EXHIBIT 3.3
CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
KRONOS INTERNATIONAL, INC.
Adopted in accordance with the
provisions of Section 242 of
the General Corporation Law of
the State of Delaware
KRONOS INTERNATIONAL, INC. (the "Corporation"), a corporation organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware, DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation, by unanimous
written consent of the directors dated as of January 1, 1999, adopted the
following resolutions proposing and declaring advisable an Amendment to the
Certificate of Incorporation of the Corporation as follows:
RESOLVED, that Article 4 of the Corporation's
Certificate of Incorporation be amended to read in its
entirety as follows:
"4. The aggregate number of shares of stock of all
classes which the Corporation has authority to issue is
102,000 shares of capital stock, itemized by classes, par
value of shares, shares without par value, and series, if any,
within a class, as follows:
<Table>
<Caption>
Par value per share or
Series Number of statement that shares are
Class (if any) Shares without par value
Common Stock 100,000 $100.00 per share
Class A Non-Voting Preferred
Stock 1,000 $100.00 per share
Class B Non-Voting Preferred
Stock 1,000 $100.00 per share
</Table>
The Board of Directors may classify and reclassify any
unissued shares of capital stock by setting or changing in any
one or more respects the preferences, conversion or other
rights, voting powers, restrictions, limitations as to
dividends, qualifications or terms or conditions of redemption
of such shares of stock.
The relative rights, preferences and limitations of
the shares of each class and series (if any), are as follows:
COMMON STOCK
(a) Dividends: Subject to the provisions below
relating to the payment of dividends on the Class A Preferred
Stock (which is hereinafter called the "Class A Preferred
Stock") and the Class B Preferred Stock (which is hereinafter
called the "Class B Preferred Stock") of the Corporation,
dividends may be declared on the Common Stock from the surplus
or net profits of the Corporation, when and as declared by its
Board of Directors; provided however, that the Board of
Directors may not declare any dividends on the Common Stock
unless (i) approved by a unanimous vote of the Board of
Directors, (ii) the Corporation has paid all accumulated
dividends on the Class A Preferred Stock, and (iii) the
Corporation has paid all accumulated dividends on the Class B
Preferred Stock.
(b) Preferences Upon Liquidation: After payment in
full of the liquidation preferences of the shares of the Class
A Preferred Stock and the Class B Preferred Stock, any
remaining assets of the Corporation available for distribution
to the stockholders shall be distributed to the holders of the
Common Stock ratably. The consolidation or merger of the
Corporation with one or more corporations shall not be deemed
to be a voluntary or involuntary liquidation, dissolution or
winding up of the Corporation.
(c) Voting Rights: Each share of Common Stock shall
entitle the holder thereof to one vote in all proceedings in
which action may be taken by stockholders of the Corporation.
CLASS A PREFERRED STOCK
(a) Dividends: The holders of Class A Preferred Stock
shall be entitled to receive from the surplus or net profits
of the Corporation, when and as declared by its Board of
Directors, cash dividends at the rate of $11,354 per annum per
share of Class A Preferred Stock (i.e., a four and one half
percent (4 1/2%) annual rate on (i) each share's par value of
$100 plus (ii) each share's Liquidation Value (as defined
below)), accruing from the date of issue through the date of
redemption or cancellation thereof, payable on such dates as
may from time to time be determined by the Board of Directors.
These cash dividends shall be cumulative whether or not
declared and shall be payable for the current year and for all
previous fiscal years before any dividends may be paid or set
apart on the Common Stock. The Class A Preferred Stock shall
not be entitled to participate in or receive any dividends or
share of profits whether payable in cash, stock, or property,
in excess of these dividends. No dividends shall be declared
or paid on the Common Stock of the Corporation during any
period when the Corporation has failed to pay an annual
dividend on the Class A Preferred Stock for any preceding
fiscal year. Holders of shares of Class A Preferred Stock that
are redeemed will be entitled to receive the dividend accrued
through the date of redemption (whether or not such dividend
accrued shall have been previously declared), payable by the
Corporation as provided in subsection (d) below.
The Corporation may elect to defer payment of
dividends (ratably among the shares of Class A Preferred
Stock) if the payment of such dividends would violate
restrictions in any loan agreement or indenture of the
Corporation or an affiliate thereof pursuant to which any of
them then has indebtedness outstanding or violate the General
Corporation Law of the State of Delaware.
(b) Preferences Upon Liquidation: Holders of the
issued and outstanding Class A Preferred Stock shall be
entitled to receive for each share of Class A Preferred Stock
(i) the par value of the Class A Preferred Stock plus (ii) any
accumulated and unpaid dividends plus (iii) Liquidation Value.
"Liquidation Value" measured per share of the Class A
Preferred Stock as of any particular date is $252,214.44. If
the assets available for distribution to the stockholders are
insufficient to pay the entire amounts to which the holders of
Class A Preferred Stock and the holders of Class B Preferred
Stock are entitled, the entire assets of the Corporation
available for distribution to stockholders shall be
distributed ratably among the holders of the Class A Preferred
Stock and the Class B Preferred Stock in proportion to the
respective preferential amounts to which each is entitled.
Holders of Class A Preferred Stock shall rank pari passu with
holders of Class B Preferred Stock.
(c) Voting Rights: Except as otherwise provided by
applicable law or expressly in this Certificate of
Incorporation, the shares of Class A Preferred Stock shall not
be entitled to vote in proceedings in which action may be
taken by stockholders of the Corporation; provided however, no
amendment or modification, including without limitation, by
merger or otherwise, of the designation, rights, preferences,
and limitations of the Class A Preferred Stock shall be
binding or effective without the prior consent of the holders
of record of shares of Class A Preferred Stock representing
66 2/3% of the Liquidation Value of all shares outstanding at
the time such action is taken.
(d) Redemption: On and after February 1, 2002, the
Corporation, at its option, upon not less than thirty (30) nor
more than (90) days' written notice, may redeem outstanding
shares of Class A Preferred Stock, in whole or in part, at any
time or from time to time, for cash at a redemption price for
each share of Class A Preferred Stock (the "Redemption Price")
equal to (i) the par value of such shares of Class A Preferred
Stock plus (ii) an amount equal to all dividends accumulated
and unpaid thereon to the date fixed for redemption plus (iii)
Liquidation Value plus (iv) a premium of $5,046.29 per share.
Notice of redemption shall be deemed to have been given when
addressed to the holders of Class A Preferred Stock at their
addresses recorded on the books of the Corporation and
deposited in the United States mail.
On or after the Redemption Date the holder requiring
such redemption by the corporation shall surrender the
certificate evidencing its shares at the principal executive
offices of the corporation, and shall thereupon be entitled to
receive payment of the Redemption Price.
Notice having been given as provided above, if, on
the specified redemption date, funds necessary for the
redemption shall be available therefor and shall have been set
aside by the Corporation to pay the Redemption Price, then,
notwithstanding that the certificates evidencing any shares so
called for redemption shall not have been surrendered,
dividends with respect to the shares so called shall cease to
accrue on and after the specified redemption date, such shares
shall no longer be deemed outstanding, the holders thereof
shall cease to be stockholders of the Corporation and all
rights whatsoever with respect to the shares so called for
redemption (except the right of the holders to receive the
Redemption Price without interest upon surrender of their
certificates therefor properly endorsed) shall terminate.
Shares of Class A Preferred Stock redeemed or otherwise
acquired by the Corporation shall be canceled and not reissued
or resold.
(e) Put Rights: On and after February 1, 2002, each
holder of outstanding shares of Class A Preferred Stock, at
its option, upon not less than thirty (30) nor more than
ninety (90) days' written notice, may require the Corporation
to purchase from such holder, all of the shares of Class A
Preferred Stock, for cash at a purchase price per share of
Class A Preferred Stock (the "Put Purchase Price") equal to
(i) the par value of such shares of Class A Preferred Stock
plus (ii) an amount equal to all dividends accumulated and
unpaid thereon to the date fixed for purchase plus (iii)
Liquidation Value. Notice of exercise of the rights pursuant
to this clause (e) shall be deemed to have been given when
addressed to the Chairman of the Board of the Corporation at
the address of the Corporation's principal place of business
and deposited in the United States mail.
After the Corporation has received notice from the
holders of outstanding Class A Preferred Stock of the exercise
of their right pursuant to this clause (e), the holders have
been duly notified, and the funds have been set aside by the
Board of Directors, the holders thereof shall have no further
rights as stockholders of the Corporation but shall only be
entitled upon presentation of the certificates properly
endorsed to receive the Put Purchase Price thereof, as set
forth above.
Notice having been given as provided above, if, on
the specified purchase date, funds necessary for the purchase
shall be available therefor and shall have been set aside by
the Corporation to pay the Put Purchase Price, then,
notwithstanding that the certificates evidencing any shares so
called for purchase shall not have been surrendered, dividends
with respect to the shares so called shall cease to accrue on
and after the specified purchase date, such shares shall no
longer be deemed outstanding, the holders thereof shall cease
to be stockholders of the Corporation and all rights
whatsoever with respect to the shares so called for purchase
(except the right of the holders to receive the Put Purchase
Price without interest upon surrender of their certificates
therefor properly endorsed) shall terminate. Shares of Class A
Preferred Stock purchased or otherwise acquired by the
Corporation shall be canceled and not reissued or resold.
CLASS B PREFERRED STOCK
(a) Dividends: The holders of Class B Preferred Stock
shall be entitled to receive from the surplus or net profits
of the Corporation, when and as declared by its Board of
Directors, cash dividends at the rate of $11,346.75 per annum
per share of Class B Preferred Stock (i.e., a four and
one-half percent (4 1/2%) annual rate on (i) each share's par
value of $100 plus (ii) each share's Liquidation Value (as
defined below)), accruing from the earlier or January 1, 1999
or the date of issue through the date of redemption or
cancellation thereof, payable on such dates as may from time
to time be determined by the Board of Directors. These cash
dividends shall be cumulative whether or not declared and
shall be payable for the current year and for all previous
fiscal years before any dividends may be paid or set apart on
the Common Stock. The Class B Preferred Stock shall not be
entitled to participate in or receive any dividends or share
of profits whether payable in cash, stock, or property, in
excess of these dividends. No dividends shall be declared or
paid on the Common Stock of the Corporation during any period
when the Corporation has failed to pay an annual dividend on
the Class B Preferred Stock for any preceding fiscal year.
Holders of shares of Class B Preferred Stock that are redeemed
will be entitled to receive the dividend accrued through the
date of redemption (whether or not such dividend accrued shall
have been previously declared), payable by the Corporation as
provided in subsection (d) below.
The Corporation may elect to defer payment of
dividends (ratably among the shares of Class B Preferred
Stock) if the payment of such dividends would violate
restrictions in any loan agreement or indenture of the
Corporation or an affiliate thereof pursuant to which any of
them then has indebtedness outstanding or violate the General
Corporation Law of the State of Delaware.
(b) Preferences Upon Liquidation: Holders of the
issued and outstanding Class B Preferred Stock shall be
entitled to receive for each share of Class B Preferred Stock
(i) the par value of the Class B Preferred Stock plus (ii) any
accumulated and unpaid dividends plus (iii) Liquidation Value.
"Liquidation Value" measured per share of the Class B
Preferred Stock as of any particular date is $252,049.92. If
the assets available for distribution to the stockholders are
insufficient to pay the entire amounts to which the holders of
Class A Preferred Stock and the holders of Class B Preferred
Stock are entitled, the entire assets of the Corporation
available for distribution to stockholders shall be
distributed ratably among the holders of the Class A Preferred
Stock and the Class B Preferred Stock in proportion to the
respective preferential amounts to which each is entitled.
Holders of Class B Preferred Stock shall rank pari passu with
holders of Class A Preferred Stock.
(c) Voting Rights: Except as otherwise provided by
applicable law or expressly in this Certificate of
Incorporation, the shares of Class B Preferred Stock shall not
be entitled to vote in proceedings in which action may be
taken by stockholders of the Corporation; provided however, no
amendment or
modification, including without limitation, by merger of
otherwise, of the designation, rights, preferences, and
limitations of the Class B Preferred Stock shall be binding or
effective without the prior consent of the holders of record
of shares of Class B Preferred Stock representing 66 2/3% of
the Liquidation Value of all shares outstanding at the time
such action is taken.
(d) Redemption: On and after February 1, 2002, the
Corporation, at its option, upon not less than thirty (30) nor
more than (90) days' written notice, may redeem outstanding
shares of Class B Preferred Stock, in whole or in part, at any
time or from time to time, for cash at a redemption price for
each share of Class B Preferred Stock (the "Redemption Price")
equal to (i) the par value of such shares of Class B Preferred
Stock plus (ii) an amount equal to all dividends accumulated
and unpaid thereon to the date fixed for redemption plus (iii)
Liquidation Value plus (iv) a premium of $5,043 per share.
Notice of redemption shall be deemed to have been given when
addressed to the holders of Class B Preferred Stock at their
addresses recorded on the books of the Corporation and
deposited in the United States mail.
On or after the Redemption Date the holder requiring
such redemption by the corporation shall surrender the
certificate evidencing its shares at the principal executive
offices of the corporation, and shall thereupon be entitled to
receive payment of the Redemption Price.
Notice having been given as provided above, if, on
the specified redemption date, funds necessary for the
redemption shall be available therefor and shall have been set
aside by the Corporation to pay the Redemption Price, then,
notwithstanding that the certificates evidencing any shares so
called for redemption shall not have been surrendered,
dividends with respect to the shares so called shall cease to
accrue on and after the specified redemption date, such shares
shall no longer be deemed outstanding, the holders thereof
shall cease to be stockholders of the Corporation and all
rights whatsoever with respect to the shares so called for
redemption (except the right of the holders to receive the
Redemption Price without interest upon surrender of their
certificates therefor properly endorsed) shall terminate.
Shares of Class B Preferred Stock redeemed or otherwise
acquired by the Corporation shall be canceled and not reissued
or resold.
(e) Put Rights: On and after February 1, 2002, each
holder of outstanding shares of Class B Preferred Stock, at
its option, upon not less than thirty (30) nor more than
ninety (90) days' written notice, may require the Corporation
to purchase from such holder, all of the shares of Class B
Preferred Stock, for cash at a purchase price per share of
Class B Preferred Stock (the "Put Purchase Price") equal to
(i) the par value of such shares of Class B Preferred Stock
plus (ii) an amount equal to all dividends accumulated and
unpaid thereon to the date fixed for purchase plus (iii)
Liquidation Value. Notice of exercise of the rights pursuant
to this clause (e) shall be deemed to have been given when
addressed to the Chairman of the Board of the Corporation at
the address of the Corporation's principal place of business
and deposited in the United States mail.
After the Corporation has received notice from the
holders of outstanding Class B Preferred Stock of the exercise
of their right pursuant to this clause (e), the holders have
been duly notified, and the funds have been set aside by the
Board of Directors, the holders thereof shall have no further
rights as stockholders of the Corporation but shall only be
entitled upon presentation of the certificates properly
endorsed to receive the Put Purchase Price thereof; as set
forth above.
Notice having been given as provided above, if, on
the specified purchase date, funds necessary for the purchase
shall be available therefor and shall have been set aside by
the Corporation to pay the Put Purchase Price, then,
notwithstanding that the certificates evidencing any shares so
called for purchase shall not have been surrendered, dividends
with respect to the shares so called shall cease to accrue on
and after the specified purchase date, such shares shall no
longer be deemed outstanding, the holders thereof shall cease
to be stockholders of the Corporation and all rights
whatsoever with respect to the shares so called for purchase
(except the right of the holders to receive the Put Purchase
Price without interest upon surrender of their certificates
therefor properly endorsed) shall terminate. Shares of Class B
Preferred Stock purchased or otherwise acquired by the
Corporation shall be canceled and not reissued or resold."
SECOND: That in lieu of a meeting and vote of stockholders, the holder
of all of the outstanding stock of the Corporation duly approved such amendment
by written consent dated as of January 1, 1999, in accordance with the
provisions of Section 228 of the General Corporation Law of the State of
Delaware.
THIRD: That the capital of the Corporation will not be reduced by
reason of said Amendment.
FOURTH: That the aforesaid Amendment was duly adopted in accordance
with the applicable provisions of Section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, Kronos International, Inc. has caused this
certificate to be executed by its President and attested by its Secretary
effective as of January 1, 1999.
KRONOS INTERNATIONAL, INC., a Delaware
corporation
By: /s/ Eberhard Gaertner
----------------------------------------
Name: Eberhard Gaertner
Title: President