the businesses of (i) the acquisition, development, operation and disposition of interests in oil, gas and other hydrocarbon properties, (ii) the acquisition, gathering, treating, processing, storage, transportation of production from such interests or properties, (iii) the acquisition, processing, marketing, refining, distilling, storage and/or transportation of hydrocarbons and/or royalty or other interests in crude oil or refined or associated products related thereto, (iv) the acquisition, operation, improvement, leasing and other use of convenience stores, retail service stations, truck stops and other public accommodations in connection therewith, (v) the marketing and distribution of petroleum and marine products and the provision of logistical services to marine and offshore exploration and production industries, (vi) any business currently engaged in by the Company or its Restricted Subsidiaries and (vii) any activity or business that is a reasonable extension, development or expansion of, or reasonably related to, any of the foregoing. "Permitted Debt" means (i) the incurrence by the Company or any Guarantor of additional Indebtedness and letter of credit reimbursement obligations under one or more Credit Facilities (with letter of credit reimbursement obligations being deemed to have a principal amount equal to the maximum potential liability of the Company or its Restricted Subsidiaries for reimbursement obligations thereunder) in an aggregate principal amount not to exceed $800,000,0000 at any one time outstanding under this clause (i); (ii) the incurrence by the Company and the Guarantors of Indebtedness represented by the Original Notes, the Exchange Notes and the Subsidiary Guarantees; (iii) the incurrence by the Company or any of its Restricted Subsidiaries of Existing Indebtedness; (iv) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness other than Indebtedness incurred pursuant to clause (i) above; (v) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that (A) if the Company or any Guarantor is the obligor and a Restricted Subsidiary of the Company that is not a Guarantor is the obligee on such Indebtedness, such Indebtedness will be subordinated to the payment in full of all Obligations with respect to the Notes and (B) (1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (2) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be; (vi) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the purpose of financing all or any part of the purchase price or cost of construction, improvement or development of property, plant or equipment used in the Permitted Business (including, without limitation, oil and gas properties) of the Company or a Restricted Subsidiary of the Company or incurred to extend, refinance, renew, replace, defease or refund any such purchase price or cost of 13 construction, improvement or development, in each case in an aggregate principal amount not to exceed $50,000,000 at any time outstanding; (vii) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness incurred in the ordinary course of business under (A) documentary letters of credit, or surety bonds or insurance contracts, which are to be repaid in full not more than one year after the date on which such Indebtedness is originally incurred to finance the purchase of goods by the Company or a Restricted Subsidiary of the Company, (B) standby letters of credit, surety bonds or insurance contracts issued for the purpose of supporting (1) workers' compensation or similar liabilities of the Company or any of its Restricted Subsidiaries, or (2) performance, payment, deposit or surety obligations of the Company or any of its Restricted Subsidiaries and (C) bid, advance payment and performance bonds and surety bonds, or similar insurance contracts, for the Company and its Restricted Subsidiaries, and refinancings thereof; (viii) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness consisting of Hedging Obligations entered into in the ordinary course of business and not for speculative purposes; (ix) Indebtedness arising from agreements of the Company or any of its Restricted Subsidiaries providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with the disposition or acquisition of any business, assets or a Restricted Subsidiary of the Company or any business or assets of its Restricted Subsidiaries, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Restricted Subsidiary of the Company or any of its Restricted Subsidiaries for the purposes of financing such acquisition; provided, however, that (A) such Indebtedness is not reflected on the balance sheet of the Company or any of its Restricted Subsidiaries (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (A)) and (B) the maximum liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including noncash proceeds (the Fair Market Value of such noncash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Company and its Restricted Subsidiaries in connection with such disposition; (x) the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by Section 4.09 hereof (other than pursuant to this clause (x); provided, that the guarantee of any Indebtedness of a Restricted Subsidiary of the Company that ceases to be such a Restricted Subsidiary shall be deemed a Restricted Investment at the time such Restricted Subsidiary's status terminates in an amount equal to the maximum principal amount so guaranteed, for so long as, and to the extent that, such guarantee remains outstanding; (xi) the issuance by a Restricted Subsidiary of the Company of preferred stock to the Company or to any of its Restricted Subsidiaries; provided, however, that any subsequent event or issuance or transfer of any Equity Interests that results in the owner of such preferred stock ceasing to be the Company or any of its Restricted Subsidiaries or any subsequent transfer of such preferred stock to a Person, other than the Company or one of its Restricted Subsidiaries, shall be deemed to be an issuance of preferred stock by such Subsidiary that was not permitted by this clause (xi); and (xii) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness (in addition to Indebtedness permitted by any other clause of this paragraph) in an aggregate principal amount (or accreted value, as applicable) at any time outstanding not to exceed $50,000,000. "Permitted Investments" means (a) any Investment in the Company or in a Restricted Subsidiary of the Company; (b) any Investment in Cash Equivalents or deposit accounts 14 maintained in the ordinary course of business consistent with past practices; (c) any Investment by the Company or any Restricted Subsidiary of the Company in a Person, if as a result of such Investment (i) such Person becomes a Restricted Subsidiary of the Company; or (ii) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys all or substantially all of its assets to, or is liquidated into, the Company or a Restricted Subsidiary of the Company; (d) any security or other Investment received or Investment made as a result of the receipt of non-cash consideration from (i) an Asset Sale that was made pursuant to and in compliance with Section 4.10 hereof; or (ii) a disposition of assets that do not constitute an Asset Sale; (e) any acquisition of assets solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Company; (f) any Investment received in settlement of debts, claims or disputes owed to the Company or any Restricted Subsidiary of the Company that arose out of transactions in the ordinary course of business; (g) any Investment received in connection with or as a result of a bankruptcy, workout or reorganization of any Person; (h) advances and extensions of credit in the nature of accounts receivable arising from the sale or lease of goods or services or the licensing of property in the ordinary course of business; (i) relocation allowances for, and advances and loans to, employees, officers and directors (including, without limitation, loans and advances the net cash proceeds of which are used solely to purchase Equity Interests of the Company in connection with restricted stock or employee stock purchase plans, or to exercise stock received pursuant thereto or other incentive plans in a principal amount not to exceed the aggregate exercise or purchase price), or loans to refinance principal and accrued interest on any such loans, provided that the aggregate principal amount of such loans, advances and allowances shall not exceed at any time $10,000,000; (j) other Investments by the Company or any Restricted Subsidiary of the Company in any Person having an aggregate Fair Market Value (measured as of the date each such Investment is made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (j) (net of returns of capital, dividends and interest paid on Investments and sales, liquidations and redemptions of Investments), not in excess of the greater of $50,000,000 and 15% of the Consolidated Net Worth of the Company; (k) Investments in the form of intercompany Indebtedness or Guarantees of Indebtedness of a Restricted Subsidiary of the Company permitted under clauses (v) and (xii) of the definition of "Permitted Debt"; (l) Investments arising in connection with Hedging Obligations that are incurred in the ordinary course of business for the purpose of fixing or hedging currency, commodity or interest rate risk in connection with the conduct of the business of the Company and its Subsidiaries and not for speculative purposes; (m) Investments in the form of, or pursuant to, operating agreements, joint ventures, partnership agreements, working interests, royalty interests, mineral leases, processing agreements, farm-out agreements, contracts for the sale, transportation or exchange of oil and natural gas, unitization agreements, pooling agreements, area of mutual interests agreements, production sharing agreements or other or other similar or customary agreements, transactions, properties, interests or arrangements, and Investments and expenditures in connection therewith or pursuant thereto, in each case made or entered into the ordinary course of the business described in clauses (i) and (ii) of the definition of "Permitted Business" excluding, however, investments in corporations; (n) any Investments in prepaid expenses, negotiable instruments held for collection and lease, utility, worker's compensation, performance and other similar deposits and prepaid expenses made in the ordinary course of business; and (o) Investments pursuant to agreements and obligations of the Company and any Restricted Subsidiary in effect on the Issue Date. 15 "Permitted Junior Securities" means (i) Equity Interests in the Company or any Guarantor which, to the extent received by any Holder in connection with any bankruptcy, reorganization, insolvency or similar proceeding in which any Equity Interests are also exchanged for or distributed in respect of Senior Debt, are either common equity securities or are subordinated to all such Equity Interests so exchanged or distributed to substantially the same extent as, or to a greater extent than, the Notes are subordinated to Senior Debt pursuant to this Indenture; and (ii) debt securities that are subordinated to all Senior Debt (and any debt securities issued in exchange for Senior Debt) to substantially the same extent as, or to a greater extent than, the Notes are subordinated to Senior Debt pursuant to this Indenture. "Permitted Refinancing Indebtedness" means any Indebtedness of the Company or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund other Indebtedness of the Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness), including Indebtedness that extends, refinances, renews, replaces, defeases or refunds Permitted Refinancing Indebtedness, provided that: (i) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount of (or accreted value, if applicable), plus accrued and unpaid interest on, the Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded (plus fees and expenses incurred in connection therewith, including any premium or defeasance cost); (ii) such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; (iii) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the Notes, such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and is subordinated in right of payment to, the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; and (iv) such Indebtedness is incurred either by the Company or a Restricted Subsidiary who is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded. "Person" means any individual, corporation, partnership, joint venture, association, joint stock company, trust, limited liability company, unincorporated organization, government or any agency or political subdivision thereof or any other entity. "preferred stock" means any Capital Stock of a Person, however designated, which entitles the holder thereof to a preference with respect to dividends, distributions or liquidation proceeds of such Person over the holders of the other Capital Stock issued by such Person. "Private Placement Legend" means the legend set forth in Section 2.06(g)(i) hereof to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture. "Purchase Agreement" means (i) the Purchase Agreement dated November 1, 2001 among the Company, the Guarantors and each Initial Purchaser relating to the Offering, and (ii) any similar agreement dated subsequent to the Issue Date among the Company, the Guarantors 16 and each Initial Purchaser relating to the offering of Initial Notes other than the Original Notes, in each case as such agreement may be amended, modified or supplemented from time to time. "QIB" means a "qualified institutional buyer" as defined in Rule 144A. "Rating Agency" means each of S&P and Moody's, or if S&P or Moody's or both shall not make a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company (as certified by a resolution of the Board of Directors) which shall be substituted for S&P or Moody's, or both, as the case may be. "Registration Rights Agreement" means (i) the Registration Rights Agreement, dated as of the Issue Date, by and among the Company and the other parties named on the signature pages thereof relating to the Original Notes, attached hereto as Exhibit F, and (ii) any similar agreement that the Company and other parties may enter into in relation to any other Initial Notes, in each case as such agreement may be amended, modified or supplemented from time to time. "Regulation S" means Regulation S promulgated under the Securities Act. "Regulation S Global Note" means a Regulation S Temporary Global Note or Regulation S Permanent Global Note, as appropriate. "Regulation S Permanent Global Note" means a permanent global Note in the form of Exhibit A-1 hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Regulation S Temporary Global Note upon expiration of the Restricted Period. "Regulation S Temporary Global Note" means a temporary global Note in the form of Exhibit A-2 hereto bearing the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes initially sold in reliance on Rule 903 of Regulation S. "Representative" means the administrative agent under the Senior Credit Facility or its successor thereunder or any other agent or representative on behalf of the holders of Designated Senior Debt. "Responsible Officer," when used with respect to the Trustee, means any officer, including, without limitation, any vice president, assistant vice president, assistant treasurer or secretary within the Corporate Trust Administration of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to particular corporate trust matter, any other officer or employee to whom such matter is referred because of his knowledge of and familiarity with the particular subject. "Restricted Definitive Note" means a Definitive Note bearing the Private Placement Legend. 17 "Restricted Global Note" means a Global Note bearing the Private Placement Legend. "Restricted Investment" means an Investment other than a Permitted Investment. "Restricted Period" means the 40-day distribution compliance period as set forth in Regulation S, which period shall be terminated with respect to any Regulation S Temporary Global Note as provided in Section 2.01. "Restricted Subsidiary" of a Person means any Subsidiary of the referenced Person that is not an Unrestricted Subsidiary or a direct or indirect Subsidiary of an Unrestricted Subsidiary; provided that, on the Issue Date, all Subsidiaries of the Company shall be Restricted Subsidiaries of the Company. "Rule 144" means Rule 144 promulgated under the Securities Act. "Rule 144A" means Rule 144A promulgated under the Securities Act. "Rule 144A Global Note" means the Global Note in the form of Exhibit A-1 hereto bearing the Global Note Legend and the Private Placement Legend and deposited with and registered in the name of the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A. "Rule 903" means Rule 903 promulgated under the Securities Act. "Rule 904" means Rule 904 promulgated under the Securities Act. "S&P" means Standard & Poor's Ratings Group, Inc., or any successor to the rating agency business thereof. "SEC" means the Securities and Exchange Commission. "Securities Act" means the Securities Act of 1933, as amended. "Senior Credit Facility" means those certain senior secured credit facilities of the Company available pursuant to the Credit Agreement, by and among the Company, Lehman Brothers Inc., as Arranger, Lehman Commercial Paper Inc., as Syndication Agent, ABN AMRO Bank N.V., Bank of America, N.A., Credit Lyonnais New York Branch and The Bank of Nova Scotia, as Co-Documentation Agents, Bank One, NA, as Administrative Agent, and certain other lenders and agents, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith and in each case as amended, modified, renewed, restated, refunded, replaced or refinanced (in each case, without limitation as to amount), in whole or in part, from time to time and any agreements (and related documents) governing Indebtedness incurred to refund or refinance credit extensions and commitments then outstanding or permitted to be outstanding under such Senior Credit Facility, whether by the same or any other lender or group of lenders. The Company shall promptly notify the Trustee of any such refunding or refinancing of the existing Senior Credit Facility. 18 "Senior Debt" means (i) Indebtedness of the Company or any Guarantor for money borrowed and all obligations of such Person under, or with respect to, the Senior Credit Facility or any other Credit Facility, whether direct or indirect, under guarantees, letters of credit, banker's acceptances, foreign currency or interest rate swaps, foreign exchange contracts, caps, collars, options, hedges or other agreements or arrangements designed to protect against fluctuations in currency values or interest rates and other Hedging Obligations, other extensions of credit, expenses, fees, reimbursements, indemnities and all other amounts (including interest at the contract rate accruing on or after the filing of any petition in bankruptcy or reorganization relating to the Company or any Guarantor whether or not a claim for post-filing interest is allowed in such proceeding); (ii) the principal of and premium, if any, and accrued and unpaid interest, whether existing on the date hereof or hereafter incurred, in respect of (A) indebtedness of the Company or any Guarantor for money borrowed; (B) guarantees by the Company or any Guarantor of indebtedness for money borrowed by any other Person; (C) indebtedness evidenced by notes, debentures, bonds, or other instruments for the payment of which the Company or any Guarantor is responsible or liable, by guarantees or otherwise; (D) obligations of the Company or any Guarantor for the reimbursement of any obligor on any letter of credit, banker's acceptance or similar credit transaction; (E) obligations of the Company or any Guarantor under any agreement to lease, or any lease of, any real or personal property which, in accordance with GAAP, is classified on the Company's or any Guarantor's consolidated balance sheet as a liability; (F) obligations of the Company or any Guarantor under Hedging Obligations; and (G) modifications, renewals, extensions, replacements, refinancings and refundings of any such indebtedness, obligations or guarantees, unless, in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is expressly provided that such indebtedness, obligations or guarantees, or such modifications, renewals, extensions, replacements, refinancings or refundings thereof, are not superior in right of payment to the Notes; provided that Senior Debt will not be deemed to include (a) Indebtedness represented by preferred stock; (b) any obligation of the Company or any Guarantor to any Subsidiary or other Affiliate; (c) any liability for federal, state, local or other taxes owed or owing by the Company or any Guarantor; (d) any accounts payable or other liability to trade creditors; (e) any Indebtedness, guarantee or obligation of the Company or any Guarantor which is expressly subordinate or junior by its terms in right of payment to any other Indebtedness, guarantee or obligation of the Company or any Guarantor; (f) that portion of any Indebtedness incurred in violation of Section 4.09 hereof (other than Indebtedness incurred under a Credit Facility if prior to the incurrence thereof or, in the case of contingent obligations such as letters of credit pursuant to which such Indebtedness is incurred, prior to the issuance thereof or agreement to extend credit in respect thereof, the Company has certified to the lenders under such Credit Facility that the incurrence or extension of credit does not violate such covenant); or (g) Indebtedness of the Company or any Guarantor which is classified as non-recourse in accordance with GAAP or any unsecured claim arising in respect thereof by reason of the application of section 1111(b)(1) of the Bankruptcy Code. "Shelf Registration Statement" has the meaning set forth in a corresponding Registration Rights Agreement. "Significant Subsidiary" means any Subsidiary that would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the Issue Date. 19 "Stated Maturity" means, with respect to any installment of interest or principal, or sinking fund or mandatory redemption of principal, on any series of Indebtedness, the date on which such payment of interest or principal was scheduled to be paid or made, as applicable, in the original documentation governing such Indebtedness, and shall not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof. "Subsidiary" means, with respect to any Person, (i) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person and (ii) any partnership (a) the sole general partner or the managing general partner of which is such Person or an entity described in clause (i) and related to such Person or (b) the only general partners of which are such Person or of one or more entities described in clause (i) and related to such Person (or any combination thereof). "Subsidiary Guarantee" means the guarantee of the Notes (including any Exchange Notes) by each of the Guarantors pursuant to Article XI hereof and in the related form of guarantee notation endorsed on the form of Note attached hereto as Exhibit A-1 or A-2 and any additional guarantee of the Notes (including any Exchange Notes) to be executed by any Restricted Subsidiary of the Company pursuant to Section 4.17. "TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) as in effect on the date on which this Indenture is qualified under the TIA. "Trustee" means the party named as such above until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder. "Unrestricted Definitive Note" means one or more Definitive Notes that do not bear and are not required to bear the Private Placement Legend. "Unrestricted Global Note" means a permanent Global Note in the form of Exhibit A-1 attached hereto that bears the Global Note Legend and that has the "Schedule of Exchanges of Interests in the Global Note" attached thereto, and that is deposited with or on behalf of and registered in the name of the Depositary, representing a series of Notes that do not bear the Private Placement Legend. "Unrestricted Subsidiary" means (i) any Subsidiary of the Company (including any newly acquired or newly formed Subsidiary of the Company) that is designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors as certified in an Officers' Certificate delivered to the Trustee and (ii) each Subsidiary of an Unrestricted Subsidiary, whenever it shall become such a Subsidiary. The Board of Directors may designate any Subsidiary of the Company to become an Unrestricted Subsidiary if it (a) has no Indebtedness other than Non-Recourse Indebtedness; (b) is not party to any agreement, contract, arrangement or understanding with the Company or any Restricted Subsidiary of the Company unless the terms of any such agreement, contract, arrangement or understanding are no 20 less favorable to the Company or such Restricted Subsidiary than those that might be obtained, in light of all the circumstances, at the time from Persons who are not Affiliates of the Company; (c) is a Person with respect to which neither the Company nor any of its Restricted Subsidiaries has any direct or indirect obligation (x) to subscribe for additional Equity Interests or (y) to maintain or preserve such Person's financial condition or to cause such Persons to achieve any specified levels of operating results; (d) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of the Company or any of its Restricted Subsidiaries; and (e) does not own any Capital Stock of or own or hold any Lien on any property of, the Company or any Restricted Subsidiary of the Company; and (f) would constitute an Investment which the Company could make in compliance with Section 4.07. Notwithstanding the foregoing, if, at any time, any Unrestricted Subsidiary would fail to meet the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred as of such date. "U.S." means the United States of America. "U.S. Person" means a U.S. person as defined in Rule 902(o) under the Securities Act. "Voting Stock" of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person. "Weighted Average Life to Maturity" means, when applied to any Indebtedness at any date, the number of years obtained by dividing (i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment, by (ii) the then outstanding principal amount of such Indebtedness. SECTION 1.02. Other Definitions.
DEFINED IN TERM SECTION ---- ---------- "Affiliate Transaction"....................................................... 4.11 "Asset Sale Offer"............................................................ 3.09 "Change of Control Offer"..................................................... 4.15 "Change of Control Payment"................................................... 4.15 "Change of Control Payment Date".............................................. 4.15 "Covenant Defeasance"......................................................... 8.03 "DTC"......................................................................... 2.03 "Event of Default"............................................................ 6.01 "Excess Proceeds"............................................................. 4.10 "Funding Guarantor"........................................................... 11.05 "incur"....................................................................... 4.09 "Legal Defeasance"............................................................ 8.02 "Nonpayment Default".......................................................... 10.03
21
DEFINED IN TERM SECTION ---- ---------- "Offer Amount"................................................................ 3.09 "Offer Period"................................................................ 3.09 "Original Notes".............................................................. 2.02 "Paying Agent"................................................................ 2.03 "Payment Blockage Default..................................................... 10.03 "Payment Default"............................................................. 6.01 "Permitted Debt".............................................................. 4.09 "Purchase Date"............................................................... 3.09 "Registrar"................................................................... 2.03 "Restricted Payments"......................................................... 4.07
SECTION 1.03. Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings: "indenture securities" means the Notes; "indenture security Holder" means a Holder of a Note; "indenture to be qualified" means this Indenture; "indenture trustee" or "institutional trustee" means the Trustee; and "obligor" on the Notes means the Company and any successor obligor upon the Notes. All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA have the meanings so assigned to them. SECTION 1.04. Rules of Construction. Unless the context otherwise requires: (1) a term has the meaning assigned to it; (2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (3) "or" is not exclusive, and "including" means "including without limitation," "including but not limited to" or words of similar import; (4) words in the singular include the plural, and in the plural include the singular; 22 (5) provisions apply to successive events and transactions; and (6) references to sections of or rules under the Securities Act shall be deemed to include substitute, replacement of successor sections or rules adopted by the SEC from time to time. ARTICLE II THE NOTES SECTION 2.01. Form and Dating. The Notes and the Trustee's certificate of authentication shall be substantially in the form of Exhibit A-1 (or in the case of a Regulation S Temporary Global Note, Exhibit A-2) hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note shall be dated the date of its authentication. The Notes shall be in denominations of $1,000 and integral multiples thereof. Subject to Section 4.17 and 11.02 hereof, the Notes may bear notations of Subsidiary Guarantees. The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture, and the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note or any notation of Subsidiary Guarantees thereon conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling. Notes issued in global form shall be substantially in the form of Exhibit A-1 or A-2 attached hereto (including the Global Note Legend and the "Schedule of Exchanges in the Global Note" attached thereto). Notes issued in definitive form shall be substantially in the form of Exhibit A-1 attached hereto (but without the Global Note Legend and without the "Schedule of Exchanges of Interests in the Global Note" attached thereto). Each Global Note shall represent such aggregate principal amount of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee, the Depositary or the Note Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof. Notes offered and sold in reliance on Regulation S shall be issued initially in the form of the Regulation S Temporary Global Note, which shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as Note Custodian for the Depositary, and registered in the name of the nominee of the Depositary for credit to the accounts of designated agents holding on behalf of Euroclear or Clearstream, duly executed by the Company and 23 authenticated by the Trustee as hereinafter provided. The Restricted Period shall be terminated upon the receipt by the Trustee of (i) a written certificate from the Depositary, together with copies of certificates from Euroclear and Clearstream certifying that they have received certification of non-United States beneficial ownership of 100% of the aggregate principal amount of the Regulation S Temporary Global Note (except to the extent of any beneficial owners thereof who acquired an interest therein during the Restricted Period pursuant to another exemption from registration under the Securities Act and who will take delivery of a beneficial ownership interest in a Rule 144A Global Note or a Restricted Definitive Note bearing a Private Placement Legend, to the extent permitted by Section 2.06(b) hereof) or an Opinion of Counsel to the effect that no such certification is required under Regulation S, and (ii) an Officers' Certificate from the Company certifying to the effect that the 40-day distribution compliance period applicable to the Regulation S Temporary Global Note has expired. Following the termination of the Restricted Period, beneficial interests in the Regulation S Temporary Global Note shall be exchanged for beneficial interests in one or more Regulation S Permanent Global Notes pursuant to the Applicable Procedures. Simultaneously with the authentication of Regulation S Permanent Global Notes, the Trustee shall cancel the Regulation S Temporary Global Note. The aggregate principal amount of the Regulation S Temporary Global Note and the Regulation S Permanent Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee, as the case may be, in connection with transfers of interest as hereinafter provided. The provisions of the "Operating Procedures of the Euroclear System" and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and Conditions of Clearstream Bank" and "Customer Handbook" of Clearstream shall be applicable to transfers of beneficial interests in the Regulation S Temporary Global Note and the Regulation S Permanent Global Notes that are held by members of, or Participants, in DTC through Euroclear or Clearstream. SECTION 2.02. Execution and Authentication. One Officer shall sign the Notes for the Company by manual or facsimile signature. If an Officer of the Company whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid. A Note shall not be valid until authenticated by the manual signature of the Trustee. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture. The Trustee shall authenticate (i) the Initial Notes for original issue on the Issue Date in the aggregate principal amount of $215,000,000 (the "Original Notes"), (ii) additional Initial Notes for original issue from time to time after the Issue Date in such principal amounts as may be set forth in a written order of the Company described in this sentence (such Notes, together with the Original Notes, the "Initial Notes"); provided that the issuance of such additional Initial Notes shall be subject to Section 4.09 and (iii) any Exchange Notes from time to time for issue only in exchange for a like principal amount of Initial Notes, in each case, upon a written order of the Company signed by one Officer, which written order shall specify (a) the amount of Notes to be authenticated and the date of original issue thereof, (b) whether the Notes are Initial Notes or Exchange Notes and (c) the amount of Notes to be issued in global form or definitive form. 24 The aggregate principal amount of Notes outstanding at any time may not exceed $215,000,000 plus such additional principal amounts as may be issued and authenticated pursuant to clause (ii) of this paragraph, except as provided in Section 2.07 hereof. The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Company. SECTION 2.03. Registrar and Paying Agent. The Company shall maintain an office or agency within the City and State of New York where Notes may be presented for registration of transfer or for exchange ("Registrar") and an office or agency where Notes may be presented for payment ("Paying Agent"). The Registrar shall keep a register of the Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term "Registrar" includes any co-registrar and the term "Paying Agent" includes any additional paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company shall promptly notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar. The Company initially appoints The Depository Trust Company ("DTC") to act as Depositary with respect to the Global Notes. The Trustee has been appointed by DTC to act as Note Custodian with respect to the Global Notes. The Company initially appoints the Trustee to act as the Registrar and Paying Agent. SECTION 2.04. Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal of, or premium or Liquidated Damages, if any, or interest on, the Notes, and will notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for the money. If the Company or an Affiliate of the Company (including any Subsidiary) acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the Notes. 25 SECTION 2.05. Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the Company shall provide to a Responsible Officer of the Trustee at least seven Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes and the Company shall otherwise comply with TIA Section 312(a). SECTION 2.06. Transfer and Exchange. (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a whole except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Company for Definitive Notes if (i) the Company delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary for the Global Notes or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Company within 90 days after the date of such notice from the Depositary or (ii) the Company in its sole discretion notifies the Trustee in writing that it elects to cause issuance of the Notes in certificated form; provided that in no event shall the Regulation S Temporary Global Note be exchanged by the Company for Definitive Notes prior to (x) the expiration of the Restricted Period and (y) the receipt by the Registrar of any certificates required pursuant to Rule 903 under the Securities Act or an Opinion of Counsel to the effect that such certificates are not required pursuant to Rule 903. Upon the occurrence of either of the preceding events in (i) or (ii) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.11 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to Section 2.07 or 2.11 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof. (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also shall require compliance with either subparagraph (i) or (ii) below, as applicable, as well as one or more of the other following subparagraphs as applicable: (i) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take 26 delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided, however, that prior to the expiration of the Restricted Period transfers of beneficial interests in the Regulation S Temporary Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Beneficial interests in any Unrestricted Global Note may be transferred only to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(i). (ii) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial interests (other than a transfer of a beneficial interest in a Global Note to a Person who takes delivery thereof in the form of a beneficial interest in the same Global Note), the transferor of such beneficial interest must deliver to the Registrar (A) (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase or (B) (1) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (1) above; provided that in no event shall Definitive Notes be issued upon the transfer or exchange of beneficial interests in the Regulation S Temporary Global Note prior to (x) the expiration of the Restricted Period and (y) the receipt by the Registrar of any certificates required pursuant to Rule 903 under the Securities Act. Upon an Exchange Offer by the Company in accordance with Section 2.06(f) hereof, the requirements of this Section 2.06(b)(ii) shall be deemed to have been satisfied upon receipt by the Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder of such beneficial interests in the Restricted Global Notes. Upon notification from the Registrar that all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture, the Notes and otherwise applicable under the Securities Act have been satisfied, the Trustee shall adjust the principal amount of the relevant Global Notes pursuant to Section 2.06(h) hereof. (iii) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of clause (ii) above and the Registrar receives the following: (A) if the transferee will take delivery in the form of a beneficial interest in the Rule 144A Global Note, then the transferor must deliver 27 a certificate in the form of Exhibit B hereto, including the certifications in Item (1) thereof; or (B) if the transferee will take delivery in the form of the Regulation S Temporary Global Note or the Regulation S Permanent Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in Item (2) thereof. (iv) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in the Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of clause (ii) above and: (A) such exchange or transfer is effected pursuant to an Exchange Offer in accordance with the corresponding Registration Rights Agreement and the holder of the beneficial interest to be transferred, in the case of an exchange, or the transferee, in the case of a transfer, is not (1) a broker-dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Company; (B) any such transfer is effected pursuant to a Shelf Registration Statement in accordance with the corresponding Registration Rights Agreement; (C) any such transfer is effected by a Participating Broker-Dealer pursuant to an Exchange Offer Registration Statement in accordance with the corresponding Registration Rights Agreement; or (D) the Registrar receives the following: (1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in Item (1)(a) thereof; (2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in Item (4) thereof; and (3) in each such case set forth in this subparagraph (D), an Opinion of Counsel in form reasonably acceptable to the Trustee and the Company to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are not required in order to maintain compliance with the Securities Act. 28 If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an authentication order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of beneficial interests transferred pursuant to subparagraph (B) or (D) above. Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note. (c) Transfer or Exchange of Beneficial Interests for Definitive Notes. (i) If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon receipt by the Registrar of the following documentation: (A) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in Item (2)(a) thereof; (B) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in Item (1) thereof; (C) if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in Item (2) thereof; (D) if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144 under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in Item (3)(a) thereof; (E) if such beneficial interest is being transferred to an Institutional Accredited Investor or in reliance on any other exemption from the registration requirements of the Securities Act, in either case other than those listed in subparagraphs (B) through (D) above, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and any Opinion of Counsel required by Item (3) thereof, if applicable; (F) if such beneficial interest is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in Item (3)(b) thereof; or 29 (G) if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in Item (3)(c) thereof, the Trustee, upon notice of receipt of such documentation by the Registrar, shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Company shall execute and the Trustee shall authenticate and make available for delivery to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall make available for delivery such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein. (ii) Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a beneficial interest in the Regulation S Temporary Global Note may not be (A) exchanged for a Definitive Note prior to (x) the expiration of the Restricted Period and (y) the receipt by the Registrar of any certificates required pursuant to Rule 903(c)(3)(B) under the Securities Act or (B) transferred to a Person who takes delivery thereof in the form of a Definitive Note prior to the conditions set forth in clause (A) above or unless the transfer is pursuant to an exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904. (iii) Notwithstanding 2.06(c)(i) hereof, a holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if: (A) such exchange or transfer is effected pursuant to an Exchange Offer in accordance with the corresponding Registration Rights Agreement and the holder of such beneficial interest, in the case of an exchange, or the transferee, in the case of a transfer, is not (1) a broker-dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Company; (B) any such transfer is effected pursuant to a Shelf Registration Statement in accordance with the corresponding Registration Rights Agreement; (C) any such transfer is effected by a Participating Broker-Dealer pursuant to an Exchange Offer Registration Statement in accordance with the corresponding Registration Rights Agreement; or 30 (D) the Registrar receives the following: (1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Definitive Note that does not bear the Private Placement Legend, a certificate from such holder in the form of Exhibit C hereto, including the certifications in Item (1)(b) thereof; (2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a Definitive Note that does not bear the Private Placement Legend, a certificate from such holder in the form of Exhibit B hereto, including the certifications in Item (4) thereof; and (3) in each such case set forth in this subparagraph (D), an Opinion of Counsel in form reasonably acceptable to the Trustee and the Company, to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are not required in order to maintain compliance with the Securities Act. (iv) If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon notice by the Registrar of satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Company shall execute and the Trustee shall authenticate and make available for delivery to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall make available for delivery such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall not bear the Private Placement Legend. A beneficial interest in an Unrestricted Global Note cannot be exchanged for a Definitive Note bearing the Private Placement Legend or transferred to a Person who takes delivery thereof in the form of a Definitive Note bearing the Private Placement Legend. (d) Transfer and Exchange of Definitive Notes for Beneficial Interests. (i) If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation: 31 (A) if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in Item (2)(b) thereof; (B) if such Definitive Note is being transferred to a QIB in accordance with Rule 144A under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in Item (1) thereof; (C) if such Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in Item (2) thereof; (D) if such Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144 under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in Item (3)(a) thereof; (E) if such Definitive Note is being transferred to an Institutional Accredited Investor or in reliance on any other exemption from the registration requirements of the Securities Act, in either case, other than those listed in subparagraphs (B) through (D) above, a certificate in the form of Exhibit B hereto, including certifications, certificates, and any Opinion of Counsel required by Item (3) thereof, if applicable; (F) if such Definitive Note is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in Item (3)(b) thereof; or (G) if such Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in Item (3)(c) thereof, the Trustee, upon notice of receipt of such documentation by the Registrar, shall cancel the Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of subparagraph (A) above, the appropriate Restricted Global Note and, in the case of subparagraph (B) above, the Rule 144A Global Note, and, in the case of subparagraph (C) above, the Regulation S Global Note. (ii) A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if: (A) such exchange or transfer is effected pursuant to an Exchange Offer in accordance with the corresponding Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the 32 case of a transfer, is not (1) a broker-dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Company; (B) any such transfer is effected pursuant to a Shelf Registration Statement in accordance with the corresponding Registration Rights Agreement; (C) any such transfer is effected by a Participating Broker-Dealer pursuant to an Exchange Offer Registration Statement in accordance with the corresponding Registration Rights Agreement; or (D) the Registrar receives the following: (1) if the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in Item (1)(c) thereof; (2) if the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in Item (4) thereof; and (3) in each such case set forth in this subparagraph (D), an Opinion of Counsel in form reasonably acceptable to the Trustee and the Company to the effect that such exchange or transfer is in compliance with the Securities Act, that the restrictions on transfer contained herein and in the Private Placement Legend are not required in order to maintain compliance with the Securities Act, and such Definitive Notes are being exchanged or transferred in compliance with any applicable blue sky securities laws of any State of the United States. Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note. (iii) A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes. (iv) If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an authentication order in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate 33 principal amount equal to the principal amount of beneficial interests transferred pursuant to subparagraphs (ii)(B), (ii)(D) or (iii) above. (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder's compliance with the provisions of this Section 2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by his attorney, duly authorized in writing. In addition, the requesting Holder shall provide any additional certifications, documents and information, as applicable, pursuant to the provisions of this Section 2.06(e). (i) Restricted Definitive Notes may be transferred to and registered in the name of Persons who take delivery thereof if the Registrar receives the following: (A) if the transfer will be made pursuant to Rule 144A under the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in Item (1) thereof; (B) if the transfer will be made pursuant to Rule 903 or Rule 904 of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in Item (2) thereof; and (C) if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by Item (3) thereof, if applicable. (ii) Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if: (A) such exchange or transfer is effected pursuant to an Exchange Offer in accordance with the corresponding Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, is not (1) a broker-dealer, (2) a Person participating in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Company; (B) any such transfer is effected pursuant to a Shelf Registration Statement in accordance with the corresponding Registration Rights Agreement; (C) any such transfer is effected by a Participating Broker-Dealer pursuant to an Exchange Offer Registration Statement in accordance with the corresponding Registration Rights Agreement; or 34 (D) the Registrar receives the following: (1) if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in Item (1)(b) thereof; (2) if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in Item (4) thereof; and (3) in each such case set forth in this subparagraph (D), an Opinion of Counsel in form reasonably acceptable to the Trustee and the Company to the effect that such exchange or transfer is in compliance with the Securities Act, that the restrictions on transfer contained herein and in the Private Placement Legend are not required in order to maintain compliance with the Securities Act, and such Restricted Definitive Note is being exchanged or transferred in compliance with any applicable blue sky securities laws of any State of the United States. (iii) A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request for such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof. Unrestricted Definitive Notes cannot be exchanged for or transferred to Persons who take delivery thereof in the form of a Restricted Definitive Note. (f) Exchange Offer. Upon the occurrence of an Exchange Offer in accordance with the corresponding Registration Rights Agreement, the Company shall issue and, upon receipt of (A) an authentication order in accordance with Section 2.02 hereof and (B) an Opinion of Counsel opining as to the enforceability of the Exchange Notes and the guarantees thereof, the Trustee shall authenticate (i) one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of the beneficial interests in the Restricted Global Notes tendered for acceptance by Persons that are not (1) broker-dealers, (2) Persons participating in the distribution of the Exchange Notes or (3) Persons who are affiliates (as defined in Rule 144) of the Company and accepted for exchange in such Exchange Offer and (ii) Definitive Notes in an aggregate principal amount equal to the principal amount of the Restricted Definitive Notes accepted for exchange in such Exchange Offer, unless the Holders of such Restricted Definitive Notes shall request the receipt of Definitive Notes, in which case the Company shall execute and the Trustee shall authenticate and deliver to the Persons designated by the Holders of such Restricted Definitive Notes one or more Definitive Notes without the Private Placement Legend in the appropriate principal amount. Concurrent with the issuance of such Unrestricted Global Notes, the Trustee shall cause the aggregate principal amount of the applicable Restricted Global Notes to be reduced accordingly, and the Company shall execute and the Trustee shall authenticate and make available for delivery to the Persons designated by the Holders of Definitive Notes so accepted Definitive Notes in the appropriate principal amount. 35 (g) Legends. The following legends shall appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture. (i) Private Placement Legend. (A) Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form: "THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES (1) NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO (X) THE DATE THAT IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR ANY PREDECESSOR OF THIS SECURITY) AND THE LAST DAY ON WHICH TESORO PETROLEUM CORPORATION (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION DATE"), EXCEPT (A) TO THE COMPANY OR A SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT IS ACQUIRING SUCH NOTE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS RELATING TO RESTRICTIONS ON TRANSFER OF THE NOTE EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (E) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR IN AN "OFFSHORE TRANSACTION" WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND (2) THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE 36 COMPANY, THE TRUSTEE, THE TRANSFER AGENT AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (C), (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, (2) AN INSTITUTIONAL ACCREDITED INVESTOR, (3) A NON-U.S. PERSON AND IS ACQUIRING THE NOTE IN AN "OFFSHORE TRANSACTION" PURSUANT TO REGULATION S UNDER THE SECURITIES ACT OR (4) IT IS A PERSON ELIGIBLE TO BE TRANSFERRED THIS NOTE IN ACCORDANCE WITH CLAUSE (F) OF THE FOREGOING SENTENCE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT." (B) Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraph (b)(iv), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) shall not bear the Private Placement Legend. (ii) Global Note Legend. Each Global Note shall bear a legend in substantially the following form: "THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO ARTICLE II OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF TESORO PETROLEUM CORPORATION." Additionally, for so long as DTC is the Depositary with respect to any Global Note, each such Global Note shall also bear a legend in substantially the following form: "UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED 37 REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN." (iii) Regulation S Temporary Global Note Legend. The Regulation S Temporary Global Note shall bear a legend in substantially the following form: "THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON." (h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note, by the Trustee, the Note Custodian or the Depositary at the direction of the Trustee, to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note, by the Trustee, the Note Custodian or by the Depositary at the direction of the Trustee, to reflect such increase. (i) General Provisions Relating to Transfers and Exchanges. (i) To permit registrations of transfers and exchanges, subject to Section 2.06, the Company shall execute and, upon the Company's order, the Trustee shall authenticate Global Notes and Definitive Notes at the Registrar's request. (ii) No service charge shall be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 3.06, 4.10, 4.15 and 9.05 hereof). 38 (iii) The Registrar shall not be required to register the transfer or exchange of any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part. (iv) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture and the Subsidiary Guarantees, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange. (v) The Company and the Registrar shall not be required (A) to issue, to register the transfer of or to exchange Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the day of selection, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part, (C) to register the transfer of or to exchange a Note between a record date and the next succeeding Interest Payment Date or (D) to register the transfer of a Note other than in denominations of $1,000 or multiple integrals thereof. (vi) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary. (vii) The Trustee shall authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02 hereof. (viii) All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a transfer or exchange may be submitted by facsimile. (ix) The Trustee and the Registrar shall have no obligation or duty to monitor, determine or inquire as to whether any Person is or is not a Person described in clauses (1), (2) and (3) of each of Sections 2.06(b)(iv)(A), 2.06(c)(iii)(A), 2.06(d)(ii)(A), 2.06(e)(ii)(A) and 2.06(f) hereof or under applicable law (other than the TIA) with respect to any transfer of any interest in any Note (including any transfers between or among Participants or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. 39 SECTION 2.07. Replacement Notes. If any mutilated Note is surrendered to the Trustee or the Company, or the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Company shall issue and the Trustee, upon the written order of the Company signed by one Officer of the Company, shall authenticate a replacement Note if the Trustee's requirements are met. If required by the Trustee or the Company, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee and any Agent from any loss that any of them may suffer if a Note is replaced. The Company and the Trustee may charge for their respective expenses in replacing a Note. If, after the delivery of such replacement Note, a bona fide purchaser of the original Note in lieu of which such replacement Note was issued presents for payment or registration such original Note, the Trustee shall be entitled to recover such replacement Note from the Person to whom it was delivered or any Person taking therefrom, except a bona fide purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Company, the Trustee and any Agent in connection therewith. Subject to the provisions of the final sentence of the preceding paragraph of this Section 2.07, every replacement Note is an additional obligation of the Company and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder. SECTION 2.08. Outstanding Notes. The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note. If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser. If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest and Liquidated Damages, if any, on it ceases to accrue. If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest and Liquidated Damages, if any. SECTION 2.09. Treasury Notes. In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Company, or by any Person directly or indirectly controlling or controlled by or under direct or indirect common control with 40 the Company, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. Notwithstanding the foregoing, Notes that the Company, a Subsidiary of the Company or an Affiliate of the Company offers to purchase or acquires pursuant to an offer, exchange offer, tender offer or otherwise shall not be deemed to be owned by the Company, such Subsidiary or such Affiliate until legal title to such Notes passes to the Company, such Subsidiary or such Affiliate, as the case may be. SECTION 2.10. Temporary Notes. Until Definitive Notes are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Notes upon a written order of the Company signed by one Officer of the Company. Temporary Notes shall be substantially in the form of Definitive Notes but may have variations that the Company considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate Definitive Notes in exchange for temporary Notes. Holders of temporary Notes shall be entitled to all of the benefits of this Indenture. SECTION 2.11. Cancellation. The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall return such canceled Notes to the Company. The Company may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation other than as contemplated by an Exchange Offer. SECTION 2.12. Defaulted Interest. If the Company defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Company shall promptly notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Company shall fix or cause to be fixed each such special record date and payment date, provided that no such special record date shall be less than 10 days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) shall mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid. 41 SECTION 2.13. CUSIP Numbers. The Company in issuing the Notes may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices of redemption or repurchase, as the case may be, as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption or repurchase, as the case may be, and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or repurchase, as the case may be, shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the "CUSIP" numbers. ARTICLE III REDEMPTION AND PREPAYMENT SECTION 3.01. Notices to Trustee. If the Company elects to redeem Notes pursuant to the optional redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee, at least 45 days but not more than 60 days before a redemption date, an Officers' Certificate setting forth (i) the clause of this Indenture pursuant to which the redemption shall occur, (ii) the redemption date, (iii) the principal amount of Notes to be redeemed, (iv) the redemption price and (v) that the redemption price will be deposited with the Trustee in immediately available funds no later than 10:00 a.m., New York City time, on the redemption date. SECTION 3.02. Selection of Notes to be Redeemed. If less than all of the Notes are to be redeemed at any time, selection of Notes for redemption shall be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot or in accordance with any other method the Trustee considers fair and appropriate; provided that no Notes of $1,000 or less shall be redeemed in part. In the event of partial redemption by lot, the particular Notes to be redeemed shall be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the redemption date by the Trustee from the outstanding Notes not previously called for redemption. The Trustee shall promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal amount thereof to be redeemed. Notes and portions of Notes selected shall be in amounts of $1,000 or whole multiples of $1,000. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption. The provisions of the two preceding paragraphs of this Section 3.02 shall not apply with respect to any redemption affecting only a Global Note, whether such Global Note is to be 42 redeemed in whole or in part. In case of any such redemption in part, the unredeemed portion of the principal amount of the Global Note shall be in an authorized denomination. SECTION 3.03. Notice of Redemption. Subject to the provisions of Section 3.09 hereof, at least 30 days but not more than 60 days before a redemption date, the Company shall mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are to be redeemed at its registered address. The notice shall identify the Notes (including CUSIP numbers) to be redeemed and shall state: (a) the redemption date; (b) the redemption price; (c) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion shall be issued upon cancellation of the original Note; (d) the name and address of the Paying Agent; (e) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price; (f) that, unless the Company defaults in making such redemption payment, interest and Liquidated Damages, if any, on Notes called for redemption cease to accrue on and after the redemption date; (g) the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and (h) that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes. If any of the Notes to be redeemed is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the Applicable Procedures of the Depositary applicable to such redemption. At the Company's request, the Trustee shall give the notice of redemption in the Company's name and at its expense; provided, however, that the Company shall have delivered to the Trustee, at least 45 days prior to the redemption date, an Officers' Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph. 43 SECTION 3.04. Effect of Notice of Redemption. Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price. A notice of redemption may not be conditional. SECTION 3.05. Deposit of Redemption Price. No later than 10:00 a.m. New York City Time on the redemption date, the Company shall deposit with the Trustee or with the Paying Agent immediately available funds sufficient to pay the redemption price of and accrued interest and Liquidated Damages, if any, on all Notes to be redeemed on that date. The Trustee or the Paying Agent shall promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption price of, and accrued interest and Liquidated Damages, if any, on, all Notes to be redeemed. If the Company complies with the provisions of the preceding paragraph, on and after the redemption date, interest and Liquidated Damages, if any, shall cease to accrue on the Notes or the portions of Notes called for redemption. If a Note is redeemed on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest and Liquidated Damages, if any, shall be paid to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for redemption shall not be so paid upon surrender for redemption because of the failure of the Company to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof. SECTION 3.06. Notes Redeemed in Part. Upon surrender of a Note that is redeemed in part, the Company shall issue and, upon the Company's written request, the Trustee shall authenticate for the Holder at the expense of the Company a new Note equal in principal amount to the unredeemed portion of the Note surrendered. SECTION 3.07. Optional Redemption. (a) Except as set forth in clause (b) of this Section 3.07, the Notes shall not be redeemable at the Company's option prior to November 1, 2005. Thereafter, the Notes will be subject to redemption at any time or from time to time at the option of the Company, in whole or in part, upon not less than 30 nor more than 60 days' notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest and Liquidated Damages, if any, thereon, if any, to the applicable redemption date, if redeemed during the twelve-month period beginning on November 1 of the years indicated below:
YEAR PERCENTAGE 2005................................... 104.813% 2006................................... 102.406% 2007 and thereafter.................... 100%
44 (b) Notwithstanding the foregoing, at any time or from time to time before November 1, 2004, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under this Indenture at a redemption price of 109.625% of the principal amount thereof, plus accrued and unpaid interest, if any, and Liquidated Damages, if any, thereon, to the redemption date, with the net cash proceeds of any one or more Equity Offerings; provided that at least 65% of the aggregate principal amount of Notes issued under this Indenture remain outstanding immediately after each occurrence of such redemption; and provided, further, that each such redemption shall occur within 90 days of the date of the closing of such Equity Offering. (c) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof. SECTION 3.08. Mandatory Redemption. The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes. However, pursuant to Sections 3.09, 4.10 and 4.15 hereof, under certain circumstances, the Company may be required to offer to purchase the Notes. SECTION 3.09. Offer to Purchase by Application of Excess Proceeds. In the event that, pursuant to Section 4.10 hereof, the Company shall be required to commence an offer to all Holders to purchase Notes (an "Asset Sale Offer"), it shall follow the procedures specified below. The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than five Business Days after the termination of the Offer Period (the "Purchase Date"), the Company shall purchase the principal amount of Notes required to be purchased pursuant to Section 4.10 hereof (the "Offer Amount") or, if less than the Offer Amount has been tendered, all Notes validly tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made. If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest and Liquidated Damages, if any, shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest or Liquidated Damages shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer. Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall state: 45 (a) that the Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.10 hereof and the length of time the Asset Sale Offer shall remain open; (b) the Offer Amount, the purchase price and the Purchase Date; (c) that any Note not tendered or accepted for payment shall continue to accrete or accrue interest and Liquidated Damages, if any; (d) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrete or accrue interest and Liquidated Damages, if any, after the Purchase Date; (e) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may only elect to have all of such Note purchased and may not elect to have only a portion of such Note purchased; (f) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed to the Company, the Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date; (g) that Holders shall be entitled to withdraw their election if the Company, such depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; (h) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Offer Amount, the Trustee shall select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in denominations of $1,000, or integral multiples thereof, shall be purchased); and (i) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer). If any of the Notes subject to an Asset Sale Offer is in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the Applicable Procedures of the Depositary applicable to such repurchases. On or before the Purchase Date, the Company shall, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and shall deliver to the Trustee an Officers' Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.09. The Company, the depositary (if any, and as referred to in clause (f) above of this Section 3.09) or the Paying Agent, as the case may be, shall promptly (but in 46 any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company shall promptly issue a new Note, and the Trustee, upon written request from the Company, shall authenticate and make available for delivery such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company shall publicly announce the results of the Asset Sale Offer on the Purchase Date. Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof. ARTICLE IV COVENANTS SECTION 4.01. Payment of Notes. The Company shall pay or cause to be paid the principal of, and premium, if any, interest and Liquidated Damages, if any, on, the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, interest and Liquidated Damages, if any, shall be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary thereof, holds as of 10:00 a.m. New York City Time on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all principal, premium, if any, interest and Liquidated Damages, if any, then due. The Company shall pay all Liquidated Damages, if any, in the same manner on the dates and in the amounts set forth in the corresponding Registration Rights Agreement. The Company shall pay interest (including post-petition interest in any proceeding under the Bankruptcy Code) on overdue principal at the rate borne on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under the Bankruptcy Code) on overdue installments of interest and Liquidated Damages, if any, (without regard to any applicable grace period) at the same rate to the extent lawful. SECTION 4.02. Maintenance of Office or Agency. The Company shall maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be presented or surrendered for payment, where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee. 47 The Company may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, the City of New York for such purposes. The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. The Company hereby designates the office of the Trustee at 100 Wall Street, 16th Floor, New York, New York, 10005, as one such office or agency of the Company in accordance with Section 2.03 hereof. SECTION 4.03. Reports. (a) Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Company shall furnish to each of the Holders of Notes, beginning with annual financial information for the year ended December 31, 2001, (i) all quarterly and annual financial information with respect to the Company and its Subsidiaries that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K if the Company were required to file such forms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" and, with respect to the annual information only, a report thereon by the Company's independent public accountants and (ii) all current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports. All such information and reports shall be mailed or otherwise delivered to the Holders of Notes within 15 days after the dates on which such filings would have been required to be made had the Company been subject to the rules and regulations of the SEC. The Company shall at all times comply with TIA Section 314(a). (b) For so long as any Initial Notes remain outstanding, the Company shall furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. (c) Delivery of such reports, information and documents to the Trustee is for informational purposes only, and the Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers' Certificates). SECTION 4.04. Compliance Certificate. (a) The Company shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers' Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default 48 in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of or interest, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect thereto. (b) So long as not contrary to the then current recommendations of the American Institute of Certified Public Accountants, the year-end financial statements delivered pursuant to Section 4.03(a) above shall be accompanied by a written statement of the Company's independent public accountants that in making the examination necessary for certification of such financial statements, nothing has come to their attention that would lead them to believe that the Company has violated any provisions of Article IV or Article V hereof or, if any such violation has occurred, specifying the nature and period of existence thereof, it being understood that such accountants shall not be liable directly or indirectly to any Person for any future knowledge of any such violation. (c) The Company shall, so long as any of the Notes are outstanding, deliver to the Trustee, forthwith upon any executive Officer having knowledge that an event or circumstance constitutes a Default or an Event of Default and that such event or circumstance has occurred and is existing, an Officers' Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto. SECTION 4.05. Taxes. The Company shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency, all material taxes, charges, assessments, and governmental levies except such as are contested in good faith and, if required, by appropriate proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes. SECTION 4.06. Waiver of Stay, Extension and Usury Laws. Each of the Company and the Guarantors covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and each of the Company and the Guarantors (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted. SECTION 4.07. Restricted Payments. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make any other payment or distribution on account of the Company's or any of its Restricted Subsidiaries' Equity Interests (including, 49 without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such, in each case other than dividends or distributions declared or paid in Equity Interests (other than Disqualified Stock) of the Company or declared or paid to the Company or any of its Restricted Subsidiaries; (ii) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company (other than any such Equity Interests owned by a Restricted Subsidiary of the Company); (iii) make any payment to purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes, except a payment of interest or principal at its Stated Maturity; or (iv) make any Investment other than a Permitted Investment (all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (a) no Default or Event of Default shall have occurred and be continuing; and (b) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09; and (c) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company or any of its Restricted Subsidiaries after the Issue Date (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (viii) or (x) of the next succeeding paragraph), is less than the sum of (1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing immediately prior to the Issue Date to the end of the Company's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a loss, less 100% of such loss), plus (2) 100% of the aggregate net cash proceeds, or the Fair Market Value of assets or property other than cash, received by the Company from the issue or sale, in either case, since the Issue Date of (A) Equity Interests of the Company (other than Disqualified Stock), or (B) Disqualified Stock or debt securities of the Company that have been converted into, or exchanged for, such Equity Interests, together with the aggregate cash received at the time of such conversion or exchange, or received by the Company from any such conversion or exchange of such debt securities sold or issued prior to the Issue Date other than Equity Interests (or Disqualified Stock or convertible or exchangeable debt securities) sold to a Restricted Subsidiary of the Company and other than Disqualified Stock or debt securities that have been converted or exchanged into Disqualified Stock, plus (3) in case any Unrestricted Subsidiary has been redesignated a Restricted Subsidiary pursuant to the terms hereof or has been merged, consolidated or amalgamated with or into, or transfers or conveys assets to or is liquidated into, the Company or a Restricted Subsidiary and provided that no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof, the lesser 50 of (A) the book value (determined in accordance with GAAP) at the date of such redesignation, combination or transfer of the aggregate Investments made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary (or of the assets transferred or conveyed, as applicable) and (B) the fair market value of such Investment in such Unrestricted Subsidiary at the time of such redesignation, combination or transfer (or of the assets transferred or conveyed, as applicable), in each case as determined in good faith by the Board of Directors of the Company, whose determination shall be conclusive and evidenced by a resolution of such Board and, in each case, after deducting any Indebtedness of the Unrestricted Subsidiary so designated or combined or with the assets so transferred or conveyed, plus (4) to the extent not already included in Consolidated Net Income for such period, (A) if any Restricted Investment that was made by the Company or any Restricted Subsidiary after the Issue Date is sold for cash or otherwise liquidated or repaid for cash, the cash return of capital with respect to such Restricted Investment resulting from such sale or disposition (less the cost of disposition, if any) and (B) with respect to any Restricted Investment that was made by the Company or any Restricted Subsidiary after the Issue Date, the net reduction in such Restricted Investment resulting from payments of interest, dividends, principal repayments and other transfers and distributions of cash, assets or property, in an amount not to exceed the aggregate amount of such Restricted Investment. The foregoing provisions shall not prohibit: (i) the payment of any dividend within 60 days after the date of declaration thereof, if at said date of declaration such payment would have complied with the provisions hereof; (ii) the redemption, repurchase, retirement, defeasance or other acquisition, prior to its Stated Maturity, of any (y) Indebtedness (or portion thereof) which is subordinated to the Notes, or the making of any principal payment thereon, or (z) Equity Interests of the Company or any Restricted Subsidiary, in each case in exchange for, or out of the net cash proceeds of the substantially concurrent sale or issuance (a sale or issuance will be deemed substantially concurrent if such redemption, repurchase, retirement or acquisition occurs not more than 30 days after such sale or issuance) (other than to a Restricted Subsidiary of the Company) of, Equity Interests of the Company (other than any Disqualified Stock), provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition, or payments, shall be excluded from clause (c)(2) of the preceding paragraph; (iii) the making of any principal payment on, or the defeasance, redemption, repurchase or other acquisition of, prior to its Stated Maturity, Indebtedness which is subordinated to the Notes with the net cash proceeds from an incurrence of, or in exchange for the issuance of, Permitted Refinancing Indebtedness; (iv) the payment of any dividend or distribution by a Restricted Subsidiary of the Company to the holders of its Equity Interests (other than Disqualified Stock) on a pro rata basis; (v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any current or former officer, employee or director of the Company (or any of its Subsidiaries) pursuant to the terms of agreements (including employment agreements) and plans approved by the Company's Board of Directors, including any management equity plan or stock option plan or any other management or employee benefit plan, agreement or trust, provided, however, that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests pursuant to this clause (v) shall not exceed the sum of (y) $2,000,000 in any twelve-month period and (z) the aggregate net proceeds received by the Company during such 12-month period from issuance of such Equity 51 Interests pursuant to such agreements or plans; (vi) repurchases of Equity Interests deemed to occur upon the cashless exercise of stock options; (vii) the purchase, redemption, defeasance or retirement, in each case prior to its Stated Maturity, of any Indebtedness that is subordinated to the Notes in right of payment by payments out of Excess Proceeds remaining after completion of an Asset Sale Offer, provided that (x) any payments made or value given for such purchase, redemption, defeasance or retirement shall be made out of, or shall not be in excess of, any Excess Proceeds remaining after completion of an Asset Sale Offer (but for the provision of the last sentence under Section 4.10 hereof) and (y) the Company would, at the time of such payment and after giving pro forma effect thereto as if such payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; (viii) reasonable and customary directors' fees to the members of the Company's Board of Directors, provided that such fees are consistent with past practice or current requirements; (ix) the purchase by the Company of fractional shares arising out of stock dividends, splits or combinations or business combinations; and (x) other Restricted Payments in an aggregate principal amount since the Issue Date not to exceed $50,000,000; provided, further, that, with respect to clauses (ii), (iii), (v), (vi), (vii), (viii) and (x) above, no Default or Event of Default shall have occurred and be continuing. In determining whether any Restricted Payment is permitted by this Section 4.07, the Company may allocate or reallocate all or any portion of such Restricted Payment among the clauses (i) through (x) of the preceding paragraph or among such clauses and the first paragraph of this Section 4.07 including clauses (a), (b) and (c), provided that at the time of such allocation or reallocation, all such Restricted Payments, or allocated portions thereof, would be permitted under this Section 4.07. The amount of all Restricted Payments (other than cash) shall be the Fair Market Value (as determined by the Board of Directors of the Company and as evidenced by a resolution of the Board of Directors of the Company set forth in an Officers' Certificate delivered to the Trustee) on the date of the transfer, incurrence or issuance of such non-cash Restricted Payment. Not later than (i) the end of any calendar quarter in which any Restricted Payment is made or (ii) the making of a Restricted Payment which, when added to the sum of all previous Restricted Payments made in a calendar quarter, would cause the aggregate of all Restricted Payments made in such quarter to exceed $10,000,000, the Company shall deliver to the Trustee an Officers' Certificate stating that such Restricted Payments were permitted and setting forth the basis upon which the calculations required by this Section 4.07 were computed, which calculations may be based upon the Company's latest available financial statements. The Board of Directors may designate any Unrestricted Subsidiary to be a Restricted Subsidiary only if (i) immediately after giving effect to such designation, the Company could incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test under the first paragraph of Section 4.09 hereof; (ii) immediately before and immediately after giving effect to such designation, no Default or Event of Default shall have occurred and be continuing; and (iii) the Company certifies that such designation complies with this covenant. Any such designation by the Board of Directors shall be evidenced by the Company promptly filing with the Trustee a copy of the resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the foregoing provisions. 52 The Board of Directors may designate any Subsidiary of the Company to be an Unrestricted Subsidiary under the circumstances and pursuant to the requirements described in the definition of "Unrestricted Subsidiary," which requirements include that such designation will be made in compliance with this covenant. For purposes of making the determination as to whether such designation would be made in compliance with this covenant, all outstanding Investments by the Company and its Restricted Subsidiaries (except to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted Payments at the time of such designation and will reduce the amount available for Restricted Payments under the first paragraph of this Section 4.07. All such outstanding Investments will be deemed to constitute Investments in an amount equal to the greatest of (i) the net book value (determined in accordance with GAAP) of such Investments at the time of such designation, (ii) the Fair Market Value of such Investments at the time of such designation and (iii) the original Fair Market Value of such Investments at the time they were made. If, at any time, any Unrestricted Subsidiary would fail to meet the foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes hereof, and any Indebtedness of such Subsidiary shall be deemed to be incurred as of such date. SECTION 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any Restricted Subsidiary of the Company or the Company to: (i) (x) pay dividends or make any other distributions to the Company or any of its Restricted Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest or participation in, or measured by, its profits, or (y) pay any Indebtedness owed to the Company or any of its Restricted Subsidiaries; (ii) make loans or advances to the Company or any of its Restricted Subsidiaries; or (iii) transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries. However the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of: (a) agreements in effect on the Issue Date and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings (collectively, for the purposes of this Section 4.08, "amendments") of any such agreements or any Existing Indebtedness to which such agreements relate, provided that such amendments are no more restrictive with respect to such dividend, distribution or other payment restrictions and loan or investment restrictions than those contained in such agreement, as in effect on the Issue Date; (b) any Credit Facility in effect after the Issue Date to the extent its provisions are no more restrictive with respect to such dividend, distribution or other payment restrictions and loan or investment restrictions than those contained in the Senior Credit Facility as in effect on the Issue Date; (c) this Indenture, the Notes, the Exchange Notes and the Subsidiary Guarantees, or any other indenture governing debt securities issued by the Company or any Guarantor that are no more restrictive with respect to such dividend, distribution or other payment restrictions and loan or investment restrictions than those contained herein and the Notes; (d) any future Liens that may be permitted to be granted under, or incurred not in violation of, any other provisions hereof; (e) applicable law; (f) any instrument governing Indebtedness or Capital Stock, or any other agreement relating to any property or assets, of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of 53 such acquisition (except with respect to Indebtedness incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person or such Person's subsidiaries, so acquired, provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms hereof to be incurred; (g) restrictions of the nature described in clause (iii) above by reason of customary non-assignment provisions in contracts, agreements, licenses and leases entered into in the ordinary course of business; (h) purchase money obligations for property acquired in the ordinary course of business that impose restrictions of the nature described in clause (iii) above on the property so acquired; (i) any restriction with respect to a Restricted Subsidiary of the Company imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all of the Capital Stock or assets of such Restricted Subsidiary pending the closing of such sale or disposition; (j) agreements relating to secured Indebtedness otherwise permitted to be incurred pursuant to Section 4.09 hereof, and not in violation of Section 4.12 hereof, that limit the right of the debtor to dispose of assets securing such Indebtedness; (k) Permitted Refinancing Indebtedness in respect of Indebtedness referred to in clauses (a), (b), (c), (f), (h) and (j) of this paragraph, provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive with respect to such dividend, distribution or other payment restrictions and loan or investment restrictions than those contained in the agreements governing the Indebtedness being refinanced; and (l) provisions with respect to the disposition or distribution of assets in joint venture agreements and other similar agreements entered into in the ordinary course of business. SECTION 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "incur") any Indebtedness (including Acquired Debt), other than Permitted Debt, and the Company shall not issue, and shall not permit any of its Restricted Subsidiaries to issue, any Disqualified Stock; provided, however, that the Company or any Guarantor may incur Indebtedness (including Acquired Debt) or the Company or any Guarantor may issue shares of Disqualified Stock if the Company's Fixed Charge Coverage Ratio for the Company's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 2.00 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if such additional Indebtedness had been incurred, or such Disqualified Stock had been issued, as the case may be, at the beginning of such four-quarter period. The provisions of the first paragraph of this Section 4.09 shall not apply to the incurrence of any Permitted Debt. Accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Indebtedness will not be deemed to be an incurrence of Indebtedness for purposes of this Section 4.09. In the case an Unrestricted Subsidiary incurs Non-Recourse Indebtedness and any such Non-Recourse Indebtedness ceases to be Non-Recourse Indebtedness of such Unrestricted 54 Subsidiary, then such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary that is subject to this Section 4.09. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described above or is entitled to be incurred pursuant to the first paragraph of this Section 4.09, the Company will, in its sole discretion, classify (or later reclassify) in whole or in part such item of Indebtedness in any manner that complies with this Section 4.09 and such item of Indebtedness or a portion thereof may be classified (or later reclassified) in whole or in part as having been incurred under more than one of the applicable clauses or pursuant to the first paragraph of this Section 4.09. SECTION 4.10. Asset Sales. The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless (i) the Company or the Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the fair market value (which, in the case of an Asset Sale for consideration exceeding $20,000,000, shall be determined in good faith by the Company's Board of Directors) of the assets or Equity Interests issued or sold or otherwise disposed of and (ii) at least 75% of the consideration therefor received by the Company or the Restricted Subsidiary is in the form of, or any combination of, (A) cash or Cash Equivalents, (B) the assumption of any liabilities (as shown on the Company's or the Restricted Subsidiary's most recent balance sheet) of the Company or any Restricted Subsidiary of the Company (other than liabilities that are by their terms subordinated to the Notes or any Subsidiary Guarantee) by the transferee of any such assets pursuant to a customary novation agreement that releases the Company or the Restricted Subsidiary from further liability, (C) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or the Restricted Subsidiary into cash or Cash Equivalents within 60 days following their receipt (to the extent of cash or Cash Equivalents received) and (D) assets or rights used or useful in a Permitted Business; provided, that any Asset Sale pursuant to a condemnation, appropriation or other similar taking, including by deed in lieu of condemnation, or pursuant to the foreclosure or other enforcement of a Lien incurred not in violation of Section 4.12 hereof or exercise by the related lienholder of rights with respect thereto, including by deed or assignment in lieu of foreclosure shall not be required to satisfy the conditions set forth in clauses (i) and (ii) of this paragraph. Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or the Restricted Subsidiary, as the case may be, may apply such Net Proceeds, at its option, (a) to repay, repurchase or redeem Senior Debt, (b) to acquire a controlling interest in another business or all or substantially all of the assets of a business, in each case engaged in a Permitted Business, (c) to make capital expenditures, or (d) to acquire other non-current assets to be used in a Permitted Business, including, without limitation, assets or Investments of the nature or type described in clause (m) of the definition of "Permitted Investments" provided, that the Company or the Restricted Subsidiary will have complied with clause (b) or (c) if, within 365 days of such Asset Sale, the Company or the Restricted Subsidiary shall have commenced and not completed or abandoned an expenditure or Investment, or a binding agreement with respect to an expenditure or Investment, in compliance with clause (b) or (c), and that expenditure or 55 Investment is substantially completed within a date one year and six months after the date of the Asset Sale. Pending the final application of any such Net Proceeds, the Company may temporarily reduce Indebtedness under any Credit Facility or otherwise expend or invest such Net Proceeds in any manner that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the first sentence of this paragraph shall be deemed to constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds exceeds $15,000,000, the Company shall be required to make an offer to all Holders of Notes and holders of each other Indebtedness that ranks by its terms pari passu in right of payment with the Notes and the terms of which contain substantially similar requirements with respect to the application of net proceeds from asset sales as are contained herein (an "Asset Sale Offer") to purchase on a pro rata basis (with the Excess Proceeds prorated between the Holders and such holders of pari passu Indebtedness based upon outstanding aggregate principal amounts) the maximum principal amount of the Notes, that is an integral multiple of $1,000, that may be purchased out of the prorated Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in Section 3.09 hereof. To the extent that the aggregate amount of Notes and other Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company and its Restricted Subsidiaries may use any remaining Excess Proceeds for general corporate purposes and any other purpose not prohibited by this Indenture. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of the prorated Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Upon completion of the offer to purchase, the amount of Excess Proceeds shall be reset at zero. SECTION 4.11. Transactions with Affiliates. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, make any payment to, or sell, lease, transfer or otherwise dispose of any properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of any such Person (each of the foregoing, an "Affiliate Transaction"), unless (i) such Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that could have been obtained in a transaction by the Company or such Restricted Subsidiary with an unrelated Person; and (ii) the Company delivers to the Trustee: (a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of at least $5,000,000, an Officers' Certificate certifying that such Affiliate Transaction complies with clause (i) above; (b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $20,000,000, a resolution of its Board of Directors set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with clause (i) above and that such Affiliate Transaction has been approved by a majority of the disinterested members of its Board of Directors; and (c) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $30,000,000 and for which there are no disinterested members of its Board of Directors, an opinion as to the fairness to the Company of such Affiliate Transaction from a financial point of view issued by an Independent Financial Advisor; provided that none of the following shall be deemed to be Affiliate Transactions and therefore shall not be subject to the provisions of this Section 4.11: (1) 56 Affiliate Transactions involving the purchase or sale of crude oil, natural gas and other hydrocarbons, and refined products therefrom, in the ordinary course of any Permitted Business, so long as such transactions are priced in line with industry accepted benchmark prices and the pricing of such transactions are equivalent to the pricing of comparable transactions with unrelated third parties; (2) any employment, equity award, equity option or equity appreciation agreement or plan, agreement or other similar compensation plan or arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of its business; (3) transactions between or among (A) the Company and its Restricted Subsidiaries and (B) the Restricted Subsidiaries; (4) the performance of any agreement in effect on the Issue Date; (5) loans or advances to officers, directors and employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures and other purposes, in each case in the ordinary course of business; (6) maintenance in the ordinary course of business of customary benefit programs or arrangements for employees, officers or directors, including vacation plans, health and life insurance plans, deferred compensation plans and retirement or savings plans and similar plans; (7) fees and compensation paid to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries in their capacity as such, to the extent such fees and compensation are reasonable and customary; (8) sales of Equity Interests of the Company (other than Disqualified Stock) to Affiliates of the Company or any of its Restricted Subsidiaries; and (9) Restricted Payments that are permitted by Section 4.07 hereof. SECTION 4.12. Liens. The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien that secures obligations under any Indebtedness which is pari passu with or subordinated to the Notes, unless the Notes are equally and ratably secured with the obligations so secured or until such time as such obligations are no longer secured by a Lien. SECTION 4.13. Business Activities. The Company will not, and will not permit any of its Restricted Subsidiaries to, engage in any business other than a Permitted Business, except to such extent as would not be material to the Company and its Restricted Subsidiaries taken as a whole. SECTION 4.14. Corporate Existence. Subject to Articles V and X hereof, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, and the corporate, partnership or other existence of each of its Restricted Subsidiaries, in accordance with the respective organizational documents (as the same may be amended from time to time) of the Company or any such Restricted Subsidiary; provided, however, that the Company shall not be required to preserve the existence of any of its Restricted Subsidiaries, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Restricted Subsidiaries, taken as a whole. 57 SECTION 4.15. Offer to Repurchase upon Change of Control. (a) Upon the occurrence of a Change of Control, each Holder of Notes will have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of such Holder's Notes pursuant to the offer described below (the "Change of Control Offer") at an offer price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the date of purchase (the "Change of Control Payment"). Within 30 days following any Change of Control, the Company will mail a notice to each Holder stating: (i) the description of the transaction or transactions that constitute the Change of Control, that the Change of Control Offer is being made pursuant to this Section 4.15, and that all Notes validly tendered and not withdrawn will be accepted for payment; (ii) the purchase price and the purchase date, which shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed (the "Change of Control Payment Date"); (iii) that any Note not tendered will continue to accrue interest and Liquidated Damages, if any; (iv) that, unless the Company defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest and Liquidated Damages, if any, after the Change of Control Payment Date; (v) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender the Notes properly endorsed, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Notes properly completed, together with other customary documents as the Company may reasonably request, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date; (vi) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the Notes purchased; and (vii) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $1,000 in principal amount or an integral multiple thereof. If any of the Notes subject to a Change of Control Offer are in the form of a Global Note, then the Company shall modify such notice to the extent necessary to accord with the Applicable Procedures of the Depositary applicable to repurchases. In addition, the Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes as a result of a Change of Control. (b) On the Change of Control Payment Date, the Company will, to the extent lawful, (i) accept for payment all Notes or portions thereof properly tendered pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent in immediately available funds an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered and (iii) deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officers' Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company. The Paying Agent will promptly mail to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly 58 authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount of $1,000 or an integral multiple thereof. Prior to complying with the provisions of this Section 4.15, but in any event within 90 days following a Change of Control, the Company will either repay all of its outstanding Senior Debt or obtain the requisite consents, if any, under all agreements governing such outstanding Senior Debt to permit the repurchase of Notes required by this Section 4.15. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. (c) The Change of Control provisions described above will be applicable whether or not any other provisions of this Indenture are applicable, except as set forth in Article VIII hereof. (d) The Company will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth herein applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer. SECTION 4.16. No Senior Subordinated Debt. Notwithstanding any other provision hereof, (i) the Company will not incur, create, issue, assume, guarantee or otherwise become liable directly or indirectly for any Indebtedness (including Acquired Debt) that is expressly subordinate or junior in right of payment to any Senior Debt of the Company and senior in any respect in right of payment to the Notes, and (ii) no Guarantor will incur, create, issue, assume, guarantee or otherwise become liable for any Indebtedness (including Acquired Debt) that is expressly subordinate or junior in right of payment to any Senior Debt of a Guarantor and senior in any respect in right of payment to the Subsidiary Guarantees, it being understood that Indebtedness will not be considered senior to other Indebtedness solely by reason of being secured. SECTION 4.17. Additional Subsidiary Guarantees. If any Subsidiary of the Company guarantees any Indebtedness of the Company, then such Subsidiary shall (i) execute a supplemental indenture substantially in the form of Exhibit E hereto providing that such Subsidiary shall become a Guarantor under this Indenture and (ii) deliver an Opinion of Counsel to the effect that such supplemental indenture has been duly authorized and executed by such Subsidiary; and upon (x) the release by the lenders of all guarantees of a Guarantor guaranteeing, and all Liens on the property and assets of such Guarantor securing, Indebtedness of the Company, or (y) a sale or other disposition, whether in one or a series of related transactions, of all or substantially all of the assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition, whether in one or a series of related transactions, of all of the Capital Stock of any Guarantor in compliance herewith to any entity that is not the Company or a Subsidiary, then such Guarantor and such acquiring, resulting, surviving or transferee Person will be released and relieved of any obligations under any Subsidiary Guarantee; provided, however, that any such termination shall occur only to the 59 extent that all obligations of such Guarantor under such Indebtedness and all of its guarantees of, and under all of its pledges of assets or other security interests which secure, Indebtedness of the Company shall also terminate upon such release, sale or transfer and, in the event of any sale or other disposition, delivery of an officer's certificate to the Trustee that the Net Proceeds of such sale or other disposition will be applied in accordance with the provisions hereof. SECTION 4.18. Payments for Consent. The Company will not, and will not permit any of its Restricted Subsidiaries, directly or indirectly to, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder of any Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid or is paid to all Holders of the Notes that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement. SECTION 4.19. Termination of Covenants. In the event that at any time (i) the rating assigned to the Notes by each of S&P and Moody's is an Investment Grade Rating and (ii) no Default has occurred and is continuing, the Company and its Restricted Subsidiaries will no longer be subject to Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.13, 5.01(iv) and 11.03(b)(iii) hereof (the "Terminated Covenants"); provided, however, that all other provisions of this Indenture shall continue to be in full force and effect. ARTICLE V SUCCESSORS SECTION 5.01. Merger, Consolidation, or Sale of Assets. The Company will not consolidate or merge with or into (whether or not the Company is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its properties or assets in one or more related transactions, to another Person, unless (i) the Company is the resulting, transferee or surviving Person or the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, lease, conveyance or other disposition shall have been made is a corporation organized or existing under the laws of the United States, any state thereof or the District of Columbia; (ii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to whom such sale, assignment, transfer, lease, conveyance or other disposition shall have been made assumes all the obligations and covenants of the Company under the Notes and this Indenture pursuant to a supplemental indenture in a form reasonably satisfactory to the Trustee; (iii) immediately before and after such transaction no Default or Event of Default shall have occurred and be continuing; and (iv) except in the case of a merger of the Company with or into a Restricted Subsidiary, the Company or the Person formed by or surviving any such consolidation or merger (if other than the Company), or to whom such sale, assignment, transfer, lease, conveyance or other disposition shall have been 60 made will, at the time of such transaction and after giving pro forma effect thereto as if such transaction had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; provided, however, that this clause (iv) shall be permanently terminated in the event that the Company and its Restricted Subsidiaries are no longer subject to the Terminated Covenants subject to Section 4.19 hereof. SECTION 5.02. Successor Corporation Substituted. Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section 5.01 hereof, the successor Person formed by such consolidation or into or with which the Company is merged or to whom such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, lease, conveyance or other disposition, the provisions of this Indenture referring to the "Company" shall refer instead to such successor Person and not to the Company), and may exercise every right and power of, the Company under this Indenture and the Notes with the same effect as if such successor Person had been named as the Company herein; and when such successor corporation duly assumes all of the obligations and covenants of the Company pursuant to the Notes and hereto, except in the case of a lease of all or substantially all of the properties or assets in one or more related transactions (in which case, the Company shall not be released from the obligation to pay the principal of and interest and Liquidated Damages, if any, on the Notes), the predecessor Person shall be relieved of all such obligations. ARTICLE VI DEFAULTS AND REMEDIES SECTION 6.01. Events of Default. An "Event of Default" occurs if: (a) the Company defaults in the payment when due of interest on, or Liquidated Damages, if any, with respect to, the Notes and such default continues for a period of 30 days (whether or not prohibited by Article 10 hereof); (b) the Company defaults in the payment when due of principal of or premium, if any, on the Notes (whether or not prohibited by Article 10 hereof); (c) the Company or any of its Restricted Subsidiaries fails to comply with any of the provisions of Sections 4.15 or 5.01 hereof; (d) the Company or any of its Restricted Subsidiaries fails to observe or perform any covenant or other agreement in this Indenture or the Notes (other than the provisions expressly set forth in clause (c) above) for 60 days after written notice of such failure 61 to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding; (e) a default occurs under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted Subsidiaries), whether such Indebtedness or guarantee now exists, or is created after the Issue Date, which default (i) is caused by a failure to pay principal of or premium, if any, or interest on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness (a "Payment Default") or (ii) results in the acceleration of such Indebtedness prior to its express maturity and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates without duplication $15,000,000 or more, and such default shall not have been cured or waived or any such acceleration rescinded, or such Indebtedness is repaid, within ten Business Days after the running of such grace period or the occurrence of such acceleration; (f) a final judgment or final judgments for the payment of money are entered by a court or courts of competent jurisdiction against the Company or any of its Restricted Subsidiaries, and such judgment or judgments remain unpaid, unstayed or undischarged for a period (during which execution shall not be effectively stayed) of 60 days, provided that the aggregate of all such unpaid or undischarged judgments exceeds $15,000,000 (excluding amounts covered by insurance); (g) the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, when taken together, would constitute a Significant Subsidiary pursuant to or within the meaning of the Bankruptcy Code: (i) commences a voluntary case, (ii) consents to the entry of an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially all of its property, (iv) makes a general assignment for the benefit of its creditors, or (v) generally is not paying its debts as they become due; (h) a court of competent jurisdiction enters an order or decree under the Bankruptcy Code that: (i) is for relief against the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, when taken together, would constitute a Significant Subsidiary, in an involuntary case; 62 (ii) appoints a Custodian of the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, when taken together, would constitute a Significant Subsidiary, or for all or substantially all of the property of the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, when taken together, would constitute a Significant Subsidiary; or (iii) orders the liquidation of the Company or any of its Significant Subsidiaries or any group of Subsidiaries that, when taken together, would constitute a Significant Subsidiary; and the order or decree remains unstayed and in effect for 60 consecutive days; or (i) except as permitted herein, any Subsidiary Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its obligations under its Subsidiary Guarantee (other than by reason of the termination of this Indenture or the release of any such Subsidiary Guarantee in accordance with this Indenture). SECTION 6.02. Acceleration. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately. Upon any such declaration, the Notes shall become due and payable immediately. Notwithstanding the foregoing, if an Event of Default specified in clause (g) or (h) of Section 6.01 hereof occurs with respect to the Company or any Significant Subsidiary or any group of Subsidiaries that, taken together, would constitute a Significant Subsidiary, all outstanding Notes shall be due and payable immediately without further action or notice. The Holders of at least a majority in aggregate principal amount of the then outstanding Notes by written notice to the Trustee may on behalf of all of the Holders rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default (except nonpayment of principal, interest or Liquidated Damages that has become due solely because of the acceleration) have been cured or waived. SECTION 6.03. Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, interest and Liquidated Damages, if any, on the Notes or to enforce the performance of any provision of the Notes or this Indenture. The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law. 63 SECTION 6.04. Waiver of Past Defaults. Holders of not less than a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive an existing Default or Event of Default and its consequences hereunder, except a continuing Default or Event of Default in the payment of interest or Liquidated Damages, if any, on, or the principal of, the Notes including in connection with an offer to purchase; provided, however, that the Holders of a majority in aggregate principal amount of then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration, to the extent permitted by applicable law. Upon any such waiver, such Default or Event of Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. SECTION 6.05. Control by Majority. Holders of a majority in principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture that the Trustee determines may be unduly prejudicial to the rights of other Holders of Notes or that may involve the Trustee in personal liability. SECTION 6.06. Limitation on Suits. A Holder of a Note may pursue a remedy with respect to this Indenture or the Notes only if: (a) the Holder of a Note has previously given to the Trustee written notice of a continuing Event of Default; (b) the Holders of at least 25% in principal amount of the then outstanding Notes make a written request to the Trustee to pursue the remedy; (c) such Holder of a Note or Holders of Notes offer and, if requested, provide to the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense to be incurred in compliance with such request; (d) the Trustee does not comply with the request within 60 days after receipt of the request and the offer and, if requested, the provision of indemnity; and (e) during such 60-day period the Holders of a majority in principal amount of the then outstanding Notes do not give the Trustee a direction inconsistent with the request. A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or priority over another Holder of a Note or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders. 64 SECTION 6.07. Rights of Holders of Notes to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal, premium, if any, and Liquidated Damages, if any, and interest on the Note, on or after the respective due dates expressed in the Note (including in connection with an offer to purchase or redemption), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder. SECTION 6.08. Collection Suit by Trustee. If an Event of Default specified in Section 6.01(a) or (b) hereof occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Company for the whole amount of principal of, premium and Liquidated Damages, if any, and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. SECTION 6.09. Trustee May File Proofs of Claim. The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes), its creditors or its property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. SECTION 6.10. Priorities. If the Trustee collects any money pursuant to this Article, it shall pay out the money in the following order: 65 First: to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof, including payment of all compensation, expense, and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection; Second: to Holders of Notes for amounts due and unpaid on the Notes for principal, premium and Liquidated Damages, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium and Liquidated Damages, if any and interest, respectively; and Third: to the Company or to such party as a court of competent jurisdiction shall direct. The Trustee may fix a record date and payment date for any payment to Holders of Notes pursuant to this Section 6.10. SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the cost of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes. ARTICLE VII TRUSTEE SECTION 7.01. Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. (b) Except during the continuance of an Event of Default: (i) The Trustee need perform only those duties that are specifically set forth in this Indenture and the TIA and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee. To the extent of any conflict between the duties of the Trustee hereunder and under the TIA, the TIA shall control. (ii) In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee shall examine the certificates 66 and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). (c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (i) this paragraph does not limit the effect of paragraph (b) of this Section; (ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and (iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof. (d) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section. (e) No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability. The Trustee shall be under no obligation to exercise any of its rights and powers under this Indenture at the request of any Holders, unless such Holder shall have offered to the Trustee security and indemnity satisfactory to it against any loss, liability or expense. (f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. SECTION 7.02. Rights of Trustee. (a) The Trustee may conclusively rely upon any document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document. (b) Before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. (c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. 67 (d) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture. (e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company. (f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities (including fees and expenses of its agents and counsel) that might be incurred by it in compliance with such request or direction. SECTION 7.03. Individual Rights of Trustee. The Trustee, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof. SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Company's use of the proceeds from the Notes or any money paid to the Company or upon the Company's direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication. SECTION 7.05. Notice of Defaults. If a Default or Event of Default occurs and is continuing and if it is actually known to a Responsible Officer of the Trustee, the Trustee shall mail to Holders of Notes a notice of the Default or Event of Default within 90 days after the later of (a) the date the Default or Event of Default shall have occurred and (b) the date such Responsible Officer first had such actual knowledge. Except in the case of a Default or Event of Default in payment of principal of, or interest on, any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Notes. SECTION 7.06. Reports by Trustee to Holders of the Notes. Within 60 days after each May 15 beginning with the May 15 following the date of this Indenture, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders of 68 the Notes a brief report dated as of such reporting date that complies with TIA Section 313(a) (but if no event described in TIA Section 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by mail all reports as required by TIA Section 313(c). A copy of each report at the time of its mailing to the Holders of Notes shall be mailed to the Company and filed with the SEC and each stock exchange on which the Notes are listed in accordance with TIA Section 313(d). The Company shall promptly notify the Trustee when the Notes are listed on any stock exchange or delisted therefrom. SECTION 7.07. Compensation and Indemnity. The Company shall pay to the Trustee from time to time such compensation for its acceptance of this Indenture and services hereunder as such parties shall agree from time to time. The Trustee's compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee's agents and counsel. The Company shall indemnify each of the Trustee and any predecessor Trustee against any and all losses, liabilities, claims, damages or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Company (including this Section 7.07) and defending itself against any claim (whether asserted by the Company or any Holder or any other person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability, claim, damage or expense may be attributable to its negligence, bad faith or willful misconduct. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder. The Company shall defend the claim, and the Trustee shall cooperate in the defense. The Trustee may have separate counsel, and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. The obligations of the Company under this Section 7.07 shall survive the satisfaction and discharge of this Indenture. To secure the Company's payment obligations in this Section, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture. When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(g) or (h) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under the Bankruptcy Code. 69 The Trustee shall comply with the provisions of TIA Section 313(b)(2) to the extent applicable. SECTION 7.08. Replacement of Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee's acceptance of appointment as provided in this Section. The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Company. The Holders of Notes of a majority in principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in writing. The Company may remove the Trustee if: (a) the Trustee fails to comply with Section 7.10 hereof; (b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under the Bankruptcy Code; (c) a Custodian takes charge of the Trustee or its property; or (d) the Trustee becomes incapable of acting. If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Company. If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee (at the expense of the Company), the Company, or the Holders of Notes of at least 10% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee. If the Trustee, after written request by any Holder of a Note who has been a Holder of a Note for at least six months, fails to comply with Section 7.10 hereof, such Holder of a Note may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders of the Notes. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Company's obligations under Section 7.07 hereof shall continue for the benefit of the retiring Trustee. 70 SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee. As soon as practicable, the successor Trustee shall mail a notice of its succession to the Company and the Holders of the Notes. SECTION 7.10. Eligibility; Disqualification. There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition. This Indenture shall always have a Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to TIA Section 310(b). SECTION 7.11. Preferential Collection of Claims Against Company. The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated therein. ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE SECTION 8.01. Satisfaction and Discharge of Indenture. This Indenture shall upon delivery of a written request of an Officer of the Company to the Trustee cease to be of further effect with respect to the Notes (except as to any surviving rights of registration of transfer or exchange of Notes herein expressly provided for), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to the Notes, when (a) either (i) all such Notes theretofore authenticated and delivered (other than (1) such Notes which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.07 hereof and (2) such Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 8.08 hereof) have been delivered to the Trustee for cancellation; or (ii) all such Notes not theretofore delivered to the Trustee for cancellation 71 (A) have become due and payable by reason of the making of a notice of redemption or otherwise, (B) will become due and payable at their final Stated Maturity within one year, or (C) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense of, the Company, and the Company, in the case of (A) , (B) or (C) above, has deposited or caused to be deposited with the Trustee as trust funds , in trust solely for the purpose and the benefit of the Holders of such Notes, an amount of U.S. dollars or non-callable Government Securities, or a combination thereof, sufficient, without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on such Notes not theretofore delivered to the Trustee for cancellation, for principal and any premium and interest and Liquidated Damages, if any, to the date of such deposit (in the case of such Notes which have become due and payable) or to the Stated Maturity or redemption date (as the case may be) of the principal of the Notes; (b) no Default or Event of Default with respect to this Indenture or the Notes shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit (other than a Default or Event of Default resulting from the incurrence of Indebtedness or the grant of Liens securing such Indebtedness, all or a portion of the proceeds of which will be used to defease all of the Outstanding Notes pursuant to this Article VIII concurrently with such incurrence or within 30 days thereof), and such deposit will not result in a breach or violation of, or constitute a default under, any material instrument to which the Company is a party or by which the Company is bound; (c) the Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to such Notes; and (d) the Company has delivered to the Trustee (i) irrevocable instructions under this Indenture to apply the deposited funds toward the payment of such Notes at their Stated Maturity or the redemption date, as the case may be, and (ii) an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. Notwithstanding the satisfaction and discharge of this Indenture with respect to the Notes, the obligations of the Company to the Trustee under Section 7.07 hereof, and, if U.S. dollars or Government Securities shall have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section, the obligations of the Company or Trustee under Section 8.02 hereof and Section 8.08 hereof shall survive. SECTION 8.02. Application of Trust Money. Subject to the provisions of Section 8.08 hereof, all money and Government Securities deposited with the Trustee pursuant to Section 8.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly 72 or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, any Liquidated Damages, and any premium and interest for whose payment such money or Government Securities has been deposited with the Trustee. SECTION 8.03. Option to Effect Legal Defeasance or Covenant Defeasance. The Company may, at the option of its Board of Directors evidenced by a resolution set forth in an Officers' Certificate, at any time, exercise its right under either Section 8.04 or 8.05 hereof with respect to all outstanding Notes upon compliance with the conditions set forth below in this Article VIII. SECTION 8.04. Legal Defeasance and Discharge. Upon the Company's exercise under Section 8.03 hereof of the option applicable to this Section 8.04, each of the Company and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.06 hereof, be deemed to have discharged its obligations with respect to all outstanding Notes and, as applicable, its Subsidiary Guarantees on the date the conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance means that each of the Company and the Guarantors shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, and to the extent applicable, represented by the Subsidiary Guarantees, which in each case shall thereafter be deemed to be "outstanding" only for the purposes of Section 8.07 hereof and the other Sections of this Indenture referred to in (a) and (b) below, and to have satisfied all its other obligations under such Notes or Subsidiary Guarantees and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder: (a) the rights of Holders of outstanding Notes to receive solely from the trust fund described in Section 8.06 hereof, and as more fully set forth in such Section, payments in respect of the principal of, and premium, if any, and interest and Liquidated Damages, if any, on, such Notes when such payments are due (but not the Change of Control Payment or the payment pursuant to an Asset Sale Offer), (b) the Company's obligations with respect to such Notes under Sections 2.03, 2.04, 2.07, 2.10 and 4.02 hereof, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Company's obligations in connection therewith and (d) this Article VIII. Subject to compliance with this Article VIII, the Company may exercise its option under this Section 8.04 notwithstanding the prior exercise of its option under Section 8.05 hereof. SECTION 8.05. Covenant Defeasance. Upon the Company's exercise under Section 8.03 hereof of the option applicable to this Section 8.05, each of the Company and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.06 hereof, be released from its obligations under the covenants contained in Article IV hereof (other than those in Sections 4.01, 4.02, 4.06 and 4.14), Article V hereof and Section 11.03 hereof on and after the date the conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter be deemed not "outstanding" for the purposes of any direction, waiver, consent or declaration or act of Holders 73 (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed "outstanding" for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document, and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby. In addition, upon the Company's exercise under Section 8.03 hereof of the option applicable to this Section 8.05 hereof, subject to the satisfaction of the conditions set forth in Section 8.06 hereof, Sections 6.01(e) through 6.01(g) hereof and 6.01(i) hereof shall not constitute Events of Default. SECTION 8.06. Conditions to Legal or Covenant Defeasance. The following shall be the conditions to the application of either Section 8.04 or 8.05 hereof in order to exercise either Legal Defeasance or Covenant Defeasance with respect to the outstanding Notes: (a) the Company must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and premium, if any, and interest and Liquidated Damages, if any, on, the outstanding Notes on the stated maturity or on the applicable repurchase or redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity or to a particular repurchase or redemption date; (b) in the case of an election under Section 8.04 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; (c) in the case of an election under Section 8.05 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that the Holders of the outstanding Notes will not recognize income, gain or loss for federal income tax purposes as a result of such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; 74 (d) no Default or Event of Default shall have occurred and be continuing on the date of such deposit (other than a Default or Event of Default resulting from the incurrence of Indebtedness or the grant of Liens securing such Indebtedness, all or a portion of the proceeds of which will be applied to such deposit) or insofar as Section 6.01(g) or 6.01(h) hereof is concerned, at any time in the period ending on the 91st day after the date of deposit; (e) such deposit will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company or any of its Restricted Subsidiaries is a party or by which the Company or any of its Restricted Subsidiaries is bound, or if such breach, violation or default would occur, which is not waived as of, and for all purposes, on and after, the date of such deposit; (f) the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that on the 91st day following the deposit, the trust funds will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally; (g) the Company shall have delivered to the Trustee an Officers' Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of Notes over the other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding creditors of the Company or others; and (h) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with. SECTION 8.07. Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions. Subject to Section 8.08 hereof, all money and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.07, the "Trustee") pursuant to Section 8.06 hereof in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and interest and Liquidated Damages, if any, but such money need not be segregated from other funds except to the extent required by law. The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited pursuant to Section 8.06 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes. Anything in this Article VIII to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon the request of the Company any money or non-callable Government Securities held by it as provided in Section 8.06 hereof which, in the 75 opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.06(a) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance. SECTION 8.08. Repayment to Company. Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, or premium, if any, or interest and Liquidated Damages, if any, on, any Note and remaining unclaimed for two years after such principal, and premium, if any, or interest and Liquidated Damages, if any, has become due and payable shall be paid to the Company on its request or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter, as a secured creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in The New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining will be repaid to the Company. SECTION 8.09. Reinstatement. If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable Government Securities in accordance with Section 8.04 or 8.05 hereof, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company's obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.04 or 8.05 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.04 or 8.05 hereof, as the case may be; provided, however, that, if the Company makes any payment of principal of, or premium, if any, or interest and Liquidated Damages, if any, on, any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent. ARTICLE IX AMENDMENT, SUPPLEMENT AND WAIVER SECTION 9.01. Without Consent of Holders of Notes. Notwithstanding Section 9.02 hereof, the Company and the Trustee may amend or supplement this Indenture, the Notes or the Subsidiary Guarantees without the consent of any Holder of a Note: (a) to cure any ambiguity, defect or inconsistency; 76 (b) to provide for uncertificated Notes in addition to or in place of certificated Notes or to alter the provisions of Article II hereof (including the related definitions) in a manner that does not materially adversely affect any Holder; (c) to provide for the assumption of the Company's or any Guarantor's obligations to the Holders of the Notes in the case of a merger, consolidation or sale of all or substantially all assets of the Company pursuant to Article V hereof or of any Guarantor pursuant to Article XI hereof or to add any Person as a Guarantor hereunder or to release any Guarantor or otherwise comply with Article XI; (d) to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the legal rights hereunder of any such Holder; (e) to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA or to allow any Guarantor to guarantee the Notes; (f) to evidence or provide for the acceptance of appointment of a successor Trustee pursuant to Sections 7.08 or 7.09 hereof; (g) to add any additional Events of Default; or (h) to secure the Notes or the Subsidiary Guarantees. Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Company in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental Indenture that affects its own rights, duties, liabilities or immunities under this Indenture or otherwise. SECTION 9.02. With Consent of Holders of Notes. Except as provided below in this Section 9.02, the Company and the Trustee may amend or supplement this Indenture (including Sections 3.09, 4.10 and 4.15 hereof) and the Notes may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding (including consents obtained in connection with the purchase of, or a tender offer or exchange offer for, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default or compliance with any provision of this Indenture or the Notes may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes (including consents obtained in connection with a tender offer or exchange offer for the Notes). Upon the request of the Company accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as 77 aforesaid, and upon receipt by a Responsible Officer of the Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Company in the execution of such amended or supplemental Indenture unless such amended or supplemental Indenture affects the Trustee's own rights, duties, liabilities or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture. It shall not be necessary for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof. After an amendment, supplement or waiver under this Section becomes effective, the Company shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority in aggregate principal amount of the Notes then outstanding may waive compliance in a particular instance by the Company with any provision of this Indenture or the Notes. However, without the consent of each Holder affected, an amendment or waiver may not (with respect to any Notes held by a nonconsenting Holder): (a) reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver under any provision of this Indenture, the Notes or any Subsidiary Guarantee; (b) reduce the principal of or change the fixed maturity of any Note or alter or waive in any manner that adversely affects the rights of any Holder of Notes any of the provisions with respect to the redemption of the Notes except as provided above with respect to Sections 3.09, 4.10 and 4.15 hereof and the related definitions; (c) reduce the rate of or change the time for payment of interest, including default interest, or Liquidated Damages, if any, on any Note; (d) waive a Default or Event of Default in the payment of principal of or premium, if any, or interest or Liquidated Damages, if any, on the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the then outstanding Notes and a waiver of the payment default that resulted from such acceleration); (e) make any Note payable in money other than that stated in the Notes; (f) make any change that adversely affects the rights of any Holder of Notes in the provisions of this Indenture relating to waivers of past Defaults or make any change to the rights of Holders of Notes to receive payments of principal of, or premium, if any, or interest or Liquidated Damages, if any, on the Notes (except as permitted in clause (g) of this Section 9.02); (g) waive a redemption payment with respect to any Note (other than a payment required by Sections 3.09, 4.10 and 4.15 hereof); or 78 (h) make any change in Section 6.04 or 6.07 hereof or in the foregoing amendment and waiver provisions. In addition to any consent of Holders required in this Section 9.02, any amendment to Article X hereof will require the consent of the Holders of at least 75% in aggregate principal amount of the Notes then outstanding if such amendment would adversely affect the rights of Holders of Notes. SECTION 9.03. Compliance with Trust Indenture Act. Every amendment or supplement to this Indenture or the Notes shall be set forth in a amended or supplemental indenture that complies with the TIA as then in effect. SECTION 9.04. Revocation and Effect of Consents. Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder's Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder. SECTION 9.05. Notation on or Exchange of Notes. The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Company, in exchange for all Notes, may issue and the Trustee shall authenticate new Notes that reflect the amendment, supplement or waiver. Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver. SECTION 9.06. Trustee to Sign Amendments, Etc. The Trustee shall sign any amended or supplemental indenture authorized pursuant to this Article IX if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties, liabilities or immunities under this Indenture or otherwise. The Company may not sign an amendment or supplemental indenture until the Board of Directors approves it. In executing any amended or supplemental indenture, the Trustee shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully protected in relying upon, an Officers' Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture. 79 ARTICLE X SUBORDINATION SECTION 10.01. Agreement to Subordinate. The Company agrees, and each Holder by accepting a Note agrees, that the payment of principal of, and premium, if any, and interest and Liquidated Damages, if any, on the Notes is subordinated in right of payment, to the extent and in the manner provided in this Article X, to the prior payment in full, in cash, of all Senior Debt (whether outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed), and that the subordination is for the benefit of the holders of Senior Debt. SECTION 10.02. Liquidation; Dissolution; Bankruptcy. Upon any distribution to creditors of the Company in a liquidation or dissolution of the Company or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Company or its property, in an assignment for the benefit of creditors or any marshaling of the Company's assets and liabilities, the holders of Senior Debt shall be entitled to receive payment in full, in cash, of all Obligations due in respect of such Senior Debt (including interest after the commencement of any such proceeding at the rate specified in the applicable Senior Debt (whether or not an allowable claim)) before the Holders of the Notes shall be entitled to receive any payment with respect to the Notes, and until all Obligations with respect to Senior Debt are paid in full, in cash, pursuant to such liquidation or dissolution, any such distribution to which the Holders of Notes would be entitled shall be made to the holders of Senior Debt (except that Holders of Notes may receive and retain (i) Permitted Junior Securities and (ii) payments and other distributions made from any defeasance trust created pursuant to Article VIII hereof; provided that at the time of its creation such trust does not violate the Senior Credit Facility). SECTION 10.03. Default on Designated Senior Debt. The Company may not make any payment upon or in respect of the Notes (other than (i) Permitted Junior Securities and (ii) payments and other distributions made from any trust created pursuant to Article VIII hereof; provided that at the time of its creation such trust does not violate the Senior Credit Facility) if: (a) a default in the payment, when due, of the principal of, premium, if any, or interest on Designated Senior Debt occurs and is continuing beyond any applicable grace period in the agreement, indenture or other document governing such Designated Senior Debt; or (b) a default, other than a payment default pursuant to the preceding clause (a), on Designated Senior Debt occurs and is continuing that then permits holders of the Designated Senior Debt as to which such default relates to accelerate its maturity without further notice or the expiration of any applicable grace periods (a "Nonpayment Default") and the Trustee receives (and the Company receives, if not sent by the Company) a notice of the default (a "Payment Blockage Notice") from a Person who may give it pursuant to Section 10.09 hereof, 80 which notice states it is a Payment Blockage Notice under this Indenture and that is submitted by such Person to evidence its election to effect a payment blockage for the period specified in the next following paragraph. The Company may and shall resume payments on and distributions in respect of the Notes: (i) in the case of a payment default pursuant to clause (a) of this Section 10.03, upon the date on which the default is cured or waived or any acceleration if rescinded, as applicable, and (ii) in the case of a Nonpayment Default, the earlier of (a) the date on which such Nonpayment Default is cured or waived or (b) 179 days after the date on which the applicable Payment Blockage Notice is received, unless the maturity of such Designated Senior Debt has been accelerated and not thereafter rescinded, provided, in each case, the Company may pay the Notes without regard to the foregoing if it and the Trustee receive written notice approving the same from Representatives of each Designated Senior Debt. If the Trustee receives any such Payment Blockage Notice, no subsequent Payment Blockage Notice shall commence or be effective for purposes of this Section unless and until (i) 360 days shall have elapsed since the effectiveness of the immediately prior Payment Blockage Notice and (ii) all scheduled payments of principal of, and premium, if any, and interest and Liquidated Damages, if any, on, the Notes that have come due have been paid in full in cash. No Nonpayment Default that existed or was continuing on the date of delivery of any Payment Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent Payment Blockage Notice unless such default shall have been cured or waived for a period of not less than 90 days. SECTION 10.04. Acceleration of Notes. If payment of the Notes is accelerated because of an Event of Default, the Company shall promptly notify holders of Senior Debt of the acceleration. SECTION 10.05. Notice by Company. The Company shall promptly notify the Trustee and the Paying Agent of any facts known to the Company that would cause a payment of any Obligations with respect to the Notes to violate this Article X, but failure to give such notice shall not affect the subordination of the Notes to the Senior Debt as provided in this Article X. SECTION 10.06. Subrogation. After all Senior Debt is paid in full in cash and until the Notes are paid in full, Holders of Notes shall be subrogated to the rights of holders of Senior Debt or holders of debt of the Company which is pari passu with the Notes but not expressly subordinated to Senior Debt to receive distributions applicable to Senior Debt to the extent that distributions otherwise payable to the Holders of Notes have been applied to the payment of Senior Debt. A distribution made 81 under this Article X to holders of Senior Debt that otherwise would have been made to Holders of Notes is not, as between the Company and Holders, a payment by the Company on the Notes. SECTION 10.07. Relative Rights. This Article X defines the relative rights of Holders of Notes and holders of Senior Debt. Nothing in this Indenture shall: (a) impair, as between the Company and Holders of Notes, the obligation of the Company, which is absolute and unconditional, to pay principal of, premium, if any and interest and Liquidated Damages, if any, on, the Notes in accordance with their terms; (b) affect the relative rights of Holders of Notes and creditors of the Company other than their rights in relation to holders of Senior Debt; or (c) prevent the Trustee or any Holder of Notes from exercising its available remedies upon a Default or Event of Default, subject to the rights of holders and owners of Senior Debt to receive distributions and payments otherwise payable to Holders of Notes. If the Company fails because of this Article X to pay principal of or interest and Liquidated Damages, if any, on a Note on the due date, the failure after any applicable grace period has elapsed is still a Default or Event of Default. SECTION 10.08. Subordination May Not Be Impaired by Company. No right of any holder of Senior Debt to enforce the subordination of the Indebtedness evidenced by the Notes shall be impaired by any act or failure to act by the Company or any Holder or by the failure of the Company or any Holder to comply with this Indenture. SECTION 10.09. Distribution or Notice to Representative. Whenever a distribution is to be made or a notice given to holders of any Senior Debt, the distribution may be made and the notice given to the Representative of such Senior Debt. Upon any payment or distribution of assets of the Company referred to in this Article X, the Trustee and the Holders of Notes shall be entitled to rely upon any order or decree made by any court of competent jurisdiction or upon any certificate of such Representative or of the liquidating trustee or agent or other Person making any distribution to the Trustee or to the Holders of Notes for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Debt and other Indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article X. SECTION 10.10. Rights of Trustee and Paying Agent. Notwithstanding the provisions of this Article X or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment or distribution by the Trustee, and the Trustee and the Paying Agent 82 may continue to make payments on the Notes, unless a Responsible Officer of the Trustee shall have received at its Corporate Trust Office at least five Business Days prior to the date of such payment written notice of facts that would cause the payment of any Obligations with respect to the Notes to violate this Article X. Only the Company or a Representative of the holders of any Designated Senior Debt may give the notice. Nothing in this Article X shall impair the claims of, or payments to, the Trustee under or pursuant to Section 7.07 hereof. The Trustee in its individual or any other capacity may hold Senior Debt with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. SECTION 10.11. Authorization to Effect Subordination. Each Holder of Notes, by the Holder's acceptance thereof, authorizes and directs the Trustee on such Holder's behalf to take such action as may be necessary or appropriate to effectuate the subordination as provided in this Article X, and appoints the Trustee to act as such Holder's attorney-in-fact for any and all such purposes. If the Trustee does not file a proper proof of claim or proof of debt in the form required in any proceeding referred to in Section 6.09 hereof at least 30 days before the expiration of the time to file such claim, any Representative is hereby authorized to file an appropriate claim for and on behalf of the Holders of the Notes. SECTION 10.12. Amendments. The provisions of this Article X shall not be amended or modified without the written consent of the respective Representatives under the Senior Credit Facility and all other Designated Senior Debt. SECTION 10.13. Continued Effectiveness. The terms of this Indenture, the subordination effected hereby, and the rights and other obligations of the Holders of the Notes of the holders of Senior Debt arising hereunder, shall not be affected, modified or impaired in any manner or to any extent by: (i) any amendment or modification of or supplement to any Credit Facility (to the extent not prohibited by this Indenture); (ii) the validity and enforceability of any of such documents; or (iii) any exercise or non-exercise of any right, power or remedy under or in respect of the Senior Debt or the Obligations evidenced by the Notes or any of the instruments or documents referred to in clause (i) above. Each Holder of Notes hereby acknowledges that the provisions of this Indenture are intended to be enforceable at all times, whether before the commencement of, in connection with or premised on the occurrence of any voluntary or involuntary insolvency, bankruptcy, receivership, custodianship, liquidation, dissolution, reorganization, assignment for the benefit of creditors, appointment of a custodian, receiver, trustee or other officer with similar powers or any other proceeding for the liquidation, dissolution or other winding up of the Company or any Guarantor (including, without limitation, any such proceeding under the Bankruptcy Code). SECTION 10.14. Cumulative Rights; No Waivers. Subject to Section 10.03 hereof, each and every right, remedy and power granted to any Representative of any Senior Debt hereunder shall be cumulative and in addition to any other right, remedy or power specifically granted herein, in the related Senior Debt or now or hereafter 83 existing in equity, at law, by virtue of statute or otherwise, and may be exercised by any Representative of any Senior Debt or the holders of any Senior Debt, from time to time, concurrently or independently and as often and in such order as such any Representative or the holders of Senior Debt may deem expedient (subject to the limits provided in Section 10.03 hereof with respect to payment blockages). Any failure or delay on the part of any Representative of Senior Debt or the holders of Senior Debt in exercising any such right, remedy or power, or abandonment or discontinuance of steps to enforce the same, shall not operate as a waiver thereof or affect the rights of such any Representative or the holders of Senior Debt thereafter to exercise the same, and any single or partial exercise of any such right, remedy or power shall not preclude any other or further exercise thereof or the exercise of any other right, remedy or power, and no such failure, delay, abandonment or single or partial exercise of the rights of any Representative of Senior Debt or the holders of Senior Debt hereunder shall be deemed to establish a custom or course of dealing or performance among the parties hereto. SECTION 10.15. Trustee. Any Representative of Senior Debt shall be entitled to send any notices required or permitted to be delivered to the Holders of the Notes to the Trustee on behalf of such holders and any such notice so delivered to the Trustee shall be deemed to have been delivered to all Holders of Notes. ARTICLE XI GUARANTEES SECTION 11.01. Subsidiary Guarantees. Subject to Section 11.05 hereof, each of the Guarantors hereby jointly and severally, unconditionally guarantees, and each Person who in the future becomes a Guarantor by executing a supplemental indenture in the form attached to this Indenture as Exhibit E shall jointly and severally, unconditionally guarantee, on a senior subordinated basis to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, the Notes and the Obligations of the Company hereunder and thereunder, that: (a) the principal of, and premium, if any, interest and Liquidated Damages, if any, on, the Notes will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of, and premium, if any, (to the extent permitted by law) interest and Liquidated Damages, if any, on, the Notes, and all other payment Obligations of the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in full and performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other Obligations, the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, subject to any applicable grace period, whether at stated maturity, by acceleration, redemption or otherwise. 84 Failing payment when so due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors will be jointly and severally obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall constitute an event of default under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the Obligations of the Guarantors hereunder and under the Notes in the same manner and to the same extent as the Obligations of the Company hereunder and under the Notes. The Guarantors hereby agree that their Obligations hereunder shall be unconditional, irrespective of the validity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance (other than complete performance) which might otherwise constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor, to the extent permitted by law, hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that its Subsidiary Guarantee will not be discharged except by complete performance of the Obligations contained in the Notes and this Indenture. If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors, or any Note Custodian, Trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by the Company or any Guarantor to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to, and hereby waives, any right to exercise any right of subrogation in relation to the Holders in respect of any Obligations guaranteed hereby, except as provided under Section 11.05 hereof. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article VI hereof for the purposes of its Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed thereby, and (y) in the event of any declaration of acceleration of such Obligations as provided in Article VI hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purpose of its Subsidiary Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor pursuant to Section 11.05 hereof after the Notes and the Obligations hereunder shall have been paid in full to the Holders under the Subsidiary Guarantees. SECTION 11.02. Execution and Delivery of Additional Subsidiary Guarantee or Supplemental Indenture; Notation of Subsidiary Guarantee. To effect any additional Subsidiary Guarantee set forth in Section 11.01 hereof, any future Guarantor shall execute and deliver a supplemental indenture substantially in the form of Exhibit E hereto, which supplemental indenture shall be entered into in accordance with Section 4.17 hereof and shall be executed on behalf of such Guarantor, by manual or facsimile signature, by an Officer of such Guarantor. To evidence its Subsidiary Guarantee set forth in Section 11.01 hereof, each Guarantor hereby agrees that a notation of such Subsidiary Guarantee substantially in the form set forth on Exhibits A-1 and A-2 hereof shall be endorsed by manual or facsimile signature of an Officer of 85 such Guarantor or of the Company as attorney-in fact for such Guarantor on each Note authenticated and delivered by the Trustee, and that this Indenture shall be executed on behalf of such Guarantor, by manual or facsimile signature, by an Officer of such Guarantor. For so long as a Subsidiary Guarantee of such Guarantor remains in full force and effect, each Guarantor hereby irrevocably appoints the Company as its attorney-in-fact for the purpose of executing in the name and on behalf of such Guarantor any endorsement of a notation of a Subsidiary Guarantee on any Note. If an Officer of the Company whose signature is on this Indenture or on the Subsidiary Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Subsidiary Guarantee is endorsed, the Subsidiary Guarantee shall be valid nevertheless. Each Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section 11.01 hereof shall remain in full force and effect notwithstanding any failure to endorse on each or any Note a notation of such Subsidiary Guarantee. The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee set forth in this Indenture on behalf of the Guarantors. For so long as a Subsidiary Guarantee of such Guarantor remains in full force and effect, each Guarantor hereby irrevocably appoints the Company as its attorney-in-fact for the purpose of executing in the name and on behalf of such Guarantor any supplemental indenture to this Indenture, or consent to any such supplemental indenture, which the Company and the Trustee are authorized to enter into pursuant to Sections 9.01 or 9.02 of this Indenture. SECTION 11.03. Guarantors May Consolidate, Etc., on Certain Terms. (a) Except as set forth in Articles IV and V hereof, nothing contained in this Indenture shall prohibit a merger between a Guarantor and another Guarantor or a merger between a Guarantor and the Company. (b) No Guarantor shall consolidate with or merge with or into (whether or not such Guarantor is the surviving Person), another Person whether or not affiliated with such Guarantor unless (i) the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) assumes all the Obligations of such Guarantor, pursuant to a supplemental indenture substantially in the form of Exhibit E hereto, under this Indenture; (ii) immediately after giving effect to such transaction, no Default or Event of Default exists; and (iii) except in the case of the merger of a Guarantor with or into another Guarantor or the Company, the Company would be permitted by virtue of the Company's pro forma Fixed Charge Coverage Ratio, immediately after giving effect to such transaction, to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of Section 4.09 hereof; provided, however, that this clause (iii) shall be permanently terminated in the event that the Company and its Restricted Subsidiaries are no longer subject to the Terminated Covenants subject to Section 4.19 hereof. Notwithstanding the foregoing paragraph (and in the case of clause (iii) of this paragraph, notwithstanding Section 11.03(c) hereof), (i) any Guarantor may consolidate with, merge into or 86 transfer all or a part of its properties and assets to the Company or any other Guarantor, (ii) any Guarantor may consolidate with merge into or transfer all or a part of its properties and assets to a Restricted Subsidiary of the Company that has no significant assets or liabilities and was incorporated, organized or formed solely for the purpose of reincorporating or otherwise reorganizing such Guarantor in another State of the United States; provided that, in each case, such successor, resultant or transferee Person continues to be a Guarantor and (iii) subject to the provisions of Section 11.04, upon the occurrence of one or more of the transactions provided for in the preceding paragraph, a Guarantor shall be released from its obligations under its Subsidiary Guarantee and otherwise under this Indenture, and any related resultant, surviving or transferee Person shall not be required to assume any of such obligations. (c) In the case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and substantially in the form of Exhibit E hereto, of the Subsidiary Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of this Indenture to be performed by the Guarantor, such successor Person shall succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of the Subsidiary Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee. All of the Subsidiary Guarantees so issued shall in all respects have the same legal rank and benefit under this Indenture as the Subsidiary Guarantees theretofore and thereafter issued in accordance with the terms of this Indenture as though all of such Subsidiary Guarantees had been issued at the date of the execution hereof. SECTION 11.04. Releases Following Release Under All Indebtedness or Sale of Assets. Upon (x) the release by the lenders of all guarantees of a Guarantor guaranteeing, and all Liens on the property and assets of such Guarantor securing, Indebtedness of the Company, or (y) a sale or other disposition, whether in one or a series of related transactions, of all or substantially all of the assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition, whether in one or a series of related transactions, of all of the Capital Stock of any Guarantor in compliance with this Indenture to any entity that is not the Company or a Subsidiary, then such Guarantor and such acquiring, resulting, surviving or transferee Person will be released and relieved of any obligations under any Subsidiary Guarantee; provided, however, that any such termination shall occur only to the extent that all obligations of such Guarantor under such Indebtedness and all of its guarantees of, and under all of its pledges of assets or other security interests which secure, Indebtedness of the Company shall also terminate upon such release, sale or transfer and, in the event of any sale or other disposition, delivery of an Officers' Certificate to the Trustee that the Net Proceeds of such sale or other disposition will be applied in accordance with Section 4.10 hereof. Upon delivery by the Company to the Trustee of an Officers' Certificate to the effect of the foregoing, the Trustee shall execute any documents reasonably required in order to evidence the release of any Guarantor from its Obligation under its Subsidiary Guarantee and this Indenture. Any Guarantor not released from its Obligations under its Subsidiary Guarantee shall remain liable for the full amount of principal of, and premium, if any, interest and Liquidated Damages, if any, on the Notes and for the other Obligations of such Guarantor under this Indenture as provided in this Article XI. 87 SECTION 11.05. Limitation on Guarantor Liability; Contribution. For purposes hereof, each Guarantor's liability under its Subsidiary Guarantee shall be limited to the lesser of (i) the aggregate amount of the Obligations of the Company under the Notes and this Indenture and (ii) the amount, if any, which would not have (A) rendered such Guarantor "insolvent" (as such term is defined in the Bankruptcy Code and in the Debtor and Creditor Law of the State of New York) or (B) left such Guarantor with unreasonably small capital at the time its Subsidiary Guarantee of the Notes was entered into; provided that, it will be a presumption in any lawsuit or other proceeding in which a Guarantor is a party that the amount guaranteed pursuant to its Subsidiary Guarantee is the amount set forth in clause (i) above unless any creditor, or representative of creditors of such Guarantor, or debtor in possession or trustee in bankruptcy of such Guarantor, otherwise proves in such a lawsuit that the aggregate liability of such Guarantor is the amount set forth in clause (ii) above. In making any determination as to solvency or sufficiency of capital of a Guarantor in accordance with the previous sentence, the right of such Guarantor to contribution from other Guarantors as set forth below, and any other rights such Guarantor may have, contractual or otherwise, shall be taken into account. In order to provide for just and equitable contribution among the Guarantors, the Guarantors shall agree, inter se, that in the event any payment or distribution is made by any Guarantor (a "Funding Guarantor") under its Subsidiary Guarantee, such Funding Guarantor shall be entitled to a contribution from all other Guarantors in a pro rata amount based on the Adjusted Net Assets of each Guarantor (including the Funding Guarantor) for all payments, damages and expenses incurred by that Funding Guarantor in discharging the Company's obligations with respect to the Notes or any other Guarantor's Obligations with respect to its Subsidiary Guarantee. SECTION 11.06. Trustee to Include Paying Agent. In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term "Trustee" as used in this Article XI shall in each case (unless the context shall otherwise require) be construed as extending to and including such Paying Agent within its meaning as fully and for all intents and purposes as if such Paying Agent were named in this Article XI in place of the Trustee. SECTION 11.07. Subordination of Subsidiary Guarantee. The obligations of each Guarantor under its Subsidiary Guarantee pursuant to this Article XI shall be subordinated to the prior payment in full of all Senior Debt of such Guarantor, and the amounts for which the Guarantors will be liable under the guarantees issued from time to time with respect to Senior Debt, to the same extent as the obligations of the Company with respect to the Notes are subordinated to Senior Debt of the Company. For the purposes of the foregoing sentence, the Trustee and the Holders of Notes shall have the right to receive or retain payments by any of the Guarantors only at such times as they may receive or retain payments in respect of the Notes pursuant to this Indenture, including Article X hereof. 88 Each Holder of a Note by its acceptance thereof (a) agrees to and shall be bound by the provisions of this Section 11.07, (b) authorizes and directs the Trustee on its behalf to take such action as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee its attorney-in-fact for any and all such purposes. Consistent with the subordination of the Subsidiary Guarantees, for purposes of any applicable fraudulent transfer or similar laws, Indebtedness incurred under any Credit Facility will be deemed to have been incurred prior to the incurrence by any Guarantor of its liability under its Subsidiary Guarantee. ARTICLE XII MISCELLANEOUS SECTION 12.01. Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by TIA Section 318(c), the imposed duties shall control. SECTION 12.02. Notices. Any notice or communication by the Company, any Guarantor or the Trustee to the others is duly given if in writing and delivered in Person or mailed by first class mail (registered or certified, return receipt requested), telecopier or overnight air courier guaranteeing next day delivery, to the others' address: If to the Company or any Guarantor: Tesoro Petroleum Corporation 300 Concord Plaza Drive San Antonio, Texas 78216-6999 Attention: Corporate Secretary If to the Trustee: U.S. Bank Trust National Association 535 Griswold, Suite 740 Detroit, Michigan 48226 Fax No.: 313-963-9428 Attention: Corporate Trust Administration Ref: Tesoro Petroleum Corporation The Company, any Guarantor or the Trustee, by notice to the others may designate additional or different addresses for subsequent notices or communications. All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back; when receipt 89 acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery. Any notice or communication to a Holder shall be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Any notice or communication shall also be so mailed to any Person described in TIA Section 313(c), to the extent required by the TIA. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it. If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time. SECTION 12.03. Communication by Holders of Notes with Other Holders of Notes. Holders may communicate pursuant to TIA Section 312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA Section 312(c). SECTION 12.04. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee: (a) an Officers' Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and (b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied. SECTION 12.05. Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA Section 314(e) and shall include: (a) a statement that the Person making such certificate or opinion has read such covenant or condition; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; 90 (c) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been satisfied; and (d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied. SECTION 12.06. Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions. SECTION 12.07. No Personal Liability of Directors, Officers, Employees and Stockholders. No past, present or future director, officer, employee, incorporator, partner, member or stockholder or other owner of Capital Stock of the Company or any of its Subsidiaries, or of any member, partner or stockholder of any such entity, as such, shall have any liability for any obligations of the Company or any Guarantor under the Notes, this Indenture or the Subsidiary Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. SECTION 12.08. Governing Law. THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES. SECTION 12.09. No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture. SECTION 12.10. Successors. All agreements of the Company in this Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors. SECTION 12.11. Severability. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 91 SECTION 12.12. Counterpart Originals. The parties may sign any number of copies of this Indenture, and each party hereto may sign any number of separate copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. SECTION 12.13. Table of Contents, Headings, Etc. The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof. 92 SIGNATURES Dated as of November 6, 2001 TESORO PETROLEUM CORPORATION By: /s/ Bruce A. Smith -------------------------------- Name: Bruce A. Smith Title: Chairman of the Board of Directors, President and Chief Executive Officer U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee By: /s/ James Kowalski -------------------------------- Name: James Kowalski Title: Asst Vice President FAR EAST MARITIME COMPANY GOLD STAR MARITIME COMPANY TESORO FINANCIAL SERVICES HOLDING COMPANY VICTORY FINANCE COMPANY By: /s/ Sharon L. Layman -------------------------------- Name: Sharon L. Layman Title: As Authorized Person DIGICOMP INC. KENAI PIPE LINE COMPANY SMILEY'S SUPER SERVICE, INC. TESORO ALASKA COMPANY TESORO ALASKA PIPELINE COMPANY TESORO AVIATION COMPANY TESORO GAS RESOURCES COMPANY, INC. TESORO HAWAII CORPORATION TESORO HIGH PLAINS PIPELINE COMPANY TESORO MARINE SERVICES HOLDING COMPANY TESORO MARINE SERVICES, INC. TESORO MARITIME COMPANY TESORO NORTHSTORE COMPANY TESORO PETROLEUM COMPANIES, INC. TESORO REFINING, MARKETING & SUPPLY COMPANY TESORO SOUTH PACIFIC PETROLEUM CORPORATION TESORO TECHNOLOGY COMPANY TESORO VOSTOK COMPANY TESORO WEST COAST COMPANY By: /s/ Sharon L. Laymond ----------------------------------- Name: Sharon L. Layman Title: Vice President and Treasurer EXHIBITS Exhibit A FORM OF NOTE Exhibit B FORM OF CERTIFICATE OF TRANSFER Exhibit C FORM OF CERTIFICATE OF EXCHANGE Exhibit D FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR Exhibit E FORM OF SUPPLEMENTAL INDENTURE Exhibit F REGISTRATION RIGHTS AGREEMENT EXHIBIT A-1 (FACE OF NOTE) CUSIP/CINS __________ 9 5/8% Senior Subordinated Notes due 2008 No. A1 $__________ TESORO PETROLEUM CORPORATION promises to pay to or registered assigns, the principal sum of Dollars on November 1, 2008. Interest Payment Dates: May 1 and November 1. Record Dates: April 15 and October 15. TESORO PETROLEUM CORPORATION By: -------------------------------------- Name: Title: This is one of the [Global] Notes referred to in the within-mentioned Indenture: U. S. BANK TRUST NATIONAL ASSOCIATION AS TRUSTEE By: ------------------------------------ Authorized Signatory A1-1 (Back of Note) 9 5/8% Senior Subordinated Notes due 2008 [Insert the Global Note Legend, if applicable, pursuant to the provisions of the Indenture] [Insert the Private Placement Legend, if applicable, pursuant to the provisions of the Indenture] Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated. 1. Interest. Tesoro Petroleum Corporation, a Delaware corporation (the "Company"), promises to pay interest on the principal amount of this Note at 9 5/8% per annum, from November 6, 2001 until maturity and shall pay the Liquidated Damages payable pursuant to Section 5 of the Registration Rights Agreement referred to below. The Company will pay interest and Liquidated Damages, if any, semi-annually in arrears on May 1 and November 1 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each an "Interest Payment Date"). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of original issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date, except in the case of the original issuance of Notes, in which case interest shall accrue from date of authentication; provided, further, that the first Interest Payment Date shall be May 1, 2002. The Company shall pay interest (including postpetition interest in any proceeding under the Bankruptcy Code) on overdue principal and premium, if any, from time to time on demand at the rate borne on the Notes; it shall pay interest (including post-petition interest in any proceeding under the Bankruptcy Code) on overdue installments of interest and Liquidated Damages, if any, (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months. 2. Method of Payment. The Company will pay interest on the Notes (except defaulted interest) and Liquidated Damages to the Persons who are registered Holders of Notes at the close of business on the April 15 or October 15 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium and Liquidated Damages, if any, and interest at the office or agency of the Company maintained for such purpose within the City and State of New York, or, at the option of the Company, payment of interest and Liquidated Damages may be made by check mailed to the Holders at their addresses set forth in the register of Holders, and provided that payment by wire transfer of immediately available funds will be required with respect to principal of, and interest, premium and Liquidated Damages on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Company or the Paying Agent. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. A1-2 3. Paying Agent and Registrar. Initially, U.S. Bank Trust National Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity. 4. Indenture; Subordination. The Company issued the Notes under an Indenture dated as of November 6, 2001 ("Indenture") between the Company, the Guarantors and the Trustee, as the same may be amended, modified or supplemented from time to time. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are general unsecured obligations of the Company limited to $215,000,000 aggregate principal amount in the case of Notes issued on the Issue Date. The Notes are subordinated in right of payment, in the manner and to the extent set forth in the Indenture, to the prior payment in full in cash of all Senior Debt of the Company, whether outstanding on the date of the Indenture or thereafter created, incurred, assumed or guaranteed. The Subsidiary Guarantees in respect of the Notes will be subordinated in right of payment, in the manner and to the extent set forth in the Indenture, to the prior payment in full in cash of all Senior Debt of each Guarantor, whether outstanding on the date of the Indenture or thereafter created, incurred assumed or guaranteed. Each Holder by its acceptance hereof agrees to be bound by such provisions and authorizes and expressly directs the Trustee, on its behalf, to take such action as may be necessary or appropriate to effectuate the subordination provided for in the Indenture and appoints the Trustee its attorney-in-fact for such purposes. 5. Optional Redemption. (a) Except as set forth in subparagraph (b) of this paragraph 5, the Notes shall not be redeemable at the Company's option prior to November 1, 2005. Thereafter, the Notes will be subject to redemption at any time or from time to time at the option of the Company, in whole or in part, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the applicable redemption date, if redeemed during the twelve-month period beginning on November 1 of the years indicated below:
YEAR PERCENTAGE ---- ---------- 2005................................... 104.813% 2006................................... 102.406% 2007 and thereafter.................... 100%
(b) Notwithstanding the foregoing, at any time or from time to time prior to November 1, 2004, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price of 109.625% of the principal amount thereof, plus accrued and unpaid interest, if any, and Liquidated Damages thereon, if any, to the redemption date, with the net cash proceeds of any A1-3 one or more Equity Offerings; provided that at least 65% of the aggregate principal amount of Notes issued under the Indenture remain outstanding immediately after each occurrence of such redemption; and provided, further, that each such redemption shall occur within 90 days of the date of the closing of such Equity Offering. 6. Mandatory Redemption. The Company shall not be required to make mandatory redemption payments with respect to the Notes. 7. Repurchase at Option of Holder. (a) Upon the occurrence of a Change of Control, each Holder of Notes will have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of such Holder's Notes pursuant to a Change of Control Offer described in the Indenture at an offer price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon to the date of purchase (the "Change of Control Payment"). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture. (b) If the Company or a Restricted Subsidiary consummates any Asset Sales and the aggregate amount of Excess Proceeds exceeds $15,000,000, the Company shall commence an offer to all Holders of Notes (an "Asset Sale Offer") pursuant to Section 3.09 of the Indenture (pro rata in proportion to outstanding Indebtedness that is pari passu with the Notes that require asset sales offers) to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted Subsidiary) may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled "Option of Holder to Elect Purchase" on the reverse of the Notes. 8. Notice of Redemption. Notice of redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address. Notes in denominations larger than $1,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date, interest and Liquidated Damages, if any, cease to accrue on Notes or portions thereof called for redemption. 9. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in denominations of $1,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and A1-4 transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, it need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date. 10. Persons Deemed Owners. The registered Holder of a Note may be treated as its owner for all purposes. 11. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the then outstanding Notes, and any existing default or compliance with any provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes. Without the consent of any Holder of a Note, the Indenture or the Notes may be amended or supplemented to cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes in addition to or in place of certificated Notes or to alter the provisions of Article II of the Indenture (including the related definitions) in a manner that does not materially adversely affect any Holder, to provide for the assumption of the Company's obligations to Holders of the Notes in case of a merger, consolidation or sale of assets pursuant to Article V of the Indenture or to add any Person as a Guarantor or to release any Guarantor or otherwise comply with Article XI of the Indenture, to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the legal rights under the Indenture of any such Holder, or to comply with the requirements of the SEC in order to effect or maintain the qualification of the Indenture under the TIA. 12. Defaults and Remedies. Events of Default include: (a) default in the payment when due of interest on, or Liquidated Damages, if any, with respect to, the Notes and such default continues for a period of 30 days; (b) default in the payment when due of principal of, or premium, if any, on, the Notes; (c) failure by the Company to comply with any of the provisions of Section 5.01 of the Indenture; (d) failure by the Company or any of its Restricted Subsidiaries to comply with any of the provisions of Section 4.15 of the Indenture; (e) failure by the Company or any of its Restricted Subsidiaries to observe or perform any other covenant or other agreement in the Indenture or the Notes for 60 days after written notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding; (f) a default occurs under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted Subsidiaries), whether such Indebtedness or guarantee now exists, or is created after the Issue Date, which default (i) is caused by a failure to pay principal of or premium, if any, or interest on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness (a "Payment Default") or (ii) results in the acceleration of such Indebtedness prior to its express maturity and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates without duplication $15,000,000 or more, and such default shall not have A1-5 been cured or waived or any such acceleration rescinded, or such Indebtedness is repaid, within 10 Business Days after the running of such grace period or the occurrence of such acceleration; (g) a final judgment or final judgments for the payment of money are entered by a court or courts of competent jurisdiction against the Company or any of its Restricted Subsidiaries, and such judgment or judgments remain unpaid, unstayed or undischarged for a period (during which execution shall not be effectively stayed) of 60 days, provided that the aggregate of all such unpaid or undischarged judgments exceeds $15,000,000 (excluding amounts covered by insurance); (h) certain events of bankruptcy or insolvency with respect to the Company or any of its Subsidiaries that, when taken together, would constitute a Significant Subsidiary or any of its Significant Subsidiaries; or (i) except as permitted in the Indenture, any Subsidiary Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its obligations under its Subsidiary Guarantee (other than by reason of termination of the Indenture or the release of such Subsidiary Guarantee in accordance with the Indenture). If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Notes will become due and payable without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest) if it determines that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of interest on, or the principal of, the Notes. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default. 13. Trustee Dealings with Company. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for, the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee. 14. No Recourse Against Others. A director, officer, employee, incorporator, partner, member or stockholder of the Company or any Subsidiary of the Company or any Guarantor, as such, shall not have any liability for any obligations of the Company or Guarantors under the Notes, the Subsidiary Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes. 15. Authentication. This Note shall not be valid until authenticated by the manual signature of a Responsible Officer of the Trustee or an authenticating agent. A1-6 16. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). 17. Additional Rights of Holders of Restricted Global Notes and Restricted Definitive Notes. In addition to the rights provided to Holders of Notes under the Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes shall have all the rights set forth in the Registration Rights Agreement dated as of November 6, 2001, between the Company and the parties named on the signature pages thereof (the "Registration Rights Agreement"). 18. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon. The Company will furnish to any Holder upon written request and without charge a copy of the Indenture and/or the Registration Rights Agreement. Requests may be made to: Tesoro Petroleum Corporation, 300 Concord Plaza Drive, San Antonio, Texas 78216-6999, Attention: Vice President, Finance and Treasurer. A1-7 NOTATION OF SUBSIDIARY GUARANTEES Payment of principal of, and premium, if any, interest and Liquidated Damages, if any, on, this Note is jointly, severally, and unconditionally guaranteed on a senior subordinated basis to the extent and in the manner set forth in the Indenture by the Guarantors who have become parties to the Indenture, including the Guarantors duly endorsing this notation. Subsidiary Guarantees are subject to release under circumstances set forth in the Indenture. [Insert Names of Guarantors] By TESORO PETROLEUM CORPORATION Attorney in fact for each of the Guarantors By: --------------------------------- Name: Title: A1-8 ASSIGNMENT FORM To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to - -------------------------------------------------------------------------------- (Insert assignee's soc. sec. or tax I.D. no.) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (Print or type assignee's name, address and zip code) and irrevocably appoint ________________________________________________________ to transfer this Note on the books of the Company. The agent may substitute another to act for him. - -------------------------------------------------------------------------------- Date: Your Signature: ----------------------------------------------------------------- (Sign exactly as your name appears on the face of this Note) SIGNATURE GUARANTEE - -------------------------------------------------------------------------------- Signatures must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. A1-9 OPTION OF HOLDER TO ELECT PURCHASE If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or 4.15 of the Indenture, check the box below: [ ] Section 4.10 [ ] Section 4.15 If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased: $_____________________________ Date: Your Signature: ----------------------------------------------------------------- (Sign exactly as your name appears on the face of the Note) Tax Identification No.: --------------------------------------------------------- SIGNATURE GUARANTEE - -------------------------------------------------------------------------------- Signatures must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. A1-10 SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*** The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:
PRINCIPAL AMOUNT OF THIS GLOBAL NOTE SIGNATURE OF AMOUNT OF DECREASE AMOUNT OF INCREASE FOLLOWING SUCH AUTHORIZED SIGNATORY IN PRINCIPAL AMOUNT IN PRINCIPAL AMOUNT DECREASE (OR OF TRUSTEE OR NOTE DATE OF EXCHANGE OF THIS GLOBAL NOTE OF THIS GLOBAL NOTE INCREASE) CUSTODIAN ---------------- ------------------- ------------------- ------------------- --------------------
- ---------- *** This should be included only if the Note is issued in global form. A1-11 EXHIBIT A-2 (FACE OF REGULATION S TEMPORARY GLOBAL NOTE) CUSIP/CINS __________ 9 5/8% Senior Subordinated Notes due 2008 No. A2 $__________ TESORO PETROLEUM CORPORATION promises to pay to or registered assigns, the principal sum of Dollars on November 1, 2008. Interest Payment Dates: May 1 and November 1. Record Dates: April 15 and October 15. TESORO PETROLEUM CORPORATION By: -------------------------------------- Name: ------------------------------------ Title: ----------------------------------- This is one of the [Global] Notes referred to in the within-mentioned Indenture: U. S. BANK TRUST NATIONAL ASSOCIATION AS TRUSTEE By: ------------------------------------ Authorized Signatory A2-1 (BACK OF REGULATION S TEMPORARY GLOBAL NOTE) 9 5/8% SENIOR SUBORDINATED NOTES DUE 2008 THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR DEFINITIVE NOTES, ARE AS SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON. THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO ARTICLE II OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF TESORO PETROLEUM CORPORATION. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES (1) NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO (X) THE DATE THAT IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR A2-2 ANY PREDECESSOR OF THIS SECURITY) AND THE LAST DAY ON WHICH TESORO PETROLEUM CORPORATION (THE "COMPANY") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION DATE"), EXCEPT (A) TO THE COMPANY OR A SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT IS ACQUIRING SUCH NOTE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS RELATING TO RESTRICTIONS ON TRANSFER OF THE NOTE EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (E) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR IN AN "OFFSHORE TRANSACTION" WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND (2) THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY, THE TRUSTEE, THE TRANSFER AGENT AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (C), (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS NOTE IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, (2) AN INSTITUTIONAL ACCREDITED INVESTOR, (3) A NON-U.S. PERSON AND IS ACQUIRING THE NOTE IN AN "OFFSHORE TRANSACTION" PURSUANT TO REGULATION S UNDER THE SECURITIES ACT OR (4) IT IS A PERSON ELIGIBLE TO BE TRANSFERRED THIS NOTE IN ACCORDANCE WITH CLAUSE (F) OF THE FOREGOING SENTENCE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated. A2-3 1. Interest. Tesoro Petroleum Corporation, a Delaware corporation (the "Company"), promises to pay interest on the principal amount of this Note at 9?% per annum from November 6, 2001 until maturity and shall pay the Liquidated Damages payable pursuant to Section 5 of the Registration Rights Agreement referred to below. The Company will pay interest and Liquidated Damages semi-annually in arrears on May 1 and November 1 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each an "Interest Payment Date"). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of original issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date, except in the case of the original issuance of Notes, in which case interest shall accrue from date of authentication; provided, further, that the first Interest Payment Date shall be May 1, 2002. The Company shall pay interest (including postpetition interest in any proceeding under the Bankruptcy Code) on overdue principal and premium, if any, from time to time on demand at the rate borne on the Notes; it shall pay interest (including post-petition interest in any proceeding under the Bankruptcy Code) on overdue installments of interest and Liquidated Damages, if any, (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months. Until this Regulation S Temporary Global Note is exchanged for one or more Regulation S Permanent Global Notes, the Holder hereof shall not be entitled to receive payments of interest hereon; until so exchanged in full, this Regulation S Temporary Global Note shall in all other respects be entitled to the same benefits as other Notes under the Indenture. 2. Method of Payment. The Company will pay interest on the Notes (except defaulted interest) and Liquidated Damages to the Persons who are registered Holders of Notes at the close of business on the April 15 or October 15 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium and Liquidated Damages, if any, and interest at the office or agency of the Company maintained for such purpose within the City and State of New York, or, at the option of the Company, payment of interest and Liquidated Damages may be made by check mailed to the Holders at their addresses set forth in the register of Holders, and provided that payment by wire transfer of immediately available funds will be required with respect to principal of, and interest, premium and Liquidated Damages on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Company or the Paying Agent. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. 3. Paying Agent and Registrar. Initially, U.S. Bank Trust National Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity. A2-4 4. Indenture; Subordination. The Company issued the Notes under an Indenture dated as of November 6, 2001 ("Indenture") between the Company, Guarantors and the Trustee, as the same may be amended, modified or supplemented from time to time. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are general unsecured obligations of the Company limited to $215,000,000 aggregate principal amount in the case of Notes issued on the Issue Date. The Notes are subordinated in right of payment, in the manner and to the extent set forth in the Indenture, to the prior payment in full in cash of all Senior Debt of the Company, whether outstanding on the date of the Indenture or thereafter created, incurred, assumed or guaranteed. The Subsidiary Guarantees in respect of the Notes will be subordinated in right of payment, in the manner and to the extent set forth in the Indenture, to the prior payment in full in cash of all Senior Debt of each Guarantor, whether outstanding on the date of the Indenture or thereafter created, incurred assumed or guaranteed. Each Holder by its acceptance hereof agrees to be bound by such provisions and authorizes and expressly directs the Trustee, on its behalf, to take such action as may be necessary or appropriate to effectuate the subordination provided for in the Indenture and appoints the Trustee its attorney-in-fact for such purposes. 5. Optional Redemption. (a) Except as set forth in subparagraph (b) of this paragraph 5, the Notes shall not be redeemable at the Company's option prior to November 1, 2005. Thereafter, the Notes will be subject to redemption at any time or from time to time at the option of the Company, in whole or in part, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the applicable redemption date, if redeemed during the twelve-month period beginning on November 1 of the years indicated below:
YEAR PERCENTAGE ---- ---------- 2005................................... 104.813% 2006................................... 102.406% 2007 and thereafter.................... 100%
(c) Notwithstanding the foregoing, at any time or from time to time prior to November 1, 2004, the Company may on any one or more occasions redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture at a redemption price of 109.625% of the principal amount thereof, plus accrued and unpaid interest, if any, and Liquidated Damages thereon, if any, to the redemption date, with the net cash proceeds of any one or more Equity Offerings; provided that at least 65% of the aggregate principal amount of Notes issued under the Indenture remain outstanding immediately after each occurrence of such redemption; and provided, further, that each such redemption shall occur within 90 days of the date of the closing of such Equity Offering. A2-5 6. Mandatory Redemption. The Company shall not be required to make mandatory redemption payments with respect to the Notes. 7. Repurchase at Option of Holder. (a) Upon the occurrence of a Change of Control, each Holder of Notes will have the right to require the Company to repurchase all or any part (equal to $1,000 or an integral multiple thereof) of such Holder's Notes pursuant to a Change of Control Offer described in the Indenture at an offer price in cash equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest and Liquidated Damages, if any, thereon, to the date of purchase (the "Change of Control Payment"). Within 30 days following any Change of Control, the Company shall mail a notice to each Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture. (b) If the Company or a Restricted Subsidiary consummates any Asset Sales and the aggregate amount of Excess Proceeds exceeds $15,000,000, the Company shall commence an offer to all Holders of Notes (an "Asset Sale Offer") pursuant to Section 3.09 of the Indenture (pro rata in proportion to outstanding Indebtedness that is pari passu with the Notes that require asset sales offers) to purchase the maximum principal amount of Notes that may be purchased out of the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the principal amount thereof plus accrued and unpaid interest and Liquidated Damages thereon, if any, to the date of purchase, in accordance with the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company (or such Restricted Subsidiary) may use such deficiency for general corporate purposes. If the aggregate principal amount of Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes to be purchased on a pro rata basis. Holders of Notes that are the subject of an offer to purchase will receive an Asset Sale Offer from the Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled "Option of Holder to Elect Purchase" on the reverse of the Notes. 8. Notice of Redemption. Notice of redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address. Notes in denominations larger than $1,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date, interest and Liquidated Damages, if any, cease to accrue on Notes or portions thereof called for redemption. 9. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in denominations of $1,000 and integral multiples of $1,000. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, it need not exchange or register the transfer of any Notes for A2-6 a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date. This Regulation S Temporary Global Note is exchangeable in whole or in part for one or more Global Notes only (i) on or after the termination of the 40-day restricted period (as defined in Regulation S) and (ii) upon presentation of certificates (accompanied by an Opinion of Counsel, if applicable) required by Article II of the Indenture. Upon exchange of this Regulation S Temporary Global Note for one or more Global Notes, the Trustee shall cancel this Regulation S Temporary Global Note. 10. Persons Deemed Owners. The registered Holder of a Note may be treated as its owner for all purposes. 11. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture or the Notes may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the then outstanding Notes, and any existing default or compliance with any provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes. Without the consent of any Holder of a Note, the Indenture or the Notes may be amended or supplemented to cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes in addition to or in place of certificated Notes or to alter the provisions of Article II of the Indenture (including the related definitions) in a manner that does not materially adversely affect any Holder, to provide for the assumption of the Company's obligations to Holders of the Notes in case of a merger, consolidation or sale of assets pursuant to Article V of the Indenture or to add any Person as a Guarantor or to release any Guarantor or otherwise comply with Article XI of the Indenture, to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the legal rights under the Indenture of any such Holder, or to comply with the requirements of the SEC in order to effect or maintain the qualification of the Indenture under the TIA. 12. Defaults and Remedies. Events of Default include: (a) default in the payment when due of interest on, or Liquidated Damages, if any, with respect to, the Notes and such default continues for a period of 30 days; (b) default in the payment when due of principal of, or premium, if any, on, the Notes; (c) failure by the Company to comply with any of the provisions of Section 5.01 of the Indenture; (d) failure by the Company or any of its Restricted Subsidiaries to comply with any of the provisions of Section 4.15 of the Indenture; (e) failure by the Company or any of its Restricted Subsidiaries to observe or perform any other covenant or other agreement in the Indenture or the Notes for 60 days after written notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding; (f) a default occurs under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted Subsidiaries), whether such Indebtedness or guarantee now exists, or is created after the Issue Date, which default (i) is caused by a failure to pay principal of or premium, if any, or interest on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness (a "Payment Default") or (ii) results in the acceleration of such Indebtedness prior to its express maturity and, in each case, the principal A2-7 amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates without duplication $15,000,000 or more, and such default shall not have been cured or waived or any such acceleration rescinded, or such Indebtedness is repaid, within 10 Business Days after the running of such grace period or the occurrence of such acceleration; (g) a final judgment or final judgments for the payment of money are entered by a court or courts of competent jurisdiction against the Company or any of its Restricted Subsidiaries, and such judgment or judgments remain unpaid, unstayed or undischarged for a period (during which execution shall not be effectively stayed) of 60 days, provided that the aggregate of all such unpaid or undischarged judgments exceeds $15,000,000 (excluding amounts covered by insurance); (h) certain events of bankruptcy or insolvency with respect to the Company or any of its Subsidiaries that, when taken together, would constitute a Significant Subsidiary or any of its Significant Subsidiaries; or (i) except as permitted in the Indenture, any Subsidiary Guarantee shall be held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its obligations under its Subsidiary Guarantee (other than by reason of termination of the Indenture or the release of such Subsidiary Guarantee in accordance with the Indenture). If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare all the Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Notes will become due and payable without further action or notice. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest) if it determines that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences under the Indenture except a continuing Default or Event of Default in the payment of interest on, or the principal of, the Notes. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default. 13. Trustee Dealings with Company. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for, the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee. 14. No Recourse Against Others. A director, officer, employee, incorporator, partner, member or stockholder of the Company or any Subsidiary of the Company or any Guarantor, as such, shall not have any liability for any obligations of the Company or Guarantors under the Notes, the Subsidiary Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes. A2-8 15. Authentication. This Note shall not be valid until authenticated by the manual signature of a Responsible Officer of the Trustee or an authenticating agent. 16. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). 17. Additional Rights of Holders of Restricted Global Notes and Restricted Definitive Notes. In addition to the rights provided to Holders of Notes under the Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes shall have all the rights set forth in the Registration Rights Agreement dated as of November 6, 2001, between the Company and the parties named on the signature pages thereof (the "Registration Rights Agreement"). 18. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon. The Company will furnish to any Holder upon written request and without charge a copy of the Indenture and/or the Registration Rights Agreement. Requests may be made to: Tesoro Petroleum Corporation 300 Concord Plaza Drive San Antonio, Texas 78216-6999 Attention: Vice President, Finance and Treasurer A2-9 NOTATION OF SUBSIDIARY GUARANTEES Payment of principal of, and premium, if any, interest and Liquidated Damages, if any, on, this Note is jointly, severally, and unconditionally guaranteed on a senior subordinated basis to the extent and in the manner set forth in the Indenture by the Guarantors who have become parties to the Indenture, including the Guarantors duly endorsing this notation. Subsidiary Guarantees are subject to release under circumstances set forth in the Indenture. [Insert Names of Guarantors] By TESORO PETROLEUM CORPORATION Attorney each of the Guarantors By: --------------------------- Name: ------------------------------- Title: ------------------------------ A2-10 ASSIGNMENT FORM To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to - -------------------------------------------------------------------------------- (Insert assignee's soc. sec. or tax I.D. no.) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (Print or type assignee's name, address and zip code) and irrevocably appoint ________________________________________________________ to transfer this Note on the books of the Company. The agent may substitute another to act for him. - -------------------------------------------------------------------------------- Date: Your Signature: ----------------------------------------------------------------- (Sign exactly as your name appears on the face of this Note) SIGNATURE GUARANTEE - -------------------------------------------------------------------------------- Signatures must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. A2-11 OPTION OF HOLDER TO ELECT PURCHASE If you want to elect to have this Note purchased by the Company pursuant to Section 4.10 or 4.15 of the Indenture, check the box below: [ ] Section 4.10 [ ] Section 4.15 If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased: $_____________________________ Date: Your Signature: ----------------------------------------------------------------- (Sign exactly as your name appears on the face of the Note) Tax Identification No.: --------------------------------------------------------- SIGNATURE GUARANTEE - -------------------------------------------------------------------------------- Signatures must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. A2-12 SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL NOTE The following exchanges of a part of this Regulation S Temporary Global Note for an interest in another Global Note or Definitive Note, or of other Restricted Global Notes or Restricted Definitive Note for an interest in this Regulation S Temporary Global Note, have been made:
PRINCIPAL AMOUNT OF THIS GLOBAL NOTE SIGNATURE OF AMOUNT OF DECREASE AMOUNT OF INCREASE FOLLOWING SUCH AUTHORIZED SIGNATORY IN PRINCIPAL AMOUNT IN PRINCIPAL AMOUNT DECREASE (OR OF TRUSTEE OR NOTE DATE OF EXCHANGE OF THIS GLOBAL NOTE OF THIS GLOBAL NOTE INCREASE) CUSTODIAN ---------------- ------------------- ------------------- ------------------- --------------------
A2-13 EXHIBIT B FORM OF CERTIFICATE OF TRANSFER Tesoro Petroleum Corporation 8700 Tesoro Drive San Antonio, Texas 78217-6218 Attention: Corporate Secretary U.S. Bank Trust National Association 535 Griswold, Suite 740 Detroit, Michigan 48226 Attention: Corporate Trust Administration Re: Tesoro Petroleum Corporation __% Senior Subordinated Notes due 2008 Reference is hereby made to the Indenture, dated as of November __, 2001 (the "Indenture"), between Tesoro Petroleum Corporation, as issuer (the "Company"), certain subsidiary guarantors and U.S. Bank Trust National Association, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture. ____________________, (the "Transferor") owns and proposes to transfer the Note[s] or interest in such in such Note[s] specified in Annex A hereto, in the principal amount of $__________ in such Note[s] or interests (the "Transfer"), to ____________________ (the "Transferee"), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that: [CHECK ALL THAT APPLY] 1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE 144A GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is being effected pursuant to and in accordance with Rule 144A under the United States Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believed and believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a "qualified institutional buyer" within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Definitive Note and in the Indenture and the Securities Act. 2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE REGULATION S TEMPORARY GLOBAL NOTE, THE REGULATION S PERMANENT GLOBAL NOTE OR A RESTRICTED DEFINITIVE NOTE PURSUANT TO REGULATION S. The Transfer is being effected pursuant B-1 to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act and (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Global Note, the Temporary Regulation S Global Note and/or the Definitive Note and in the Indenture and the Securities Act. 3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one): (a) [ ] such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act; or (b) [ ] such Transfer is being effected to the Company or a subsidiary thereof; or (c) [ ] such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act; or (d) [ ] such Transfer is being effected to an accredited investor within the meaning of Rule (501)(a)(1), (2), (3) or (7) under the Securities Act ("Institutional Accredited Investor") or pursuant to another exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor hereby certifies that the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the requirements of the exemption claimed, which certification is supported by (1) if the Transfer is to an Institutional Accredited Investor, a B-2 certificate executed by the Transferee in the form of Exhibit D to the Indenture and (2) an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certificate) to the effect that such Transfer is in compliance with the Securities Act (provided that an Opinion of Counsel need not be furnished in respect of Transfers of a principal amount of Notes of $250,000 or more at the time of Transfer to an Institutional Accredited Investor who furnishes the certificate set forth in (1) above). Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Global Note and/or the Definitive Notes and in the Indenture and the Securities Act. 4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE. (a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture. (b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture. (c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture. B-3 This certificate and the statements contained herein are made for your benefit and the benefit of the Company. - --------------------------------------- [Insert Name of Transferor] By: ------------------------------------ Name: Title: Dated: --------------------------------- B-4 ANNEX A TO CERTIFICATE OF TRANSFER 1. The Transferor owns and proposes to transfer the following: [CHECK ONE OF (a) OR (b)] (a) [ ] a beneficial interest in the: (i) [ ] 144A Global Note (CUSIP ___________), or (ii) [ ] Regulation S Global Note (CUSIP ___________); or (b) [ ] a Restricted Definitive Note. 2. After the Transfer the Transferee will hold: [CHECK ONE] (a) [ ] a beneficial interest in the: (i) [ ] 144A Global Note (CUSIP ___________), or (ii) [ ] Regulation S Global Note (CUSIP ___________), or (iii) [ ] Unrestricted Global Note (CUSIP ___________); or (b) [ ] a Restricted Definitive Note. (c) [ ] an Unrestricted Definitive Note, in accordance with the terms of the Indenture. B-5 EXHIBIT C FORM OF CERTIFICATE OF EXCHANGE Tesoro Petroleum Corporation 8700 Tesoro Drive San Antonio, Texas 78217-6218 Attention: Corporate Secretary U.S. Bank Trust National Association 535 Griswold, Suite 740 Detroit, Michigan 48226 Attention: Corporate Trust Administration Re: Tesoro Petroleum Corporation __% Senior Subordinated Notes due 2008 (CUSIP ____________) Reference is hereby made to the Indenture, dated as of November __, 2001 (the "Indenture"), between Tesoro Petroleum Corporation, as issuer (the "Company"), certain subsidiary guarantors and U.S. Bank Trust National Association, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture. ____________________ (the "Owner") owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $______________ in such Note[s] or interests (the "Exchange"). In connection with the Exchange, the Owner hereby certifies that: 1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE (a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner's beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the United States Securities Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States. (b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner's beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner C-1 hereby certifies (i) the Definitive Note is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States. (c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner's Exchange of a Restricted Definitive Note for a beneficiary interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States. (d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States. 2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES (a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner's beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner's own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act. C-2 (b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner's Restricted Definitive Note for a beneficial interest in the [CHECK ONE] [ ] 144A Global Note [ ] Regulation S Global Note with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner's own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act. This certificate and the statements contained herein are made for your benefit and the benefit of the Company. ------------------------------ [Insert Name of Owner] By: --------------------------- Name: Title: Dated: ---------------------------- C-3 EXHIBIT D FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR Tesoro Petroleum Corporation 8700 Tesoro Drive San Antonio, Texas 78217-6218 Attention: Corporate Secretary U.S. Bank Trust National Association 535 Griswold, Suite 740 Detroit, Michigan 48226 Attention: Corporate Trust Administration Re: Tesoro Petroleum Corporation __% Senior Subordinated Notes due 2008 Reference is hereby made to the Indenture, dated as of November __, 2001 (the "Indenture"), among Tesoro Petroleum Corporation, as issuer (the "Company"), certain subsidiary guarantors and U.S. Bank Trust National Association, as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture. In connection with our proposed purchase of $______________ aggregate principal amount of: (a) [ ] a beneficial interest in a Global Note, or (b) [ ] a Definitive Note, we confirm that: 1. we are an "accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the "Securities Act"), or an entity in which all of the equity owners are accredited investors within the meaning of Rule (501)(a)(1), (2), (3) or (7) under the Securities Act (an "institutional accredited investor"); 2. (i)(A) any purchase of the Notes by us will be for our own account or for the account of one or more other institutional accredited investors or as fiduciary for the account of one or more trusts, each of which is an "accredited investor" within the meaning of Rule 501(a)(7) under the Securities Act and for each of which we exercise sole investment discretion or (B) we are a "bank," within the meaning of Section 3(a)(2) of the Securities Act, or a "savings and loan association" or other institution described in Section 3(a)(5)(A) of the Securities Act that is acquiring Notes as fiduciary for the account of one or more institutions for which we exercise sole investment discretion; 3. in the event that we purchase any Notes, we will acquire Notes having a minimum purchase price of not less than $250,000 for our own account and for each separate account for which we are acting; D-1 4. we have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of purchasing Notes; 5. we are not acquiring the Notes with a view to any distribution thereof in a transaction that would violate the Securities Act or the securities laws of any State of the United States or any other applicable jurisdictions, provided that the disposition of our property and the property of any accounts for which we are acting as fiduciary shall remain at all times within our control; 6. we have received a copy of the Offering Memorandum relating to the offering of the Notes and acknowledge that we have had access to such financial and other information, and have been afforded the opportunity to ask such questions of representatives of the Company and receive answers thereto, as we deem necessary in connection with our decision to purchase the Notes; and 7. (vii)(a) we are not an employee benefit plan or other arrangement that is subject to the Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as amended, or an entity whose underlying assets include assets of such a plan or arrangement (pursuant to 29 C.F.R. Section 2510.3-101 or otherwise), and we are not purchasing (and will not hold) the Notes on behalf of, or with the assets of, any such plan, arrangement or entity; or (b) our purchase and holding of the Notes are completely covered by the full exemptive relief provided by U.S. Department of Labor Prohibited Transaction Class Exemption 96-23, 95-60, 91-38, 90-1 or 84-14. We understand that the Notes were offered in a transaction not involving any public offering in the United States within the meaning of the Securities Act and that the Notes have not been registered under the Securities Act or any state securities laws, and they were offered for resale in transactions not requiring registration under the Securities Act. We agree, on our own behalf, and on behalf of each account for which we acquire any Notes, that if in the future we decide to offer, resell, pledge or otherwise transfer such Notes, such Notes may be offered, resold, pledged or otherwise transferred only (a) to the Company or a subsidiary thereof, (b) pursuant to an effective registration statement under the Securities Act, (c) inside the United States to a person who is a "qualified institutional buyer" (as defined in Rule 144A under the Securities Act) in a transaction meeting the requirements of Rule 144A, (d) inside the United States, to an institutional accredited investor that, prior to such transfer, furnishes to the trustee, a signed letter similar to this letter containing certain representations relating to restrictions on transfer of the note evidenced hereby, (e) pursuant to offers and sales to Non-U.S. Persons that occur outside the United States within the meaning of Regulation S under the Securities Act, or (f) pursuant to another available exemption from the registration requirements of the Securities Act, and, in each case, in accordance with any applicable securities laws of any State or any other applicable jurisdiction and in accordance with the legends set forth on the Notes. We further agree to provide any person purchasing any of the Notes other than pursuant to clause (b) above from us a notice advising such purchaser that resales of such securities are restricted as stated herein. We understand that the registrar and transfer agent for the Notes will not be required to accept for registration of transfer any Notes, except upon presentation of evidence satisfactory to the Company that the foregoing restrictions on transfer have been complied with. D-2 We further understand that any Notes we receive will be in the form of definitive physical certificates and that such certificates will bear a legend reflecting the substance of this paragraph. THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. We acknowledge that you and the Company will rely upon the truth and accuracy of our acknowledgments, confirmations and agreements in this letter. Further, we acknowledge and agree that you and the Company are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or, official inquiry with respect to the matters covered hereby. ----------------------------------------- [Insert Name of Accredited Investor] By: -------------------------------------- Name: Title: Dated: ---------------------------- D-3 EXHIBIT E FORM OF SUPPLEMENTAL INDENTURE SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of _______________, _____ among Tesoro Petroleum Corporation, a Delaware corporation (the "Company"), the subsidiaries of the Company listed on the signatures pages thereof (collectively, the "Guarantors"), [name of New Guarantor] (the "New Guarantor"), an affiliate of the Company and U.S. Bank Trust National Association, as trustee under the indenture referred to below (the "Trustee"). Capitalized terms used herein and not defined herein shall have the meaning ascribed to them in the Indenture (as defined below). WITNESSETH WHEREAS, the Company and the Guarantors have heretofore executed and delivered to the Trustee an indenture (the "Indenture"), dated as of November __, 2001, providing for the initial original issuance of an aggregate principal amount of $215,000,000 of ___% Senior Subordinated Notes due 2008 (the "Notes"); WHEREAS, Article XI of the Indenture provides that under certain circumstances the Company may or must cause certain of its Subsidiaries to execute and deliver to the Trustee a supplemental indenture pursuant to which such Subsidiaries shall unconditionally guarantee all of the Company's Obligations under the Notes pursuant to a Subsidiary Guarantee on the terms and conditions set forth herein; and WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture. NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the New Guarantor and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows: 1. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture. 2. Agreement to Guarantee. The New Guarantor hereby agrees, jointly and severally with all other Guarantors, to guarantee the Company's Obligations under the Notes and the Indenture on the terms and subject to the conditions set forth in Article XI of the Indenture and to be bound by all other applicable provisions of the Indenture. 3. No Recourse Against Others. No past, present or future director, officer, employee, incorporator, partner, member, shareholder or agent of any Guarantor, as such, shall have any liability for any obligations of the Company or any Guarantor under the Notes, any Subsidiary Guarantees, the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. E-1 4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE. 5. Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. 6. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. 7. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the correctness of the recitals of fact contained herein, all of which recitals are made solely by the New Guarantor. IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written. Dated: TESORO PETROLEUM CORPORATION By: -------------------------------------- Name: Title: [New Guarantor] By: -------------------------------------- Name: Title: U.S. BANK TRUST NATIONAL ASSOCIATION as Trustee By: -------------------------------------- Name: Title: E-2 EXHIBIT F REGISTRATION RIGHTS AGREEMENT F-1 EX-4.10 51 h92783ex4-10.txt REGISTRATION RIGHTS AGREEMENT EXHIBIT 4.10 REGISTRATION RIGHTS AGREEMENT This Registration Rights Agreement (this "Agreement") is made and entered into as of November 6, 2001 by and among Tesoro Petroleum Corporation, a Delaware corporation (the "Company"), each of the guarantors set forth on the signature pages hereto (the "Guarantors") and Lehman Brothers Inc., ABN AMRO, Incorporated, Bank of America Securities LLC, Banc One Capital Markets, Inc., Credit Lyonnais Securities (USA), Inc. and Scotia Capital (USA) Inc. (the "Initial Purchasers"), who have agreed to purchase $215,000,000 aggregate amount of the Company's 9 5/8% Senior Subordinated Notes due 2008 (the "Senior Subordinated Notes") pursuant to and subject to the terms and conditions of a certain Purchase Agreement, dated November 1, 2001 (the "Purchase Agreement"), by and among the Company, the Guarantors and the Initial Purchasers. In order to induce the Initial Purchasers to purchase the Senior Subordinated Notes, the Company has agreed to provide the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the obligation of the Initial Purchasers to purchase the Senior Subordinated Notes pursuant to the Purchase Agreement. SECTION 1. DEFINITIONS As used in this Agreement, the following capitalized terms shall have the following meanings: Advice: As defined in Section 6(d) hereof. Affiliate: With respect to any specified person, "Affiliate" shall mean any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, "control," when used with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise and the terms "affiliated," "controlling" and "controlled" have meanings correlative to the foregoing. Broker-Dealer: Any broker or dealer registered under the Exchange Act. Broker-Dealer Transfer Restricted Securities: New Senior Subordinated Notes that are acquired by a Broker-Dealer in the Exchange Offer in exchange for Senior Subordinated Notes that such Broker-Dealer acquired for its own account as a result of market-making activities or other trading activities (other than Senior Subordinated Notes acquired directly from the Company or any of its Affiliates). Business Day: Any day except a Saturday, Sunday or other day in the City of New York, or in the city of the corporate trust office of the Trustee, on which banks are authorized to close. Closing Date: The date of this Agreement. Commission: The Securities and Exchange Commission. 2 Consummate: An Exchange Offer shall be deemed "Consummated" for purposes of this Agreement upon the occurrence of (i) the filing and effectiveness under the Securities Act of the Exchange Offer Registration Statement relating to the New Senior Subordinated Notes to be issued in the Exchange Offer, (ii) the maintenance of such Exchange Offer Registration Statement continuously effective and the keeping of the Exchange Offer open for a period not less than the minimum period required pursuant to Section 3(b) hereof, and (iii) the delivery by the Company to the Trustee under the Indenture of New Senior Subordinated Notes in the same aggregate principal amount as the aggregate principal amount of Senior Subordinated Notes that were tendered by Holders thereof pursuant to the Exchange Offer. Damages Payment Date: With respect to the Transfer Restricted Securities, each Interest Payment Date. Definitive Notes: As defined in the Indenture. Effectiveness Target Date: As defined in Section 5. Exchange Act: The Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. Exchange Offer: The registration by the Company under the Securities Act of the New Senior Subordinated Notes pursuant to an Exchange Offer Registration Statement pursuant to which the Company offers the Holders of all outstanding Transfer Restricted Securities the opportunity to exchange all such outstanding Transfer Restricted Securities held by such Holders for New Senior Subordinated Notes in an aggregate principal amount equal to the aggregate principal amount of the Transfer Restricted Securities tendered in such exchange offer by such Holders. Exchange Offer Registration Statement: The Registration Statement relating to the Exchange Offer, including the related Prospectus. Global Note: As defined in the Indenture. Holders: As defined in Section 2(b) hereof. indemnified party: As defined in Section 8(c) hereof. indemnifying party: As defined in Section 8(c) hereof. Indenture: The Indenture, dated as of November 6, 2001, among the Company, the Guarantors and U.S. Bank Trust National Association, as trustee (the "Trustee"), pursuant to which the Senior Subordinated Notes are to be issued, as such Indenture is amended or supplemented from time to time in accordance with the terms thereof. Initial Purchasers: As defined in the preamble hereto. Interest Payment Date: As defined in the Indenture and the Notes. 3 NASD: National Association of Securities Dealers, Inc. Notes: The Senior Subordinated Notes and the New Senior Subordinated Notes. New Senior Subordinated Notes: The Company's 9 5/8% Senior Subordinated Notes due 2008 to be issued pursuant to the Indenture (i) in the Exchange Offer or (ii) upon the request of any holder of Senior Subordinated Notes covered by a Shelf Registration Statement, in exchange for such Senior Subordinated Notes. Person: An individual, partnership, corporation, limited liability company, joint venture, association, joint- stock company, trust or unincorporated organization, or a government or agency or political subdivision thereof or any other entity. Prospectus: The prospectus included in a Registration Statement at the time such Registration Statement is declared effective, as amended or supplemented by any prospectus supplement and by all other amendments thereto, including post-effective amendments, and all material incorporated by reference into such Prospectus. Record Holder: With respect to any Damages Payment Date relating to Notes, each Person who is a Holder of Notes on the record date with respect to the Interest Payment Date on which such Damages Payment Date shall occur. Registration Default: As defined in Section 5 hereof. Registration Statement: Any registration statement of the Company and the Guarantors relating to (a) an offering of New Senior Subordinated Notes pursuant to an Exchange Offer or (b) the registration for resale of Transfer Restricted Securities pursuant to the Shelf Registration Statement, in each case (i) which is filed pursuant to the provisions of this Agreement, and (ii) including the Prospectus included therein, all amendments and supplements thereto (including post-effective amendments) and all exhibits and material incorporated by reference therein. Restricted Broker-Dealer: Any Broker-Dealer which holds Broker-Dealer Transfer Restricted Securities. Securities Act: The Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder. Shelf Filing Deadline: As defined in Section 4 hereof. Shelf Registration Statement: As defined in Section 4 hereof. TIA: The Trust Indenture Act of 1939, as amended (15 U.S.C. Section 77aaa-77bbbb), as in effect on the date of the Indenture. Transfer Restricted Securities: Each Senior Subordinated Note, until the earliest to occur of (a) the date on which such Senior Subordinated Note is exchanged in the Exchange Offer and entitled to be resold to the public by the Holder thereof without complying with the 4 prospectus delivery requirements of the Securities Act, (b) the date on which such Senior Subordinated Note has been effectively registered under the Securities Act and disposed of in accordance with a Shelf Registration Statement, (c) the date on which such Senior Subordinated Note is distributed to the public pursuant to Rule 144 or is saleable pursuant to Rule 144(k) under the Securities Act and (d) the date on which such Senior Subordinated Note is distributed by a Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the Exchange Offer Registration Statement (including delivery of the Prospectus contained therein). Underwritten Registration or Underwritten Offering: A registration in which securities of the Company are sold to an underwriter for reoffering to the public. SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT (a) Transfer Restricted Securities. The securities entitled to the benefits of this Agreement are the Transfer Restricted Securities. (b) Holders of Transfer Restricted Securities. A Person is deemed to be a holder of Transfer Restricted Securities (each, a "Holder") whenever such Person owns Transfer Restricted Securities. SECTION 3. REGISTERED EXCHANGE OFFER (a) Unless the Exchange Offer shall not be permissible under applicable law or Commission policy (after the procedures set forth in Section 6(a) below have been complied with), the Company shall (i) cause to be filed with the Commission as soon as practicable after the Closing Date, but in no event later than 60 days after the Closing Date, the Exchange Offer Registration Statement under the Securities Act relating to the New Senior Subordinated Notes and the Exchange Offer, (ii) use its reasonable best efforts to cause such Exchange Offer Registration Statement to become effective at the earliest possible time, but in no event later than 120 days after the Closing Date, (iii) in connection with the foregoing, (A) file all pre-effective amendments to such Exchange Offer Registration Statement as may be necessary in order to cause such Exchange Offer Registration Statement to become effective, (B) if applicable, file a post-effective amendment to such Exchange Offer Registration Statement pursuant to Rule 430A under the Securities Act and (C) cause all necessary filings, if any, in connection with the registration and qualification of the New Senior Subordinated Notes to be made under the Blue Sky laws of such jurisdictions as are necessary to permit Consummation of the Exchange Offer and (iv) upon the effectiveness of such Exchange Offer Registration Statement, commence and Consummate the Exchange Offer. The Exchange Offer shall be on the appropriate form permitting registration of the New Senior Subordinated Notes to be offered in exchange for the Transfer Restricted Securities and to permit sales of Broker-Dealer Transfer Restricted Securities by Broker-Dealers as contemplated by Section 3(c) below. (b) The Company shall use its reasonable best efforts to cause the Exchange Offer Registration Statement to be effective continuously and shall keep the Exchange Offer open for a period of not less than the minimum period required under applicable federal and state securities laws to Consummate the Exchange Offer; provided, however, that in no event shall such period be less than twenty (20) Business Days. The Company shall cause the Exchange 5 Offer to comply with all applicable federal and state securities laws. No securities other than the Notes shall be included in the Exchange Offer Registration Statement. The Company shall use its reasonable best efforts to cause the Exchange Offer to be Consummated on the earliest practicable date after the Exchange Offer Registration Statement has become effective, but in no event later than thirty (30) Business Days thereafter. (c) The Company shall include a "Plan of Distribution" section in the Prospectus contained in the Exchange Offer Registration Statement and indicate that any Restricted Broker-Dealer who holds Senior Subordinated Notes that are Transfer Restricted Securities and that were acquired for the account of such Restricted Broker-Dealer as a result of market-making activities or other trading activities (other than Transfer Restricted Securities acquired directly from the Company or one of its Affiliates) may exchange such Senior Subordinated Notes pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be an "underwriter" within the meaning of the Securities Act and must, therefore, deliver a prospectus meeting the requirements of the Securities Act in connection with its initial sale of the New Senior Subordinated Notes received by such Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may be satisfied by the delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer Registration Statement. Such "Plan of Distribution" section shall also contain all other information with respect to such resales of Broker-Dealer Transfer Restricted Securities that the Commission may require in order to permit such sales pursuant thereto but such "Plan of Distribution" shall not name any such Broker-Dealer or disclose the amount of Notes held by any such Broker-Dealer except to the extent required by the Commission as a result of a change in policy after the date of this Agreement. The Company and the Guarantors shall use their respective reasonable best efforts to keep the Exchange Offer Registration Statement continuously effective, supplemented and amended as required by the provisions of Section 6(c) below to the extent necessary to ensure that it is available for resales of Broker-Dealer Transfer Restricted Securities acquired by Restricted Broker-Dealers and to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time to time, for a period of 180 days from the date on which the Exchange Offer Registration Statement is declared effective or, if shorter, until all Broker-Dealer Transfer Restricted Securities have been sold thereunder. The Company shall provide sufficient copies of the latest version of such Prospectus to such Restricted Broker-Dealers promptly upon request at any time during such 180 day period (or such shorter period, if applicable) in order to facilitate such sales. SECTION 4. SHELF REGISTRATION (a) Shelf Registration. If (i) the Company is not required to file an Exchange Offer Registration Statement or to consummate the Exchange Offer because the Exchange Offer is not permitted by applicable law or Commission policy (after the procedures set forth in Section 6(a) below have been complied with) or (ii) any Holder of Transfer Restricted Securities shall notify the Company within twenty (20) Business Days of the Consummation of the Exchange Offer that (A) such Holder is prohibited by applicable law or Commission policy from participating in the Exchange Offer, (B) such Holder may not resell the New Senior 6 Subordinated Notes acquired by it in the Exchange Offer to the public without delivering a prospectus and that the Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available for such resales by such Holder, or (C) such Holder is a Broker-Dealer and holds Senior Subordinated Notes acquired directly from the Company or one of its Affiliates, then the Company and the Guarantors shall: (x) cause to be filed a shelf registration statement pursuant to Rule 415 under the Securities Act, which may be an amendment to the Exchange Offer Registration Statement (in either event, the "Shelf Registration Statement"), on or prior to the earliest to occur of (1) the 60th day after the date on which the Company receives notice from the Commission or determines that it is not required to file the Exchange Offer Registration Statement pursuant to clause (i) above, (2) the 60th day after the date on which the Company receives notice from a Holder of Transfer Restricted Securities as contemplated by clause (ii) above, and (3) the 120th day after the Closing Date (such earliest date being the "Shelf Filing Deadline"), which Shelf Registration Statement shall provide for resales of all Transfer Restricted Securities the Holders of which shall have provided the information required pursuant to Section 4(b) hereof; and (y) use its reasonable best efforts to cause such Shelf Registration Statement to be declared effective by the Commission on or before the 60th day after the Shelf Filing Deadline. The Company and the Guarantors shall use their respective reasonable best efforts to keep such Shelf Registration Statement continuously effective, supplemented and amended as required by and subject to the provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is available for sales of Transfer Restricted Securities by the Holders thereof entitled to the benefit of this Section 4(a), and to ensure that it conforms with the requirements of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as announced from time to time, for a period of at least two years (as extended pursuant to Section 6(c)(i)) following the date on which such Shelf Registration Statement first becomes effective under the Securities Act or such shorter period ending when all of the Transfer Restricted Securities available for sale thereunder have been sold pursuant thereto. (b) Provision by Holders of Certain Information in Connection with the Shelf Registration Statement. No Holder of Transfer Restricted Securities may include any of its Transfer Restricted Securities in any Shelf Registration Statement pursuant to this Agreement unless and until such Holder furnishes to the Company in writing, within 20 Business Days after receipt of a request therefor, such information as the Company may reasonably request for use in connection with any Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. No Holder of Transfer Restricted Securities shall be entitled to Liquidated Damages pursuant to Section 5 hereof unless and until such Holder shall have provided all such reasonably requested information. Each Holder as to which any Shelf Registration Statement is being effected agrees to furnish promptly to the Company all information required to be disclosed in order to make the information previously furnished to the Company by such Holder not materially misleading. 7 SECTION 5. LIQUIDATED DAMAGES If (i) any of the Registration Statements required by this Agreement are not filed with the Commission on or prior to the date specified for such filing in this Agreement, (ii) any of such Registration Statements has not been declared effective by the Commission on or prior to the date specified for such effectiveness in this Agreement (the "Effectiveness Target Date"), (iii) the Exchange Offer has not been Consummated within 30 Business Days after the Effectiveness Target Date with respect to the Exchange Offer Registration Statement or (iv) any Registration Statement required by this Agreement is filed and declared effective but shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded within 30 days by a post-effective amendment to such Registration Statement, the effectiveness of another Registration Statement or the use of the Prospectus (as amended or supplemented) is again permitted that cures such failure (each such event referred to in clauses (i) through (iv), a "Registration Default"), the Company hereby agrees to pay Liquidated Damages to each Holder of Transfer Restricted Securities with respect to the first 90-day period immediately following the occurrence of such Registration Default, in an amount equal to $0.05 per week per $1,000 principal amount of Transfer Restricted Securities held by such Holder for each week or portion thereof that the Registration Default continues. The amount of the Liquidated Damages shall increase by an additional $0.05 per week per $1,000 in principal amount of Transfer Restricted Securities with respect to each subsequent 90-day period until all Registration Defaults have been cured, up to a maximum amount of Liquidated Damages of $0.50 per week per $1,000 principal amount of Transfer Restricted Securities. All accrued Liquidated Damages shall be paid to the holder(s) of Global Note(s) representing Transfer Restricted Securities by the Company by wire transfer of immediately available funds or by federal funds check and to Holders of Certificated Securities by wire transfer to the accounts specified by them or by mailing checks to their registered addresses if no such accounts have been specified on each Damages Payment Date, as provided in the Indenture. Notwithstanding anything to the contrary set forth herein, (1) upon filing of the Exchange Offer Registration Statement (and/or, if applicable, the Shelf Registration Statement), in the case of (i) above, (2) upon the effectiveness of the Exchange Offer Registration Statement (and/or, if applicable, the Shelf Registration Statement), in the case of (ii) above, (3) upon Consummation of the Exchange Offer, in the case of (iii) above, or (4) upon the filing of a post-effective amendment to the Registration Statement or an additional Registration Statement that causes the Exchange Offer Registration Statement (and/or, if applicable, the Shelf Registration Statement) to again be declared effective or the Prospectus to be made usable in the case of (iv) above, the Liquidated Damages payable with respect to the Transfer Restricted Securities as a result of such clause (i), (ii), (iii) or (iv), as applicable, shall cease. All obligations of the Company and the Guarantors set forth in the preceding paragraph that are outstanding with respect to any Transfer Restricted Security at the time such security ceases to be a Transfer Restricted Security shall survive until such time as all such obligations with respect to such security shall have been satisfied in full. SECTION 6. REGISTRATION PROCEDURES (a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the Company and the Guarantors shall comply with all applicable provisions of Section 8 6(c) below, shall use their respective reasonable best efforts to effect such exchange to permit the sale of Broker-Dealer Transfer Restricted Securities being sold in accordance with the intended method or methods of distribution thereof (which shall be in a manner consistent with the terms of this Agreement), and shall comply with all of the following provisions: (i) If, following the date hereof and prior to the Consummation of the Exchange Offer, there has been published a change in Commission policy with respect to exchange offers such as the Exchange Offer, such that in the reasonable opinion of counsel to the Company there is a substantial question as to whether the Exchange Offer is permitted by applicable law or Commission policy, the Company and the Guarantors hereby agree to seek a no-action letter or other favorable decision from the Commission allowing the Company and the Guarantors to Consummate an Exchange Offer for such Senior Subordinated Notes. The Company and the Guarantors hereby agree to pursue the issuance of such a decision to the Commission staff level but shall not be required to take commercially unreasonable action to effect a change of Commission policy. The Company and the Guarantors hereby agree, however, to take all such other actions as are reasonably requested by the Commission staff or otherwise required in connection with the issuance of such decision, including without limitation, to (A) participate in telephonic conferences with the Commission staff, (B) deliver to the Commission staff an analysis prepared by counsel to the Company setting forth the legal bases, if any, upon which such counsel has concluded that such an Exchange Offer should be permitted and (C) diligently pursue a resolution (which need not be favorable) by the Commission staff of such submission. (ii) As a condition to its participation in the Exchange Offer pursuant to the terms of this Agreement, each Holder of Transfer Restricted Securities shall furnish, upon the request of the Company, prior to the Consummation thereof, a written representation to the Company (which may be contained in the letter of transmittal contemplated by the Exchange Offer Registration Statement) to the effect that (A) it is not an Affiliate of the Company, (B) it is not engaged in, and does not intend to engage in, and has no arrangement or understanding with any person to participate in, a distribution of the New Senior Subordinated Notes to be issued in the Exchange Offer and (C) it is acquiring the New Senior Subordinated Notes in its ordinary course of business. In addition, all such Holders of Transfer Restricted Securities shall otherwise reasonably cooperate in the Company's preparations for the Exchange Offer. Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder using the Exchange Offer to participate in a distribution of the securities to be acquired in the Exchange Offer (1) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the Commission's letter to Sherman & Sterling dated July 2, 1993, and similar no-action letters (including any no- action letter obtained pursuant to clause (i) above), and (2) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction and that such a secondary resale transaction should be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K if the resales are of New Senior Subordinated Notes 9 obtained by such Holder in exchange for Senior Subordinated Notes acquired by such Holder directly from the Company or an Affiliate thereof. (iii) Prior to effectiveness of the Exchange Offer Registration Statement, the Company and the Guarantors shall provide a supplemental letter to the Commission (A) stating that the Company and the Guarantors are registering the Exchange Offer in reliance on the position of the Commission enunciated in Exxon Capital Holdings Corporation (available May 13, 1988), Morgan Stanley and Co., Inc. (available June 5, 1991) and, if applicable, any no-action letter obtained pursuant to clause (i) above, (B) including a representation that neither the Company nor any Guarantor has entered into any arrangement or understanding with any Person to distribute the New Senior Subordinated Notes to be received in the Exchange Offer and that, to the best of the Company's information and belief, each Holder participating in the Exchange Offer is acquiring the New Senior Subordinated Notes in its ordinary course of business and has no arrangement or understanding with any Person to participate in the distribution of the New Senior Subordinated Notes received in the Exchange Offer and (C) any other undertaking or representation required by the Commission as set forth in any no-action letter obtained pursuant to clause (i) above. (b) Shelf Registration Statement. In connection with the Shelf Registration Statement, the Company and the Guarantors shall comply with all the provisions of Section 6(c) below and shall use their reasonable best efforts to effect such registration to permit the sale of the Transfer Restricted Securities being sold in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company and the Guarantors will as expeditiously as possible, and in any event within the time periods and otherwise in accordance with the provisions hereof, prepare and file with the Commission a Registration Statement relating to the registration on any appropriate form under the Securities Act, which form shall be available for the sale of the Transfer Restricted Securities in accordance with the intended method or methods of distribution thereof. (c) General Provisions. In connection with any Registration Statement and any Prospectus required by this Agreement to permit the sale or resale of Transfer Restricted Securities (including, without limitation, any Exchange Offer Registration Statement and the related Prospectus required to permit resales of Transfer Restricted Securities by Restricted Broker-Dealers), the Company and the Guarantors shall: (i) use their respective reasonable best efforts to keep such Registration Statement continuously effective and provide all requisite financial statements for the period specified in Section 3 or 4 of this Agreement, as applicable; upon the occurrence of any event that would cause any such Registration Statement or the Prospectus contained therein (A) to contain a material misstatement or omission or (B) not to be effective and usable for resale of Transfer Restricted Securities during the period required by this Agreement, the Company and the Guarantors shall file promptly an appropriate amendment to such Registration Statement, (1) in the case of clause (A), correcting any such misstatement or omission, and (2) in the case of either clause (A) or (B), use their respective reasonable best efforts to cause such amendment to be declared effective and 10 such Registration Statement and the related Prospectus to become usable for their intended purpose(s) as soon as practicable thereafter; (ii) use their respective reasonable best efforts to prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period set forth in Section 3 or 4 hereof, as applicable, or such shorter period as will terminate when all Transfer Restricted Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act, and to comply fully with the applicable provisions of Rules 424, 430A and 462, as applicable, under the Securities Act in a timely manner; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; (iii) advise the underwriter(s), if any, and selling Holders promptly and, if requested by such Persons, to confirm such advice in writing, (A) when the Prospectus or any Prospectus supplement or post-effective amendment thereto has been filed, and, with respect to any Registration Statement or any post-effective amendment thereto, when the same has become effective, (B) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information relating thereto, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement under the Securities Act or of the suspension by any state securities commission of the qualification of the Transfer Restricted Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes, (D) of the existence of any fact or the happening of any event that makes any statement of a material fact made in the Registration Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein untrue in any material respect, or that requires the making of any additions to or changes in the Registration Statement or the Prospectus in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Transfer Restricted Securities under state securities or Blue Sky laws, the Company shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest practicable time; (iv) upon written request, furnish to the Initial Purchasers, and, upon written request, to each of the selling Holders and each of the underwriter(s) in connection with such sale, if any, before filing with the Commission, copies of any Registration Statement or any Prospectus included therein or any amendments or supplements to any such Registration Statement or Prospectus, which documents will be subject to the review of such Holders and underwriter(s) in connection with such sale, if any, for a period of at least five Business Days, and the Company will not file any such Registration Statement 11 or Prospectus or any amendment or supplement to any such Registration Statement or Prospectus to which a selling Holder of Transfer Restricted Securities covered by such Registration Statement or the underwriter(s) in connection with such sale, if any, shall reasonably object within five Business Days after the receipt thereof. A selling Holder or underwriter in connection with such sale, if any, shall be deemed to have reasonably objected to such filing (A) if such Registration Statement, amendment, Prospectus or supplement, as applicable, as proposed to be filed, contains a material misstatement or omission or fails to comply with the applicable requirements of the Securities Act or (B) if any of the information furnished to the Company by such selling Holder or underwriter in connection with such sale, if any, and included in such Registration statement, amendment, Prospectus or supplement, as applicable, as proposed to be filed is incorrect in any respect; (v) upon written request, promptly prior to the filing of any document that is to be incorporated by reference into a Registration Statement or Prospectus, provide copies of such document to the selling Holders and to the underwriter(s) in connection with such sale, if any, make the Company's and the Guarantors' representatives available for discussion of such document and other customary due diligence matters, and include such information in such document prior to the filing thereof as such selling Holders or underwriters, if any, reasonably may request; (vi) in the case of a shelf registration, make available at reasonable times for inspection by the selling Holders, any underwriter participating in any disposition pursuant to such Registration Statement, and any attorney or accountant retained by such selling Holders or any of the underwriter(s), all relevant financial and other records, pertinent corporate documents and properties of the Company and cause the Company's officers, directors and employees to supply all information, in each case, reasonably requested by any such Holder, underwriter, attorney or accountant in connection with such Registration Statement or any post-effective amendment thereto subsequent to the filing thereof and prior to its effectiveness; (vii) if requested by any selling Holders or the underwriter(s) in connection with such sale, if any, promptly incorporate in any Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such selling Holders and underwriter(s), if any, may reasonably request to have included therein, including, without limitation, information relating to the "Plan of Distribution" of the Transfer Restricted Securities, information with respect to the principal amount of Transfer Restricted Securities being sold to such underwriter(s), the purchase price being paid therefor and any other terms of the offering of the Transfer Restricted Securities to be sold in such offering; and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after the Company is notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment; (viii) use their respective commercially reasonable efforts to cause the Transfer Restricted Securities covered by the Registration Statement to be rated with the appropriate rating agencies, if so requested by the Holders of a majority in aggregate 12 principal amount of Notes covered thereby or the underwriter(s) in connection with such sale, if any, unless such Transfer Restricted Securities are already so rated; (ix) furnish to each selling Holder and each of the underwriter(s) in connection with such sale, if any, without charge, at least one copy of the Registration Statement, as first filed with the Commission, and of each amendment thereto, including all documents incorporated by reference therein and all exhibits (including exhibits incorporated therein by reference); (x) deliver to each selling Holder and each of the underwriter(s), if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons reasonably may request; the Company and the Guarantors hereby consent to the use of the Prospectus and any amendment or supplement thereto by each of the selling Holders and each of the underwriter(s), if any, in connection with the offering and the sale of the Transfer Restricted Securities covered by the Prospectus or any amendment or supplement thereto; (xi) enter into such agreements (including an underwriting agreement), and make such representations and warranties with respect to the business of the Company as are customarily addressed in representations and warranties made by issuers to underwriters in underwritten offerings, and take all such other commercially reasonable actions in connection therewith in order to expedite or facilitate the disposition of the Transfer Restricted Securities pursuant to any Registration Statement contemplated by this Agreement, all to such extent as may be requested by the Initial Purchasers or by any Holder of Transfer Restricted Securities or underwriter in connection with any sale or resale pursuant to any Registration Statement contemplated by this Agreement; and whether or not an underwriting agreement is entered into and whether or not the registration is an Underwritten Registration, the Company and the Guarantors shall: (A) furnish to the Initial Purchasers, each selling Holder and each underwriter, if any, in such substance and scope as they may reasonably request and as are customarily made by issuers to underwriters in primary underwritten offerings, upon the date of the Consummation of he Exchange Offer and, if applicable, the effectiveness of the Shelf Registration Statement: (1) a certificate, dated the date of Consummation of the Exchange Offer or the date of effectiveness of the Shelf Registration Statement, as the case may be, signed on behalf of the Company and each of the Guarantors by the Chairman of the Board, President or any Vice President and Treasurer or Chief Financial Officer of the Company, confirming, as of the date thereof, the matters set forth in paragraph (h) of Section 7 of the Purchase Agreement and such other matters as such parties may reasonably request; (2) opinions, dated the date of Consummation of the Exchange Offer or the date of effectiveness of the Shelf Registration Statement, as the case may be, of counsel or counsels for the Company and the Guarantors, covering such 13 matters as are customarily covered in opinions given in connection with underwritten firm commitment offerings. (3) customary comfort letters, dated as of the date of Consummation of the Exchange Offer or the date of effectiveness of the Shelf Registration Statement, as the case may be, from the Company's independent accountants, in the customary form and covering matters of the type customarily covered in comfort letters by underwriters in connection with Underwritten Offerings, and affirming the matters set forth in the comfort letters delivered pursuant to Section 7(f) and (g) of the Purchase Agreement, without exception; (B) set forth in full or incorporate by reference in the underwriting agreement, if any, the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (C) deliver such other documents and certificates as may be reasonably requested by such parties to evidence compliance with clause (A) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company and the Guarantors pursuant to this clause (xi), if any. The above shall be done at each closing under such underwriting or similar agreement, as and to the extent required thereunder, and, if at any time the representations and warranties of the Company and the Guarantors contemplated in clause (A)(1) above cease to be true and correct in any material respect, the Company and the Guarantors shall so advise the Initial Purchasers and the underwriter(s), if any, each selling Holder and each Restricted Broker-Dealer promptly and, if requested by such Persons, shall confirm such advice in writing; (xii) prior to any public offering of Transfer Restricted Securities, cooperate with the selling Holders, the underwriter(s), if any, and its counsel in connection with the registration and qualification of the Transfer Restricted Securities under the securities or Blue Sky laws of such jurisdictions as the selling Holders or underwriter(s), if any, may request and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Transfer Restricted Securities covered by the applicable Registration Statement; provided, however, that neither the Company nor any Guarantor shall be required to register or qualify as a foreign corporation where it is not now so qualified or to take any action that would subject it to the service of process in suits or to taxation, other than as to matters and transactions relating to the Registration Statement, in any jurisdiction where it is not now so subject; (xiii) shall issue, upon the request of any Holder of Senior Subordinated Notes covered by any Shelf Registration Statement contemplated by this Agreement, New Senior Subordinated Notes, having an aggregate principal amount equal to the aggregate principal amount of the Senior Subordinated Notes surrendered to the Company by such Holder in exchange therefor or being sold by such Holder; such New Senior Subordinated Notes to be registered in the name of such Holder or in the name of the purchaser(s) of such Notes, as the case may be; in return, the Senior Subordinated Notes held by such Holder shall be surrendered to the Company for cancellation; 14 (xiv) cooperate with the selling Holders and the underwriter(s), if any, to facilitate the timely preparation and delivery of certificates representing Transfer Restricted Securities to be sold and not bearing any restrictive legends; and enable such Transfer Restricted Securities to be in such denominations and registered in such names as the Holders or the underwriter(s), if any, may request at least two Business Days prior to any sale of Transfer Restricted Securities made by such underwriter(s); (xv) use their respective commercially reasonable efforts to cause the disposition of the Transfer Restricted Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriter(s), if any, to consummate the disposition of such Transfer Restricted Securities, subject to the proviso contained in clause (xii) above; (xvi) subject to Section 6(c)(i), if any fact or event contemplated by clause 6(c)(iii)(D) above shall exist or have occurred, prepare a supplement or post-effective amendment to the Registration Statement or related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of Transfer Restricted Securities, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading; (xvii) provide a CUSIP number for all Transfer Restricted Securities not later than the effective date of the Registration Statement covering such Transfer Restricted Securities and provide the Trustee under the indenture with printed certificates for the Transfer Restricted Securities which are in a form eligible for deposit with the Depositary Trust Company; (xviii) cooperate and assist in any filings required to be made with the NASD and in the performance of any due diligence investigation by any underwriter (including any "qualified independent underwriter" that is required to be retained in accordance with the rules and regulations of the NASD), and use their respective reasonable best efforts to cause such Registration Statement to become effective and approved by such governmental agencies or authorities as may be necessary to enable the Holders selling Transfer Restricted Securities to consummate the disposition of such Transfer Restricted Securities; (xix) otherwise use their respective commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its security holders, as soon as practicable, a consolidated earnings statement meeting the requirements of Rule 158 (which need not be audited) for the twelve-month period (A) commencing at the end of any fiscal quarter in which Transfer Restricted Securities are sold to underwriters in a firm or best efforts Underwritten Offering or (B) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement; 15 (xx) cause all Transfer Restricted Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the Holders of a majority in aggregate principal amount of Senior Subordinated Notes or the managing underwriter(s), if any; and (xxi) provide promptly to each Holder upon request each document filed with the Commission pursuant to the requirements of Section 13 and Section 15(d) of the Exchange Act. (d) Restrictions on Holders. (i) Each Holder agrees by acquisition of a Transfer Restricted Security that, upon receipt of any notice from the Company of the existence of any fact of the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith discontinue disposition of Transfer Restricted Securities pursuant to the applicable Registration Statement until such Holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated by reference in the Prospectus. If so directed by the Company, each Holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Holder's possession, of the Prospectus covering such Transfer Restricted Securities that was current at the time of receipt of such notice. In the event the Company shall give any such notice, the time period regarding the effectiveness of such Registration Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and including the date when each selling Holder covered by such Registration Statement shall have received the copies of the supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof or shall have received the Advice. (ii) The Company may require a Holder of Transfer Restricted Securities to be included in a Registration Statement to furnish to the Company such information as required by law to be disclosed by such Holder in such Registration Statement, and the Company may exclude from such Registration Statement the Transfer Restricted Securities of any Holder who unreasonably fails to furnish such information within a reasonable time after receiving such request. SECTION 7. REGISTRATION EXPENSES All expenses incident to the Company's and the Guarantors' performance of or compliance with this Agreement will be borne by the Company, regardless of whether a Registration Statement becomes effective, including, without limitation: (i) all registration and filing fees and expenses (including filings made by the Initial Purchasers or Holder with the NASD (and, if applicable, the fees and expenses of any "qualified independent underwriter") that may be required by the rules and regulations of the NASD); (ii) all fees and expenses of compliance with federal securities and state Blue Sky or securities laws; (iii) all expenses of printing (including printing certificates for the New Senior Subordinated Notes to be issued in the Exchange Offer and printing of Prospectuses); (iv) all fees and disbursements of counsel for the Company; (v) all messenger and delivery services and telephone expenses of the Company 16 and the Guarantors; (vi) all application and filing fees in connection with listing Notes on a national securities exchange or automated quotation system pursuant to the requirements hereof; and (vii) all fees and disbursements of independent certified public accountants of the Company (including the expenses of any special audit and comfort letters required by or incident to such performance). The Company and the Guarantors will, in any event, bear its internal expenses (including, without limitation, all salaries and expenses of any of its officers and employees performing legal or accounting duties), the expenses of any annual audit and the fees and expenses of any Person, including special experts, retained by the Company or the Guarantors. SECTION 8. INDEMNIFICATION (a) The Company and each Guarantor, jointly and severally, shall indemnify and hold harmless each Holder, its directors, officers and employees and each person, if any, who controls such Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages, liabilities, judgments and actions, joint or several, or any action in respect thereof (including, but not limited to, any loss, claim, damage, liability, judgment or action relating to purchases and sales of Notes), to which that Holder, its directors, officers, employees or controlling persons may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, liability, judgment or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, Preliminary Prospectus or Prospectus or in any amendment or supplement thereto or (ii) the omission or alleged omission to state in any Registration Statement, Preliminary Prospectus or Prospectus, or in any amendment or supplement thereto, any material fact required to be stated therein or necessary to make the statements therein not misleading, and shall reimburse such Holder and each such director, officer, employee or controlling person promptly upon demand for any legal or other expenses reasonably incurred by such Holder, director, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability, judgment or action as such expenses are incurred; provided, however, that the Company and the Guarantors shall not be liable in any such case to the extent that any such loss, claim, damage, liability, judgment or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any Registration Statement, Preliminary Prospectus or Prospectus, or in any such amendment or supplement thereto, in reliance upon and in conformity with written information concerning such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein. The foregoing indemnity agreement is in addition to any liability which the Company may otherwise have to any Holder or to any director, officer, employee or controlling person of such Holder. (b) Each Holder, severally and not jointly, shall indemnify and hold harmless the Company, the Guarantors and their respective directors, officers and employees and each person, if any, who controls the Company or any Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages, liabilities, judgments or actions, joint or several, or any action in respect thereof, to which the Company, any Guarantor or any such director, officer or controlling person may become subject, under the Securities Act or otherwise, insofar as such loss, claim, damage, 17 liability, judgment or action arises out of, or is based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement, Preliminary Prospectus or Prospectus or in any amendment or supplement thereto or (ii) the omission or alleged omission to state in any Registration Statement, Preliminary Prospectus or Prospectus, or in any amendment or supplement thereto, any material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning such Holder furnished to the Company by or on behalf of such Holder specifically for inclusion therein, and shall reimburse the Company, the Guarantors and any such director, officer or controlling person promptly upon demand for any legal or other expenses reasonably incurred by the Company, any Guarantor or any such director, officer or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability, judgment or action as such expenses are incurred. The foregoing indemnity agreement is in addition to any liability which any Holder may otherwise have to the Company, any Guarantor or any such director, officer, employee or controlling person. (c) Promptly after receipt by any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the "indemnified party") of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against any person against whom indemnity may be sought pursuant to Section 8(a) or 8(b) (the "indemnifying party"), notify the indemnifying party in writing of the claim or the commencement of that action; provided, however, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have under this Section 8 except to the extent it has been materially prejudiced by such failure and, provided further, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to an indemnified party otherwise than under this Section 8. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party and the payment of all fees and expenses of such counsel shall be the responsibility of the indemnifying party. After notice from the indemnifying party to the indemnified party of the indemnifying party's election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 8 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation. In addition, any indemnified party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the indemnified party unless (i) the employment of such counsel shall have been specifically authorized in writing by the indemnifying party, (ii) the indemnifying party shall have failed to assume the defense of such action or employ counsel reasonably satisfactory to the indemnified party or (iii) the named parties to any such action (including any impleaded parties) include both the indemnified party and the indemnifying party, and the indemnified party shall have been advised by such counsel that there may be one or more legal defenses available to it which are different from or additional to those available to the indemnifying party (in which case the indemnifying party shall not have the right to assume the defense of such action on behalf of the indemnified party). In any such case, the indemnifying party shall not, in connection with any 18 one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (in addition to any local counsel) of all indemnified parties, and all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by Lehman Brothers Inc. in the case of the parties indemnified pursuant to Section 8(a), and by the Company in the case of parties indemnified pursuant to Section 8(b). No indemnifying party shall (i) without the prior written consent of the indemnified parties (which consent shall not be unreasonably withheld), settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding, or (ii) be liable for any settlement of any such action effected without its written consent (which consent shall not be unreasonably withheld), but if settled with the consent of the indemnifying party or if there be a final judgment of the plaintiff in any such action, the indemnifying party agrees to indemnify and hold harmless any indemnified party from and against any loss or liability by reason of such settlement or judgment. (d) If the indemnification provided for in this Section 8 shall for any reason be unavailable or insufficient to hold harmless an indemnified party under Section 8(a) or 8(b) in respect of any loss, claim, damage, liability, judgment or any action in respect thereof, referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, claim, damage, liability, judgment or action in respect thereof, (i) in such proportion as shall be appropriate to reflect the relative benefits received by the Company and the Guarantors, on the one hand, and the Holders, on the other, from the offering of the Notes or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantors, on the one hand, and the Holders, on the other, with respect to the statements or omissions which resulted in such loss, claim, damage, liability, judgment or action in respect thereof, as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantors, on the one hand, and the Holders, on the other, with respect to such offering shall be deemed to be in the same proportion as the total net proceeds from the offering of the Senior Subordinated Notes purchased under the Purchase Agreement (before deducting expenses) received by the Company, on the one hand, and the total net proceeds received by such Holder upon its resale of Notes less the amount paid by such Holder for such Notes, on the other hand, bear to the total sum of such amounts. The relative fault shall be determined by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company and the Guarantors or such Holder, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. For the purposes of the preceding two sentences, the net proceeds deemed to be received by the Company shall be deemed to be also for the benefit of the Guarantors and the information supplied by the Company shall also be deemed to have been supplied by the Guarantors. The Company, the Guarantors and the Holders agree that it would not be just and equitable if contributions pursuant to this Section 8 were to be determined by pro rata allocation 19 or by any other method of allocation which does not take into account the equitable considerations referred to herein. The amount paid or payable by an indemnified party as a result of the loss, claim, damage, liability, judgment or action in respect thereof, referred to above in this Section 8, shall be deemed to include, for purposes of this Section 8(d), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8(d), no Holder, and none of its directors, officers, employees or controlling persons, shall be required to contribute, in the aggregate, any amount in excess of the amount by which the total net proceeds received by such Holder upon its resale of Notes exceeds the sum of the amount paid by such Holder for such Notes and the amount of any damages which such Holder has otherwise paid or become liable to pay by reason of any untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders' obligations to contribute as provided in this Section 8(d) are several in proportion to the respective principal amount of Notes held by each of the Holders hereunder and not joint. (e) The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity. SECTION 9. RULE 144A The Company and the Guarantors hereby agree with each Holder, for so long as any Transfer Restricted Securities remain outstanding and during any period in which the Company and the Guarantors are subject to Section 13 or 15(d) of the Exchange Act, to make available to any Holder or beneficial owner of Transfer Restricted Securities in connection with any sale thereof and any prospective purchaser of such Transfer Restricted Securities from such Holder or beneficial owner, the information required by Rule 144A(d)(4) under the Securities Act in order to permit resales of such Transfer Restricted Securities pursuant to Rule 144A. SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATION No Holder may participate in any Underwritten Registration hereunder unless such Holder (a) agrees to sell such Holder's Transfer Restricted Securities on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and (b) completes and executes all reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up letters and other documents required under the terms of such underwriting arrangements. SECTION 11. SELECTION OF UNDERWRITERS For any Underwritten Offering, the investment banker or investment bankers and manager or managers that will administer such offering will be selected by the Holders of a majority in aggregate principal amount of the Transfer Restricted Securities included in such offering; provided, that such investment bankers and managers must be reasonably satisfactory 20 to the Company. Such investment bankers and managers are referred to herein as the "underwriters." SECTION 12. MISCELLANEOUS (a) Remedies. Each Holder, in addition to being entitled to exercise all rights provided herein, in the Indenture, the Purchase Agreement or granted by law, including recovery of liquidated or other damages, will be entitled to specific performance of its rights under this Agreement. The Company and the Guarantors agree that monetary damages (including the Liquidated Damages contemplated hereby) would not be adequate compensation for any loss incurred by reason of a breach by them of the provisions of this Agreement and hereby agree to waive the defense in any action for specific performance that a remedy at law would be adequate. (b) No Inconsistent Agreements. Neither the Company nor any Guarantor will on or after the date of this Agreement enter into any agreement with respect to its securities that is inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. Neither the Company nor any Guarantor is currently bound by any agreement granting registration rights with respect to its securities that conflicts with the registration rights set forth herein. (c) Adjustments Affecting the Senior Subordinated Notes. Neither the Company nor any Guarantor will take any action, or permit any change to occur, with respect to the Senior Subordinated Notes that would materially and adversely affect the ability of the Holders to Consummate any Exchange Offer. (d) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to or departures from the provisions hereof may not be given unless (i) in the case of Section 5 hereof and this Section 12(d), the Company has obtained the written consent of the Holders of all outstanding principal amount of Transfer Restricted Securities and (ii) in the case of all other provisions hereof, the Company has obtained the written consent of Holders of a majority of the outstanding principal amount of Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or consent to departure from the provisions hereof that relates exclusively to the rights of Holders whose securities are being tendered pursuant to the Exchange Offer and that does not affect directly or indirectly the rights of other Holders whose securities are not being tendered pursuant to such Exchange Offer may be given by the Holders of a majority of the outstanding principal amount of Transfer Restricted Securities being tendered or registered. (e) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, first-class mail (registered or certified, return receipt requested), telex, telecopier, or air courier guaranteeing overnight delivery: (i) if to a Holder, at the address set forth on the records of the Registrar under the Indenture, with a copy to the Registrar under the Indenture; and With a copy to: 21 Lehman Brothers Inc. 101 Hudson Street, 33rd Floor High Yield, Capital Markets Jersey City, New Jersey 07302 Attention: Syndicate Registration Telecopy No.: (201) 524-5833 (ii) if to the Initial Purchasers, to the address specified in Section 12(a) of the Purchase Agreement. (iii) if to the Company: Tesoro Petroleum Corporation 300 Concord Plaza Drive San Antonio, Texas 78216-6999 Telecopy No.: (210) 283-2080 Attention: Vice President and Treasurer All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if telecopied; and on the next Business Day, if timely delivered to an air courier guaranteeing overnight delivery. Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee at the address specified in the Indenture. (f) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties, including without limitation and without the need for an express assignment, subsequent Holders of Transfer Restricted Securities; provided, however, that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Transfer Restricted Securities in violation of the terms hereof or of the Purchase Agreement or the Indenture. If any transferee of any Holder shall acquire Transfer Restricted Securities in any manner, whether by operation of law or otherwise, such Transfer Restricted Securities shall be held subject to all of the terms of this Agreement, and by owning and holding such Transfer Restricted Securities such person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement, including the restrictions on resale set forth in this Agreement and, if applicable, the Purchase Agreement, and such Person shall be entitled to receive the benefits hereof. (g) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. 22 (h) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK. (j) Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable by a court of competent jurisdiction, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby. (k) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein with respect to the registration rights granted by the Company with respect to the Transfer Restricted Securities. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter. 23 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. TESORO PETROLEUM CORPORATION By: /s/ GREGORY A. WRIGHT ----------------------------------------- Name: Gregory A. Wright Title: Senior Vice President and Chief Financial Officer FAR EAST MARITIME COMPANY GOLD STAR MARITIME COMPANY TESORO FINANCIAL SERVICES HOLDING COMPANY VICTORY FINANCE COMPANY By: /s/ SHARON L. LAYMAN ----------------------------------------- Name: Sharon L. Layman Title: An Authorized Person DIGICOMP INC. KENAI PIPE LINE COMPANY SMILEY'S SUPER SERVICE, INC. TESORO ALASKA COMPANY TESORO ALASKA PIPELINE COMPANY TESORO AVIATION COMPANY TESORO GAS RESOURCES COMPANY, INC. TESORO HAWAII CORPORATION TESORO HIGH PLAINS PIPELINE COMPANY TESORO MARINE SERVICES HOLDING COMPANY TESORO MARINE SERVICES, INC. TESORO MARITIME COMPANY TESORO NORTHSTORE COMPANY TESORO PETROLEUM COMPANIES, INC. TESORO REFINING, MARKETING & SUPPLY COMPANY 24 TESORO SOUTH PACIFIC PETROLEUM CORPORATION TESORO TECHNOLOGY COMPANY TESORO VOSTOK COMPANY TESORO WEST COAST COMPANY By: /s/ Sharon L. Layman ----------------------------------------- Name: Sharon L. Layman Title: An Authorized Person Accepted: LEHMAN BROTHERS INC. ABN AMRO, INCORPORATED BANK OF AMERICA SECURITIES LLC BANC ONE CAPITAL MARKETS, INC. CREDIT LYONNAIS SECURITIES (USA), INC. SCOTIA CAPITAL (USA) INC. By: /s/ Edward Conway -------------------------- Edward Conway Managing Director EX-5.1 52 h92783ex5-1.txt OPINION OF FULBRIGHT & JAWORSKI LLP EXHIBIT 5.1 [FULBRIGHT & JAWORSKI L.L.P. LETTERHEAD] December 13, 2001 Tesoro Petroleum Corporation 300 Concord Plaza Drive San Antonio, Texas 78216-6999 Ladies and Gentlemen: We have acted as counsel to Tesoro Petroleum Corporation, a Delaware corporation (the "Company"), and the subsidiaries listed on Schedule I hereto (collectively, the "Guarantors") in connection with the execution and delivery by the Company and the Guarantors of the Indenture dated as of November 6, 2001 (the "Indenture"), among the Company, the Guarantors and U.S. Bank Trust National Association, as trustee (the "Trustee"), and the issuance thereunder of $215,000,000 principal amount of the Company's 9 5/8% Senior Subordinated Notes due 2008, Series B (the "Series B Notes") in exchange for an equivalent principal amount of its outstanding 9 5/8% Senior Subordinated Notes due 2008 (the "Original Notes"). The terms of the offer to exchange the Series B Notes for the Original Notes (the "Exchange Offer") are described in the Registration Statement on Form S-4 filed by the Company with the Securities and Exchange Commission (the "Registration Statement") for the registration of the Series B Notes under the Securities Act of 1933. The guarantees of the Guarantors with respect to the Series B Notes are collectively referred to herein as the "Guarantees" and each a "Guarantee". In connection with the foregoing, we have examined originals or copies of such corporate records, as applicable, of the Company and the Guarantors, certificates and other communications of public officials, certificates of officers of the Company and the Guarantors and such other documents as we have deemed necessary for the purpose of rendering the opinions expressed herein. As to questions of fact material to those opinions, we have, to the extent we deemed appropriate, relied on certificates of officers of the Company and the Guarantors and on certificates and other communications of public officials. We have assumed the genuineness of all signatures on, and the authenticity of, all documents submitted to us as originals, the conformity to authentic original documents of all documents submitted to us as copies, the due authorization, execution and delivery by the parties thereto of all documents examined by us, and the legal capacity of each individual who signed any of those documents. Based upon the foregoing, and having regard for such legal considerations as we deem relevant, we are of the opinion that the Series B Notes and Guarantees have been duly authorized for issuance and, when the Registration Statement has become effective under the 1933 Act and the Series B Notes and the Guarantees have been duly executed and authorized in accordance with the Indenture and the Series B Notes have been issued and sold in exchange for the Original Notes as contemplated by the Registration Statement and in accordance with the Exchange Offer, Tesoro Petroleum Corporation December 13, 2001 Page 2 the Series B Notes will constitute valid and legally binding obligations of the Company and each Guaranty will constitute a valid and legally binding obligation of its respective Guarantor, subject to (a) bankruptcy, insolvency, reorganization, moratorium, liquidation, rearrangement, fraudulent transfer, fraudulent conveyance and other similar laws (including court decisions) now or hereafter in effect and affecting the rights and remedies of creditors generally or providing for the relief of debtors, (b) the refusal of a particular court to grant (i) equitable remedies, including, without limiting the generality of the foregoing, specific performance and injunctive relief or (ii) a particular remedy sought under such documents as opposed to another remedy provided for therein or another remedy available at law or in equity, (c) general principles of equity (regardless of whether such remedies are sought in a proceeding in equity or at law) and (d) judicial discretion. This opinion is expressly limited by, subject to and based upon the assumptions, exceptions, limitations and qualifications set forth below: A. We express no opinion as to the legality, validity, enforceability or binding effect of provisions relating to indemnities and rights of contribution to the extent prohibited by public policy or which might require indemnification for losses or expenses caused by negligence, gross negligence, willful misconduct, fraud or illegality of an indemnified party. B. This opinion is given as of the date hereof, and we assume no obligation to update or supplement this opinion to reflect any facts or circumstances which may hereafter come to our attention or any changes in laws which may hereafter occur. The opinions expressed herein are limited exclusively to the federal laws of the United States of America, the laws of the States of New York, Texas and California and the General Corporation Law of the State of Delaware, and we are expressing no opinion as to the effect of the laws of any other jurisdiction. To the extent that any of the Guarantors are incorporated under the laws of another jurisdiction, we have assumed the following: (i) that such Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of its state of incorporation; (ii) that each of the Indenture and the Guarantees have been duly authorized by it, the Indenture has been duly executed by it and it has full corporate power and authority to enter into each of such agreements; and (iii) no consent, approval, authorization or order of any court or governmental agency or body of its state of incorporation is required of it for the consummation of the transactions contemplated by the Indenture or Guarantees. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the statements made with respect to under the caption "Legal Matters" in the Prospectus included as part of the Registration Statement. Very truly yours, /s/ Fulbright & Jaworski L.L.P. SCHEDULE I Digicomp, Inc., a Delaware corporation Far East Maritime Company, a Delaware corporation Gold Star Maritime Company, a Delaware corporation Kenai Pipe Line Company, a Delaware corporation Smiley's Super Service, Inc., a Hawaii corporation Tesoro Alaska Company, a Delaware corporation Tesoro Alaska Pipeline Company, a Delaware corporation Tesoro Aviation Company, a Delaware corporation Tesoro Financial Services Holding Company, a Delaware corporation Tesoro Gas Resources Company, Inc., a Delaware corporation Tesoro Hawaii Corporation, a Hawaii corporation Tesoro High Plains Pipeline Company, a Delaware corporation Tesoro Marine Services Holding Company, a Delaware corporation Tesoro Marine Services, LLC, a Delaware limited liability company Tesoro Maritime Company, a Delaware corporation Tesoro Maritime Company, a Delaware corporation Tesoro Northstore Company, an Alaska corporation Tesoro Petroleum Companies, Inc., a Delaware corporation Tesoro Refining, Marketing & Supply Company, a Delaware corporation Tesoro South Pacific Petroleum Company, a California corporation Tesoro Technology Company, a Delaware corporation Tesoro Vostock Company, a Delaware corporation Tesoro West Coast Company, a Delaware corporation Tesoro Finance Company, a Delaware corporation EX-12.1 53 h92783ex12-1.txt COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES EXHIBIT 12.1 TESORO PETROLEUM CORPORATION COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES EXHIBIT
TESORO HISTORICAL PRO FORMA TESORO HISTORICAL PRO FORMA ---------- ---------- -------------------------------------------------- --------- NINE MONTHS ENDED YEAR ENDED DECEMBER 31, SEPTEMBER 30, 2001 -------------------------------------------------------------- ---------------------- 1996 1997 1998 1999 2000 2000 -------- ------- ------- -------- -------- -------- (DOLLARS IN THOUSANDS) EARNINGS: Earnings (Loss) from continuing operations before income taxes and extraordinary loss..... $(20,300) $ 3,400 $12,100 $ 51,200 $123,500 $154,200 $140,200 $210,000 Interest expense, net of capitalized interest... 13,290 8,100 24,790 36,710 31,720 84,020 30,600 66,600 Amortization of debt discount............... 255 -- 100 215 235 235 200 200 Amortization of debt issuance costs......... 255 -- 310 675 745 9,245 600 2,300 Estimated interest portion of rents(b).... 10,000 12,400 17,400 22,400 19,800 20,600 12,600 13,220 -------- ------- ------- -------- -------- -------- -------- -------- Total Earnings.... $ 3,500 $23,900 $54,700 $111,200 $176,000 $268,300 $184,200 $292,320 -------- ------- ------- -------- -------- -------- -------- -------- FIXED CHARGES: Interest expense whether expensed or capitalized............ $ 13,290 $ 8,500 $24,890 $ 37,310 $ 32,420 $ 84,720 $ 34,900 $ 70,900 Amortization of debt discount............... 255 -- 100 215 235 235 200 200 Amortization of debt issuance costs......... 255 -- 310 675 745 9,245 600 2,300 Estimated interest portion of rents(b).... 10,000 12,400 17,400 22,400 19,800 20,600 12,600 13,220 -------- ------- ------- -------- -------- -------- -------- -------- Total Fixed Charges......... $ 23,800 $20,900 $42,700 $ 60,600 $ 53,200 $114,800 $ 48,300 $ 86,620 -------- ------- ------- -------- -------- -------- -------- -------- RATIO OF EARNINGS TO FIXED CHARGES.................. (a) 1.14x 1.28x 1.83x 3.31x 2.34x 3.81x 3.37x ======== ======= ======= ======== ======== ======== ======== ========
- --------------- (a) In 1996 earnings were insufficient to cover fixed charges by $20.3 million. (b) For a majority of the marine charter leases the interest portion of rents was estimated by using the Company's incremental borrowing rate in effect at the inception of the leases. For the remaining leases, interest expense was estimated by using one third of the rental payments. Total rental expense including marine charters was approximately $42 million, $45 million, $54 million, $64 million and $60 million for the years ended 1996, 1997, 1998, 1999 and 2000, respectively, and approximately $45 million for the nine months ended September 30, 2001. 10 EX-21.1 54 h92783ex21-1.txt SUBSIDIARIES OF THE COMPANY EXHIBIT 21.1 SUBSIDIARIES OF THE COMPANY Tesoro Petroleum Corporation is publicly held and has no parent. The subsidiaries listed below are wholly-owned. Small or inactive subsidiaries are omitted from the list below. Such omitted subsidiaries, considered in the aggregate as a single subsidiary, would not constitute a "significant subsidiary" at the end of the year ended December 31, 2000. INCORPORATED OR ORGANIZED Name of Subsidiary UNDER LAWS OF ------------------- ------------- Tesoro Alaska Company .................................. Delaware Tesoro Hawaii Corporation .............................. Hawaii Tesoro Refining, Marketing & Supply Company ............ Delaware Tesoro West Coast Company .............................. Delaware EX-23.1 55 h92783ex23-1.txt CONSENT OF DELOITTE & TOUCHE LLP EXHIBIT 23.1 CONSENT OF DELOITTE & TOUCHE LLP We consent to the incorporation by reference in this Registration Statement of Tesoro Petroleum Corporation on Form S-4 of our report dated February 12, 2001 (March 23, 2001 as to the third paragraph of Note M), appearing in the Annual Report on Form 10-K of Tesoro Petroleum Corporation for the year ended December 31, 2000 and to the reference to us under the heading "Experts" in the Prospectus, which is part of this Registration Statement. /s/ DELOITTE & TOUCHE LLP San Antonio, Texas December 12, 2001 EX-23.2 56 h92783ex23-2.txt CONSENT OF ERNST & YOUNG LLP EXHIBIT 23.2 CONSENT OF ERNST & YOUNG LLP We consent to the reference to our firm under the caption "Experts" in the Registration Statement on Form S-4 and related Prospectus of Tesoro Petroleum Corporation for the registration of $215,000,000 9 5/8% Senior Subordinated Notes due 2008, Series B, and to the incorporation by reference therein of our report dated October 12, 2001 with respect to the combined financial statements of The North Dakota and Utah Refining and Marketing Business of BP Corporation North America Inc. as of December 31, 2000 and 1999, and for the three years in the period ended December 31, 2000, included in Tesoro Petroleum Corporation's Amendment No. 1 to Form 8-K, No. 001-03473 filed with the Securities and Exchange Commission. /s/ ERNST & YOUNG LLP Chicago, Illinois December 12, 2001 EX-25.1 57 h92783ex25-1.txt STATEMENT OF ELIGIBILITY ON FORM T-1 EXHIBIT 25.1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------- FORM T-1 Statement of Eligibility Under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee U.S. BANK TRUST NATIONAL ASSOCIATION (Exact name of Trustee as specified in its charter) United States 41-0257700 (State of Incorporation) (I.R.S. Employer Identification No.) U.S. Bank Trust Center 180 East Fifth Street St. Paul, Minnesota 55101 (Address of Principal Executive Offices) (Zip Code) TESORO PETROLEUM CORPORATION (Exact name of Registrant as specified in its charter) Delaware 95-0862768 (State of Incorporation) (I.R.S. Employer Identification No.) 300 Concord Plaza Drive San Antonio, Texas 78216-6999 (Address of Principal Executive Offices) (Zip Code) 9-5/8% SENIOR SUBORDINATED NOTES DUE 2008, SERIES B (Title of the Indenture Securities) GENERAL 1. General Information Furnish the following information as to the Trustee. (a) Name and address of each examining or supervising authority to which it is subject. Comptroller of the Currency Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. Yes 2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS If the obligor or any underwriter for the obligor is an affiliate of the Trustee, describe each such affiliation. None See Note following Item 16. Items 3-15 are not applicable because to the best of the Trustee's knowledge the obligor is not in default under any Indenture for which the Trustee acts as Trustee. 16. LIST OF EXHIBITS List below all exhibits filed as a part of this statement of eligibility and qualification. 1. Copy of Articles of Association.* 2. Copy of Certificate of Authority to Commence Business.* 3. Authorization of the Trustee to exercise corporate trust powers (included in Exhibits 1 and 2; no separate instrument).* 4. Copy of existing By-Laws.* 5. Copy of each Indenture referred to in Item 4. N/A. 6. The consents of the Trustee required by Section 321(b) of the act. 7. Copy of the latest report of condition of the Trustee published pursuant to law or the requirements of its supervising or examining authority. * Incorporated by reference to Registration Number 22-27000. NOTE The answers to this statement insofar as such answers relate to what persons have been underwriters for any securities of the obligors within three years prior to the date of filing this statement, or what persons are owners of 10% or more of the voting securities of the obligors, or affiliates, are based upon information furnished to the Trustee by the obligors. While the Trustee has no reason to doubt the accuracy of any such information, it cannot accept any responsibility therefor. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, U.S. Bank Trust National Association, an Association organized and existing under the laws of the United States, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Detroit and State of Michigan on the 10th day of December, 2001. U.S. BANK TRUST NATIONAL ASSOCIATION /s/ James Kowalski ------------------------------------ James Kowalski Assistant Vice President /s/ Susan T. Payne - ------------------------------- Susan T. Payne Assistant Secretary EXHIBIT 6 CONSENT In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK TRUST NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor. Dated: December 10, 2001 U.S. BANK TRUST NATIONAL ASSOCIATION /s/ James Kowalski ------------------------------------ James Kowalski Assistant Vice President RI-1.a.1 RIAD4011 RE Loans 0 RI-1.a.2 RIAD4012 Coml/Indl Loans 0 RI-1.a.3.a RIADB485 Credit Card Loans 0 RI-1.a.3.b RIADB486 Other(Sngl Pymt,Instl,Stdnt,Rev Crdt) 0 RI-1.a.4 RIAD4056 Loans to Foreign Govts 0 RI-1.a.5 RIAD4058 All Other Loans 0 RI-1.a.6 RIAD4010 Total Interest & Fee Inc 0 RI-1.b RIAD4065 Inc from Lease Financing Recv 0 RI-1.c RIAD4115 Interest on Balances Due 0 RI-1.d.1 RIADB488 U.S. Treas Securities/US Gvt Agncy Ob 8 RI-1.d.2 RIADB489 Mortgage-backed securities 0 RI-1.d.3 RIAD4060 All Other Securities 0 RI-1.e RIAD4069 Interest on Trading Assets 0 RI-1.f RIAD4020 Interest on Fed Funds Sold 0 RI-1.g RIAD4518 Other Interest Inc 60 RI-1.h RIAD4107 Total Interest Inc 68 RI-2.a.1 RIAD4508 Transaction Accounts 0 RI-2.a.2.a RIAD0093 Savings Deposits 0 RI-2.a.2.b RIADA517 Time Deposites >$100K 0 RI-2.a.2.c RIADA518 Time Deposites <$100K 0 RI-2.b RIAD4180 Expense of Fed Funds Purhased 0 RI-2.c RIAD4185 Int on Trading Liab/Other Brwd Money 0 RI-2.d RIAD4200 Interest on Subordinated Notes/Debent 0 RI-2.e RIAD4073 Total Interest Exp 0 RI-3 RIAD4074 Net Interest Income 68 RI-4 RIAD4230 Provision for Loan and Lease Losses 0 RI-5.a RIAD4070 Income from Fiduciary Activities 24245 RI-5.b RIAD4080 Service Charges on Deposit Accounts 0 RI-5.c RIADA220 Noninterest Inc:Trading revenue 0 RI-5.d RIADB490 Investment Banking 290 RI-5.e RIADB491 Venture Capital Revenue 0 RI-5.f RIADB492 Net Servicing Fees 0 RI-5.g RIADB493 Net Securitization Inc 0 RI-5.h RIADB494 Insurance Comm/Fees 0 RI-5.i RIAD5416 Net Gains (losses) on Loan Sales 0 RI-5.j RIAD5415 Net Gains (losses) on Other RE 0 RI-5.k RIADB496 Net Gains (losses) on Other Assets - -6 RI-5.l RIADB497 Other Noninterest Inc 30172 RI-5.m RIAD4079 Total Noninterest Inc 54701 RI-6.a RIAD3521 Gain/Loss Sec Held to Maturity 0 RI-6.b RIAD3196 Gain/Loss Sec Available-for-sale 0 RI-7.a RIAD4135 Salaries and Benefits 19044 RI-7.b RIAD4217 Expenses of Premises/Fixed Assets 3500 RI-7.c RIAD4531 Amortization Exp of Intangible Assets 0 RI-7.d RIAD4092 Other Noninterest Expense 28579 RI-7.e RIAD4093 Total Noninterest Exp 51123 RI-8 RIAD4301 Inc (loss)Before Tax/Extraordinary/Other 3646 RI-9 RIAD4302 Income Taxes 2108 RI-10 RIAD4300 Inc (loss) Before Extraordinary/Other 1538 RI-11 RIAD4320 Extraordinary/Other 0 RI-12 RIAD4340 Net Income/Loss 1538 RI-M.1 RIAD4513 Int Exp on Tax-exempt After 8/7/1986 0 RI-M.2 RIAD8431 Memoranda: Income Sale/Srvc Mutuals 290 RI-M.3 RIAD4313 Memoranda: Inc. Tax-exempt loans/leases 0 RI-M.4 RIAD4507 Inc on State/Local Securities: Exempt 0 RI-M.5 RIAD4150 Number of Full-Time Employees 901 RI-M.6 RIAD4024 Ag/Farm Loans N/A RI-M.7 RIAD9106 Balance Sheet Restate - Bank's Acq Date N/A RI-M.8.a RIAD8757 Memoranda: Trading Rev - Interest N/A RI-M.8.b RIAD8758 Memoranda: Trading Rev - Foreign Exch N/A RI-M.8.c RIAD8759 Memoranda: Trading Rev - Equity/Index N/A RI-M.8.d RIAD8760 Memoranda: Trading Rev - Commodity N/A RI-M.9.a RIAD8761 Memoranda: Impact - Interest Income 0 RI-M.9.b RIAD8762 Memoranda: Impact - Interest Expense 0 RI-M.9.c RIAD8763 Memoranda: Impact - Other Allocations 0 RI-M.10 RIADA251 Memo: Credit losses on derivatives N/A RI-M.11 RIADA530 Memo: Subchapter S Election/Inc Tax NO RIA-1 RIAD3217 Total Equity Capital 47743 RIA-2 RIADB507 Restate/Changes in Accting Principles 0 RIA-3 RIADB508 Balance-End of Previous Calendar Year 47743 RIA-4 RIAD4340 Net Income/Loss 1538 RIA-5 RIADB509 Net-Cap Stock(Sale,Conv,Acq,or Retire) 0 RIA-6 RIADB510 Net-Treasury Stock Transactions 0 RIA-7 RIAD4356 Changes Incident to Combinations 0 RIA-8 RIAD4470 LESS: Cash Dividends on Preferred 0 RIA-9 RIAD4460 LESS: Cash Dividends on Common 0 RIA-10 RIADB511 Other Comprehensive Income 1 RIA-11 RIAD4415 Other Parent H/C Transactions 0 RIA-12 RIAD3210 Total Eq/Cap End of Period 49282 RIB(P1)-1.a(a) RIAD3582 Memo: Charge-offs: Loans sec construc 0 RIB(P1)-1.a(b) RIAD3583 Memo: Recoveries: Loans sec construct 0 RIB(P1)-1.b(a) RIAD3584 Memo: Charge-offs: Loans sec farmland 0 RIB(P1)-1.b(b) RIAD3585 Memo: Recoveries: Loans sec farmland 0 RIB(P1)-1.c.1(a) RIAD5411 Memo: Charge-offs: Revolv loans 1-4 r 0 RIB(P1)-1.c.1(b) RIAD5412 Memo: Recoveries: Revolv loans 1-4 rs 0 RIB(P1)-1.c.2(a) RIAD5413 Memo: Charge-offs: Other loans 1-4 rs 0 RIB(P1)-1.c.2(b) RIAD5414 Memo: Recoveries: Other loans 1-4 res 0 RIB(P1)-1.d(a) RIAD3588 Memo: Charge-offs: Loans sec multifam 0 RIB(P1)-1.d(b) RIAD3589 Memo: Recoveries: Loans sec multifaml 0 RIB(P1)-1.e(a) RIAD3590 Memo: Charge-offs: Loans sec nonfarm 0 RIB(P1)-1.e(b) RIAD3591 Memo: Recoveries: Loans sec nonfarm 0 RIB(P1)-2(a) RIAD4481 Memo: Charge-offs: Loans to deposit inst 0 RIB(P1)-2(b) RIAD4482 Memo: Recoveries: Loans to deposit inst 0 RIB(P1)-4(a) RIAD4638 Memo: Charge-offs: Commerc/Indust Loans 0 RIB(P1)-4(b) RIAD4608 Memo: Recoveries: Commerc/Indust Loans 0 RIB(P1)-5.a(a) RIADB514 Memo: Charge-Offs: Loans-Credit Cards 0 RIB(P1)-5.a(b) RIADB515 Memo:Recoveries: Loans-Credit Cards 0 RIB(P1)-5.b(a) RIADB516 Memo:Charge-offs: Loans-Other 0 RIB(P1)-5.b(b) RIADB517 Memo: Recoveries: Loans-Other 0 RIB(P1)-6(a) RIAD4643 Loans to Foreign Govt: Charge-Offs 0 RIB(P1)-6(b) RIAD4627 Loans to Foreign Govt: Recoveries 0 RIB(P1)-7(a) RIAD4644 All Other Loans: Charge-Offs 0 RIB(P1)-7(b) RIAD4628 All Other Loans: Recoveries 0 RIB(P1)-8(a) RIAD4266 Memo: Charge-offs: Lease Finance Receiv 0 RIB(P1)-8(b) RIAD4267 Memo:Recoveries: Lease Finance Receiv 0 RIB(P1)-9(a) RIAD4635 Memo: Charge-offs: Total 0 RIB(P1)-9(b) RIAD4605 Memo:Recoveries: Total 0 RIB(P1)-M.1(a) RIAD5409 Memo: Charge-offs: Loans to fin comm. 0 RIB(P1)-M.1(b) RIAD5410 Memo: Recoveries: Loans to fin commcl 0 RIB(P1)-M.2.a(a) RIAD4652 Charge-Offs: Non-US N/A RIB(P1)-M.2.a(b) RIAD4662 Recoveries: Non-US N/A RIB(P1)-M.2.b(a) RIAD4654 Loans to For Banks: Charge-Offs N/A RIB(P1)-M.2.b(b) RIAD4664 Loans to For Banks: Recoveries N/A RIB(P1)-M.2.c(a) RIAD4646 Coml/Indl Non-US: Charge-Offs N/A RIB(P1)-M.2.c(b) RIAD4618 Coml/Indl Non-US: Recoveries N/A RIB(P1)-M.2.d(a) RIAD4659 Leases Non-US: Charge-Offs N/A RIB(P1)-M.2.d(b) RIAD4669 Leases Non-US: Recoveries N/A RIB(P1)-M.3(a) RIAD4655 Ag/Farm Loans: Charge-Offs N/A RIB(P1)-M.3(b) RIAD4665 Ag/Farm Loans: Recoveries N/A RIB(P2)-1 RIADB522 Balance 0 RIB(P2)-2 RIAD4605 Recoveries 0 RIB(P2)-3 RIADC079 LESS: Charge-offs 0 RIB(P2)-4 RIAD4230 Provision for Loan and Lease Losses 0 RIB(P2)-5 RIAD4815 Adjustments: Allowance Loan/Lease 0 RIB(P2)-6 RIAD3123 Balance-End of current period 0 RIE-1.a RIADC013 Other non-interest income (RI-5.l) 0 RIE-1.b RIADC014 Other non-interest income (RI-5.l) 0 RIE-1.c RIADC016 Other non-interest income (RI-5.l) 0 RIE-1.d RIAD4042 Other non-interest income (RI-5.l) 0 RIE-1.e RIADC015 Other non-interest income (RI-5.l) 0 RIE-1.f RIAD4461 Other non-interest income (RI-5.l) 14990 RIE-1.g RIAD4462 Other non-interest income (RI-5.l) 8769 RIE-1.h RIAD4463 Other non-interest income (RI-5.l) 3915 RIE-2.a RIADC017 Other non-interest income (RI-7.d) 3009 RIE-2.b RIAD0497 Other non-interest income (RI-7.d) 4168 RIE-2.c RIAD4136 Other non-interest income (RI-7.d) 0 RIE-2.d RIADC018 Other non-interest income (RI-7.d) 0 RIE-2.e RIAD8403 Other non-interest income (RI-7.d) 0 RIE-2.f RIAD4141 Other non-interest income (RI-7.d) 0 RIE-2.g RIAD4146 Other non-interest income (RI-7.d) 0 RIE-2.h RIAD4464 Other non-interest income (RI-7.d) 6735 RIE-2.i RIAD4467 Other non-interest income (RI-7.d) 4118 RIE-2.j RIAD4468 Other non-interest income (RI-7.d) 4154 RIE-3.a.1 RIAD6373 Effect of adopting FAS 133 0 RIE-3.a.2 RIAD4486 Applicable tax effect (RI-11) 0 RIE-3.b.1 RIAD4487 Extraordinary items and Adj (RI-11) 0 RIE-3.b.2 RIAD4488 Applicable tax effect (RI-11) 0 RIE-3.c.1 RIAD4489 Extraordinary items and Adj (RI-11) 0 RIE-3.c.2 RIAD4491 Applicable tax effect (RI-11.b) 0 RIE-4.a RIADB526 Restatements Due (RI-A.2) 0 RIE-4.b RIADB527 Restatements Due (RI-A.2) 0 RIE-5.a RIAD4498 Transactions w/parent (RIA-11) 0 RIE-5.b RIAD4499 Transactions w/parent (RIA-11) 0 RIE-6.a RIAD5523 Adjs. to allow for l & l loss (RIB.2.5) 0 RIE-6.b RIAD4522 Adjs. to allow for l & l loss (RIB.2.5) 0 RIE-7 RIAD4769 Other Explanations Comment/No Comment X RC-1.a RCON0081 Cash and Noninterest-Bearing Balances 49847 RC-1.b RCON0071 Interest-Bearing Balances 0 RC-2.a RCON1754 Securities Held-to-Maturity 0 RC-2.b RCON1773 Total Available For Sale - Value 255 RC-3 RCON1350 Fed Funds Sold & Secs Purchased 0 RC-4.a RCON5369 Loans & leases held for sale 0 RC-4.b RCONB528 Loans & leases, net Unearned Inc 0 RC-4.c RCON3123 LESS: Allowance for Loan and Lease Lo 0 RC-4.d RCONB529 Loans & leases, net Unearned Inc & Allow 0 RC-5 RCON3545 Total Trading Assets 0 RC-6 RCON2145 Premises and Fixed Assets 2795 RC-7 RCON2150 Othr Real Estate - Total 0 RC-8 RCON2130 Investmnts in unconsold subs - Total 0 RC-9 RCON2155 Customer's Liability on Acceptances 0 RC-10.a RCON3163 Goodwill 0 RC-10.b RCON0426 Other intangible assets 0 RC-11 RCON2160 Total Other Assets 27541 RC-12 RCON2170 Total Assets 80438 RC-13.a RCON2200 Deposits - Domestic Offices 0 RC-13.a.1 RCON6631 Domestic Deposits - Noninterest-Bearing 0 RC-13.a.2 RCON6636 Domestic Deposits - Interest-Bearing 0 RC-14 RCON2800 Fed Funds Purchased & Secs Sold 0 RC-15 RCON3548 Total Trading Liabilities 0 RC-16 RCON3190 Other borrowed money 0 RC-18 RCON2920 Bank's Liability on Acceptances 0 RC-19 RCON3200 Subordinated Notes and Debentures 0 RC-20 RCON2930 Total Other Liabilities 31156 RC-21 RCON2948 Total Liabilities 31156 RC-22 RCON3000 Minority Interest in Subsidiaries 0 RC-23 RCON3838 Perpetual Preferred Stock & Surplus 0 RC-24 RCON3230 Common Stock 1000 RC-25 RCON3839 Surplus-exclude surplus rel pref stck 24000 RC-26.a RCON3632 Retained earnings 24279 RC-26.b RCONB530 Accumulated other comprehensive Inc 3 RC-27 RCONA130 Other equity captial components 0 RC-28 RCON3210 Total Equity/Capital 49282 RC-29 RCON3300 Total Lia/Pref Stock/Eq Capital 80438 RC-M.1 RCON6724 Memo item auditors N/A RCA-1.a RCON0020 Cash Items in Process of Collection N/A RCA-1.b RCON0080 Currency and Coin N/A RCA-2.a RCON0083 Due from US Dep'y/Foreign Banks N/A RCA-2.b RCON0085 Due from Other US Dep'y N/A RCA-3.a RCON0073 Due from For Branches/US Banks N/A RCA-3.b RCON0074 Due from Other For Banks/Countries N/A RCA-4 RCON0090 Due From Federal Reserve System N/A RCA-5 RCON0010 Total N/A RCB-1(a) RCON0211 Held: Cost: US Treasury Securities 0 RCB-1(b) RCON0213 Held: Value: US Treasury Securities 0 RCB-1(c) RCON1286 Sale: Cost: US Treasury Securities 250 RCB-1(d) RCON1287 Sale: Value: US Treasury Securities 255 RCB-2.a(a) RCON1289 Held: Cost: Obligations US agencies 0 RCB-2.a(b) RCON1290 Held: Value: Obligations US agencies 0 RCB-2.a(c) RCON1291 Sale: Cost: Obligations US agencies 0 RCB-2.a(d) RCON1293 Sale: Value: Obligations US agencies 0 RCB-2.b(a) RCON1294 Held: Cost: Obligations US sponsored 0 RCB-2.b(b) RCON1295 Held: Value: Obligations US sponsored 0 RCB-2.b(c) RCON1297 Sale: Cost: Obligations US sponsored 0 RCB-2.b(d) RCON1298 Sale: Value: Obligations US sponsored 0 RCB-3(a) RCON8496 Held: Cost: Sec-States/Pol subdiv in US 0 RCB-3(b) RCON8497 Held: Value: Sec-States/Pol subdiv in US 0 RCB-3(c) RCON8498 Sale: Cost: Sec-States/Pol subdiv in US 0 RCB-3(d) RCON8499 Sale: Value: Sec-States/Pol subdiv in US 0 RCB-4.a.1(a) RCON1698 Held: Cost: Security Guaranteed GNMA 0 RCB-4.a.1(b) RCON1699 Held: Value: Security Guaranteed GNMA 0 RCB-4.a.1(c) RCON1701 Sale: Cost: Security Guaranteed GNMA 0 RCB-4.a.1(d) RCON1702 Sale: Value: Security Guaranteed GNMA 0 RCB-4.a.2(a) RCON1703 Held: Cost: Security Issued FNMA 0 RCB-4.a.2(b) RCON1705 Held: Value: Security Issued FNMA 0 RCB-4.a.2(c) RCON1706 Sale: Cost: Security Issued FNMA 0 RCB-4.a.2(d) RCON1707 Sale: Value: Security Issued FNMA 0 RCB-4.a.3(a) RCON1709 Held: Cost: Other Pass-Through Secs 0 RCB-4.a.3(b) RCON1710 Held: Value: Other Pass-Through Secs 0 RCB-4.a.3(c) RCON1711 Sale: Cost: Other Pass-Through Secs 0 RCB-4.a.3(d) RCON1713 Sale: Value: Other Pass-Through Secs 0 RCB-4.b.1(a) RCON1714 Held: Cost: Issued/Guar. FNMA, Etc. 0 RCB-4.b.1(b) RCON1715 Held: Value: Issued/Guar. FNMA, Etc. 0 RCB-4.b.1(c) RCON1716 Sale: Cost: Issued/Guar. FNMA, Etc. 0 RCB-4.b.1(d) RCON1717 Sale: Value: Issued/Guar. FNMA, Etc. 0 RCB-4.b.2(a) RCON1718 Held: Cost: Collateralized MBS -FNMA 0 RCB-4.b.2(b) RCON1719 Held: Value: Collateralized MBS -FNMA 0 RCB-4.b.2(c) RCON1731 Sale: Cost: Collateralized MBS -FNMA 0 RCB-4.b.2(d) RCON1732 Sale: Value: Collateralized MBS -FNMA 0 RCB-4.b.3(a) RCON1733 Held: Cost: All Other MBS 0 RCB-4.b.3(b) RCON1734 Held: Value: All Other MBS 0 RCB-4.b.3(c) RCON1735 Sale: Cost: All Other MBS 0 RCB-4.b.3(d) RCON1736 Sale: Value: All Other MBS 0 RCB-5.a(a) RCONB838 Held: Cost: Credit card rec 0 RCB-5.a(b) RCONB839 Held: Value: Credit card rec 0 RCB-5.a(c) RCONB840 Sale: Cost: Credit card rec 0 RCB-5.a(d) RCONB841 Sale: Value: Credit card rec 0 RCB-5.b(a) RCONB842 Held: Cost: Home equity lines 0 RCB-5.b(b) RCONB843 Held: Value: Home equity lines 0 RCB-5.b(c) RCONB844 Sale: Cost: Home equity lines 0 RCB-5.b(d) RCONB845 Sale: Value: Home equity lines 0 RCB-5.c(a) RCONB846 Held: Cost: Automobile Loans 0 RCB-5.c(b) RCONB847 Held: Value: Automobile Loans 0 RCB-5.c(c) RCONB848 Sale: Cost: Automobile Loans 0 RCB-5.c(d) RCONB849 Sale: Value: Automobile Loans 0 RCB-5.d(a) RCONB850 Held: Cost: Other Consumer Loans 0 RCB-5.d(b) RCONB851 Held: Value: Other Consumer Loans 0 RCB-5.d(c) RCONB852 Sale: Cost: Other Consumer Loans 0 RCB-5.d(d) RCONB853 Sale: Value: Other Consumer Loans 0 RCB-5.e(a) RCONB854 Held: Cost: Coml/Indust Loans 0 RCB-5.e(b) RCONB855 Held: Value: Coml/Indust Loans 0 RCB-5.e(c) RCONB856 Sale: Cost: Coml/Indust Loans 0 RCB-5.e(d) RCONB857 Sale: Value: Coml/Indust Loans 0 RCB-5.f(a) RCONB858 Held: Cost: Other ABS 0 RCB-5.f(b) RCONB859 Held: Value: Other ABS 0 RCB-5.f(c) RCONB860 Sale: Cost: Other ABS 0 RCB-5.f(d) RCONB861 Sale: Value: Other ABS 0 RCB-6.a(a) RCON1737 Held: Cost: Other Debt Securities 0 RCB-6.a(b) RCON1738 Held: Value: Other Debt Securities 0 RCB-6.a(c) RCON1739 Sale: Cost: Other Debt Securities 0 RCB-6.a(d) RCON1741 Sale: Value: Other Debt Securities 0 RCB-6.b(a) RCON1742 Held: Cost: Foreign Debt Securities 0 RCB-6.b(b) RCON1743 Held: Value: Foreign Debt Securities 0 RCB-6.b(c) RCON1744 Sale: Cost: Foreign Debt Securities 0 RCB-6.b(d) RCON1746 Sale: Value: Foreign Debt Securities 0 RCB-7(c) RCONA510 Sale: Cost: Securities Mutual Funds 0 RCB-7(d) RCONA511 Sale: Value: Securities Mutual Funds 0 RCB-8(a) RCON1754 Securities Held-to-Maturity 0 RCB-8(b) RCON1771 Total Held To Maturity - Fair Value 0 RCB-8(c) RCON1772 Total Available For Sale - Cost 250 RCB-8(d) RCON1773 Total Available For Sale - Value 255 RCB-M.1 RCON0416 Memoranda: Pledged 255 RCB-M.2.a.1 RCONA549 Memoranda: Non-Mort Debt less than 3 MO 0 RCB-M.2.a.2 RCONA550 Memoranda: Non-Mort Debt 3-12 MO 255 RCB-M.2.a.3 RCONA551 Memoranda: Non-Mort Debt 1-3 YRS 0 RCB-M.2.a.4 RCONA552 Memoranda: Non-Mort Debt 3-5 YRS 0 RCB-M.2.a.5 RCONA553 Memoranda: Non-Mort Debt 5-15 YRS 0 RCB-M.2.a.6 RCONA554 Memoranda: Non-Mort Debt greater than 15 YRS 0 RCB-M.2.b.1 RCONA555 Memoranda: Mort Pass Thru less than 3 MO 0 RCB-M.2.b.2 RCONA556 Memoranda: Mort Pass Thru 3-12 MO 0 RCB-M.2.b.3 RCONA557 Memoranda: Mort Pass Thru 1-3 YRS 0 RCB-M.2.b.4 RCONA558 Memoranda: Mort Pass Thru 3-5 YRS 0 RCB-M.2.b.5 RCONA559 Memoranda: Mort Pass Thru 5-15 YRS 0 RCB-M.2.b.6 RCONA560 Memoranda: Mort Pass Thru greater than 15 YRS 0 RCB-M.2.c.1 RCONA561 Memoranda: Other Mort-backed less than 3 YRS 0 RCB-M.2.c.2 RCONA562 Memoranda: Other Mort-backed greater than 3 YRS 0 RCB-M.2.d RCONA248 Memoranda: Tot Debt less than 1 YR 255 RCB-M.3 RCON1778 Amortized Cost Held Securities Sold 0 RCB-M.4.a RCON8782 Structured Notes - Amortized Cost 0 RCB-M.4.b RCON8783 Structured Notes - Fair Value 0 RCC(P1)-1.a RCON1415 Construction and Land Development 0 RCC(P1)-1.b RCON1420 Secured by Farmland 0 RCC(P1)-1.c.1 RCON1797 Secured by 1-4: Revolving 0 RCC(P1)-1.c.2.a RCON5367 Secured by 1-4: Other (first liens) 0 RCC(P1)-1.c.2.b RCON5368 Secured by 1-4: Other (junior liens) 0 RCC(P1)-1.d RCON1460 Secured by 5+ 0 RCC(P1)-1.e RCON1480 Secured by Nonfarm Nonresidential 0 RCC(P1)-2 RCON1288 Loans to Deposit Inst/accept other banks 0 RCC(P1)-2.a.1 RCONB532 US branches/agencies of foreign banks N/A RCC(P1)-2.a.2 RCONB533 Other commerc banks in US N/A RCC(P1)-2.b RCONB534 Other deposit inst in US N/A RCC(P1)-2.c.1 RCONB536 Foreign branches of other US banks N/A RCC(P1)-2.c.2 RCONB537 Other banks in foreign countries N/A RCC(P1)-3 RCON1590 Loans to Ag/Farmers 0 RCC(P1)-4 RCON1766 Coml/Indust loans 0 RCC(P1)-4.a RCON1763 Coml/Indl (US Addressee) N/A RCC(P1)-4.b RCON1764 Coml/Indl (Non-US Addressee) N/A RCC(P1)-6.a RCONB538 Loans to individuals - credit cards 0 RCC(P1)-6.b RCONB539 loans to individuals-Other revolving 0 RCC(P1)-6.c RCON2011 Other Consumer loans 0 RCC(P1)-7 RCON2081 Loans to Foreign Govt. 0 RCC(P1)-8 RCON2107 Obligations US States/Subdivisions 0 RCC(P1)-9 RCON1563 Other loans 0 RCC(P1)-9.a RCON1545 Loans for Securities N/A RCC(P1)-9.b RCON1564 All other loans (except consumer) N/A RCC(P1)-10 RCON2165 Lease Fin Recv (net unearned income) 0 RCC(P1)-10.a RCON2182 Lease Fin Rec (US Addressee) N/A RCC(P1)-10.b RCON2183 Lease Fin Rec (Non-US Addressee) N/A RCC(P1)-11. RCON2123 LESS: Unearned Income Loans 0 RCC(P1)-12 RCON2122 Total Loans & Leases 0 RCC(P1)-M.1 RCON1616 Loans and leases restructured 0 RCC(P1)-M.2.a.1 RCONA564 Memo: Loans Secd by Real Est less than 3 MO 0 RCC(P1)-M.2.a.2 RCONA565 Memo: Loans Secd by Real Est 3-12 MO 0 RCC(P1)-M.2.a.3 RCONA566 Memo: Loans Secd by Real Est 1-3 YRS 0 RCC(P1)-M.2.a.4 RCONA567 Memo: Loans Secd by Real Est 3-5 YRS 0 RCC(P1)-M.2.a.5 RCONA568 Memo: Loans Secd by Real Est 5-15 YRS 0 RCC(P1)-M.2.a.6 RCONA569 Memo: Loans Secd by Real Est greater than 15 YRS 0 RCC(P1)-M.2.b.1 RCONA570 Memo: Other Loans/Leases less than 3 MO 0 RCC(P1)-M.2.b.2 RCONA571 Memo: Other Loans/Leases 3-12 MO 0 RCC(P1)-M.2.b.3 RCONA572 Memo: Other Loans/Leases 1-3 YRS 0 RCC(P1)-M.2.b.4 RCONA573 Memo: Other Loans/Leases 3-5 YRS 0 RCC(P1)-M.2.b.5 RCONA574 Memo: Other Loans/Leases 5-15 YRS 0 RCC(P1)-M.2.b.6 RCONA575 Memo: Other Loans/Leases greater than 15 YRS 0 RCC(P1)-M.2.c RCONA247 Memo: Tot Remg Loans/Leases less than 1 YR 0 RCC(P1)-M.3 RCON2746 Loans to fin comm real est, const, la 0 RCC(P1)-M.4 RCON5370 Adj rate closed-end loans sec 1-4 fam 0 RCC(P1)-M.5 RCONB837 Loan secured by real eastate to non-US N/A RCC(P2)-1 RCON6999 YES/NO - RCC01.E & RCC04 greater than or equal to $100,000 NO RCC(P2)-2.a RCON5562 Number of Loans RCC01.E N/A RCC(P2)-2.b RCON5563 Number of Loans RCC04 N/A RCC(P2)-3.a(a) RCON5564 Number of Loans RCC01.E Orig less than or equal to $100K 0 RCC(P2)-3.a(b) RCON5565 Amount of Loans RCC01.E Orig less than or equal to $100K 0 RCC(P2)-3.b(a) RCON5566 # of Loans RCC01.E $100K less than Orig less than or equal to $250K 0 RCC(P2)-3.b(b) RCON5567 $ of Loans RCC01.E $100K less than Orig less than or equal to $250K 0 RCC(P2)-3.c(a) RCON5568 # of Loans RCC01.E $250K less than Orig less than or equal to $1M 0 RCC(P2)-3.c(b) RCON5569 $ of Loans RCC01.E $250K less than Orig less than or equal to $1M 0 RCC(P2)-4.a(a) RCON5570 Number of Loans RCC04 Orig less than or equal to $100K 0 RCC(P2)-4.a(b) RCON5571 Amount of Loans RCC04 Orig less than or equal to $100K 0 RCC(P2)-4.b(a) RCON5572 # of Loans RCC04 $100Kless than Orig less than or equal to $250K 0 RCC(P2)-4.b(b) RCON5573 $ of Loans RCC04 $100Kless than Orig less than or equal to $250K 0 RCC(P2)-4.c(a) RCON5574 # of Loans RCC04 $250K less than Orig less than or equal to $1M 0 RCC(P2)-4.c(b) RCON5575 $ of Loans RCC04 $250K less than Orig less than or equal to $1M 0 RCC(P2)-5 RCON6860 YES/NO - RCC01.B & RCC03 greater than or equal to $100,000 NO RCC(P2)-6.a RCON5576 Number of Loans RCC01.B N/A RCC(P2)-6.b RCON5577 Number of Loans RCC03 N/A RCC(P2)-7.a(a) RCON5578 Number of Loans RCC01.B Orig less than or equal to $100K 0 RCC(P2)-7.a(b) RCON5579 Amount of Loans RCC01.B Orig less than or equal to $100K 0 RCC(P2)-7.b(a) RCON5580 # of Loans RCC01.B $100K less than Orig less than or equal to $250K 0 RCC(P2)-7.b(b) RCON5581 $ of Loans RCC01.B $100K less than Orig less than or equal to $250K 0 RCC(P2)-7.c(a) RCON5582 # of Loans RCC01.B $250K less than Orig less than or equal to $500K 0 RCC(P2)-7.c(b) RCON5583 $ of Loans RCC01.B $250K less than Orig less than or equal to $500K 0 RCC(P2)-8.a(a) RCON5584 Number of Loans RCC03 - Orig less than or equal to $100K 0 RCC(P2)-8.a(b) RCON5585 Amount of Loans RCC03 - Orig less than or equal to $100K 0 RCC(P2)-8.b(a) RCON5586 # of Loans RCC03 - $100K less than Orig less than or equal to $250K 0 RCC(P2)-8.b(b) RCON5587 $ of Loans RCC03 - $100K less than Orig less than or equal to $250K 0 RCC(P2)-8.c(a) RCON5588 # of Loans RCC03 - $250K less than Orig less than or equal to $500K 0 RCC(P2)-8.c(b) RCON5589 $ of Loans RCC03 - $250K less than Orig less than or equal to $500K 0 RCD-1 RCON3531 US Treasury securities N/A RCD-2 RCON3532 US Govt agency obligations N/A RCD-3 RCON3533 Securities Issued by State and Subdiv N/A RCD-4.a RCON3534 Pass-through Sec by FNMA/FHLMC/GNMA N/A RCD-4.b RCON3535 Other MBS issued by FNMA/FHLMC/GNMA N/A RCD-4.c RCON3536 All Other Mortgage-backed securities N/A RCD-5 RCON3537 Other debt securities N/A RCD-9 RCON3541 Other Trading assets domestic N/A RCD-11 RCON3543 Gains on rate & contracts domestic N/A RCD-12 RCON3545 Total Trading Assets N/A RCD-13 RCON3546 Liability for short positions N/A RCD-14 RCON3547 Losses on rate & contracts N/A RCD-15 RCON3548 Total Trading Liabilities N/A RCE-1(a) RCONB549 Indv, partner, & corp - Transaction 0 RCE-1(c) RCONB550 Indv,partner,& corp - Non-Transaction 0 RCE-2(a) RCON2202 USG - Transaction 0 RCE-2(c) RCON2520 USG - Nontrancastion 0 RCE-3(a) RCON2203 State/Local - Transaction 0 RCE-3(c) RCON2530 State/Local - Nontranscation 0 RCE-4(a) RCONB551 Cml banks/Other US - Transaction 0 RCE-4(c) RCONB552 Cml banks/Other US - Transaction 0 RCE-5(a) RCON2213 Banks in Foreign Count - Transaction 0 RCE-5(c) RCON2236 Banks in Foreign Count - Nontransaction 0 RCE-6(a) RCON2216 For Govt - Transaction 0 RCE-6(c) RCON2377 For Govt - Nontransaction 0 RCE-7(a) RCON2215 Total Transaction Accounts 0 RCE-7(b) RCON2210 Total Demand Deposits 0 RCE-7(c) RCON2385 Total Nontransaction Accounts 0 RCE-M.1.a RCON6835 Memoranda: IRA/KEOGH 0 RCE-M.1.b RCON2365 Memoranda: Brokered Deposits 0 RCE-M.1.c.1 RCON2343 Memoranda: Brokered less than $100 000 0 RCE-M.1.c.2 RCON2344 Memoranda: Brokered greater than $100K Part less than $100 0 RCE-M.1.d.1 RCONA243 Memoranda: Brokered deposits less than 100,000 0 RCE-M.1.d.2 RCONA244 Memoranda: Brokered deposits=greater than 100,000 0 RCE-M.1.e RCON5590 Memoranda: Preferred Deposits N/A RCE-M.2.a.1 RCON6810 Memoranda: MMDAs 0 RCE-M.2.a.2 RCON0352 Memoranda: Other Savings 0 RCE-M.2.b RCON6648 Memoranda: Time Deposits less than $100 000 0 RCE-M.2.c RCON2604 Memoranda: Time Deposits greater than $100,000 0 RCE-M.3.a.1 RCONA579 Memo: Time Deps less than 100K less than 3 MO 0 RCE-M.3.a.2 RCONA580 Memo: Time Deps less than 100K 3-12 MO 0 RCE-M.3.a.3 RCONA581 Memo: Time Deps less than 100K 1-3 YRS 0 RCE-M.3.a.4 RCONA582 Memo: Time Deps less than 100K greater than 3 YRS 0 RCE-M.3.b RCONA241 Memo: Time Deps less than 100K less than 1 YR 0 RCE-M.4.a.1 RCONA584 Memo: Time Deps greater than 100K less than 3 MO 0 RCE-M.4.a.2 RCONA585 Memo: Time Deps greater than 100K 3-12 MO 0 RCE-M.4.a.3 RCONA586 Memo: Time Deps greater than 100K 1-3 YRS 0 RCE-M.4.a.4 RCONA587 Memo: Time Deps greater than 100K greater than 3 YRS 0 RCE-M.4.b RCONA242 Memo: Time Deps greater than 100K less than 1 YR 0 RCF-1 RCONB556 Accrued interest receivable 6 RCF-2 RCON2148 Net Deferred Tax Assets 2137 RCF-3.a RCONA519 Interest Only Strip: Mortgage Loans 0 RCF-3.b RCONA520 Interest Only Strip: Other Assets 0 RCF-4 RCON1752 Sale: Cost: Other Equity Securities 750 RCF-5 RCON2168 Other Assets 24648 RCF-5.a RCON2166 Other Assets - Line A 0 RCF-5.b RCONC009 Other Assets - Line B 0 RCF-5.c RCON1578 Other Assets - Line C 0 RCF-5.d RCONC010 Other Assets - Line D 0 RCF-5.e RCON3549 Other Assets - Line E 13825 RCF-5.f RCON3550 Other Assets - Line F 0 RCF-5.g RCON3551 Other Assets - Line G 0 RCF-6 RCON2160 Total Other Assets 27541 RCG-1.a RCON3645 Expenses Accrued and Unpaid on deposi 0 RCG-1.b RCON3646 Other Expenses Accrued and Unpaid 14058 RCG-2 RCON3049 Net Deferred Tax Liabilities 0 RCG-3 RCONB557 Allowance for credit losses 0 RCG-4 RCON2938 Other Liabilities 17098 RCG-4.a RCON3066 Other Liabilities - Line A 0 RCG-4.b RCONC011 Other Liabilities - Line B 0 RCG-4.c RCON2932 Other Liabilities - Line C 0 RCG-4.d RCONC012 Other Liabilities - Line D 0 RCG-4.e RCON3552 Other Liabilities - Line E 14601 RCG-4.f RCON3553 Other Liabilities - Line F 0 RCG-4.g RCON3554 Other Liabilities - Line G 0 RCG-5 RCON2930 Total Other Liabilities 31156 RCK-1 RCON3381 Interest-Bearing Balances 0 RCK-2 RCONB558 US-Treasury securities/agency oblig 250 RCK-3 RCONB559 Mortgage-backed securities 0 RCK-4 RCONB560 All other securities 0 RCK-5 RCON3365 Fed Funds Sold Etc. 0 RCK-6.a RCON3360 Total Loans 0 RCK-6.b RCON3385 Real Estate Loans 0 RCK-6.c RCON3387 Coml/Indl Loans 0 RCK-6.d.1 RCONB561 Indv. Loans-Credit cards 0 RCK-6.d.2 RCONB562 Indv. Loans-Other 0 RCK-7. RCON3401 Trading Assets 0 RCK-8. RCON3484 Lease Financing Receivables 0 RCK-9 RCON3368 Total Assets 91126 RCK-10 RCON3485 Transaction Accounts 0 RCK-11.a RCONB563 Savings Deposits 0 RCK-11.b RCONA514 Time Deposits greater than $100,000 0 RCK-11.c RCONA529 Time Deposits less than $100,000 0 RCK-12 RCON3353 Fed Funds Purchased 0 RCK-13 RCON3355 Other Borrowed Money 0 RCK-M.1 RCON3386 Ag/Farm Loans N/A RCL-1.a RCON3814 Unused Commits: Revolv Lines Secured 0 RCL-1.b RCON3815 Unused Commits: Credit Card Lines 0 RCL-1.c.1 RCON3816 Unused Commits: Comm Real Est, securd 0 RCL-1.c.2 RCON6550 Unused Commits: Comm Real Est, not sc 0 RCL-1.d RCON3817 Unused Commits: Securities Underwrit 0 RCL-1.e RCON3818 Unused Commits: Other Unused Commits 0 RCL-2 RCON3819 Fincl Standby Letters of Credit 0 RCL-2.a RCON3820 Amount Fincl Standby Letters Conveyed 0 RCL-3 RCON3821 Perfm Standby Letters of Credit 0 RCL-3.a RCON3822 Amount Perfm Standby Letters Conveyed 0 RCL-4 RCON3411 Commercl & Similar Letters of Credit 0 RCL-5 RCON3428 Participations in Acceptncs Conveyed 0 RCL-6 RCON3433 Securities Lent 0 RCL-7.a RCONA534 Credit Deriatives: Guarantor 0 RCL-7.b RCONA535 Credit Deriatives: Benificiary 0 RCL-8 RCON8765 Spot Foreign Exchange Contracts 0 RCL-9 RCON3430 All Other Off-Balance Sheet Liabs 0 RCL-9.a RCON3432 Other Off-Balance Sheet Liabilities-A 0 RCL-9.b RCON3434 Other Off-Balance Sheet Liabilities-B 0 RCL-9.c RCON3555 Other Off-Balance Sheet Liabilities-C 0 RCL-9.d RCON3556 Other Off-Balance Sheet Liabilities-D 0 RCL-9.e RCON3557 Other Off-Balance Sheet Liabilities-E 0 RCL-10 RCON5591 All Other Off-Balance Sheet Assets 0 RCL-10.a RCON3435 Other Off-Balance Sheet Assets - A 0 RCL-10.b RCON5592 Other Off-Balance Sheet Assets - B 0 RCL-10.c RCON5593 Other Off-Balance Sheet Assets - C 0 RCL-10.d RCON5594 Other Off-Balance Sheet Assets - D 0 RCL-10.e RCON5595 Other Off-Balance Sheet Assets - E 0 RCL-11.a(a) RCON8693 Int Rate Contracts - Gross Futures 0 RCL-11.a(b) RCON8694 Forgn Exch Contracts - Gross Futures 0 RCL-11.a(c) RCON8695 Equity Contracts - Gross Futures 0 RCL-11.a(d) RCON8696 Commodity Contracts - Gross Futures 0 RCL-11.b(a) RCON8697 Int Rate Contracts - Gross Forwards 0 RCL-11.b(b) RCON8698 Forgn Exch Contracts - Gross Forwards 0 RCL-11.b(c) RCON8699 Equity Contracts - Gross Forwards 0 RCL-11.b(d) RCON8700 Commodity Contracts - Gross Forwards 0 RCL-11.c.1(a) RCON8701 Int Rate Contracts - Exchg Trad Wrttn 0 RCL-11.c.1(b) RCON8702 Forgn Exch Contracts - Exchg Trad Wrt 0 RCL-11.c.1(c) RCON8703 Equity Contracts - Exchg Trad Written 0 RCL-11.c.1(d) RCON8704 Commodity Contracts - Exchg Trad Wrtn 0 RCL-11.c.2(a) RCON8705 Int Rate Contracts - Exchg Trad Purch 0 RCL-11.c.2(b) RCON8706 Forgn Exch Contracts - Exchg Trad Pur 0 RCL-11.c.2(c) RCON8707 Equity Contracts - Exchg Trad Purchas 0 RCL-11.c.2(d) RCON8708 Commodity Contracts - Exchg Trade Pur 0 RCL-11.d.1(a) RCON8709 Int Rate Contracts - OTC Written Optn 0 RCL-11.d.1(b) RCON8710 Forgn Exch Contracts - OTC Wrtn Optns 0 RCL-11.d.1(c) RCON8711 Equity Contracts - OTC Written Option 0 RCL-11.d.1(d) RCON8712 Commodity Contracts - OTC Written Opt 0 RCL-11.d.2(a) RCON8713 Int Rate Contracts - OTC Purchased Op 0 RCL-11.d.2(b) RCON8714 Forgn Exch Contracts - OTC Purchased 0 RCL-11.d.2(c) RCON8715 Equity Contracts - OTC Purchased Optn 0 RCL-11.d.2(d) RCON8716 Commodity Contracts - OTC Purch Optn 0 RCL-11.e(a) RCON3450 Int Rate Contracts - Gross Swaps 0 RCL-11.e(b) RCON3826 Forgn Exch Contracts - Gross Swaps 0 RCL-11.e(c) RCON8719 Equity Contracts - Gross Swaps 0 RCL-11.e(d) RCON8720 Commodity Contracts - Gross Swaps 0 RCL-12(a) RCONA126 Int Rate Contracts - Gross Held Trade 0 RCL-12(b) RCONA127 Forgn Exch Contracts - Gross Held Trd 0 RCL-12(c) RCON8723 Equity Contracts - Gross Held Trading 0 RCL-12(d) RCON8724 Commodity Contracts - Gross Held Trad 0 RCL-13(a) RCON8725 Int Rate Contracts - Marked to Market 0 RCL-13(b) RCON8726 Forgn Exch Contracts - Marked to Mrkt 0 RCL-13(c) RCON8727 Equity Contracts - Marked to Market 0 RCL-13(d) RCON8728 Commodity Contracts - Marked to Mrkt 0 RCL-13.a(a) RCONA589 Int Rate Contracts - Bank Pays Fixed 0 RCL-14.a.1(a) RCON8733 Int Rate Contracts Held - Pos Values 0 RCL-14.a.1(b) RCON8734 Forgn Exch Contracts Held - Pos Value 0 RCL-14.a.1(c) RCON8735 Equity Contracts Held - Pos Values 0 RCL-14.a.1(d) RCON8736 Commodity Contracts Held - Pos Value 0 RCL-14.a.2(a) RCON8737 Int Rate Contracts Held - Neg Values 0 RCL-14.a.2(b) RCON8738 Forgn Exch Contracts Held - Neg Value 0 RCL-14.a.2(c) RCON8739 Equity Contracts Held - Neg Values 0 RCL-14.a.2(d) RCON8740 Commodity Contracts Held - Neg Value 0 RCL-14.b.1(a) RCON8741 Int Rate Contracts Markd- Pos Values 0 RCL-14.b.1(b) RCON8742 Forgn Exch Contracts Markd- Pos Value 0 RCL-14.b.1(c) RCON8743 Equity Contracts Markd- Pos Values 0 RCL-14.b.1(d) RCON8744 Commodity Contracts Markd- Pos Value 0 RCL-14.b.2(a) RCON8745 Int Rate Contracts Markd- Neg Values 0 RCL-14.b.2(b) RCON8746 Forgn Exch Contracts Markd- Neg Value 0 RCL-14.b.2(c) RCON8747 Equity Contracts Markd- Neg Values 0 RCL-14.b.2(d) RCON8748 Commodity Contracts Markd- Neg Value 0 RCM-1.a RCON6164 Credit to Executives/Principals 0 RCM-1.b RCON6165 Number of Execs Who Borrowed $500K/5% 0 RCM-2.a RCON3164 Mtge Servicing Rights 0 RCM-2.a.1 RCONA590 Mort Serv Rights - Est Fair Value 0 RCM-2.b RCONB026 Purchased creditcard rels and nonmortgag 0 RCM-2.c RCON5507 Other Intangible - All Other 0 RCM-2.d RCON0426 Intangible Assets-Total 0 RCM-3.a RCON5372 Othr Real Estate - Direct & Indirect 0 RCM-3.b.1 RCON5508 Othr Real Estate - Construction 0 RCM-3.b.2 RCON5509 Othr Real Estate - Farmland 0 RCM-3.b.3 RCON5510 Othr Real Estate - 1-4 Family Residnt 0 RCM-3.b.4 RCON5511 Othr Real Estate - Multifamily Resid 0 RCM-3.b.5 RCON5512 Othr Real Estate - Nonfarm Nonresiden 0 RCM-3.c RCON2150 Othr Real Estate - Total 0 RCM-4.a RCON5374 Inves - Direct & Indirect invest R/E 0 RCM-4.b RCON5375 Inves - All othr invest unconsol subs 0 RCM-4.c RCON2130 Investmnts in unconsold subs - Total 0 RCM-5.a.1 RCON2651 FHLB advance -maturity less than 1 year 0 RCM-5.a.2 RCONB565 FHLB advance -maturity 1 to 3 years 0 RCM-5.a.3 RCONB566 FHLB advance -maturity greater than 3 years 0 RCM-5.b.1 RCONB571 Other borrowings -maturity less than 1 year 0 RCM-5.b.2 RCONB567 Other borrowings -maturity 1 to 3 years 0 RCM-5.b.3 RCONB568 Other borrowings -maturity greater than 3 years 0 RCM-5.c RCON3190 Other Borrowed Money - Total 0 RCM-6 RCONB569 Sell prvt party mutual funds/annuit?Y/N NO RCM-7 RCONB570 Assets - mutual funds/annuities 0 RCN-1.a(a) RCON2759 Secured Loans - Const: 30-89 Days 0 RCN-1.a(b) RCON2769 Secured Loans - Const: 90+ Days 0 RCN-1.a(c) RCON3492 Secured Loans - Const: Nonaccrual 0 RCN-1.b(a) RCON3493 Secured Loans - Farmland: 30-89 Days 0 RCN-1.b(b) RCON3494 Secured Loans - Farmland: 90+ Days 0 RCN-1.b(c) RCON3495 Secured Loans - Farmland: Nonaccrual 0 RCN-1.c.1(a) RCON5398 Secd Loans 1-4 Fam-Revol: 30-89 Days 0 RCN-1.c.1(b) RCON5399 Secd Loans 1-4 Fam-Revol: 90+ Days 0 RCN-1.c.1(c) RCON5400 Secd Loans 1-4 Fam-Revol: Nonaccrual 0 RCN-1.c.2(a) RCON5401 Secd Loans 1-4 Fam-Other: 30-89 Days 0 RCN-1.c.2(b) RCON5402 Secd Loans 1-4 Fam-Other: 90+ Days 0 RCN-1.c.2(c) RCON5403 Secd Loans 1-4 Fam-Other: Nonaccrual 0 RCN-1.d(a) RCON3499 Secured Loans - Multifam: 30-89 Days 0 RCN-1.d(b) RCON3500 Secured Loans - Multifam: 90+ Days 0 RCN-1.d(c) RCON3501 Secured Loans - Multifam: Nonaccrual 0 RCN-1.e(a) RCON3502 Secured Loans - Non Farm: 30-89 Days 0 RCN-1.e(b) RCON3503 Secured Loans - Non Farm: 90+ Days 0 RCN-1.e(c) RCON3504 Secured Loans - Non Farm: Nonaccrual 0 RCN-2(a) RCONB834 Loans to Deposit. Inst: 30-89 Days 0 RCN-2(b) RCONB835 Loans to Deposit. Inst: 90+ Days 0 RCN-2(c) RCONB836 Loans to Deposit. Inst: Nonaccrual 0 RCN-4(a) RCON1606 Cml/Indust Loans: 30-89 Days 0 RCN-4(b) RCON1607 Cml/Indust Loans: 90+ Days 0 RCN-4(c) RCON1608 Cml/Indust Loans: Nonaccrual 0 RCN-5.a(a) RCONB575 Indv. Loans-Credit cards: 30-89 Days 0 RCN-5.a(b) RCONB576 Indv. Loans-Credit cards: 90+ Days 0 RCN-5.a(c) RCONB577 Indv. Loans-Credit cards: Nonaccrual 0 RCN-5.b(a) RCONB578 Indv. Loans-Other: 30-89 Days 0 RCN-5.b(b) RCONB579 Indv. Loans-Other: 90+ Days 0 RCN-5.b(c) RCONB580 Indv. Loans-Other: Nonaccrual 0 RCN-6(a) RCON5389 Loans Foreign Govs: 30-89 Days 0 RCN-6(b) RCON5390 Loans Foreign Govs: 90+ Days 0 RCN-6(c) RCON5391 Loans Foreign Govs: Nonaccrual 0 RCN-7(a) RCON5459 Other: 30-89 Days 0 RCN-7(b) RCON5460 Other: 90+ Days 0 RCN-7(c) RCON5461 Other: Nonaccrual 0 RCN-8(a) RCON1226 Lease Finance Rcv: 30-89 Days 0 RCN-8(b) RCON1227 Lease Finance Rcv: 90+ Days 0 RCN-8(c) RCON1228 Lease Finance Rcv: Nonaccrual 0 RCN-9(a) RCON3505 Debt Securities: 30-89 Days 0 RCN-9(b) RCON3506 Debt Securities: 90+ Days 0 RCN-9(c) RCON3507 Debt Securities: Nonaccrual 0 RCN-10(a) RCON5612 Loans/Leases US Guaranteed-30-89 Days 0 RCN-10(b) RCON5613 Loans/Leases US Guaranteed- 90+ Days 0 RCN-10(c) RCON5614 Loans/Leases US Guaranteed-Nonaccrual 0 RCN-10.a(a) RCON5615 Loans/Leases Guaranteed: 30-89 Days 0 RCN-10.a(b) RCON5616 Loans/Leases Guaranteed: 30-89 Days 0 RCN-10.a(c) RCON5617 Loans/Leases Guaranteed: 30-89 Days 0 RCN-M.1(a) RCON1658 Restruc'd: 30-89 Days 0 RCN-M.1(b) RCON1659 Restruc'd: 90+ Days 0 RCN-M.1(c) RCON1661 Restruc'd: Nonaccrual 0 RCN-M.2(a) RCON6558 Comm Real Estate Loans: 30-89 Days 0 RCN-M.2(b) RCON6559 Comm Real Estate Loans: 90+ Days 0 RCN-M.2(c) RCON6560 Comm Real Estate Loans: Nonaccrual 0 RCN-M.3.a(a) RCON1248 RE NonUS: 30-89 Days N/A RCN-M.3.a(b) RCON1249 RE NonUS: 90+ Days N/A RCN-M.3.a(c) RCON1250 RE NonUS: Nonaccrual N/A RCN-M.3.b(a) RCON5380 Loans US Deps: Foreign: 30-89 Days N/A RCN-M.3.b(b) RCON5381 Loans US Deps: Foreign: 90+ Days N/A RCN-M.3.b(c) RCON5382 Loans US Deps: Foreign: Nonaccrual N/A RCN-M.3.c(a) RCON1254 Coml/Indl NonUS: 30-89 Days N/A RCN-M.3.c(b) RCON1255 Coml/Indl NonUS: 90+ Days N/A RCN-M.3.c(c) RCON1256 Coml/Indl NonUS: Nonaccrual N/A RCN-M.3.d(a) RCON1271 Leases NonUS: 30-89 Days N/A RCN-M.3.d(b) RCON1272 Leases NonUS: 90+ Days N/A RCN-M.3.d(c) RCON1791 Leases NonUS: Nonaccrual N/A RCN-M.4(a) RCON1594 Ag/Farm: 30-89 Days N/A RCN-M.4(b) RCON1597 Ag/Farm: 90+ Days N/A RCN-M.4(c) RCON1583 Ag/Farm: Nonaccrual N/A RCN-M.5(a) RCON3529 Rate/Contract: Replacement:30-89 Days N/A RCN-M.5(b) RCON3530 Rate/Contract: Replacement: 90+ Days N/A RCO-1.a RCON0030 Unposted Debits 0 RCO-1.b.1 RCON0031 Unposted Debits: Demand N/A RCO-1.b.2 RCON0032 Unposted Debits: Time/Savings N/A RCO-2.a RCON3510 Unposted Credits 0 RCO-2.b.1 RCON3512 Unposted Credits: Demand N/A RCO-2.b.2 RCON3514 Unposted Credits: Time/Savings N/A RCO-3 RCON3520 Uninvested Trust Fund Cash 0 RCO-4.a RCON2211 Demand Dep Consolidated Subsidiaries 0 RCO-4.b RCON2351 Time/Sav Dep Consolidated Subsidiarie 0 RCO-4.c RCON5514 Int accrued/unpaid on deps of con sub 0 RCO-6.a RCON2314 Passed-Through: Demand 0 RCO-6.b RCON2315 Passed-through: Time/Saving 0 RCO-7.a RCON5516 Unamortized premiums 0 RCO-7.b RCON5517 Unamortized discounts 0 RCO-8.a.1 RCONA531 OAKAR: Total Deposits Purchased 0 RCO-8.a.2 RCONA532 OAKAR: Amt of Purchased Deposits 0 RCO-8.b RCONA533 OAKAR: Total Deposits Sold 0 RCO-10 RCON8432 Deposit Institution Invest. Contracts 0 RCO-11.a RCON8785 Reciprocal Demand Bals - Savings Asc. 0 RCO-11.b RCONA181 Reciprocal Demand Bals - Foreign Brch 0 RCO-11.c RCONA182 Reciprocal Demand Bals - Cash Items 0 RCO-12.a RCONA527 Amt of Assets netted agst dem deps 0 RCO-12.b RCONA528 Amt of Assets netted agst tim/svg dep 0 RCO-M.1.a.1 RCON2702 Deposits less than $100 000 0 RCO-M.1.a.2 RCON3779 Number of Dep. Accounts less than $100 000 0 RCO-M.1.b.1 RCON2710 Deposits greater than $100 000 0 RCO-M.1.b.2 RCON2722 Number of Dep. Accounts greater than $100 000 0 RCO-M.2.a RCON6861 Yes/No: Bank has a better method/proc NO RCO-M.2.b RCON5597 Uninsured Deposit Amount 0 RCO-M.3 RCONA545 Cert No of consolidated inst. N/A RCR-1 RCON3210 Total Equity/Capital 49282 RCR-2 RCON8434 Unrealized holding gain(loss) secur. 3 RCR-3 RCONA221 LESS: loss on avail-for-sale securities 0 RCR-4 RCON4336 Accm net gains(loss) on cash flow hedges 0 RCR-5 RCONB588 LESS: nonqual perpetual preferred stock 0 RCR-6 RCONB589 Qualifying minority interests 0 RCR-7 RCONB590 LESS:Disallowed goodwill/intangbl assets 0 RCR-8 RCONB591 LESS:Disallowd svc assets/purchased cca 0 RCR-9 RCON5610 LESS:Disallowed deferred tax assets 0 RCR-10 RCONB592 Other add to(deduct from)Tier 1 capt 0 RCR-11 RCON8274 Tier 1 capital 49279 RCR-12 RCON5306 Qual subord debt/redeem preferred stock 0 RCR-13 RCONB593 Cml perpetual preferred stock 0 RCR-14 RCON5310 Allowance for loan/lease losses 0 RCR-15 RCON2221 Unrealized gains on avail-for-sale sec 0 RCR-16 RCONB594 Other Tier 2 cptl components 0 RCR-17 RCON5311 Tier 2 Capital 0 RCR-18 RCON8275 Allowable Tier 2 cptl 0 RCR-19 RCON1395 Tier 3 cptl allocated for market risk 0 RCR-20 RCONB595 LESS: Deductions for ttl risk-based cptl 0 RCR-21 RCON3792 Total risk-based capital 49279 RCR-22 RCON3368 Avg total assets 91126 RCR-23 RCONB590 LESS:Disallowed goodwill/intangbl assets 0 RCR-24 RCONB591 LESS:Disallowd svc assets/purchased cca 0 RCR-25 RCON5610 LESS:Disallowed deferred tax assets 0 RCR-26 RCONB596 LESS:Other deduct from assets/lev cptl 0 RCR-27 RCONA224 Avg total assets for leverage cptl 91126 RCR-28 RCONB503 Adj to total risk-based cptl reported 0 RCR-29 RCONB504 Adj to risk-weighted assets reported 0 RCR-30 RCONB505 Adj to avg total assers reported 0 RCR-31(a) RCON7273 Tier 1 leverage ratio-financial subs N/A RCR-31(b) RCON7204 Tier 1 leverag -All Banks 54.08% RCR-32(a) RCON7274 T1 risk-based cptl ratio-financial subs N/A RCR-32(b) RCON7206 T1 risk-based cptl ratio-All banks 124.60% RCR-33(a) RCON7275 Ttl risk-based cptl-financial subs N/A RCR-33(b) RCON7205 Ttl risk-based cptl-All banks 124.60% RCR-34(a) RCON0010 Ttl: Cash & bal due from deposit inst 49847 RCR-34(c) RCONB600 0% Risk Weight: Cash & bal due 0 RCR-34(d) RCONB601 20% Risk Weight: Cash & bal due 49847 RCR-34(f) RCONB602 100% Risk Weight: Cash & bal due 0 RCR-35(a) RCON1754 Ttl: Securities Held-to-Maturity 0 RCR-35(b) RCONB603 No Risk-Weighting: Sec Held-to-Maturity 0 RCR-35(c) RCONB604 0% Risk Weight: Sec Held-to-Maturity 0 RCR-35(d) RCONB605 20% Risk Weight: Sec Held-to-Maturity 0 RCR-35(e) RCONB606 50% Risk Weight: Sec Held-to-Maturity 0 RCR-35(f) RCONB607 100% Risk Weight: Sec Held-to-Maturity 0 RCR-36(a) RCON1773 Ttl: Available-for-sale 255 RCR-36(b) RCONB608 No Risk-Weighting: Available-for-sale 4 RCR-36(c) RCONB609 0% Risk Weight: Available-for-sale 251 RCR-36(d) RCONB610 20% Risk Weight: Available-for-sale 0 RCR-36(e) RCONB611 50% Risk Weight: Available-for-sale 0 RCR-36(f) RCONB612 100% Risk Weight: Available-for-sale 0 RCR-37(a) RCON1350 Ttl: Fed Funds Sold & Secs Purchased 0 RCR-37(c) RCONB613 0% Risk Weight: Fed Funds Sold & Sec 0 RCR-37(d) RCONB614 20% Risk Weight: Fed Funds Sold & Sec 0 RCR-37(f) RCONB616 100% Risk Weight: Fed Funds Sold & Sec 0 RCR-38(a) RCON5369 Ttl: Loans & leases held for sale 0 RCR-38(b) RCONB617 No Risk-Weighting:Loans & leases held 0 RCR-38(c) RCONB618 0% Risk Weight: Loans & leases held 0 RCR-38(d) RCONB619 20% Risk Weight: Loans & leases held 0 RCR-38(e) RCONB620 50% Risk Weight: Loans & leases held 0 RCR-38(f) RCONB621 100% Risk Weight: Loans & leases held 0 RCR-39(a) RCONB528 Ttl: Loans & leases,net of unearned Inc 0 RCR-39(b) RCONB622 No Risk-Weighting:Loans & leases,net 0 RCR-39(c) RCONB623 0% Risk Weight:Loans & leases,net 0 RCR-39(d) RCONB624 20% Risk Weight:Loans & leases,net 0 RCR-39(e) RCONB625 50% Risk Weight:Loans & leases,net 0 RCR-39(f) RCONB626 100% Risk Weight:Loans & leases,net 0 RCR-40(a) RCON3123 LESS:Allow for Ln and Lse Loss-Total 0 RCR-40(b) RCON3123 LESS:Allow for Ln & Lse Loss-No Rsk Wght 0 RCR-41(a) RCON3545 Ttl: Trading assets 0 RCR-41(b) RCONB627 No Risk-Weighting: Trading assets 0 RCR-41(c) RCONB628 0% Risk Weight: Trading assets 0 RCR-41(d) RCONB629 20% Risk Weight: Trading assets 0 RCR-41(e) RCONB630 50% Risk Weight: Trading assets 0 RCR-41(f) RCONB631 100% Risk Weight: Trading assets 0 RCR-42(a) RCONB639 Ttl: All other assets 30336 RCR-42(b) RCONB640 No Risk-Weighting: All other assets 0 RCR-42(c) RCONB641 0% Risk Weight: All other assets 756 RCR-42(d) RCONB642 20% Risk Weight: All other assets 0 RCR-42(e) RCONB643 50% Risk Weight: All other assets 0 RCR-42(f) RCON5339 100% Risk Weight: All other assets 29580 RCR-43(a) RCON2170 Ttl: Total assets 80438 RCR-43(b) RCONB644 No Risk-Weighting: Total assets 4 RCR-43(c) RCON5320 0% Risk Weight: Total assets 1007 RCR-43(d) RCON5327 20% Risk Weight: Total assets 49847 RCR-43(e) RCON5334 50% Risk Weight: Total assets 0 RCR-43(f) RCON5340 100% Risk Weight: Total assets 29580 RCR-44(a) RCON3819 Value/Amount: Fncl Stndby Ltrs of Crdt 0 RCR-44(b) RCONB645 Credit Equiv: Fncl Stndby Ltrs of Crdt 0 RCR-44(c) RCONB646 0% Risk Weight: Fncl Stndby Ltrs of Crdt 0 RCR-44(d) RCONB647 20% Risk Weight:Fncl Stndby Ltrs of Crdt 0 RCR-44(e) RCONB648 50% Risk Weight:Fncl Stndby Ltrs of Crdt 0 RCR-44(f) RCONB649 100% Risk Weight:Fncl Stndby Ltr of Crdt 0 RCR-45(a) RCON3821 Value/Amount: Prf Stndby Ltrs of Crdt 0 RCR-45(b) RCONB650 Credit Equiv: Prf Stndby Ltrs of Crdt 0 RCR-45(c) RCONB651 0% Risk Weight: Prf Stndby Ltrs of Crdt 0 RCR-45(d) RCONB652 20% Risk Weight:Prf Stndby Ltrs of Crdt 0 RCR-45(e) RCONB653 50% Risk Weight:Prf Stndby Ltrs of Crdt 0 RCR-45(f) RCONB654 100% Risk Weight:Prf Stndby Ltr of Crdt 0 RCR-46(a) RCON3411 Value/Amount: Cml & Similar Ltrs of Crdt 0 RCR-46(b) RCONB655 Credit Equiv: Cml & Similar Ltrs of Crdt 0 RCR-46(c) RCONB656 0% Risk Weight: Cml & Sim Ltrs of Crdt 0 RCR-46(d) RCONB657 20% Risk Weight: Cml & Sim Ltrs of Crdt 0 RCR-46(e) RCONB658 50% Risk Weight: Cml & Sim Ltrs of Crdt 0 RCR-46(f) RCONB659 100% Risk Weight: Cml & Sim Ltrs of Crdt 0 RCR-47(a) RCON3429 Value/Amount: Prts in Accpt Acquired 0 RCR-47(b) RCONB660 Credit Equiv: Prts in Accpt Acquired 0 RCR-47(c) RCONB661 0% Risk Weight: Prts in Accpt Acquired 0 RCR-47(d) RCONB662 20% Risk Weight: Prts in Accpt Acquired 0 RCR-47(f) RCONB663 100% Risk Weight: Prts in Accpt Acquired 0 RCR-48(a) RCON3433 Value/Amount: Securities lent 0 RCR-48(b) RCONB664 Credit Equiv: Securities lent 0 RCR-48(c) RCONB665 0% Risk Weight: Securities lent 0 RCR-48(d) RCONB666 20% Risk Weight: Securities lent 0 RCR-48(e) RCONB667 50% Risk Weight: Securities lent 0 RCR-48(f) RCONB668 100% Risk Weight: Securities lent 0 RCR-49(a) RCONA250 Value/Amount:Rtnd recse on SB oblig 0 RCR-49(b) RCONB669 Credit Equiv:Rtnd recse on SB oblig 0 RCR-49(c) RCONB670 0% Risk weight:Rtnd recse on SB oblig 0 RCR-49(d) RCONB671 20% Risk weight:Rtnd recse on SB oblig 0 RCR-49(e) RCONB672 50% Risk weight:Rtnd recse on SB oblig 0 RCR-49(f) RCONB673 100% Risk weight:Rtnd recse on SB oblig 0 RCR-50(a) RCON1727 Value/Amount: Rtnd recse on fin assets 0 RCR-50(b) RCON2243 Credit Equiv: Rtnd recse on fin assets 0 RCR-50(f) RCONB674 100% Rsk wght:Rtnd recse on fin assets 0 RCR-51(a) RCONB675 Value/Amount: All other fin assets 0 RCR-51(b) RCONB676 Credit Equiv: All other fin assets 0 RCR-51(c) RCONB677 0% Risk weight: All other fin assets 0 RCR-51(d) RCONB678 20% Risk weight: All other fin assets 0 RCR-51(e) RCONB679 50% Risk weight: All other fin assets 0 RCR-51(f) RCONB680 100% Risk weight: All other fin assets 0 RCR-52(a) RCONB681 Value/Amount: All other off-bal liab 0 RCR-52(b) RCONB682 Credit Equiv: All other off-bal liab 0 RCR-52(c) RCONB683 0% Risk Weight: All other off-bal liab 0 RCR-52(d) RCONB684 20% Risk Weight: All other off-bal liab 0 RCR-52(e) RCONB685 50% Risk Weight: All other off-bal liab 0 RCR-52(f) RCONB686 100% Risk Weight: All other off-bal liab 0 RCR-53(a) RCON3833 Value/Amount: Unused Commit greater than 1 yr 0 RCR-53(b) RCONB687 Credit Equiv: Unused Commit greater than 1 yr 0 RCR-53(c) RCONB688 0% Risk Weight: Unused Commit greater than 1 yr 0 RCR-53(d) RCONB689 20% Risk Weight: Unused Commit greater than 1 yr 0 RCR-53(e) RCONB690 50% Risk Weight: Unused Commit greater than 1 yr 0 RCR-53(f) RCONB691 100% Risk Weight: Unused Commit greater than 1 yr 0 RCR-54(b) RCONA167 Credit Equiv: Derivative contracts 0 RCR-54(c) RCONB693 0% Risk Weight: Derivative contracts 0 RCR-54(d) RCONB694 20% Risk Weight: Derivative contracts 0 RCR-54(e) RCONB695 50% Risk Weight: Derivative contracts 0 RCR-55(c) RCONB696 0% Rsk Wght: Ttl assets,derv, off bal 1007 RCR-55(d) RCONB697 20% Rsk Wght: Ttl assets,derv, off bal 49847 RCR-55(e) RCONB698 50% Rsk Wght: Ttl assets,derv, off bal 0 RCR-55(f) RCONB699 100% Rsk Wght: Ttl assets,derv, off bal 29580 RCR-57(c) RCONB700 0% Rsk Wght: Rsk Weighted Assets 0 RCR-57(d) RCONB701 20% Rsk Wght: Rsk Weighted Assets 9969 RCR-57(e) RCONB702 50% Rsk Wght: Rsk Weighted Assets 0 RCR-57(f) RCONB703 100% Rsk Wght: Rsk Weighted Assets 29580 RCR-58(f) RCON1651 Market rsk equiv assets 0 RCR-59(f) RCONB704 Rsk weighted before deduct for excess 39549 RCR-60(f) RCONA222 LESS: Excess allow for loan/lease loss 0 RCR-61(f) RCON3128 LESS: Allocated transfer risk reserve 0 RCR-62(f) RCONA223 Total risk-weighted assets 39549 RCR-M.1 RCON8764 Credit Exp - Off-Bal Sheet Derivative 0 RCR-M.2.a(a) RCON3809 Derivative Int Rate Contracts less than 1 YR 0 RCR-M.2.a(b) RCON8766 Derivative Int Rate Contracts 1-5 YRS 0 RCR-M.2.a(c) RCON8767 Derivative Int Rate Contracts greater than 5 YRS 0 RCR-M.2.b(a) RCON3812 Derivative Fgn Exch Contracts less than 1 YR 0 RCR-M.2.b(b) RCON8769 Derivative Fgn Exch Contracts 1-5 YRS 0 RCR-M.2.b(c) RCON8770 Derivative Fgn Exch Contracts greater than 5 YRS 0 RCR-M.2.c(a) RCON8771 Derivative Gold Contracts less than 1 YR 0 RCR-M.2.c(b) RCON8772 Derivative Gold Contracts 1-5 YRS 0 RCR-M.2.c(c) RCON8773 Derivative Gold Contracts greater than 5 YRS 0 RCR-M.2.d(a) RCON8774 Derivative P Metals Contracts less than 1 YR 0 RCR-M.2.d(b) RCON8775 Derivative P Metals Contracts 1-5 YRS 0 RCR-M.2.d(c) RCON8776 Derivative P Metals Contracts greater than 5 YRS 0 RCR-M.2.e(a) RCON8777 Derivative Commodity Contrcts less than 1 YR 0 RCR-M.2.e(b) RCON8778 Derivative Commodity Contrcts 1-5 YRS 0 RCR-M.2.e(c) RCON8779 Derivative Commodity Contrcts greater than 5 YRS 0 RCR-M.2.f(a) RCONA000 Derivative Equity Contracts less than 1 YR 0 RCR-M.2.f(b) RCONA001 Derivative Equity Contracts 1-5 YRS 0 RCR-M.2.f(c) RCONA002 Derivative Equity Contracts greater than 5 YRS 0 RCS-1(a) RCONB705 BSA-Outstndng prncpl: 1-4 Res 0 RCS-1(b) RCONB706 BSA-Outstndng prncpl: Hme Equity 0 RCS-1(c) RCONB707 BSA-Outstndng prncpl: C Card Rcv 0 RCS-1(d) RCONB708 BSA-Outstndng prncpl: Auto Loans 0 RCS-1(e) RCONB709 BSA-Outstndng prncpl: Other Cons 0 RCS-1(f) RCONB710 BSA-Outstndng prncpl: Cml/Indus 0 RCS-1(g) RCONB711 BSA-Outstndng prncpl: All Other 0 RCS-2.a(a) RCONB712 BSA-Max amount(Retained inst):1-4 Res 0 RCS-2.a(b) RCONB713 BSA-Max amount(Retained inst):Hme Equity 0 RCS-2.a(c) RCONB714 BSA-Max amount(Retained inst):C Card Rcv 0 RCS-2.a(d) RCONB715 BSA-Max amount(Retained inst):Auto Loans 0 RCS-2.a(e) RCONB716 BSA-Max amount(Retained inst):Other Cons 0 RCS-2.a(f) RCONB717 BSA-Max amount(Retained inst):Cml/Indus 0 RCS-2.a(g) RCONB718 BSA-Max amount(Retained inst):All Other 0 RCS-2.b(a) RCONB719 BSA-Max amount(Stndby Lttrs):1-4 Res 0 RCS-2.b(b) RCONB720 BSA-Max amount(Stndby Lttrs):Hme Equity 0 RCS-2.b(c) RCONB721 BSA-Max amount(Stndby Lttrs):C Card Rcv 0 RCS-2.b(d) RCONB722 BSA-Max amount(Stndby Lttrs):Auto Loans 0 RCS-2.b(e) RCONB723 BSA-Max amount(Stndby Lttrs):Other Cons 0 RCS-2.b(f) RCONB724 BSA-Max amount(Stndby Lttrs):Cml/Indus 0 RCS-2.b(g) RCONB725 BSA-Max amount(Stndby Lttrs):All Other 0 RCS-3(a) RCONB726 BSA-Rpt Bnk's unused commit: 1-4 Res 0 RCS-3(b) RCONB727 BSA-Rpt Bnk's unused commit: Hme Equity 0 RCS-3(c) RCONB728 BSA-Rpt Bnk's unused commit: C Card Rcv 0 RCS-3(d) RCONB729 BSA-Rpt Bnk's unused commit: Auto Loans 0 RCS-3(e) RCONB730 BSA-Rpt Bnk's unused commit: Other Cons 0 RCS-3(f) RCONB731 BSA-Rpt Bnk's unused commit: Cml/Indus 0 RCS-3(g) RCONB732 BSA-Rpt Bnk's unused commit: All Other 0 RCS-4.a(a) RCONB733 BSA-Pst due loans,30-89 days:1-4 Res 0 RCS-4.a(b) RCONB734 BSA-Pst due loans,30-89 days:Hme Equity 0 RCS-4.a(c) RCONB735 BSA-Pst due loans,30-89 days:C Card Rcv 0 RCS-4.a(d) RCONB736 BSA-Pst due loans,30-89 days:Auto Loans 0 RCS-4.a(e) RCONB737 BSA-Pst due loans,30-89 days:Other Cons 0 RCS-4.a(f) RCONB738 BSA-Pst due loans,30-89 days:Cml/Indus 0 RCS-4.a(g) RCONB739 BSA-Pst due loans,30-89 days:All Other 0 RCS-4.b(a) RCONB740 BSA-Pst due loans,90+ days:1-4 Res 0 RCS-4.b(b) RCONB741 BSA-Pst due loans,90+ days:Hme Equity 0 RCS-4.b(c) RCONB742 BSA-Pst due loans,90+ days:C Card Rcv 0 RCS-4.b(d) RCONB743 BSA-Pst due loans,90+ days:Auto Loans 0 RCS-4.b(e) RCONB744 BSA-Pst due loans,90+ days:Other Cons 0 RCS-4.b(f) RCONB745 BSA-Pst due loans,90+ days:Cml/Indus 0 RCS-4.b(g) RCONB746 BSA-Pst due loans,90+ days:All Other 0 RCS-5.a(a) RIADB747 BSA-C/O & Rcv on assets(C/O):1-4 Res 0 RCS-5.a(b) RIADB748 BSA-C/O & Rcv on assets(C/O):Hme Equity 0 RCS-5.a(c) RIADB749 BSA-C/O & Rcv on assets(C/O):C Card Rcv 0 RCS-5.a(d) RIADB750 BSA-C/O & Rcv on assets(C/O):Auto Loans 0 RCS-5.a(e) RIADB751 BSA-C/O & Rcv on assets(C/O):Other Cons 0 RCS-5.a(f) RIADB752 BSA-C/O & Rcv on assets(C/O):Cml/Indus 0 RCS-5.a(g) RIADB753 BSA-C/O & Rcv on assets(C/O):All Other 0 RCS-5.b(a) RIADB754 BSA-C/O & Rcv on assets(Rcvs):1-4 Res 0 RCS-5.b(b) RIADB755 BSA-C/O & Rcv on assets(Rcvs):Hme Equity 0 RCS-5.b(c) RIADB756 BSA-C/O & Rcv on assets(Rcvs):C Card Rcv 0 RCS-5.b(d) RIADB757 BSA-C/O & Rcv on assets(Rcvs):Auto Loans 0 RCS-5.b(e) RIADB758 BSA-C/O & Rcv on assets(Rcvs):Other Cons 0 RCS-5.b(f) RIADB759 BSA-C/O & Rcv on assets(Rcvs):Cml/Indus 0 RCS-5.b(g) RIADB760 BSA-C/O & Rcv on assets(Rcvs):All Other 0 RCS-6.a(b) RCONB761 BSA-Amt of ownrshp-Securities:Hme Equity 0 RCS-6.a(c) RCONB762 BSA-Amt of ownrshp-Securities:C Card Rcv 0 RCS-6.a(f) RCONB763 BSA-Amt of ownrshp-Securities:Cml/Indus 0 RCS-6.b(b) RCONB500 BSA-Amt of ownrshp-Loans:Hme Equity 0 RCS-6.b(c) RCONB501 BSA-Amt of ownrshp-Loans:C Card Rcv 0 RCS-6.b(f) RCONB502 BSA-Amt of ownrshp-Loans:Cml/Indus 0 RCS-7.a(b) RCONB764 BSA-Pst due loans,30-89 days:Hme Equity 0 RCS-7.a(c) RCONB765 BSA-Pst due loans,30-89 days:C Card Rcv 0 RCS-7.a(f) RCONB766 BSA-Pst due loans,30-89 days:Cml/Indus 0 RCS-7.b(b) RCONB767 BSA-Pst due loans,90+ days:Hme Equity 0 RCS-7.b(c) RCONB768 BSA-Pst due loans,90+ days:C Card Rcv 0 RCS-7.b(f) RCONB769 BSA-Pst due loans,90+ days:Cml/Indus 0 RCS-8.a(b) RIADB770 BSA-C/O & Rcv on loans(C/O):Hme Equity 0 RCS-8.a(c) RIADB771 BSA-C/O & Rcv on loans(C/O):C Card Rcv 0 RCS-8.a(f) RIADB772 BSA-C/O & Rcv on loans(C/O):Cml/Indus 0 RCS-8.b(b) RIADB773 BSA-C/O & Rcv on loans(Rcvs):Hme Equity 0 RCS-8.b(c) RIADB774 BSA-C/O & Rcv on loans(Rcvs):C Card Rcv 0 RCS-8.b(f) RIADB775 BSA-C/O & Rcv on loans(Rcvs):Cml/Indus 0 RCS-9(a) RCONB776 Sec Fac-Max amt credit expose:1-4 Res 0 RCS-9(b) RCONB777 Sec Fac-Max amt credit expose:Hme Equity 0 RCS-9(c) RCONB778 Sec Fac-Max amt credit expose:C Card Rcv 0 RCS-9(d) RCONB779 Sec Fac-Max amt credit expose:Auto Loans 0 RCS-9(e) RCONB780 Sec Fac-Max amt credit expose:Other Cons 0 RCS-9(f) RCONB781 Sec Fac-Max amt credit expose:Cml/Indus 0 RCS-9(g) RCONB782 Sec Fac-Max amt credit expose:All other 0 RCS-10(a) RCONB783 Sec Fac-Rpt bank's unusd cmt:1-4 Res 0 RCS-10(b) RCONB784 Sec Fac-Rpt bank's unusd cmt:Hme Equity 0 RCS-10(c) RCONB785 Sec Fac-Rpt bank's unusd cmt:C Card Rcv 0 RCS-10(d) RCONB786 Sec Fac-Rpt bank's unusd cmt:Auto Loans 0 RCS-10(e) RCONB787 Sec Fac-Rpt bank's unusd cmt:Other Cons 0 RCS-10(f) RCONB788 Sec Fac-Rpt bank's unusd cmt:Cml/Indus 0 RCS-10(g) RCONB789 Sec Fac-Rpt bank's unusd cmt:All Other 0 RCS-11(a) RCONB790 Bnk Assts-Assets sold w/recourse:1-4 Res 0 RCS-11(b) RCONB791 Bnk Assts-Assets sold w/rcrse:Hme Equity 0 RCS-11(c) RCONB792 Bnk Assts-Assets sold w/rcrse:C Card Rcv 0 RCS-11(d) RCONB793 Bnk Assts-Assets sold w/rcrse:Auto Loans 0 RCS-11(e) RCONB794 Bnk Assts-Assets sold w/rcrse:Other Cons 0 RCS-11(f) RCONB795 Bnk Assts-Assets sold w/rcrse:Cml/Indus 0 RCS-11(g) RCONB796 Bnk Assts-Assets sold w/rcrse:All Other 0 RCS-12(a) RCONB797 Bnk Assts-Max amt crdt expose:1-4 Res 0 RCS-12(b) RCONB798 Bnk Assts-Max amt crdt expose:Hme Equity 0 RCS-12(c) RCONB799 Bnk Assts-Max amt crdt expose:C Card Rcv 0 RCS-12(d) RCONB800 Bnk Assts-Max amt crdt expose:Auto Loans 0 RCS-12(e) RCONB801 Bnk Assts-Max amt crdt expose:Other Cons 0 RCS-12(f) RCONB802 Bnk Assts-Max amt crdt expose:Cml/Indus 0 RCS-12(g) RCONB803 Bnk Assts-Max amt crdt expose:All Other 0 RCS-M.1.a RCONA249 Sml Bus:Outstanding principal balance 0 RCS-M.1.b RCONA250 Sml Bus:Amts of retained rcrse of oblig 0 RCS-M.2.a RCONB804 OPB:1-4 Fam Res with recourse 0 RCS-M.2.b RCONB805 OPB:1-4 Fam Res w/o recourse 0 RCS-M.2.c RCONA591 OPB: Other financial assets 0 RCS-M.3.a.1 RCONB806 Asset-backed,max amt-Cndts spnsrd by bnk 0 RCS-M.3.a.2 RCONB807 Asset-bckd,max amt-Cndts spnsrd by other 0 RCS-M.3.b.1 RCONB808 Asset-bckd,unused-Cndts spnsrd by bnk 0 RCS-M.3.b.2 RCONB809 Asset-bckd,unused-Cndts spnsrd by other 0 RCT-20 RIADC058 Income-Less:Expenses N/A RCT-1 RCONA345 Y/N-Does inst have fiduciary powers? N/A RCT-2 RCONA346 Y/N-Does inst exercise fid pwrs granted? N/A RCT-3 RCONB867 Y/N-Does inst have any act to report? N/A RCT-4(a) RCONB868 Assets-Prsnl Trust: Managed Assts N/A RCT-4(b) RCONB869 Assets-Prsnl Trust: Non-Managed Assts N/A RCT-4(c) RCONB870 Assets-Prsnl Trust: # Managed Accts N/A RCT-4(d) RCONB871 Assets-Prsnl Trust: # Non-Mngd Accts N/A RCT-5.a(a) RCONB872 Assets-Ret Rel,Emp contr: Mngd Assts N/A RCT-5.a(b) RCONB873 Assets-Ret Rel,Emp contr: Non-Mngd Assts N/A RCT-5.a(c) RCONB874 Assets-Ret Rel,Emp contr:# Mngd Accts N/A RCT-5.a(d) RCONB875 Assets-Ret Rel,Emp cont:# Non-Mngd Accts N/A RCT-5.b(a) RCONB876 Assets-Ret Rel,Emp benft:Mngd Assts N/A RCT-5.b(b) RCONB877 Assets-Ret Rel,Emp benft:Non-Mngd Assts N/A RCT-5.b(c) RCONB878 Assets-Ret Rel,Emp benft:# Mngd Accts N/A RCT-5.b(d) RCONB879 Assets-Ret Rel,Emp benft:# Non-Mgd Accts N/A RCT-5.c(a) RCONB880 Assets-Ret Rel,Other ret: Mngd Assts N/A RCT-5.c(b) RCONB881 Assets-Ret Rel,Other ret: Non-Mngd Assts N/A RCT-5.c(c) RCONB882 Assets-Ret Rel,Other ret:# Mngd Accts N/A RCT-5.c(d) RCONB883 Assets-Ret Rel,Other ret:# Non-Mgd Accts N/A RCT-6(a) RCONB884 Assets-Corp trust/agency:Mngd Assts N/A RCT-6(b) RCONB885 Assets-Corp trust/agency:Non-Mngd Assts N/A RCT-6(c) RCONC001 Assets-Corp trust/agency:# Mngd Accts N/A RCT-6(d) RCONC002 Assets-Corp trust/agency:# Non-Mgd Accts N/A RCT-7(a) RCONB886 Assets-Invst Mgmnt Accts:Mngd Assts N/A RCT-7(c) RCONB888 Assets-Invst Mgmnt Accts:# Mngd Accts N/A RCT-8(a) RCONB890 Assets-Other Fiduciary Accts:Mngd Assts N/A RCT-8(b) RCONB891 Assets-Other Fid Accts:Non-Mngd Assts N/A RCT-8(c) RCONB892 Assets-Other Fid Accts:# Mngd Accts N/A RCT-8(d) RCONB893 Assets-Other Fid Accts:# Non-Mngd Accts N/A RCT-9(a) RCONB894 Assets-Total Fid Accts:Mngd Assts N/A RCT-9(b) RCONB895 Assets-Total Fid Accts:Non-Mngd N/A RCT-9(c) RCONB896 Assets-Total Fid Accts:# Mngd Accts N/A RCT-9(d) RCONB897 Assets-Total Fid Accts:# Non-Mngd Accts N/A RCT-10(b) RCONB898 Assets-Cust/Safekpng:Non-Mngd Assts N/A RCT-10(d) RCONB899 Assets-Cust/Safekpng:# Non-Mngd Assts N/A RCT-12 RIADB904 Income-Personal Trust/Agency Accts N/A RCT-13.a RIADB905 Income-Ret Rel,Emp benefit-def contr N/A RCT-13.b RIADB906 Income-Ret Ret,Emp benefit-def benefit N/A RCT-13.c RIADB907 Income-Ret Rel,Other Retirement Accts N/A RCT-14 RIADA479 Income-Corporate Trust/Agency Accts N/A RCT-15 RIADB908 Income-Investment Mngmnt Agency Accts N/A RCT-16 RIADA480 Income-Other Fiduciary Accts N/A RCT-17 RIADB909 Income-Custody/Safekeeping Accts N/A RCT-18 RIADB910 Income-Other Fid/Related N/A RCT-19 RIAD4070 Income-Total Gross Fid/Related N/A RCT-21 RIADA488 Income-Less:Net losses from Fid/Related N/A RCT-22 RIADB911 Income-Plus:Intracompany Inc Credits N/A RCT-23 RIADA491 Income-Net Fiduciary/Related Inc N/A RCT-M.1.a RCONB913 Memo-Mngd Assets:Non-Int Bearing Dep N/A RCT-M.1.b RCONB914 Memo-Mngd Assets:Int-Bearing Deposits N/A RCT-M.1.c RCONB915 Memo-Mngd Asets:Treas/Gov (US) Oblig N/A RCT-M.1.d RCONB916 Memo-Mngd Assets:Sate,Cnty,Muni Oblig N/A RCT-M.1.e RCONB917 Memo-Mngd Assets:Money Mkt Mutual Funds N/A RCT-M.1.f RCONB918 Memo-Mngd Assets:Other short-term oblig N/A RCT-M.1.g RCONB919 Memo-Mngd Assets:Other notes/bonds N/A RCT-M.1.h RCONB920 Memo-Mngd Assets:Common/Preferred Stock N/A RCT-M.1.i RCONB921 Memo-Mngd Assets:Real Estate Mortgages N/A RCT-M.1.j RCONB922 Memo-Mngd Assets:Real Estate N/A RCT-M.1.k RCONB923 Memo-Mngd Assets:Miscellaneous Assets N/A RCT-M.1.l RCONB868 Memo-Mngd Assets:Total Mngd Assets held N/A RCT-M.2.a(a) RCONB927 Corp Trust-Corp/Muni:# of Issues N/A RCT-M.2.a(b) RCONB928 Corp Trust-Corp/Muni:Prncpl Amt N/A RCT-M.2.b RCONB929 Corp Trust - xfer agent:# of Issues N/A RCT-M.3.a(a) RCONB931 Memo-Collective,Dom Equity:# of Funds N/A RCT-M.3.a(b) RCONB932 Memo-Collective,Dom Equity:Mkt Value N/A RCT-M.3.b(a) RCONB933 Memo-Collective,Inter/Global:# of Funds N/A RCT-M.3.b(b) RCONB934 Memo-Collective,Inter/Global:Mkt Value N/A RCT-M.3.c(a) RCONB935 Memo-Collective,Stock/Bond:# of Funds N/A RCT-M.3.c(b) RCONB936 Memo-Collective,Stock/Bond:Mkt Value N/A RCT-M.3.d(a) RCONB937 Memo-Collective,Taxable Bond:# of Funds N/A RCT-M.3.d(b) RCONB938 Memo-Collective,Taxable Bond:Mkt Value N/A RCT-M.3.e(a) RCONB939 Memo-Collective,Muni Bond:# of Funds N/A RCT-M.3.e(b) RCONB940 Memo-Collective,Muni Bond:Mkt Value N/A RCT-M.3.f(a) RCONB941 Memo-Collective,ShtTrm/Mny Mkt:# of Fnds N/A RCT-M.3.f(b) RCONB942 Memo-Collective,ShtTrm/Mny Mkt:Mkt Value N/A RCT-M.3.g(a) RCONB943 Memo-Collective,Special/Other:# of Funds N/A RCT-M.3.g(b) RCONB944 Memo-Collective,Special/Other:Mkt Value N/A RCT-M.3.h(a) RCONB945 Memo-Collective,Total Collect:# of Funds N/A RCT-M.3.h(b) RCONB946 Memo-Collective,Total Collect:Mkt Value N/A RCT-M.4.a(a) RIADB947 Memo-Fid/Other,Prsnl:Gross Mngd Accts N/A RCT-M.4.a(b) RIADB948 Memo-Fid/Other,Prsnl:Gross Non-Mgd Accts N/A RCT-M.4.a(c) RIADB949 Memo-Fid/Other,Prsnl:Recoveries N/A RCT-M.4.b(a) RIADB950 Memo-Fid/Other,Retire:Gross Mngd Accts N/A RCT-M.4.b(b) RIADB951 Memo-Fid/Other,Ret:Gross Non-Mngd Accts N/A RCT-M.4.b(c) RIADB952 Memo-Fid/Other,Ret:Recoveries N/A RCT-M.4.c(a) RIADB953 Memo-Fid/Other,Invst:Gross Mngd Accts N/A RCT-M.4.c(b) RIADB954 Memo-Fid/Other,Invst:Gross Non-Mgd Accts N/A RCT-M.4.c(c) RIADB955 Memo-Fid/Other,Invst:Recoveries N/A RCT-M.4.d(a) RIADB956 Memo-Fid/Other,Other Fid:Gross Mngd N/A RCT-M.4.d(b) RIADB957 Memo-Fid/Other,Other Fid:Gross Non-Mngd N/A RCT-M.4.d(c) RIADB958 Memo-Fid/Other,Other Fid:Recoveries N/A RCT-M.4.e(a) RIADB959 Memo-Fid/Other,Total Fid:Gross Mngd N/A RCT-M.4.e(b) RIADB960 Memo-Fid/Other,Total Fid:Gross Non-Mngd N/A RCT-M.4.e(c) RIADB961 Memo-Fid/Other,Total Fid:Recoveries N/A RC-Narrative RCON6979 X/Y - Comment/No Comment X RC(LOANS)-a RCON3561 Number Of Loans To Executive Officers 0 RC(LOANS)-b RCON3562 Amount Of Loans To Executive Officers 0 RC(LOANS)-c(a) RCON7701 Start Rate (####.##%) Loans To Execs. 0.00% RC(LOANS)-c(b) RCON7702 Top Rate (####.##%) Loans To Execs. 0.00% RCR-50.pct RCONDPSC Credit Conversion Factor 12.5% EX-99.1 58 h92783ex99-1.txt FORM OF LETTER OF TRANSMITTAL AND CONSENT EXHIBIT 99.1 LETTER OF TRANSMITTAL TESORO PETROLEUM CORPORATION OFFER TO EXCHANGE ITS 9 5/8% SENIOR SUBORDINATED NOTES DUE 2008, SERIES B WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 FOR ANY AND ALL OF ITS OUTSTANDING 9 5/8% SENIOR SUBORDINATED NOTES DUE 2008 (PRINCIPAL AMOUNT $1,000 PER NOTE) PURSUANT TO THE PROSPECTUS THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2002 UNLESS THE OFFER IS EXTENDED Deliver to U.S. Bank Trust National Association (the "Exchange Agent") By Hand Delivery: By Overnight Courier: U.S. Bank Trust Center U.S. Bank Trust Center 180 East Fifth Street 180 East Fifth Street St. Paul, Minnesota 55101 St. Paul, Minnesota 55101 Attn: Specialized Finance Group Attn: Specialized Finance Group By Registered or Certified Mail: By Facsimile Transmission (for Eligible Institutions Only): U.S. Bank Trust Center 180 East Fifth Street U.S. Bank Trust National Association St. Paul, Minnesota 55101 (651) 244-1537 Attn: Specialized Finance Group Confirm: (800) 934-6802
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OR TRANSMISSION OF INSTRUCTIONS TO A FACSIMILE NUMBER OTHER THAN THOSE SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. The undersigned hereby acknowledges receipt of the Prospectus dated , 200 (the "Prospectus") of Tesoro Petroleum Corporation (the "Company") and this Letter of Transmittal, which together constitute the Company's offer (the "Exchange Offer") to exchange each $1,000 principal amount of its 9 5/8% Senior Subordinated Notes due 2008, Series B (the "Exchange Notes") for each $1,000 principal amount of its outstanding 9 5/8% Senior Subordinated Notes due 2008 (the "Outstanding Notes"). The Exchange Notes have been registered under the Securities Act of 1933, as amended (the "Securities Act"), pursuant to a Registration Statement of which the Prospectus is a part. The term "Expiration Date" shall mean 5:00 p.m., New York City time, on , 2002, unless the Company, in its sole discretion, extends the duration of the Exchange Offer. Capitalized terms used but not defined herein have the respective meanings given to them in the Prospectus. PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY BEFORE COMPLETING IT. YOU MUST FOLLOW THE INSTRUCTIONS BEGINNING ON PAGE 9. List below the Outstanding Notes to which this Letter of Transmittal relates. If the space provided below is inadequate, the Certificate or Registration Numbers and Principal amounts should be listed on a separately signed schedule affixed hereto. - -------------------------------------------------------------------------------------------------------------- DESCRIPTION OF NOTES TENDERED HEREBY - -------------------------------------------------------------------------------------------------------------- NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) CERTIFICATE OR AGGREGATE PRINCIPAL EXACTLY AS NAME(S) APPEAR(S) ON NOTES REGISTRATION AMOUNT REPRESENTED PRINCIPAL AMOUNT (PLEASE FILL IN) NUMBERS* BY OUTSTANDING NOTES TENDERED** - -------------------------------------------------------------------------------------------------------------- --------------------------------------------------------------- --------------------------------------------------------------- --------------------------------------------------------------- --------------------------------------------------------------- --------------------------------------------------------------- --------------------------------------------------------------- TOTAL - --------------------------------------------------------------------------------------------------------------
* Need not be completed by book-entry holders. ** Unless otherwise indicated, the holder will be deemed to have tendered the full aggregate principal amount represented by such Outstanding Notes. All tenders must be in integral multiples of $1,000. The term "Holder" means any person in whose name Outstanding Notes are registered on the books of the Company or any other person who has obtained a properly completed bond power from a registered holder of Outstanding Notes. This Letter of Transmittal is to be used if the Holder desires to tender Outstanding Notes (i) by delivery of certificates representing such Outstanding Notes or by book-entry transfer to an account maintained by the Exchange Agent at The Depository Trust Company ("DTC"), according to the procedures set forth in the Prospectus under the caption "The Exchange Offer -- Procedures for Tendering" or (ii) according to the guaranteed delivery procedures set forth in the Prospectus under the caption "The Exchange Offer -- Guaranteed Delivery Procedures." See Instruction 2 of this Letter of Transmittal for a summary of the information provided in the Prospectus. The Holder must complete, execute and deliver this Letter of Transmittal to indicate the action such Holder desires to take with respect to the Exchange Offer. Holders who wish to tender their Notes must complete this Letter of Transmittal in its entirety. [ ] CHECK HERE IF TENDERED OUTSTANDING NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH A BOOK ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING: Name of Tendering Institution ----------------------------------------------- Account Number -------------------------------------------------------------- Transaction Code Number ----------------------------------------------------- Holders who desire to tender Outstanding Notes for exchange and who cannot comply with the procedures for tender on a timely basis set forth in the Prospectus under the caption "The Exchange Offer -- Procedures for Tendering" or whose Outstanding Notes are not immediately available must tender their Outstanding Notes according to the guaranteed delivery procedures set forth in the Prospectus under the caption "The Exchange Offer -- Guaranteed Delivery Procedures." 2 [ ] CHECK HERE IF TENDERED OUTSTANDING NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING: Name(s) of Registered Holder(s)------------------------------------------------- Date of Execution of Notice of Guaranteed Delivery -------------------------- Name of Eligible Institution that Guaranteed Delivery ----------------------- If delivered by book-entry transfer: ------------------------------------------ Account Number -------------------------------------------------------------- Transaction Code Number ----------------------------------------------------- [ ] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OUTSTANDING NOTES ARE TO BE RETURNED BY CREDITING THE BOOK-ENTRY TRANSFER FACILITY ACCOUNT NUMBER SET FORTH ABOVE. [ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO. Name -------------------------------------------------------------------------- Address ------------------------------------------------------------------------- 3 SIGNATURES MUST BE PROVIDED BELOW PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY Ladies and Gentlemen: I, the undersigned, hereby tender to the Company the principal amount of the Outstanding Notes indicated above. I hereby exchange, assign and transfer to the Company all right, title and interest in and to such Outstanding Notes, including all rights to accrued and unpaid interest thereon as of the Expiration Date. I hereby irrevocably constitute and appoint the Exchange Agent my true and lawful agent and attorney-in-fact with the full power and authority to assign, transfer and exchange the Outstanding Notes. I fully understand that the Exchange Agent is acting as the agent of the Company in connection with the Exchange Offer. I represent and warrant that I have full power and authority to tender, assign and transfer the Outstanding Notes and to acquire Exchange Notes in exchange therefor. I represent that the Company, upon accepting the Outstanding Notes for exchange, will acquire good and unencumbered title to the Outstanding Notes, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claims. I further represent that (i) the Exchange Notes are being obtained in the ordinary course of business of the person receiving such Exchange Notes, whether or not I am such person, and (ii) neither I nor any such other person receiving the Exchange Notes is engaged or intends to engage in, or has an arrangement or understanding with any person to participate in, the distribution of such Exchange Notes. If I am or such other person is a broker-dealer who is receiving the Exchange Notes for its own account in exchange for Outstanding Notes that were acquired as a result of market-making or other trading activities, I acknowledge that I or such other person will deliver a prospectus in connection with any resale of such Exchange Notes. However, by so acknowledging or by delivering a prospectus, I will not be deemed to admit that I am an "underwriter" within the meaning of the Securities Act. If I am or any such other person is participating in the exchange offer for the purpose of distributing the Exchange Notes, we acknowledge that (i) we cannot rely on the position of the staff of the Securities and Exchange Commission enunciated in Exxon Capital Holdings Corporation (available April 13, 1989), Morgan Stanley & Co., Inc. (available June 5, 1991) or similar no-action letters regarding exchange offers and must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction and (ii) we may incur liability under the Securities Act if we fail to comply with such requirements, liability from which we are not indemnified by the Company. If I am or any such other person is an affiliate (as defined under Rule 405 of the Securities Act) of the Company, I understand and acknowledge that I or such other person may not offer for resale, resell or otherwise transfer such Exchange Notes without registering them under the Securities Act or without an exemption therefrom. I also warrant that I will, upon request, execute and deliver any additional documents deemed necessary or desirable by the Exchange Agent or the Company to complete the exchange, assignment and transfer of tendered Outstanding Notes. I further agree that the Company's acceptance of any tendered Outstanding Notes and its issuance of Exchange Notes in exchange therefor shall constitute performance in full by the Company of its obligations under the Registration Rights Agreement. The Company shall have no further obligations or liabilities thereunder for the registration of the Outstanding Notes or the Exchange Notes. The Exchange Offer is subject to certain conditions set forth in the Prospectus under the caption "The Exchange Offer -- Conditions." I recognize that the Company may not be required to exchange the Outstanding Notes tendered hereby under certain circumstances. In such event, the Outstanding Notes tendered hereby but not exchanged will be returned to me. The authority I am hereby conferring or have agreed to confer shall survive my death or incapacity. My obligations under this Letter of Transmittal shall be binding upon my heirs, personal representatives, successors and assigns. Unless otherwise indicated in the box entitled "Special Registration Instructions" or the box entitled "Special Delivery Instructions" in this Letter of Transmittal, certificates for all Exchange Notes delivered in exchange for the Outstanding Notes tendered hereby, and for any Outstanding Notes tendered hereby but not exchanged, will be registered in my name and returned to me. If an Exchange Note is to be issued or mailed to 4 a person other than me, or to me at an address different from the address shown on this Letter of Transmittal, I will complete the appropriate boxes on page 7 of this Letter of Transmittal. I UNDERSTAND THAT IF I AM SURRENDERING OUTSTANDING NOTES AND HAVE COMPLETED EITHER THE BOX ENTITLED "SPECIAL REGISTRATION INSTRUCTIONS" OR THE BOX ENTITLED "SPECIAL DELIVERY INSTRUCTIONS" IN THIS LETTER OF TRANSMITTAL, THE SIGNATURE(S) ON THIS LETTER OF TRANSMITTAL MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION (PER INSTRUCTION 4 OF THIS LETTER OF TRANSMITTAL). 5 SPECIAL REGISTRATION INSTRUCTIONS (SEE INSTRUCTION 5) To be completed ONLY if the Exchange Notes are to be issued in the name of someone other than the undersigned. Issue Exchange Notes to: Name: ----------------------------------------- Address: -------------------------------------- -------------------------------------- (PLEASE PRINT OR TYPE) SPECIAL DELIVERY INSTRUCTIONS (SEE INSTRUCTION 5) To be completed ONLY if the Exchange Notes are to be sent to someone other than the undersigned, or to the undersigned at an address other than that shown under "Description of Notes Tendered Hereby." Mail Exchange Notes to: Name: ----------------------------------------- Address: -------------------------------------- -------------------------------------- (PLEASE PRINT OR TYPE) REGISTERED HOLDER(S) OF OUTSTANDING NOTES SIGN HERE (IN ADDITION, COMPLETE SUBSTITUTE FORM W-9 BELOW) x ------------------------------------------------------------------------------- x ------------------------------------------------------------------------------- (SIGNATURE(S) OF REGISTERED HOLDER(S)) Must be signed by registered holder(s) exactly as name(s) appear(s) on the Outstanding Notes or on a security position listing as the owner of the Outstanding Notes or by person(s) authorized to become registered holder(s) by properly completed bond powers transmitted herewith. If signature is by attorney-in-fact, trustee, executor, administrator, guardian, officer of a corporation or other person acting in a fiduciary capacity, please provide the following information (PLEASE PRINT OR TYPE): Name and Capacity (full title): ------------------------------------------------- Address (including zip): -------------------------------------------------------- Area Code and Telephone Number: ------------------------------------------------- Dated: ------------------------------------------ SIGNATURE GUARANTEE (IF REQUIRED -- SEE INSTRUCTION 4) Authorized Signature: ----------------------------------------------------------- (SIGNATURE OF REPRESENTATIVE OF SIGNATURE GUARANTOR) Name and Title: ----------------------------------------------------------------- Name of Firm: ------------------------------------------------------------------- Area Code and Telephone Number: ------------------------------------------------- Dated: ------------------------------------------ 6 PAYOR'S NAME: -------------------------------------------------- THIS SUBSTITUTE FORM W-9 MUST BE COMPLETED AND SIGNED Please provide your social security number or other taxpayer identification number on the following Substitute Form W-9 and certify therein that you are not subject to backup withholding. - ----------------------------------------------------------------------------------------------------------------------- SUBSTITUTE Part 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX FORM W-9 AT RIGHT AND CERTIFY BY SIGNING AND DATING ------------------------------ BELOW. Social Security Number or Employer Identification Number ---------------------------------------------------------------------------------- DEPARTMENT OF THE TREASURY Part 2 -- Check the box if you are NOT subject to backup withholding under the INTERNAL REVENUE SERVICE provisions of the Internal Revenue Code because: (a) You are exempt from backup withholding, or (B) you have not been notified that you are subject to backup withholding as a result of failure to report all interest or dividends, or (C) the Internal Revenue Service has notified you that you are no longer subject to backup withholding. [ ]
---------------------------------------------------------------------------------- PAYOR'S REQUEST CERTIFICATION: UNDER THE PENALTIES OF PERJURY, I FOR TAXPAYER CERTIFY THAT THE INFORMATION PROVIDED ON THIS FORM IS IDENTIFICATION NUMBER TRUE, CORRECT AND COMPLETE. Part 3 -- ("TIN") Awaiting SIGNATURE: ------------------------------------------ TIN [ ] DATED: ---------------------------------------------- - ----------------------------------------------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 31% OF ANY CASH PAYMENTS IN EXCESS OF $10.00 MADE TO YOU. YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF SUBSTITUTE FORM W-9. - -------------------------------------------------------------------------------- CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office, or (b) I intend to mail or deliver an application in the near future. I understand that if I do not provide a taxpayer identification number within 60 days, 31% of all reportable payments made to me thereafter will be withheld until I provide a number. SIGNATURE DATE --------------------------------------- ------------------------ - -------------------------------------------------------------------------------- 7 INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER 1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND CERTIFICATES FOR TENDERED OUTSTANDING NOTES All certificates representing Outstanding Notes or any confirmation of a book-entry transfer to the Exchange Agent's account at DTC, as well as a properly completed and duly executed copy or facsimile of this Letter of Transmittal, and any other documents required by this Letter of Transmittal, must be received by the Exchange Agent at any of its addresses set forth herein prior to the Expiration Date. THE HOLDER ASSUMES THE RISK ASSOCIATED WITH THE DELIVERY OF THIS LETTER OF TRANSMITTAL, THE OUTSTANDING NOTES, AND ANY OTHER REQUIRED DOCUMENTS. EXCEPT AS OTHERWISE PROVIDED BELOW, DELIVERY WILL BE DEEMED MADE ONLY WHEN THE EXCHANGE AGENT HAS ACTUALLY RECEIVED THE APPLICABLE ITEMS. IF SUCH DELIVERY IS BY MAIL, IT IS SUGGESTED THAT REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, BE USED. DELIVERY TO AN ADDRESS OTHER THAN AS SET FORTH HEREIN, OR TRANSMISSION TO A FACSIMILE NUMBER OTHER THAN THE ONES SET FORTH HEREIN, WILL NOT CONSTITUTE A VALID DELIVERY. No alternative, conditional, irregular or contingent tenders will be accepted. All tendering Holders, by execution of this Letter of Transmittal (or facsimile thereof), shall waive any right to receive notice of the acceptance of the Outstanding Notes for exchange. 2. GUARANTEED DELIVERY PROCEDURES Holders who desire to tender Outstanding Notes for exchange, but who cannot comply with the procedures for tendering on a timely basis set forth in the Prospectus under the caption "The Exchange Offer -- Procedures for Tendering" or whose Outstanding Notes are not immediately available may tender in one of the following two ways: (1) (a) The tender is made through a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc., through a commercial bank or trust company having an office or correspondent in the United States or through an "eligible guarantor institution" within the meaning of Rule 17Ad-15 under the Exchange Act (an "Eligible Institution"); (b) prior to the Expiration Date, the Exchange Agent receives from such Eligible Institution a properly completed and duly executed Notice of Guaranteed Delivery (by facsimile transmission, mail or hand delivery) (i) setting forth the name and address of the Holder, the registration or certificate number(s) of the Outstanding Notes tendered and the principal amount of such Outstanding Notes, (ii) stating that the tender is being made thereby, and (iii) guaranteeing that, within five business days after the Expiration Date, the Letter of Transmittal (or facsimile thereof), together with the certificates representing the Outstanding Notes, or a book-entry confirmation, and any other required documents, will be deposited by the Eligible Institution with the Exchange Agent; and (c) such properly completed and executed Letter of Transmittal (or facsimile thereof), as well as duly executed certificates representing all tendered Outstanding Notes in proper form for transfer, or a book-entry confirmation, and all other required documents are received by the Exchange Agent within five business days after the Expiration Date. or (2) (a) Prior to the Expiration Date, the Exchange Agent receives an agent's message from DTC stating that DTC has received an express acknowledgment from the participant in DTC tendering the Outstanding Notes that they have received and agree to be bound by the Notice of Guaranteed Delivery; and 8 (b) the Exchange Agent receives, within five business days after the Expiration Date, either (1) a book-entry confirmation, including an agent's message, transmitted via DTC's Automated Tender Offer Program, or (2) a properly completed and executed letter of transmittal or facsimile thereof, together with the certificate(s) representing all tendered Outstanding Notes in proper form for transfer, or a book-entry confirmation, and all other required documents. Upon request, the Exchange Agent will send a Notice of Guaranteed Delivery to a Holder who wishes to tender Outstanding Notes according to the guaranteed delivery procedures set forth above. Such Holder must ensure that the Exchange Agent receives the Notice of Guaranteed Delivery prior to the Expiration Date. Failure to complete the guaranteed delivery procedures outlined above will not, of itself, affect the validity or effect a revocation of any properly completed and executed Letter of Transmittal properly completed and executed by a Holder who attempted to use the guaranteed delivery procedures. 3. PARTIAL TENDERS; WITHDRAWALS A Holder who tenders less than the entire principal amount of Outstanding Notes evidenced by a submitted certificate should fill in the principal amount tendered in the column entitled "Principal Amount Tendered" of the box entitled "Description of Notes Tendered Hereby" on page 2 of this Letter of Transmittal. A newly-issued Outstanding Note for that portion of the principal amount not tendered will be sent to such Holder after the Expiration Date. All Outstanding Notes delivered to the Exchange Agent will be deemed to have been tendered in full unless otherwise indicated. Tenders of Outstanding Notes will be accepted only in integral multiples of $1,000. A Holder may withdraw a tender of Outstanding Notes at any time prior to the Expiration Date. Thereafter, tenders of Outstanding Notes are irrevocable. To be effective, a written, telegraphic or facsimile transmission notice of withdrawal must be timely received by the Exchange Agent. Any such notice of withdrawal must (i) specify the name of the withdrawing Holder (ii) identify the Outstanding Notes to be withdrawn (including the certificate registration number(s) and principal amount of such Outstanding Notes, or, in the case of Outstanding Notes transferred by book-entry transfer, the name and number of the account at the book-entry transfer facility to be credited), (iii) be signed by the Holder in the same manner as the original signature on this Letter of Transmittal (including any required signature guarantees) or be accompanied by documents of transfer sufficient to have the Trustee with respect to the Outstanding Notes register the transfer of such Outstanding Notes into the name of the person withdrawing the tender and (iv) specify the name in which any such Outstanding Notes are to be registered, if different from that of the depositor. Any Outstanding Notes that have been tendered but not accepted for exchange will be returned to the Holder thereof without cost to such Holder as soon as practicable after withdrawal, rejection of tender or termination of the Exchange Offer. 4. SIGNATURE ON THIS LETTER OF TRANSMITTAL; WRITTEN INSTRUMENTS AND ENDORSEMENTS; GUARANTEE OF SIGNATURES If this Letter of Transmittal is signed by the registered Holder(s) of the Outstanding Notes, the signature must correspond with the name(s) as written on the face of the certificates without alteration or enlargement. If this Letter of Transmittal is signed by a participant in the book-entry transfer facility, the signature must correspond with the name as it appears on the security position listing as the holder of the Outstanding Notes. If there are two or more joint owners of record of Outstanding Notes, they must all sign this Letter of Transmittal. If a number of Outstanding Notes registered in different names are tendered, it will be necessary to complete, sign and submit as many separate copies of this Letter of Transmittal as there are different registrations of Outstanding Notes. Signatures on this Letter of Transmittal or a notice of withdrawal, as the case may be, must be guaranteed by an Eligible Institution unless the Outstanding Notes are tendered (i) by a registered Holder 9 who has not completed the box entitled "Special Registration Instructions" or "Special Delivery Instructions" on the Letter of Transmittal or (ii) for the account of an Eligible Institution. If this Letter of Transmittal is signed by the registered Holder of Outstanding Notes (which term, for the purposes described herein, shall include a participant in the book-entry transfer facility whose name appears on a security listing as the holder of the Outstanding Notes) listed and tendered hereby, no endorsements of the tendered Outstanding Notes or separate written instruments of transfer or exchange are required. In any other case, the registered Holder (or acting Holder) must either properly endorse the Outstanding Notes or properly transmit completed bond powers with this Letter of Transmittal (in either case, executed exactly as the name(s) of the registered Holder(s) appear(s) on the Outstanding Notes, and, with respect to a participant in the book-entry transfer facility whose name appears on a security position listing as the owner of Outstanding Notes, exactly as the name of the participant appears on such security position listing), with the signature on the Notes or bond power guaranteed by an Eligible Institution (except where the Outstanding Notes are tendered for the account of an Eligible Institution). If this Letter of Transmittal, any certificates or separate written instruments of transfer or exchange are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by the Company, proper evidence satisfactory to the Company of their authority so to act must be submitted. 5. SPECIAL REGISTRATION AND DELIVERY INSTRUCTIONS Holders should indicate, in the applicable box, the name (or account at the book-entry transfer facility) in which and address to which the Exchange Notes (or newly issued Outstanding Notes for principal amounts not tendered or any Outstanding Notes not accepted for exchange) are to be issued (or deposited) if different from the names and addresses or accounts of the person signing this Letter of Transmittal. In the case of issuance in a different name, the employer identification number or social security number of the person named must also be indicated and the Holder should complete the applicable box on page 7 of this Letter of Transmittal. If no instructions are given, the Exchange Notes (or any newly issued Outstanding Notes for principal amounts not tendered or any Outstanding Notes not accepted) will be issued in the name of and sent to the acting Holder of the Outstanding Notes or deposited at such Holder's account at the book-entry transfer facility. 6. TRANSFER TAXES The Company shall pay all transfer taxes, if any, applicable to the transfer and exchange of Outstanding Notes to it or its order pursuant to the Exchange Offer. If a transfer tax is imposed for any other reason other than the transfer and exchange of Outstanding Notes to the Company or its order pursuant to the Exchange Offer, the amount of any such transfer taxes (whether imposed on the registered Holder or any other person) will be payable by the tendering Holder. If satisfactory evidence of payment of such taxes or exception therefrom is not submitted herewith, the amount of such transfer taxes will be billed directly to such tendering Holder. Except as provided in this Instruction 6 of this Letter of Transmittal, it will not be necessary for transfer stamps to be affixed to the Notes listed herein. 7. WAIVER OF CONDITIONS The Company reserves the absolute right to waive, in whole or in part, any of the conditions to the Exchange Offer set forth in the Prospectus. 10 8. MUTILATED, LOST, STOLEN OR DESTROYED NOTES Any Holder whose Outstanding Notes have been mutilated, lost, stolen or destroyed should contact the Exchange Agent at the address indicated above for further instructions. 9. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES Questions relating to the procedure for tendering as well as requests for additional copies of the Prospectus and this Letter of Transmittal, may be directed to the Exchange Agent at the address and telephone number(s) set forth above. In addition, all questions relating to the Exchange Offer, as well as requests for assistance or additional copies of the Prospectus and this Letter of Transmittal, may be directed to the Company at 300 Concord Plaza Drive, San Antonio, Texas 78216-6999, Attention: (telephone: (210) 828-8484). 10. VALIDITY AND FORM The Company will determine in its sole discretion all questions as to the validity, form, eligibility (including time of receipt), acceptance and withdrawal of tendered Outstanding Notes, which determination will be final and binding. The Company reserves the absolute right to reject any and all Outstanding Notes not properly tendered or any Outstanding Notes the Company's acceptance of which would, in the opinion of counsel for the Company, be unlawful. The Company also reserves the right to waive any defects, irregularities or conditions of tender as to particular Outstanding Notes. The Company's interpretation of the terms and conditions of the Exchange Offer (including the instructions in this Letter of Transmittal) will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of Outstanding Notes must be cured within such time as the Company shall determine. Although the Company intends to notify Holders of defects or irregularities with respect to tenders of Outstanding Notes, neither the Company, the Exchange Agent nor any other person shall incur any liability for failure to give such notification. Tenders of Outstanding Notes will not be deemed to have been made until such defects or irregularities have been cured or waived. Any Outstanding Notes received by the Exchange Agent that are not properly tendered and as to which the defects or irregularities have not been cured or waived will be returned by the Exchange Agent to the tendering Holders as soon as practicable following the Expiration Date. IMPORTANT TAX INFORMATION Under federal income tax law, a Holder tendering Outstanding Notes is required to provide the Exchange Agent with such holder's correct Taxpayer Identification Number ("TIN") on Substitute Form W-9 above. If such Holder is an individual, the TIN is the Holder's social security number. The Certificate of Awaiting Taxpayer Identification Number should be completed if the tendering Holder has not been issued a TIN and has applied for a number or intends to apply for a number in the near future. If the Exchange Agent is not provided with the correct TIN, the Holder may be subject to a $50 penalty imposed by the Internal Revenue Service. In addition, payments that are made to such Holder with respect to tendered Outstanding Notes may be subject to backup withholding. Certain Holders (including, among others, all corporations and certain foreign individuals and foreign entities) are not subject to these backup withholding and reporting requirements. In order for such a Holder to qualify as an exempt recipient, that holder must submit to the Exchange Agent a properly completed Internal Revenue Service Form W-8BEN, W-8ECI, W-8EXP, or W-8IMY, whichever is applicable, signed under penalties of perjury, attesting to that Holder's exempt status. Such forms can be obtained from the Exchange Agent. If backup withholding applies, the Exchange Agent is required to withhold 31% of any amounts otherwise payable to the Holder. Backup withholding is not an additional tax. Rather, the tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund may be obtained from the Internal Revenue Service. 11 PURPOSE OF SUBSTITUTE FORM W-9 To prevent backup withholding on payments that are made to a Holder with respect to Notes tendered for exchange, the Holder is required to notify the Exchange Agent of his or her correct TIN by completing the form herein certifying that the TIN provided on Substitute Form W-9 is correct (or that such Holder is awaiting a TIN) and that (i) such Holder has not been notified by the Internal Revenue Service that he or she is subject to backup withholding as a result of failure to report all interest or dividends or (ii) the Internal Revenue Service has notified such Holder that he or she is no longer subject to backup withholding. WHAT NUMBER TO GIVE THE EXCHANGE AGENT Each Holder is required to give the Exchange Agent the social security number or employer identification number of the record Holder(s) of the Notes. If Notes are in more than one name or are not in the name of the actual Holder, consult the instructions on Internal Revenue Service Form W-9, which may be obtained from the Exchange Agent, for additional guidance on which number to report. CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER If the tendering holder has not been issued a TIN and has applied for a number or intends to apply for a number in the near future, write "Applied For" in the space for the TIN on Substitute Form W-9, sign and date the form and the Certificate of Awaiting Taxpayer Identification Number and return them to the Exchange Agent. If such certificate is completed and the Exchange Agent is not provided with the TIN within 60 days, the Exchange Agent will withhold 31% of all payments made thereafter until a TIN is provided to the Exchange Agent. IMPORTANT: THIS LETTER OF TRANSMITTAL OR A MANUALLY SIGNED FACSIMILE THEREOF (TOGETHER WITH OUTSTANDING NOTES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED DOCUMENTS) OR A NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE. 12 EX-99.2 59 h92783ex99-2.txt FORM OF NOTICE OF GUARANTEED DELIVERY EXHIBIT 99.2 TESORO PETROLEUM CORPORATION NOTICE OF GUARANTEED DELIVERY FOR TENDER OF 9 5/8% SENIOR SUBORDINATED NOTES DUE 2008 (PRINCIPAL AMOUNT $1,000 PER NOTE) A holder of 9 5/8% Senior Subordinated Notes due 2008 (the "Outstanding Notes") of Tesoro Petroleum Corporation who wishes to tender such Outstanding Notes pursuant to the exchange offer (the "Exchange Offer") extended by the Prospectus dated , 200 (the "Prospectus") and the Letter of Transmittal accompanying this Notice of Guaranteed Delivery (the "Letter of Transmittal") must complete and deliver this form or one substantially equivalent to it under the following circumstances: (i) certificates representing the Outstanding Notes are not immediately available, (ii) the Outstanding Notes or other required documents will not reach the Exchange Agent prior to the Expiration Date (as defined in the Letter of Transmittal and the Prospectus), or (iii) the appropriate procedures for book-entry transfer will not be completed prior to the Expiration Date. This requirement is set forth in the Prospectus in the section entitled "The Exchange Offer -- Procedures for Tendering" and in the Letter of Transmittal in Instruction 2. This form may be delivered by hand or sent by overnight courier, facsimile transmission or registered or certified mail to the Exchange Agent. The Exchange Agent must receive this form prior to 5:00 p.m., New York City time, on , 2002. To U.S. Bank Trust National Association (the "Exchange Agent") By Hand Delivery: By Overnight Courier: U.S. Bank Trust Center U.S. Bank Trust Center 180 East Fifth Street 180 East Fifth Street St. Paul, Minnesota 55101 St. Paul, Minnesota 55101 Attn: Specialized Finance Group Attn: Specialized Finance Group By Registered or Certified Mail: By Facsimile Transmission U.S. Bank Trust Center (for Eligible Institutions Only): 180 East Fifth Street U.S. Bank Trust National Association St. Paul, Minnesota 55101 (651) 244-1537 Attn: Specialized Finance Group Confirm: (800) 934-6802
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OR TRANSMISSION TO A FACSIMILE NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE BOX ON THE LETTER OF TRANSMITTAL FOR GUARANTEE OF SIGNATURES. Ladies and Gentlemen: I, the undersigned, hereby tender to Tesoro Petroleum Corporation the principal amount of the Outstanding Notes listed below, upon the terms of and subject to the conditions set forth in the Prospectus and the Letter of Transmittal and the instructions thereto, which I have received, pursuant to the guaranteed delivery procedures set forth in such Prospectus, as follows:
AGGREGATE PRINCIPAL AMOUNT REPRESENTED PRINCIPAL AMOUNT CERTIFICATE OR BY OUTSTANDING TENDERED (MUST BE IN INTEGRAL REGISTRATION NOS. NOTE(S) MULTIPLES OF $1,000) - ---------------------------------------------------------------------------------------------------------- - ------------------------------- --------------------------------------- -------------------------------- - ------------------------------- --------------------------------------- -------------------------------- - ------------------------------- --------------------------------------- -------------------------------- - ------------------------------- --------------------------------------- --------------------------------
If Outstanding Notes will be tendered by book-entry transfer, provide the following information: DTC Account Number: - -------------------------------------------------------------------------------- Date: - -------------------------------------------------------------------------------- All authority herein conferred or agreed to be conferred shall survive the death or incapacity of the undersigned and every obligation of the undersigned hereunder shall be binding upon the heirs, personal representatives, successors and assigns of the undersigned. PLEASE SIGN HERE X - -------------------------------------------------------------------------------- X - -------------------------------------------------------------------------------- Signature(s) of Owner(s) or Authorized Signatory Date: - ------------------------ Area Code and Telephone Number: - --------------------------------------------------------------------------- Must be signed by the holder(s) of the Outstanding Notes as their name(s) appear(s) on certificates for Outstanding Notes or on a security position listing, or by person(s) authorized to become registered holder(s) by endorsement and documents transmitted with this Notice of Guaranteed Delivery. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer or other person acting in a fiduciary or representative capacity, such person must set forth his or her full title below. PLEASE PRINT NAME(S) AND ADDRESS(ES) Name(s): - -------------------------------------------------------------------------------- Capacity: - -------------------------------------------------------------------------------- Address(es): - -------------------------------------------------------------------------------- THE GUARANTEE ON THE NEXT PAGE MUST BE COMPLETED 2 GUARANTEE OF DELIVERY (NOT TO BE USED FOR SIGNATURE GUARANTEE) I, the undersigned, a member firm of a registered national securities exchange, a member of the National Association of Securities Dealers, Inc., or a commercial bank or trust company having an office in the United States, guarantee (a) that the above named person(s) own(s) the principal amount of 9 5/8% Senior Subordinated Notes due 2008 of Tesoro Petroleum Corporation (the "Outstanding Notes") tendered hereby within the meaning of Rule 14e-4 under the Securities Exchange Act of 1934, as amended, (b) that such tender of such Outstanding Notes complies with Rule 14e-4, and (c) that I will deliver to the Exchange Agent the certificates representing the Outstanding Notes tendered hereby or confirmation of book-entry transfer of such Outstanding Notes into the Exchange Agent's account at The Depository Trust Company, in proper form for transfer, together with the Letter of Transmittal (or facsimile thereof), properly completed and duly executed, with any required signature guarantees and any other required documents, within five (5) business days after the Expiration Date. - --------------------------------------------------- --------------------------------------------------- NAME OF FIRM AUTHORIZED SIGNATURE - --------------------------------------------------- --------------------------------------------------- ADDRESS TITLE - --------------------------------------------------- Name ------------------------------------------- ZIP CODE PLEASE TYPE OR PRINT - --------------------------------------------------- Dated -------------------------------------------- AREA CODE AND TEL. NO
NOTE: DO NOT SEND CERTIFICATES REPRESENTING OUTSTANDING NOTES WITH THIS FORM. CERTIFICATES REPRESENTING OUTSTANDING NOTES SHOULD BE SENT ONLY WITH A LETTER OF TRANSMITTAL. 3 EX-99.3 60 h92783ex99-3.txt FORM OF LETTER TO REGISTERE HOLDERS & PARTICIPANTS EXHIBIT 99.3 LETTER TO REGISTERED HOLDERS AND DTC PARTICIPANTS REGARDING THE OFFER TO EXCHANGE $215,000,000 PRINCIPAL AMOUNT OF 9 5/8% SENIOR SUBORDINATED NOTES DUE 2008 OF TESORO PETROLEUM CORPORATION To Registered Holders and The Depository Trust Company Participants: We are enclosing herewith the materials listed below relating to the offer by Tesoro Petroleum Corporation (the "Company") to exchange the Company's new 9 5/8% Senior Subordinated Notes due 2008 (the "New Notes"), pursuant to an offering registered under the Securities Act of 1933, as amended (the "Securities Act"), for a like principal amount of the Company's issued and outstanding 9 5/8% Senior Subordinated Notes due 2008 (the "Old Notes") upon the terms and subject to the conditions set forth in the Company's Prospectus, dated , 200 , and the related Letter of Transmittal (which together constitute the "Exchange Offer"). Enclosed herewith are copies of the following documents: 1. Prospectus dated , 200 ; 2. Letter of Transmittal; 3. Notice of Guaranteed Delivery; 4. Instructions to Registered Holder or DTC Participant from Beneficial Owner; and 5. Letter which may be sent to your clients for whose account you hold definitive registered notes or book-entry interests representing Old Notes in your name or in the name of your nominee, to accompany the instruction form referred to above, for obtaining such client's instruction with regard to the Exchange Offer. WE URGE YOU TO CONTACT YOUR CLIENTS PROMPTLY. PLEASE NOTE THAT THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2002, UNLESS EXTENDED. The Exchange Offer is not conditioned upon any minimum number of Old Notes being tendered. To participate in the Exchange Offer, a beneficial holder must either (i) cause to be delivered to U.S. Bank Trust National Association (the "Exchange Agent"), at the address set forth in the Letter of Transmittal, definitive registered notes representing Old Notes in proper form for transfer together with a properly executed Letter of Transmittal or (ii) cause a DTC Participant to tender such holder's Old Notes to the Exchange Agent's account maintained at The Depository Trust Company ("DTC") for the benefit of the Exchange Agent through DTC's Automated Tender Offer Program ("ATOP"), including transmission of a computer-generated message that acknowledges and agrees to be bound by the terms of the Letter of Transmittal. By complying with DTC's ATOP procedures with respect to the Exchange Offer, the DTC Participant confirms on behalf of itself and the beneficial owners of tendered Old Notes all provisions of the Letter of Transmittal applicable to it and such beneficial owners as fully as if it completed, executed and returned the Letter of Transmittal to the Exchange Agent. You will need to contact those of your clients for whose account you hold definitive registered notes or book-entry interests representing Old Notes and seek their instructions regarding the Exchange Offer. 4 Pursuant to the Letter of Transmittal, each holder of Old Notes will represent to the Company and the Guarantors (as defined in the Prospectus) that: (i) the New Notes or book-entry interests therein to be acquired by such holder and any beneficial owner(s) of such Old Notes or interests therein ("Beneficial Owner(s)") in connection with the Exchange Offer are being acquired by such holder and any Beneficial Owner(s) in the ordinary course of business of the holder and any Beneficial Owner(s), (ii) the holder and each Beneficial Owner are not participating, do not intend to participate, and have no arrangement or understanding with any person to participate, in the distribution of the New Notes, (iii) if the holder or Beneficial Owner is a resident of the State of California, it falls under the self-executing institutional investor exemption set forth under Section 25102(i) of the Corporate Securities Law of 1968 and Rules 260.102.10 and 260.105.14 of the California Blue Sky Regulations, (iv) if the holder or Beneficial Owner is a resident of the Commonwealth of Pennsylvania, it falls under the self-executing institutional investor exemption set forth under Sections 203(c), 102(d) and (k) of the Pennsylvania Securities Act of 1972, Section 102.111 of the Pennsylvania Blue Sky Regulations and an interpretive opinion dated November 16, 1985, (v) the holder and each Beneficial Owner acknowledge and agree that any person who is a broker-dealer registered under the Securities Exchange Act of 1934, as amended (the "Exchange Act") or is participating in the Exchange Offer for the purpose of distributing the New Notes must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction of the New Notes or interests therein acquired by such person and cannot rely on the position of the staff of the Securities and Exchange Commission (the "Commission") set forth in certain no-action letters, (vi) the holder and each Beneficial Owner understand that a secondary resale transaction described in clause (v) above and any resales of New Notes or interests therein obtained by such holder in exchange for Old Notes or interests therein originally acquired by such holder directly from the Company should be covered by an effective registration statement containing the selling security holder information required by Item 507 or Item 508, as applicable, of Regulation S-K of the Commission and (vii) neither the holder nor any Beneficial Owner(s) is an "affiliate," as defined in Rule 405 under the Securities Act, of the Company. Upon a request by the Company, a holder or beneficial owner will deliver to the Company a legal opinion confirming its representation made in clause (vii) above. If the tendering holder of Old Notes is a broker-dealer (whether or not it is also an "affiliate") or any Beneficial Owner(s) that will receive New Notes for its own or their account pursuant to the Exchange Offer, the tendering holder will represent on behalf of itself and the Beneficial Owner(s) that the Old Notes to be exchanged for the New Notes were acquired as a result of market-making activities or other trading activities, and acknowledge on its own behalf and on the behalf of such Beneficial Owner(s) that it or they will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such New Notes; provided, however, by so acknowledging and by delivering a prospectus, such tendering holder will not be deemed to admit that it or any Beneficial Owner is an "underwriter" within the meaning of the Securities Act. The enclosed "Instructions to Registered Holder or DTC Participant from Beneficial Owner" form contains an authorization by the beneficial owners of Old Notes for you to make the foregoing representations. You should forward this form to your clients and ask them to complete it and return it to you. You will then need to tender Old Notes on behalf of those of your clients who ask you to do so. The Company will not pay any fee or commission to any broker or dealer or to any other persons (other than the Exchange Agent) in connection with the solicitation of tenders of Old Notes pursuant to the Exchange Offer. The Company will pay or cause to be paid any transfer taxes payable on the transfer of Old Notes to it, except as otherwise provided in the section "The Exchange Offer -- Solicitation of Tenders; Fees and Expenses" of the enclosed Prospectus. 5 Additional copies of the enclosed materials may be obtained from the Exchange Agent. Very truly yours, TESORO PETROLEUM CORPORATION NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU THE AGENT OF THE COMPANY OR THE EXCHANGE AGENT OR AUTHORIZE YOU TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON THEIR BEHALF IN CONNECTION WITH THE EXCHANGE OFFER OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED THEREIN. 6 EX-99.4 61 h92783ex99-4.txt FORM OF INSTRUCTIONS FROM BENEFICIAL OWNERS EXHIBIT 99.4 INSTRUCTIONS TO REGISTERED HOLDER OR DTC PARTICIPANT FROM BENEFICIAL OWNER FOR 9 5/8% SENIOR SUBORDINATED NOTES DUE 2008 OF TESORO PETROLEUM CORPORATION The undersigned hereby acknowledges receipt of the Prospectus dated , 200 (the "Prospectus"), of Tesoro Petroleum Corporation, a Delaware corporation (the "Company"), and the accompanying Letter of Transmittal (the "Letter of Transmittal") that together constitute the Company's offer (the "Exchange Offer") to exchange $215,000,000 of its 9 5/8% Senior Subordinated Notes due 2008, Series B ("New Notes") registered under the Securities Act of 1933 (the "Securities Act") for an identical principal amount of its 9 5/8% Senior Subordinated Notes due 2008 (the "Old Notes"). Capitalized terms used but not defined herein have the meanings assigned to them in the Prospectus and the Letter of Transmittal. This will instruct you as to the action to be taken by you relating to the Exchange Offer with respect to the Old Notes held by you for the account of the undersigned. The principal amount of the Old Notes held by you for the account of the undersigned is (fill in amount): $ principal amount of Old Notes. With respect to the Exchange Offer, the undersigned hereby instructs you (check appropriate box): [ ] To TENDER the following principal amount of Old Notes held by you for the account of the undersigned (insert amount of Old Notes to be tendered, if any, in integral multiples of $1,000): $ principal amount of Old Notes. [ ] NOT to TENDER any Old Notes held by you for the account of the undersigned. If the undersigned instructs you to tender the Old Notes held by you for the account of the undersigned, it is understood that you are authorized: (a) to make, on behalf of the undersigned (and the undersigned, by its signature below, hereby makes to you), the representations and warranties contained in the Letter of Transmittal that are to be made with respect to the undersigned as a beneficial owner, including but not limited to the representations that (i) the New Notes or book-entry interests therein to be acquired by the undersigned (the "Beneficial Owner(s)") in connection with the Exchange Offer are being acquired by the undersigned in the ordinary course of business of the undersigned, (ii) the undersigned is not participating, does not intend to participate, and has no arrangement or understanding with any person to participate, in the distribution of the New Notes, (iii) if the undersigned is a resident of the State of California, it falls under the self-executing institutional investor exemption set forth under Section 25102(i) of the Corporate Securities Law of 1968 and Rules 260.102.10 and 260.105.14 of the California Blue Sky Regulations, (iv) if the undersigned is a resident of the Commonwealth of Pennsylvania, it falls under the self-executing institutional investor exemption set forth under Sections 203(c), 102(d) and 102(k) of the Pennsylvania Securities Act of 1972, Section 102.111 of the Pennsylvania Blue Sky Regulations and an interpretive opinion dated November 16, 1985, (v) the undersigned acknowledges and agrees that any person who is a broker-dealer registered under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or is participating in the Exchange Offer for the purpose of distributing the New Notes must comply with the registration and prospectus delivery requirements of the Securities Act in 1 connection with a secondary resale transaction of the New Notes or interests therein acquired by such person and cannot rely on the position of the staff of the Securities and Exchange Commission (the "Commission") set forth in certain no-action letters, (vi) the undersigned understands that a secondary resale transaction described in clause (v) above and any resales of New Notes or interests therein obtained by such holder in exchange for Old Notes or interests therein originally acquired by such holder directly from the Company should be covered by an effective registration statement containing the selling security holder information required by Item 507 or Item 508, as applicable, of Regulation S-K of the Commission and (vii) the undersigned is not an "affiliate," as defined in Rule 405 under the Securities Act, of the Company. Upon a request by the Company, a holder or beneficial owner will deliver to the Company a legal opinion confirming its representation made in clause (vii) above. If the undersigned is a broker-dealer (whether or not it is also an "affiliate") that will receive New Notes for its own account pursuant to the Exchange Offer, the undersigned represents that the Old Notes to be exchanged for the New Notes were acquired by it as a result of market-making activities or other trading activities, and acknowledges that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such New Notes; provided, however, by so acknowledging and by delivering a prospectus, the undersigned does not and will not be deemed to admit that is an "underwriter" within the meaning of the Securities Act; (b) to agree, on behalf of the undersigned, as set forth in the Letter of Transmittal; and (c) to take such other action as necessary under the Prospectus or the Letter of Transmittal to effect the valid tender of such Old Notes.
SIGN HERE (PLEASE PRINT): Name of Beneficial Owner(s): Address: -------------------------------------------- Telephone Number: -------------------------------- - ----------------------------------------------------- Taxpayer Identification or Social Security Signature(s): --------------------------------------- Number: ------------------------------------------- Name(s): ------------------------------------------ Date: -----------------------------------------------
2 EX-99.5 62 h92783ex99-5.txt FORM OF LETTER TO CLIENTS EXHIBIT 99.5 LETTER TO CLIENTS REGARDING THE OFFER TO EXCHANGE $215,000,000 PRINCIPAL AMOUNT OF 9 5/8% SENIOR SUBORDINATED NOTES DUE 2008 OF TESORO PETROLEUM CORPORATION To Our Clients: We are enclosing herewith a Prospectus, dated , 200 , of Tesoro Petroleum Corporation (the "Company") and a related Letter of Transmittal (which together constitute the "Exchange Offer") relating to the offer by the Company to exchange the Company's new 9 5/8% Senior Subordinated Notes due 2008, Series B (the "New Notes"), pursuant to an offering registered under the Securities Act of 1933, as amended (the "Securities Act"), for a like principal amount of the Company's issued and outstanding 9 5/8% Senior Subordinated Notes due 2008 (the "Old Notes") upon the terms and subject to the conditions set forth in the Prospectus and the Letter of Transmittal. PLEASE NOTE THAT THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2002, UNLESS EXTENDED. The Exchange Offer is not conditioned upon any minimum number of Old Notes being tendered. We are the Registered Holder or DTC participant through which you hold an interest in the Old Notes. A tender of such Old Notes can be made only by us pursuant to your instructions. The Letter of Transmittal is furnished to you for your information only and cannot be used by you to tender your beneficial ownership of Old Notes held by us for your account. Pursuant to the Letter of Transmittal, each holder of Old Notes must make certain representations and warranties that are set forth in the Letter of Transmittal and in the attached form that we have provided to you for your instructions regarding what action we should take in the Exchange Offer with respect to your interest in the Old Notes. We request instructions as to whether you wish to tender any or all of your Old Notes held by us for your account pursuant to the terms and subject to the conditions of the Exchange Offer. We also request that you confirm that we may on your behalf make the representations contained in the Letter of Transmittal that are to be made with respect to you as beneficial owner. Your instructions to us should be forwarded as promptly as possible in order to permit us to tender Old Notes on your behalf in accordance with the provisions of the Exchange Offer. THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2002. Old Notes tendered pursuant to the Exchange Offer may be withdrawn, subject to the procedures described in the Prospectus, at any time prior to such Expiration Date. If you wish to have us tender any or all of your Old Notes held by us for your account or benefit, please so instruct us by completing, executing and returning to us the attached instruction form. The accompanying Letter of Transmittal is furnished to you for informational purposes only and may not be used by you to tender Old Notes held by us and registered in our name for your account or benefit. 3 -----END PRIVACY-ENHANCED MESSAGE-----