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Exhibit 3.7
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
TENNECO INTERNATIONAL HOLDING CORP.
TENNECO INTERNATIONAL HOLDING CORP., a corporation duly organized and
existing under the General Corporation Law of the State of Delaware (the
"Corporation"), does hereby certify:
1. The first sentence of Article FOURTH of the Restated Certificate of
Incorporation of the Corporation is hereby amended to read as follows:
The total number of shares of all classes of stock which the
corporation shall have authority to issue is 91,000,000, divided into
40,000,000 shares of Preferred Stock, par value $0.01 per share (herein
called "Preferred Stock"), 1,000,000 shares of Junior Preferred
Stock, par value $0.01 per share (herein called "Junior Preferred
Stock") and 50,000,000 shares of Common Stock, par value $0.01
per share (herein called "Common Stock").
2. The Restated Certificate of Incorporation of the Corporation is hereby
amended by amending the Certificate of Designation for the Variable Rate Voting
Participating Preferred Stock of the Corporation to read in its entirety as set
forth in Exhibit A attached hereto.
3. The foregoing amendments were duly adopted in accordance with the
provisions of Section 242 and 228 of the General Corporation Law of the
State of Delaware.
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IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
executed by its duly authorized officer as of the 10th day of December, 1997.
TENNECO INTERNATIONAL HOLDING CORP.
By: /s/ Robert G. Simpson
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Name: Robert G. Simpson
Office: President
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EXHIBIT A TO CERTIFICATE OF AMENDMENT
TENNECO INTERNATIONAL HOLDING CORP.
Amended Certificate of Designation, Preferences and Rights
of Preferred Stock by Resolution of the Board of Directors
Providing for an Issue of 16,000,000 Shares of
Preferred Stock Designated "Variable Rate
Voting Participating Preferred Stock"
Tenneco International Holding Corp. (the "Corporation"), a corporation
organized and existing under the General Corporation Law of the State of
Delaware (the "DGCL"), in accordance with the provisions of the DGCL, DOES
HEREBY CERTIFY:
(i) That pursuant to authority conferred upon the Board of Directors by
the Restated Certificate of Incorporation of the Corporation, as amended
(hereinafter referred to as the "Certificate of Incorporation"), the Board of
Directors, pursuant to the Corporation's Certificate of Designation, Preferences
and Rights of Preferred Stock by Resolution of the Board of Directors providing
for an issue of 12,000,000 Shares of Preferred Stock Designated "Variable Rate
Voting Preferred Stock", dated December 29, 1994, (the "Existing Certificate of
Designation"), has previously authorized the creation and issuance of a series
of Preferred Stock, par value $0.01 per share, of the Corporation, designated
"Variable Rate Voting Participating Preferred Stock" (hereinafter referred to
as the "Original Voting Preferred Stock") and the Corporation has issued such
12,000,000 shares of Voting Preferred Stock and;
(ii) That the Board of Directors has adopted the immediately following
resolution:
RESOLVED, that pursuant to the authority vested in the Board of
Directors by the Certificate of Incorporation, 4,000,000 additional shares
of Voting Preferred Stock (the "Additional Voting Preferred Stock"; and
together with the Original Voting Preferred Stock, the "Voting Preferred
Stock") are hereby authorized for issuance and the Voting Preferred Stock
shall consist of 16,000,000 shares, which number may from time to time be
increased (but not above the total number of authorized shares of Preferred
Stock) by the Board of Directors of the Corporation, and to the extent that
the designations, powers, preferences and relative and other special rights
and the qualifications, limitations and restrictions of the Voting
Preferred Stock are not stated and expressed in the Certificate of
Incorporation, such designations, powers, preferences and relative and
other special rights
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and the qualifications, limitations and restrictions thereof, are hereby
fixed and stated to be as follows:
1. Ranking. The Voting Preferred Stock shall, with respect to dividends
and distributions upon the liquidation, winding up or dissolution of the
Corporation, rank senior to all classes of common stock of the Corporation and,
subject to the following sentence, senior to each other class and series of
capital stock hereafter created which does not expressly provide that it ranks
senior to or on a parity with the Voting Preferred Stock as to dividends and
distributions upon the liquidation, winding up or dissolution of the Corporation
(such common stock and each such other class and series of capital stock being
referred to hereafter as "Junior Stock"). The Voting Preferred Stock shall, with
respect to dividends and distributions upon the liquidation, winding up or
dissolution of the Corporation, rank on a parity with all other series of
preferred stock and any other class or series of capital stock hereafter
created which expressly provides that it ranks on a parity with the Voting
Preferred Stock as to dividends and distributions upon the liquidation,
winding up or dissolution of the Corporation (such other series of preferred
stock and such other class or series of capital stock being referred to
hereafter as "Parity Stock").
2. Preferred Dividends. (a) Beginning on the date of issuance of each share
of Voting Preferred Stock (each such date being an "Issue Date"), each holder of
outstanding shares of the Voting Preferred Stock (the "Holders") issued on such
Issue Date shall be entitled to receive, when, as and if declared by the Board
of Directors out of funds legally available therefor, cash dividends ("Preferred
Dividends") on each such share of Voting Preferred Stock, based on the Issue
Price thereof, at a rate per annum equal at all times during each Dividend
Period to the Preferred Dividend Rate for such Dividend Period, payable in
arrears on the Effective Date and the last day of such Dividend Period.
Preferred Dividends shall be paid to Holders of record at the close of business
on the date specified by the Board of Directors of the Corporation at the time
such dividend is declared; provided, however, that, except for Preferred
Dividends payable on the Effective Date, such date shall not be more than 60
days nor less than 10 days prior to the last day of the respective Dividend
Period. The Company shall establish the Effective Date by providing written
notice to Holders of Voting Preferred Stock by 12:00 noon (New York City time)
three Business Days prior thereto.
(b) Upon the occurrence and during the continuance of an Adjustment Event,
the Preferred Dividend Rate shall be increased to a rate per annum equal at all
times to 2% per annum above the Preferred Dividend Rate otherwise in effect from
time to time pursuant to this Section 2.
(c) Upon the receipt by the Corporation of written notice, signed by the
Holders of at least a majority of the outstanding shares of Voting Preferred
Stock, to require the Corporation to file a registration statement for the
Voting Preferred Stock pursuant to
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Section 5.1 of the Stock Purchase Agreement, the Preferred Dividend Rate shall
be increased to a rate per annum equal at all times to 2% per annum above the
Preferred Dividend Rate otherwise in effect from time to time pursuant to this
Section 2.
(d) Preferred Dividends shall accrue on a daily basis and be cumulative
from the Issue Date whether or not they have been declared and whether or not
there have been profits, surplus or other funds of the Corporation legally
available for the payment of dividends. No interest shall be payable in respect
of any Preferred Dividends which may be in arrears.
(e) All Preferred Dividends paid with respect to shares of Voting Preferred
Stock pursuant to this Section 2 shall be paid pro rata to the Holders entitled
thereto.
(f) Nothing contained in this Section 2 shall in any way or under any
circumstances be construed or deemed to require the Board of Directors to
declare, or the Corporation to pay or set apart for payment, any Preferred
Dividends on shares of the Voting Preferred Stock at any time.
3. Participating Dividends. (a) On June 28, 1996, and on the last Business
Day of each June thereafter so long as any shares of the Voting Preferred Stock
are outstanding (each, a "Participating Dividend Payment Date"), the Holders
shall be entitled to receive, when, as and if declared by the Board of Directors
out of funds legally available therefor, cash dividends ("Participating
Dividends") on each share of Voting Preferred Stock in an amount equal to the
Participating Dividend as of such Participating Dividend Payment Date;
provided, however, that with respect to each share of Additional Preferred
Stock, any Participating Dividend which the Holder thereof is entitled to
receive hereunder in respect of such share of Additional Preferred Stock on the
last Business Day of June 1998 shall be computed by multiplying the formula
described below by a fraction the numerator of which shall be the number of days
from and including the Issue Date for such shares of Additional Preferred Stock
to but excluding December 31, 1997 and the denominator of which shall be 365.
Participating Dividends shall be paid to Holders of record at the close of
business on the date specified by the Board of Directors of the Corporation at
the time such dividend is declared; provided, however, that such date shall not
be more than 60 days nor less than 10 days prior to the respective Participating
Dividend Payment Date.
(b) The Participating Dividend as of any Participating Dividend Payment
Date shall be equal to the amount determined under the following formula:
If the Operating Income Growth Rate as Its Annual Participating Dividend
of such Participating Dividend Payment per share as of such Participating
Date is: Dividend Payment Date is:
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Less than or equal to 5% No Participating Dividend Payable
Greater than 5% but not greater than 10% $0.008333
Greater than 10% but not greater than $0.012500
15%
Greater than 15% but not greater than $0.025000
20%
Greater than 20% but not greater than $0.041667
25%
Greater than 25% $0.041667 plus (i) 0.25%
multiplied by the excess, if any,
of (x) the average Operating
Income for the three fiscal years
ending immediately prior to the
applicable Participating
Dividend Payment Date over (y)
125% multiplied by the average
Operating Income for the three
years ending immediately prior to
the next on preceding
Participating Dividend Payment
Date, or for the first such
Participating Dividend Payment
Date on June 28, 1996, the average
Operating Income for the fiscal
years ended December 31, 1992,
1993 and 1994, divided by (ii)
12,000,000.
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(c) For purposes of this Section 3, the following terms have the following
meanings:
"Opening Income" means Operating Revenue less Operating
Expenses as reflected on the Corporation's financial statements.
"Operating Revenue" means the Corporation's consolidated revenues,
determined in accordance with generally accepted accounting principles,
generated from ongoing business activities as determined by the Corporation's
management, excluding any interest income, non-recurring gains, revenue from
discontinued operations, or gains from unusual items.
"Operating Expenses" means the Corporation's consolidated expenses,
determined to accordance with generally accepted accounting principles, incurred
in connection with ongoing business activities as determined by the
Corporation's
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management, excluding any interest expense, non-recurring losses, losses
from discontinued operations, or losses from unusual items.
"Operating Income Growth Rate" means the percentage increase of (i)
the average Operating Income for the three fiscal years ending immediately
prior to the applicable Participating Dividend Payment Date over (ii) the
average Operating Income for the three fiscal years ending immediately
prior to the next preceding Participating Dividend Payment Date or for the
first such Participating Dividend Payment Date on June 28, 1996, the
average Operating Income for the fiscal years ended December 31, 1992,
1993 and 1994.
(d) Calculations of Participating Dividends under this Section 3
shall be based on the consolidated operating results of the Corporation and (i)
for all Dividend Periods ending on and before December 31, 1997, the Initial
Subsidiaries listed in clause (a) of the definition of Initial Subsidiaries in
the Stock Purchase Agreement and (ii) for all Dividend Periods ending
thereafter, all Initial Subsidiaries; provided, however, that the Corporation
may include in the computation of Participating Dividends as of any
Participating Dividend Payment Date and subsequent Participating Dividend
Payment Dates a Subsidiary of the Corporation that is not an Initial Subsidiary
if the Corporation's consolidated Operating Income for the four fiscal years
ending prior to such Participating Dividend Payment Date is restated to include
the operations of such Subsidiary. The election to include a Subsidiary in the
computation of Participating Dividends as of any Participating Dividend Payment
Date shall be made by the Board of Directors and written notice thereof shall be
given to the Holders on or before the Participating Dividend Payment Date. Any
Subsidiary included in the computation of Participating Dividends as of any
Participating Dividend Payment Date may not thereafter be excluded from the
computation of Participating Dividends as of any subsequent Participating
Dividend Payment Date without the affirmative vote or consent of Holders of at
least a majority of the outstanding shares of Voting Preferred Stock, voting as
a class.
(e) Participating Dividends, if payable as of any Participating
Dividend Payment Date pursuant to this Section 3, shall accrue and be
cumulative, whether or not they have been declared and whether or not there
have been profits, surplus or other funds of the Corporation legally available
for the payment of dividends. No interest shall be payable in respect of any
Participating Dividends which may be in arrears.
(f) Nothing contained in this Section 3 shall in any way or under
any circumstances be construed or deemed to require the Board of Directors to
declare, or the Corporation to pay or set apart for payment, any Participating
Dividends on shares of the Voting Preferred Stock at any time.
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4. Liquidation Preference. (a) The amount which the Holders shall
be entitled to receive in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation shall
be $25 per share of Voting Preferred Stock, plus an amount in cash equal to all
accrued and unpaid Preferred Dividends and Participating Dividends on such
shares to the date fixed for liquidation, dissolution or winding up, plus an
amount equal to the Optional Redemption Premium, if any, if paid on a date
other than a Dividend Payment Date, plus an amount equal to the Early
Redemption Premium, if any, which, in each case, would be applicable with
respect to such shares under Section 6 of this Certificate Designation if such
shares were being redeemed in accordance with Section 6 on the date fixed for
such liquidation, dissolution or winding up, and no more, before any payment
shall be made or any assets distributed to the holders of any Junior Stock.
(b) In the event the assets of the Corporation available for
distribution to the Holders upon any liquidation, dissolution or winding up of
the Corporation, whether voluntary or involuntary, shall be insufficient to pay
in full all amounts to which the Holders are entitled pursuant to clause (a)
above, no such distribution shall be made on account of any shares of Parity
Stock upon such liquidation, dissolution or winding up unless proportionate
distributive amounts shall be paid on account of the shares of Voting Preferred
Stock, ratably, in proportion to the full distributable amounts for which the
Holders and the holders of such shares of Parity Stock are respectively
entitled upon such liquidation, dissolution or winding up.
(c) For the purpose of this Section 4, neither the voluntary sale,
conveyance, exchange or transfer (for cash, shares of stock, securities or
other consideration) of all or substantially all of the property or assets of
the Corporation nor the consolidation or merger of the Corporation with or into
one or more corporations shall be deemed to be a voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation.
5. Mandatory Redemption. (a) Commencing on March 31, 2003 and on
each Dividend Payment Date thereafter so long as any shares of Voting Preferred
Stock remain outstanding (each such date, a "Mandatory Redemption Date"), the
Corporation shall redeem, out of funds legally available therefor, a number of
shares equal to 5% of the number of shares of Voting Preferred Stock
outstanding as of the initial Mandatory Redemption Date (or, if at any
Mandatory Redemption Date, fewer than 5% of such number of shares are then
outstanding, the number of shares then outstanding), at a redemption price (the
"Mandatory Redemption Amount") equal to the aggregate of $25 per share for the
shares to be redeemed, plus any accrued and unpaid Preferred Dividends with
respect to the shares to be redeemed, plus any accrued and unpaid Participating
Dividends with respect to the shares to be redeemed.
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(b) The Mandatory Redemption Dates may be extended at the request of
the Corporation and with the consent of the Holders of at least a majority of
the outstanding shares of Voting Preferred Stock, provided that such request is
made at least six months prior to March 31, 2003, and provided further that the
final Mandatory Redemption Date (determined in accordance with the redemption
procedure in clause (a) above) shall in no event be later than December 31,
2017 and all outstanding shares of Voting Preferred Stock shall be redeemed on
the final Mandatory Redemption Date to the extent of funds legally available
therefor.
6. Optional Redemption. On and after the earliest of (a) January 1,
1999, (b) the date on which the Holders' rights pursuant to Section 5.2 of the
Stock Purchase Agreement are exercised and (c) the date on which the Holders'
rights pursuant to Section 5.1 of the Stock Purchase Agreement are exercised,
the Corporation shall have the right, at the option of the Board of Directors
on any date fixed by the Board of Directors, to redeem, out of funds legally
available therefor, shares of Voting Preferred Stock, at any time or from time
to time in whole or in part, for an amount (the "Optional Redemption Amount")
equal to the aggregate of $25 per share for the shares to be redeemed, plus the
amount of any accrued and unpaid Preferred Dividends with respect to the shares
to be redeemed, plus, if such Optional Redemption occurs on any date other than
a Dividend Payment Date, the Optional Redemption Premium, plus a redemption
premium (the "Early Redemption Premium") with respect to each of the shares to
be redeemed equal to a percentage of the Issue Price determined as follows:
If Redeemed During 12-Month Early Redemption
Period Ending on: Premium is:
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December 31, 1998 2.0%
December 31, 1999 2.0
December 31, 2000 1.5
December 31, 2001 1.0
December 31, 2002 0.5
Thereafter 0.0;
plus any accrued and unpaid Participating Dividends with respect to the shares
to be redeemed, provided that, with respect to any optional redemption of
Voting Preferred Stock following the date described in clause (c) above, the
Optional Redemption Amount shall not include an Early Redemption Premium.
7. Redemption Procedure. (a) In the event that fewer than all of
the outstanding shares of Voting Preferred Stock are to be redeemed on any
Redemption Date, the number of shares to be redeemed shall be determined by the
Board of Directors (subject to Section 5(a)) and the shares to be redeemed shall
be selected by lot or pro rate (with
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adjustments to avoid the redemption of fractional shares) or by any other
equitable method determined by the Board of Directors.
(b) At least 10 days and not more than 60 days prior to any
Redemption Date, the Corporation shall provide notice of redemption (a "Notice
of Redemption") in writing (including telecopy or telex communication) and
mailed (by first class mail, postage prepaid), telecopied, telexed or
delivered, to each Holder of record of shares of the Voting Preferred Stock to
be redeemed, at the address of such Holder appearing in the stock register of
the Corporation, provided that failure to give such notice or any deficiency
therein shall not affect the validity of the procedure for redemption of any
shares of Voting Preferred Stock to be redeemed except as to the Holder or
Holders to whom the Corporation has failed to give such notice was defective.
Each Notice of Redemption shall state:
(i) whether the redemption is pursuant to Section 5 or 6 hereof;
(ii) whether all or less than all the outstanding shares of Voting
Preferred Stock redeemable under such Section are to be redeemed and the
total number of shares of Voting Preferred Stock being redeemed;
(iii) the number of shares of Voting Preferred Stock held, as of the
appropriate record date, by such Holder that the Corporation intends to
redeem and the Redemption Amount to be paid in respect of such shares;
(iv) the Redemption Date and the place for surrender of certificates
for the shares of Voting Preferred Stock to be redeemed; and
(v) that dividends on the shares of the Voting Preferred Stock to
be redeemed shall cease to accumulate on such Redemption Date if the
Corporation has provided for the payment of the Redemption Amount with
respect to such shares on such date.
(c) Each Holder shall surrender to the Corporation the certificate
or certificates representing the shares of Voting Preferred Stock to be
redeemed, duly endorsed, in the manner and at the place designated in the
Notice of Redemption, and, on the Redemption Date, the full Redemption Amount
for each share shall be payable in cash to the Person whose name appears on such
certificate or certificates as the owner thereof, and such surrendered
certificate or certificates shall be canceled and retired. In the event that
less than all of the shares represented by any such certificate are redeemed,
a new certificate shall be issued representing the unredeemed shares.
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(d) If a Notice of Redemption shall have been given as provided in
clause (b) above and the Corporation shall have provided monies at the time and
place specified for the payment of the Redemption Amount pursuant to such
notice, then from and after the Redemption Date, dividends on the shares of
Voting Preferred Stock so called for redemption shall cease to accumulate, such
shares shall no longer be deemed to be outstanding, and all rights of the
Holders thereof as stockholders of the Corporation (except the right to receive
from the Corporation the Redemption Amount without interest) shall cease.
8. Voting Rights. (a) The Holders, except as set forth in the
Certificate of Incorporation or as otherwise required under Delaware law or as
set forth in this Section 8, shall not be entitled or permitted to vote on any
matter required or permitted to be voted upon by the stockholders of the
Corporation.
(b) The Holders, voting as a class, shall have full voting power at
all times to elect a number of directors to the Board of Directors equal to the
smallest whole number that is at least 25% of the number of directors fixed by
or in accordance with the Corporation's Bylaws or Certificate of Incorporation
to serve on the Board of Directors at such time. Any director elected by the
Holders may be removed without cause only by the affirmative vote of at least a
majority of the outstanding shares of the Voting Preferred Stock. Any vacancy
in the Board of Directors occurring by reason of the resignation, death,
removal or disqualification of any member thereof elected by the Holders shall
be filled by the vote of the Holders and, if not so filled, shall be filled by
the remaining member or members of the board of Directors elected by the
Holders.
(c) So long as shares of the Voting Preferred Stock are outstanding,
the Corporation shall not, without the affirmative vote or written consent of
the Holders of at least a majority of the outstanding shares of Voting
Preferred Stock, voting as a class, authorize, create or issue to any person
other than the Holders any Parity Stock or increase the number of shares of any
Parity Stock or authorize, create or issue any obligation or security
convertible into shares of Parity Stock, provided that the Corporation may
authorize, create and issue Parity Stock to a person other than the Holders if
all of the following conditions are satisfied: (A) such Parity Stock is
nonvoting (other than as required by law), (B) such Parity Stock is issued for
cash, (C) the Corporation holds at the time of, and after giving effect to, any
such authorization or issuance an aggregate value of Qualified Investments at
least equal to the Issuance Equity Investment Profile and (D) at the time of,
and after giving effect to, any such authorization, creation or issuance, no
Adjustment Event shall have occurred and be continuing, and provided further
that prior to the issuance and sale of any such Parity Stock to a person other
than the Holders, (x) the Corporation shall deliver to the Holders, at least 45
days prior to the proposed date of issuance of such Parity Stock to any such
other person (the "Proposed Issue Date"), a written offer to issue and sell to
the Holders any or all of such Parity Stock to be issued on the Proposed Issue
Date, such
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offer to include a description of the relative rights and preferences, the
number of shares being issued, the per share and aggregate issue price, the
Proposed Issue Date and other relevant terms of such proposed issuance of such
Parity Stock and (y) the Holders thereafter shall have the exclusive right,
until and including the date which is 30 days prior to the Proposed Issue Date
(after which date the Corporation may offer and sell such Parity Stock or any
part thereof not purchased or committed to be purchased by one or more Holders
(or their designees) pursuant hereto to a person other than the Holders (or
their designees) for a period of 90 days following the Proposed Issue Date on
terms no more favorable to the buyer than those set forth in the Corporation's
written offer to the Holders), to deliver to the Corporation written notice of
each Holder's respective intention to purchase (or to designate a Person to
purchase) all or a specified number of shares of such Parity Stock, and on the
Proposed Issue Date, the Corporation shall issue and sell to such Holder (or
such Holder's designee), and such Holder (or such Holder's designee) shall
purchase all or such specified number of shares of such parity Stock at the
aggregate issue price thereof and on the other terms specified in the
Corporation's written offer to the Holders; provided, however, that if the
Holders deliver written notice of their respective intention to purchase, in the
aggregate, more than the total number of shares of such Parity Stock proposed to
be issued, the Corporation shall issue and sell to each Holder a number of
shares equal to the product of (1) a fraction, the numerator of which is the
number of shares offered to be purchased by such Holder and the denominator of
which is the number of shares offered to be purchased by all such Holders
electing to purchase Parity Stock, multiplied by (2) the total number of shares
of such Parity Stock to be issued and sold on the Proposed Issue Date.
(d) So long as shares of the Voting Preferred Stock are outstanding,
the Corporation shall not, without the affirmative vote or written consent of
the Holders of at least a majority (or, in the case of Section 8(d)(vi), all)
of the outstanding shares of Voting Preferred Stock, voting as a class, take
any of the following actions:
(i) Merge or consolidate with or into any Person, or permit any of
its Subsidiaries to do so, except that any Subsidiary of the Corporation
may merge or consolidate with any Person other than as set forth in
Section 4.4 or 4.5 of the Stock Purchase Agreement; provided, however,
that in each case immediately after giving effect thereto, (A) no Major
Shareholder Default, Adjustment Event or Incipient Event shall have
occurred and be continuing and (B) the surviving corporation, if a
Subsidiary, shall not be engaged in or own or control any assets
constituting a Prohibited Business Activity;
(ii) Declare or make any dividend payment or other distribution of
assets, properties, cash, rights, obligations or securities on any shares
of any Junior Stock or Parity Stock, or purchase, redeem or otherwise
acquire for value (or permit any of its Subsidiaries to do so) any such
shares, now or hereafter outstanding, (A) if, after giving effect thereto,
the aggregate Issue Price of all shares of Voting Preferred Stock
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then outstanding would exceed 30% of the Value of the Corporation's
Permitted Investments or (B) if at the time of, and after giving effect
to, such declaration, payment, purchase, redemption or other acquisition,
an Adjustment Event or an Incipient Event shall have occurred and be
continuing;
(iii) Alter or change the rights, power or preferences of the Voting
Preferred Stock so as to affect them adversely;
(iv) Authorize, create or issue any Voting Preferred Stock;
(v) Commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to the
Corporation or its debt under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seek the appointment of a trustee,
receiver, liquidator, custodian or other similar official of the
Corporation or of any substantial part of the Corporation's property or
consent to any such relief or to the appointment of or taking possession
by any such official in an involuntary case or other proceeding commenced
against it, or make a general assignment for the benefit of creditors;
(vi) Authorize, create, increase the number of shares of or issue
(A) any class or series of capital stock which expressly provides that
such class or series of capital stock ranks senior to the Voting Preferred
Stock as to dividends or distributions upon the liquidation, winding up or
dissolution of the Corporation (such class or series of capital stock being
referred to hereafter as "Senior Stock"); or (B) any obligation or security
convertible into, or any rights or options entitling the holder thereof to
purchase, shares of Senior Stock;
(vii) Authorize, create, increase the number of shares of or issue
(A) any class or series of capital stock (other than Common Stock) with
voting rights (other than as required by law) (such class or series of
capital stock being referred to hereafter as "Additional Voting Stock") or
(B) any obligation or security convertible into, or any rights or options
entitling the holder thereof to purchase, shares of Additional Voting
Stock;
(viii) Increase the number of directors to more than eight or amend
or otherwise modify the first sentence of Article FIFTH of the Certificate
of Incorporation;
(ix) Amend the Certificate of Incorporation or the By-Laws of the
Corporation to provide that the directors of the Corporation elected by the
holders of the Common Stock be divided into classes as provided in the
first sentence of Section 141(d) of the DGCL; or
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(x) Amend the Certificate of Incorporation or the By-Laws of the
Corporation so as to limit, restrict or in any way regulate the right of
stockholders to act by written consent in lieu of a meeting.
(e) In any case in which the Holders shall be entitled to vote
pursuant to this Section 8 or pursuant to Delaware law, each Holder shall have
one vote per share of Voting Preferred Stock held.
9. Conversion. Immediately prior to a Sale of the Voting Preferred
Stock pursuant to Section 7.1 of the Stock Purchase Agreement, each outstanding
share of Voting Preferred Stock shall automatically and without further action
convert into one share of a new series of Preferred Stock of the Corporation,
such new series to contain such covenants and other terms, including, but not
limited to, the dividend rate, as are determined by the Board of Directors of
the Corporation, with the advice of an investment bank or banks of national
reputation, to be reasonably necessary to effect such Sale, in light of the
then prevailing market conditions, at a price such that the Holders shall
receive, after deducting all underwriting discounts and commissions and all
expenses of the Holders in connection with such Sale and the registration
thereof, net proceeds per share equal to the Issue Price plus an amount equal
to accrued but unpaid Preferred Dividends and Participating Dividends plus an
amount equal to the Optional Redemption Premium, if any, and the Early
Redemption Premium, if any, that would be applicable with respect to such
shares under Section 6 of this Certificate of Designation if such shares were
being redeemed in accordance with Section 6 on the date of conversion.
10. Payments and Computations. (a) If any payment or redemption
shall be required by the terms hereof to be made on a day that is not a
Business Day, such payment or redemption shall be made on the next preceding
Business Day.
(b) Each payment to be made hereunder by the Corporation shall be
made not later than 12:00 P.M. (New York City time) on the day when due in
United States dollars to an account or accounts specified in writing by each
Holder not less than five Business Days prior to the date of such payment in
immediately available funds.
(c) All computations of Preferred Dividends payable with respect to
any Dividend Period based on the Adjusted LIBO Rate or the Federal Funds Rate
shall be made on the basis of a year of 360 days and all computations of
Preferred Dividends payable with respect to any Dividend Period based on the
Base Rate shall be made on the basis of a year of 365 or 366 days, as the case
may be, in each case above for the actual number of days (including the first
day but excluding the last day) occurring in such Dividend Period.
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15
11. Documents. All documents referred to herein shall be made
available by the Corporation to any stockholder upon written request therefore
delivered to the Corporation addressed to the Secretary of the Corporation.
12. Powers of Directors. Upon the occurrence and during the
continuation of a Financial Condition Transition Event, without limiting, in
any way, the rights of Holders of the Voting Preferred Stock upon the
occurrence of a Market Failure Transition Event or a Major Shareholder Default,
or the powers under Delaware law of any directors elected by such Holders
following any such event, the Board of Directors shall (to the fullest extent
permitted by Delaware law) have the power and authority (i) to recommend
dissolution and/or liquidation of the Corporation and (ii) to exercise the
right of Optional Redemption subject to and in accordance with this Certificate
of Designation.
13. Definitions.
Unless otherwise defined herein, all capitalized terms used herein
shall have the meanings given such terms in the Stock Purchase Agreement.
"Adjusted LIBO Rate" means, for any Dividend Period or other period,
the Eurodollar Rate for such Dividend Period or such other period, as the
case may be.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to
the highest of:
(a) the rate of interest announced publicly by Citibank, N.A. in
New York, New York, from time to time, as Citibank, N.A.'s base rate;
and
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"Business Day" means a day of the year on which banks are not required
or authorized to close in New York City and, if the applicable Business Day
related to Voting Preferred Stock entitled to receive dividends based on
the Adjusted LIBO Rate, on which dealings are carried on in the London
interbank market.
"Certificate of Designation" means this Amended and Restated Tenneco
International Holding Corp. Certificate of Designation, Preferences and
Rights of Preferred Stock by Resolution of the Board of Directors Providing
for an Issue of 16,000,000 Shares of Preferred Stock Designated "Variable
Rate Voting Participating Preferred Stock."
"Dividend Period" means (i) the period commencing on September 30,
1997 and ending on the Effective Date, (ii) the period commencing on the
Effective Date
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and ending on December 31, 1997 and (iii) thereafter, the period
commencing on the last Business Day of the next preceding Dividend Period
and ending on the last Business Day of each March, June, September and
December.
"Effective Date" means the date of issuance of the Additional Voting
Preferred Stock.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"Eurodollar Rate" means (a) for the Dividend Period commencing on
September 30, 1997 through the effective Date, an interest rate per annum
equal to the rate per annum obtained by dividing (i) 5.71875% per annum by
(ii) a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage for such Dividend Period, (b) for the period commencing on the
Effective Date through December 31, 1997, an interest rate per annum equal
to the rate per annum obtained by dividing (i) the product of (A) if the
Effective Date occurs on or before November 30, 1997, (1) the rate which
appears on Telerate Screen Page 3750 (or any successor page) as the
two-month Fixed USD Rate in effect at 11:00 A.M. (London time) two Business
Days before the Effective Date, provided that in the event such offered
rate is not readily available from such Telerate page, "Eurodollar Rate"
shall mean the rate per annum at which deposits in U.S. dollars are offered
by the principal office of Citibank, N.A. in London, England to prime banks
in the London interbank market at 11:00 A.M. (London time) two Business
Days before the Effective Date, in an amount substantially equal to the
aggregate Issue Price of the Shares of Voting Preferred Stock outstanding
at such time, for a two-month period, multiplied by (2) the difference
between (X) 100% minus (Y) 10% of the Eurodollar Rate Reserve Percentage
for such period, or (B) if the Effective Date occurs after November 30,
1997, (1) the rate which appears on Telerate Screen Page 3750 (or any
successor page) as the one-month Fixed USD Rate in effect at 11:00 A.M.
(London time) two Business Days before the Effective Date, provided that in
the event such offered rate is not readily available from such Telerate
Page, "Eurodollar Rate" shall mean the rate per annum at which deposits in
U.S. dollars are offered by the principal office of Citibank, N.A. in
London, England to prime banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the Effective Date, in an amount
substantially equal to the aggregate Issue Price of the Shares of Voting
Preferred Stock outstanding at such time, for a one-month period,
multiplied by (2) the difference between (X) 100% minus (Y) 10% of the
Eurodollar Rate Reserve Percentage for such period by (ii) a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage for such period,
as the case may be and (c) for any dividend Period or other period
thereafter, an interest rate per annum equal to the rate per
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annum obtained by dividing (i) the product of (1) the rate which appears
from time to time on Telerate Screen Page 3750 (or any successor page) as
the Fixed USD Rate in effect at 11:00 A.M. (London time) two Business Days
before the first day of such Dividend Period or such other period, as the
case may be, for a period equal (or substantially equal) to such Dividend
Period or such other period, as the case may be, provided that in the event
such offered rate is not readily available from such Telerate Page,
"Eurodollar Rate" shall mean the rate per annum at which deposits in U.S.
dollars are offered by the principal office of Citibank, N.A. in London,
England to prime banks in the London interbank market at 11:00 A.M. (London
time) two Business Days before the first day of such Dividend Period or
such other period, as the case may be, in an amount substantially equal to
the aggregate Issue Price of the shares of Voting Preferred Stock
outstanding at such time and for a period equal to such Dividend Period or
such other period, as the case may be, multiplied by (2) the difference
between (X) 100% minus (Y) 10% of the Eurodollar Rate Reserve Percentage
for such Dividend Period or such other period, as the case may be, by (ii)
a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for
such Dividend Period or such other period, as the case may be.
"Eurodollar Rate Reserve Percentage" means, for any Dividend Period or
other period, the reserve percentage applicable two Business Days before
the first day of such Dividend Period or such other period, as the case may
be, under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank of
the Federal Reserve System in New York City with respect to any other
category of liabilities that includes deposits by reference to which the
Preferred Dividend Rate on Voting Preferred Stock entitled to dividends
based on the Adjusted LIBO Rate is determined) having a term equal to such
Dividend Period or such other period, as the case may be.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the rate which
appears from time to time on Telerate Screen Page 118 (or any successor
page) as the Federal Funds Effective Rate in effect on such day.
"Issue Price" shall mean, with respect to shares of Voting Preferred
Stock, twenty five dollars ($25) per share.
"Optional Redemption Premium" means, with respect to any redemption
(or liquidation, dissolution or winding up payment pursuant to Section 4 or
conversion pursuant to Section 9) on any date other than a Dividend Payment
Date of Voting
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Preferred Stock entitled to dividends based on the Adjusted LIBO Rate, the
amount calculated in accordance with the following formula:
A x [(Old LIBOR New LIBOR)/360] x Number of Days Remaining
Where:
A = The aggregate Issue Price of the shares of Voting
Preferred Stock to be redeemed.
New LIBOR = Adjusted LIBO Rate determined in respect of such Voting
Preferred Stock for the Number of Days Remaining.
Old LIBOR = Adjusted LIBO Rate in effect with respect to such Voting
Preferred Stock immediately prior to the Redemption Date.
Number of Days
Remaining = Number of days remaining in the Dividend Period
applicable to such Voting Preferred Stock as of the
Redemption Date.
provided, however, that if such amount is a negative number, the Optional
Redemption Premium shall be zero.
"Preferred Dividend Rate" means a rate per annum equal to (i) for the
period commencing on September 30, 1997 and ending on the Effective Date,
1.120% over the Adjusted LIBO Rate (ii) for the period commencing on the
Effective Date through December 31, 1997, 0.920% over the Adjusted LIBO
Rate, or if adequate and fair means do not exist to enable the
determination of the Adjusted LIBO Rate, 0.368% over the Base Rate and
(iii) thereafter, 0.920% over the Adjusted LIBO Rate, which rate shall be
adjusted for each Dividend Period, or if adequate and fair means do not
exist to enable the determination of the Adjusted LIBO Rate, 0.368% over
the Base Rate.
"Redemption Amount" means, with respect to any redemption of Voting
Preferred Stock, the Optional Redemption Amount or the Mandatory Redemption
Amount, as the case may be.
"Redemption Date" means any Mandatory Redemption Date and any date
fixed by the Board of Directors to redeem Voting Preferred Stock under
Section 6.
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"Stock Purchase Agreement" means the Amended and Restated Preferred
Stock Purchase Agreement, dated as of November 19, 1997 between the
Corporation and MW Investors L.L.C., as the same may be modified or
amended from time to time.
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TENNECO INTERNATIONAL HOLDING CORP.
Certificate of Designation, Preferences and Rights of
Preferred Stock by Resolution of the Board of Directors
Providing for an Issue of 100,000 shares of Junior
Preferred Stock Designated "$8.00 Junior Preferred Stock"
I, Robert G. Simpson, Vice President of Tenneco International Holding Corp.
(hereinafter referred to as the "Corporation"), a corporation organized and
existing under the General Corporation Law of the State of Delaware, in
accordance with the provisions of Section 151 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by the
Restated Certificate of Incorporation (hereinafter referred to as the
"Certificate of Incorporation"), the Board of Directors is authorized to issue
up to 1,000,000 shares of Junior Preferred Stock of the Corporation in one or
more series and the Board of Directors (i) has authorized the issuance of the
series of Junior Preferred Stock hereinafter provided for and (ii) has adopted
the immediately following resolution creating a series of 100,000 shares of
Junior Preferred Stock, par value $0.01, designated as $8.00 Junior Preferred
Stock":
RESOLVED, that pursuant to the authority vested in the Board of
Directors of the Corporation by the Certificate of Incorporation, the Board
of Directors does hereby provide for the issue of a series of Junior
Preferred Stock, par value $0.01, of the Corporation, to be designated
"$8.00 Junior Preferred Stock" (hereinafter referred to as the "$8.00
Junior Preferred Stock"), consisting of 100,000 shares, and to the extent
that the designations, powers, preferences and relative and other special
rights and the qualifications, limitations and restrictions of the Junior
Preferred Stock are not stated and expressed in the Certificate of
Incorporation, does hereby fix and herein state and express such
designations, powers, preferences and relative and other special rights and
the qualifications, limitations and restrictions thereof, as follows:
(1)(a) The dividend rate, on the $8.00 Junior Preferred Stock
shall be $8.00 per annum, payable by the Corporation on the
31st day of March commencing in the year 1995 (each annual
dividend payment date is hereinafter referred to as an
"Annual Payment Date") so
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long as any shares of the $8.00 Junior Preferred Stock are
outstanding, in cash in United States dollars to each holder
of record of such shares.
(b) The holder of record of any share of the $8.00 Junior
Preferred Stock entitled to receive a dividend payment
pursuant to the provisions of clause (1)(a) above shall be
holder of record of such shares as of the close of business
of the first day of March in the year such dividend payment
is to be made, as shown on the stockholder records of the
Corporation.
(2) Dividends on the shares of the $8.00 Junior Preferred
Stock shall accrue from, and as if issued on, December 22,
1994, except that if the number of shares of $8.00 Junior
Preferred Stock shall hereafter be increased by further
resolution of the Board of Directors, dividends on such
additional shares shall accrue from such other date as may be
fixed by the Board of Directors in such resolution.
(3) The amounts which the holders of the $8.00 Junior
Preferred Stock shall be entitled to receive in the event of
a liquidation, dissolution, or winding-up of the affairs of
the Corporation shall be $100.00 per share, plus in each case
an amount equal to accrued and unpaid dividends to the date
of payment.
(4)(a) The $8.00 Junior Preferred Stock shall be redeemable
in whole or in part at any time or from time to time at the
option of the Corporation at $100.00 per share plus accrued
and unpaid dividends.
(b) in the event of the redemption of only part of the $8.00
Junior Preferred Stock at the time outstanding, the shares to
be redeemed shall be selected pro rata, by lot, or by any
other equitable method determined by the Board of Directors.
(5) At least 30 days' prior notice of any redemption of the
$8.00 Junior Preferred Stock pursuant to clause (4) above
shall be mailed, addressed to the holders of record of
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the shares to be redeemed at their respective addresses as
the same shall appear on the books of the Corporation.
(6) Any shares of the $8.00 Junior Preferred Stock which
shall have been redeemed or otherwise acquired by the
Corporation shall be retired and assume the status of
authorized but unissued shares of Junior Preferred Stock
without designation as to series and shall not be reissued as
shares of $8.00 Junior Preferred Stock.
(7) The number of shares of $8.00 Junior Preferred Stock,
may, to the extent of the corporation's authorized and
unissued Junior Preferred Stock, be increased by further
resolution duly adopted by the Board of Directors and the
filing and recording of a certificate pursuant to the
provisions of the General Corporation Law of the State of
Delaware stating that such increase has been so authorized.
IN WITNESS WHEREOF, said Tenneco International Holding Corp. has caused
this Certificate to be signed by Robert G. Simpson as Vice President this 29th
day of December, 1994.
TENNECO INTERNATIONAL HOLDING CORP.
By: /s/ Robert G. Simpson
-------------------------------
Robert G. Simpson
Vice President
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TENNECO INTERNATIONAL HOLDING CORP.
Certificate of Designation, Preferences and Rights
Of Preferred Stock by Resolution of the Board of Directors
Providing for an Issue of 12,000,000 Shares of
Preferred Stock Designated "Variable Rate
Voting Participating Preferred Stock"
I, Robert G. Simpson, Vice President of Tenneco International Holding
Corp. (the "Corporation"), a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "DGCL"), in accordance
with the provisions of Section 151 thereof, DO HEREBY CERTIFY:
That pursuant to authority conferred upon the Board of Directors by the
Restated Certificate of Incorporation of the Corporation, as amended
(hereinafter referred to as the "Certificate of Incorporation"), the Board of
Directors is authorized to issue up to 30,000,000 shares of Preferred Stock of
the Corporation in one or more series and the Board of Directors (i) has
authorized the issuance of the series of Preferred Stock hereinafter provided
for and (ii) has adopted the immediately following resolution creating a series
of 12,000,000 shares of Preferred Stock, par value $0.01 per share, designated
as Variable Rate Voting Participating Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of
Directors by the Certificate of Incorporation, a series of Preferred Stock, par
value $0.01 per share, of the Corporation be, and hereby is, created, to be
designated "Variable Rate Voting Participating Preferred Stock" (hereinafter
referred to as the "Voting Preferred Stock"), consisting of 12,000,000 shares,
which number may from time to time to be increased (but not above the total
number of authorized shares of Preferred Stock) by the Board of Directors of the
Corporation, and to the extent date the designations, powers, preferences and
relative and other special rights and the qualifications, limitations and
restrictions of the Voting Preferred Stock are not stated and expressed in the
Certificate of Incorporation. such designations, powers, preferences and
relative and other special rights and the qualifications, limitations and
restrictions thereof, are hereby fixed and stated to be as follows:
1. Ranking. The Voting Preferred Stock shall, with respect to dividends
and distributions upon the liquidation, winding up or dissolution of the
Corporation, rank senior to all classes of common stock of the Corporation and,
subject to the following sentence, senior to each other class and series of
capital stock hereafter created which does not expressly provide that it ranks
senior to or on a parity with the Voting Preferred Stock as to dividends and
distributions upon the liquidation, winding up or dissolution of the Corporation
(such common stock and each such other class and series of capital stock being
referred to hereafter as "Junior Stock"). The Voting Preferred Stock shall,
with respect to dividends and distributions upon the liquidation, winding up or
dissolution of the Corporation, rank on a parity with all other series of
Preferred Stock and any other class or series of capital stock hereafter created
which expressly provides that it ranks on a parity with the Voting Preferred
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Stock as to dividends and distributions upon the liquidation, winding up or
dissolution of the Corporation (such other class or series of capital stock
being referred to hereafter as "Parity Stock").
2. Preferred Dividends. (a) Beginning on the date of issuance of the
Voting Preferred Stock (the "Issue Date"), the holders of the outstanding shares
of the Voting Preferred Stock (the "Holders") shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available therefor, cash dividends ("Preferred Dividends") on each share of
Voting Preferred Stock, based on the Issue Price thereof, at a rate per annum
equal to the Preferred Dividend Rate in effect during each Dividend Period,
payable quarterly in arrears on the last Business Day of each March, June,
September and December (each, a "Dividend Payment Date"), commencing March 31,
1995. Preferred Dividends shall be paid to Holders of record at the close of
business on the date specified by the Board of Directors of the Corporation at
the time such dividend is declared; provided, however, that such date shall not
be more than 60 days nor less than 10 days prior to the respective Dividend
Payment Date.
(b) Upon the occurrence and during the continuance of an Adjustment
Event, the Preferred Dividend Rate shall be increased to a rate per annum equal
at all times to 2% per annum above the Preferred Dividend Rate otherwise in
effect from time to time pursuant to this Section 2.
(c) Upon the receipt by the Corporation of written notice signed by the
Holders of at least a majority of the outstanding shares of Voting Preferred
Stock, to require the Corporation to file a registration statement for the
Voting Preferred Stock pursuant to Section 5.1 of the Stock Purchase Agreement,
the Preferred Dividend Rate shall be increased to a rate per annum equal at all
times to 2% per annum above the Preferred Dividend Rate otherwise in effect from
time to time pursuant to this Section 2.
(d) Preferred Dividends shall accrue on a daily basis and be cumulative
from the Issue Date whether or not they have been declared and whether or not
there have been profits, surplus or other funds of the Corporation legally
available for the payment of dividends. No interest shall be payable in respect
of any Preferred Dividends which may be in arrears.
(e) All Preferred Dividends paid with respect to shares of Voting Preferred
Stock pursuant to this Section 2 shall be paid to the Holders entitled thereto.
(f) Nothing contained in this Section 2 shall in any way or under any
circumstances be construed or deemed to require the Board of Directors to
declare, or the Corporation to pay or set apart for payment, any Preferred
Dividends on shares of the Voting Preferred Stock at any time.
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3. Participating Dividends. (a) On June 28, 1996, and on the last
Business Day of each June thereafter so long as any shares of the Voting
Preferred Stock are outstanding (each, a "Participating Dividend Payment Date"),
the Holders shall be entitled to receive, when, as and if declared by the Board
of Directors out of funds legally available therefor, cash dividends
("Participating Dividends") on each share of Voting Preferred Stock in an amount
equal to the Participating Dividend as of such Participating Dividend Payment
Date. Participating Dividends shall be paid to Holders of record at the close of
business on the date specified by the Board of Directors of the Corporation at
the time such dividend is declared; provided, however, that such date shall not
be more than 60 days nor less than 10 days prior to the respective Participating
Dividend Payment Date.
(b) The Participating Dividend as of any Participating Dividend Payment
Date shall be equal to the amount determined under the following formula:
If the Operating Income Growth Rate as The Annual Participating Dividend per
of such Participating Dividend Payment share as of such Participating Dividend
Date is: Payment Date is:
- -------------------------------------- ---------------------------------------
Less than or equal to 5% No Participating Dividend Payable
Greater than 5% but not greater than 10% $0.008333
Greater than 10% but not greater than 15% $0.012500
Greater than 15% but not greater than 20% $0.025000
Greater than 20% but not greater than 25% $0.041667
Greater than 25% $0.041667 plus (i) 0.25% multiplied by
the excess, if any, of (x) the average
Operating Income for the three fiscal
years ending immediately prior to the
applicable Participating Dividend
Payment Date over (y) 125% multiplied by
the average Operating Income for the
three years ending immediately prior to
the next preceding Participating
Dividend Payment Date, or for the first
such Participating Dividend Payment Date
on June 28, 1996, the average Operating
Income for the fiscal years ended
December 31, 1992, 1993 and 1994, divided
by (ii) 12,000.000.
- -------------------------------------------------------------------------------------------
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(c) For purposes of this Section 3, the following terms have the following
meanings:
"Operating Income" means Operating Revenue less Operating Expenses as
reflected on the Company's financial statements.
"Operating Revenue" means the Company's consolidated revenues,
determined in accordance with generally accepted accounting principles,
generated from ongoing business activities as determined by the Company's
management, excluding any interest income, non-recurring gains, revenue
from discontinued operations, or gains from unusual items.
"Operating Expenses" means the Company's consolidated expenses,
determined in accordance with generally accepted accounting principles,
incurred in connection with ongoing business activities as determined by
the Company's management, excluding any interest expense, non-recurring
losses, losses from operations, or losses from unusual items.
"Operating Income Growth Rate" means the percentage increase of (i) the
average Operating Income for the three fiscal years ending immediately
prior to the applicable Participating Dividend Payment Date over (ii) the
average Operating Income for the three fiscal years ending immediately
prior to the next preceding Participating Dividend Payment Date or for the
first such Participating Dividend Payment Date on June 28, 1996, the
average Operating Income for the fiscal years ended December 31, 1992, 1993
and 1994.
(d) All calculations of Participating Dividends under this Section 3 shall
be based on the consolidated operating results of the Company and the Initial
Subsidiaries; provided, however, that the Company may include in the computation
of Participating Dividends as of any Participating Dividend Payment Date and
subsequent Participating Dividend Payment Dates a Subsidiary of the Company that
is not an Initial Subsidiary if the Company's consolidated Operating Income for
the four fiscal years ending prior to such Participating Dividend Payment Date
is restated to include the operations of such Subsidiary. The election to
include a Subsidiary in the computation of Participating Dividends as of any
Participating Dividend Payment Date shall be made by the Board of Directors and
written notice thereof shall be given to the Holders on or before the
Participating Dividend Payment Date. Any Subsidiary included in the computation
of Participating Dividends as of any Participating Dividend Payment Date may not
thereafter be excluded from the computation of Participating Dividends as of any
subsequent Participating Dividend Payment Date without the affirmative vote or
consent of Holders of at least a majority of the Outstanding shares of Voting
Preferred Stock, voting as a class.
(e) Participating Dividends, if payable as of any Participating Dividend
Payment Date pursuant to this Section 3, shall accrue and be cumulative, whether
or not they have
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been declared and whether or not there have been profits, surplus or other funds
of the Corporation legally available for the payment of dividends. No interest
shall be payable in respect of any Participating Dividends which may be in
arrears.
(f) Nothing continued in this Section 3 shall in any way or under any
circumstances be construed or deemed to require the Board of Directors to
declare, or the Corporation to pay or set apart for Payment, any Participating
Dividends on shares of the Voting Preferred Stock at any time.
4. Liquidation Preference. (a) The amount which the Holders shall be
entitled to receive in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Corporation shall be $25 per
share of Voting Preferred Stock, plus an amount in cash equal to all accrued and
unpaid Preferred Dividends and Participating Dividends on such shares to the
date fixed for liquidation, dissolution or winding up, plus an amount equal to
the Optional Redemption Premium, if any, if paid on a date other than a Dividend
Payment Date, plus an amount equal to the Early Redemption Premium, if any,
which, in each case, would be applicable with respect to such shares under
Section 6 of this Certificate of Designation if such shares were being redeemed
in accordance with Section 6 on the date fixed for such liquidation, dissolution
or winding up, and no more, before any payment shall be made or any assets
distributed to the holders of any Junior Stock.
(b) In the event the assets of the Corporation available for distribution
to the Holders upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, shall be insufficient to pay in
full all amounts to which the Holders are entitled pursuant to clause (a) above,
no such distribution shall be made on account of any shares of Parity Stock upon
such liquidation, dissolution or winding up unless proportionate distributive
amounts shall be paid on account of the shares of Voting Preferred Stock,
ratably, in proportion to the full distributable amounts for which the Holders
and the holders of such shares of Parity Stock are respectively entitled upon
such liquidation, dissolution or winding up.
(c) For the Purpose of this Section 4, neither the voluntary sale,
conveyance, exchange or transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all of the property or assets of the
Corporation nor the consolidation or merger of the Corporation with or into out
or more corporations shall be deemed to be a voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation.
5. Mandatory Redemption. (a) Commencing on March 31, 2000 and on each
Dividend Payment Date thereafter so long as any shares of Voting Preferred Stock
remain outstanding (each such date, a "Mandatory Redemption Date"), the
Corporation shall redeem, out of funds legally available therefor, a number of
shares equal to 5% of the number of shares of Voting Preferred Stock outstanding
as of the initial Mandatory Redemption Date (or, if at any Mandatory Redemption
Date, fewer than 5% of such number of shares are then outstanding, the number of
shares then outstanding), at a redemption price
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(the "Mandatory Redemption Amount") equal to the aggregate of $25 per share for
the shares to be redeemed, plus any accrued and unpaid Preferred Dividends with
respect to the shares to be redeemed, plus any accrued and unpaid Participating
Dividends with respect to the shares to be redeemed.
(b) The mandatory Redemption Dates may be extended at the request of the
Corporation and with the consent of the Holders of at least a majority of the
outstanding shares of Voting Preferred Stock, provided that such request is made
at least six months prior to March 31, 2000, and provided further that the final
Mandatory Redemption Date (determined in accordance with the redemption
procedure in clause (a) above) shall in no event be later than December 31, 2014
and all outstanding shares of Voting Preferred Stock shall be redeemed on the
final Mandatory Redemption Date to the extent of funds legally available
therefor.
6. Optional Redemption. On and after the earliest of (a) January 1, 1996,
(b) the date on which the Holders' rights pursuant to Section 5.2 of the Stock
Purchase Agreement are exercised and (c) the date on which the Holders rights
pursuant to Section 5.1 of the Stock Purchase Agreement are exercised, the
Corporation shall have the right, at the option of the Board of Directors on any
date fixed by the Board of Directors, to redeem, out of funds legally available
therefor, shares of Voting Preferred Stock, at any time or from time to time in
whole or in part, for an amount (the "Optional Redemption Amount") equal to the
aggregate of $25 per share for the shares to be redeemed, plus the amount of any
accrued and unpaid Preferred Dividends with respect to the shares to be
redeemed, plus, if such Optional Redemption occurs on any date other than a
Dividend Payment Date, the Optional Redemption Premium, plus a redemption
premium (the "Early Redemption Premium") with respect to each of the shares to
be redeemed equal to a percentage of the Issue Price determined as follows:
If Redeemed During 12-Month Early Redemption
Period Ending on: Premium is:
--------------------------- ----------------
December 31, 1995 2.0%
December 31, 1996 2.0
December 31, 1997 1.5
December 31. 1998 1.0
December 31, 1999 0.5
Thereafter 0.0;
plus any accrued and unpaid Participating Dividends with respect to the shares
to be redeemed, provided that, with respect to any optional redemption of Voting
Preferred Stock following the date described in clause (c) above, the Optional
Redemption Amount shall not include an Early Redemption Premium.
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7. Redemption Procedure. (a) In the event that fewer than all of the
outstanding shares of Voting Preferred Stock are to be redeemed on any
Redemption Date, the number of shares to be redeemed shall be determined by the
Board of Directors (subject to Section 5(a)) and the shares to be redeemed shall
be selected by lot or pro rata (with adjustments to avoid the redemption of
fractional shares) or by any other equitable method determined by the Board of
Directors.
(b) At least 10 days and not more than 60 days prior to any Redemption
Date, the Corporation shall provide notice of redemption (a "Notice of
Redemption") in writing (including telecopy or telex communication) and mailed
(by first class mail, postage prepaid), telecopied, telexed or delivered, to
each Holder of record of shares of the Voting Preferred Stock to be redeemed, at
the address of such Holder appearing in the stock register of the Corporation,
provided that failure to give such notice or any deficiency therein shall not
affect the validity of the procedure for redemption of any shares of Voting
Preferred Stock to be redeemed except as to the Holder or Holders to whom the
Corporation has failed to give such notice or to whom such notice was defective.
Each Notice of Redemption shall state:
(i) whether the redemption is pursuant to Section 5 or 6 hereof;
(ii) whether all or less than all the outstanding shares of Voting
Preferred Stock redeemable under such Section are to be redeemed and the
total number of shares of Voting Preferred Stock being redeemed;
(iii) the number of shares of Voting Preferred Stock held, as of the
appropriate record date, by such Holder that the Corporation intends to
redeem and the Redemption Amount to be paid in respect of such shares;
(iv) the Redemption Date and the place for surrender of certificates
for the shares of Voting Preferred Stock to be redeemed; and
(v) that dividends on the shares of the Voting Preferred Stock to be
redeemed shall cease to accumulate on such Redemption Date if the
Corporation has Provided for the payment of the Redemption Amount with
respect to such shares on such date.
(c) Each Holder shall surrender to the Corporation the certificate or
certificates representing the shares of Voting Preferred Stock to be redeemed,
duly endorsed, in the manner and at the place designated in the Notice of
Redemption, and, on the Redemption Date, the full Redemption Amount for each
share shall be payable in cash to the Person whose name appears on such
certificate or certificates as the owner thereof, and such surrendered
certificate or certificates shall be canceled and retired. In the event that
less than all of the shares represented by any such certificate are redeemed, a
new certificate shall be issued representing the unredeemed shares.
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(d) If a Notice of Redemption shall have been given as provided in clause
(b) above and the Corporation shall have provided monies at the time and place
specified for the payment of the Redemption Amount pursuant to such notice, then
from and after the Redemption Date, dividends on the shares of Voting Preferred
Stock so called for redemption shall cease to accumulate, such shares shall no
longer be deemed to be outstanding, and all rights of the Holders thereof as
stockholders of the Corporation (except the right to receive from the
Corporation the Redemption Amount without interest) shall cease.
8. Voting Rights. (a) The Holders, except as set forth in the Certificate
of Incorporation or as otherwise required under Delaware law or as set forth in
this Section 8, shall not, be entitled or permitted to vote on any matter
required or permitted to be voted upon by the stockholders of the Corporation.
(b) The Holders, voting as a class, shall have full voting power at all
times to elect a number of directors to the Board of Directors equal to the
smallest number that is at least 25% of the number of directors fixed by or in
accordance with the Corporation's Bylaws or Certificate of Incorporation to
serve on the Board of Directors at such time. Any director elected by the
Holders may be removed without cause only by the affirmative vote of at least a
majority of the outstanding shares of the Voting Preferred Stock. Any vacancy in
the Board of Directors occurring by reason of the resignation, death, removal or
disqualification of any member thereof elected by the Holders shall be filled by
the vote of the Holders and, if not so filled, shall be filled by the remaining
member or members of the Board of Directors elected by the Holders.
(c) So long as shares of the Voting Preferred Stock are outstanding, the
Corporation shall not, without the affirmative vote or written consent of the
Holders of at least a majority of the outstanding shares of Voting Preferred
Stock, voting as a class, authorize, create or issue to any person other than
the Holders any Parity Stock or increase the number of shares of any Parity
Stock or authorize, create or issue any obligation or security convertible into
shares of Parity Stock, provided that the Corporation may authorize, create and
issue Parity Stock to a person other than the Holders if all of the following
conditions are satisfied: (A) such Parity Stock is nonvoting (other than as
required by law), (B) such Parity Stock is issued for cash, (C) the Corporation
holds at the time of, and after giving effect to, any such authorization or
issuance an aggregate value of Qualified Investments at least equal to the
Issuance Equity Investment Profile and (D) at the time of, and after giving
effect to, any such authorization, creation or issuance, no Adjustment Event
shall have occurred and be continuing, and provided further that prior to the
issuance and sale of any such Parity Stock to a person other than the Holders,
(x) the Corporation shall deliver to the Holders, at least 45 days prior to the
proposed date of issuance of such Parity Stock to any such other person (the
"Proposed Issue Date"), a written offer to issue and sell to the Holders any or
all of such Parity Stock to be issued on the Proposed Issue Date, such offer to
include a description of the relative rights and preferences, the number of
shares being issued, the per share and aggregate issue price, the Proposed Issue
Date and other relevant terms of such proposed issuance of such Parity Stock and
(y) the Holders thereafter
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shall have the exclusive right, until and including the date which is 30 days
prior to the Proposed Issue Date (after which date the Corporation may offer and
sell such Parity Stock or any part thereof not purchased or committed to be
purchased by one or more Holders (or their designees) pursuant hereto to a
person other than the Holders (or their designees) for a period of 90 days
following the Proposed Issue Date on terms no more favorable to the buyer than
those set forth in the Corporation's written offer to the Holders), to deliver
to the Corporation written notice of each Holder's respective intention to
purchase (or to designate a Person to purchase) all or a specified number of
shares of such Parity Stock, and on the Proposed Issue Date, the corporation
shall issue and sell such Holder (or such Holder's designee), and such Holder
(or such Holder's designee) shall purchase all or such specified number of
shares of such Parity Stock at the aggregate issue price thereof and on the
other terms specified in the Corporation's written offer to the Holders;
provided, however, that if the Holders deliver written notice of their
respective intention to purchase, in the aggregate, more than the total number
of shares of such Parity Stock proposed to be issued, the Corporation shall
issue and sell to each Holder a number of shares equal to the product of (1) a
fraction, the numerator of which is the number of shares offered to be purchased
by such Holder and the denominator of which is the number of shares offered to
be purchased by all such Holders electing to purchase Parity Stock, multiplied
by (2) the total number of shares of such Parity Stock to be issued and sold on
the Proposed Issue Date.
(d) So long as shares of the Voting Preferred Stock are outstanding, the
Corporation shall not, without the affirmative vote or written consent of the
Holders of at least a majority (or, in the case of Section 8(d)(vi), all) of the
outstanding shares of Voting Preferred Stock, voting as a class, take any of the
following actions:
(i) Merge or consolidate with or into any Person, or permit any of its
Subsidiaries to do so, except that any Subsidiary of the Corporation may
merge or consolidate; with any Person other than as set forth in Section
4.4 or 4.5 of the Stock Purchase Agreement; provided, however, that in each
case immediately after giving effect thereto, (A) no Major Shareholder
Default, Adjustment Event or Incipient Event shall have occurred and be
continuing and (B) the surviving corporation, if a Subsidiary, shall not be
engaged in or own or control any assets constituting a Prohibited Business
Activity;
(ii) Declare or make any dividend payment or other distribution of
assets, properties, cash, rights, obligations or securities on any shares
of any Junior Stock or Parity Stock, or purchase, redeem or otherwise
acquire for value (or permit any of its Subsidiaries to do so) any such
shares, now or hereafter outstanding, (A) if, after giving effect thereto,
the aggregate Issue Price of all shares of Voting Preferred Stock then
outstanding would exceed 30% of the Value of the Company's Permitted
Investments or (B) if at the time of, and after giving effect to, such
declaration, payment, purchase, redemption or other acquisition, an
Adjustment Event or an Incipient Event shall have occurred and be
continuing;
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(iii) Amend, alter or repeal any of the provisions of the Certificate
of Incorporation, including but not limited to this Certificate of
Designation, so as to affect adversely the rights, powers or preferences of
the Voting Preferred Stock or the Holders thereof;
(iv) Authorize, create or issue any Voting Preferred Stock;
(v) Commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to the Corporation or its debt
under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seek the appointment of a trustee, receiver, liquidator,
custodian or other similar official of the Corporation or of any
substantial part of the Corporation's property or consent to any such
relief or to the appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced against it, or make a
general assignment for the benefit of creditors;
(vi) Authorize, create, increase the number of shares of or issue (A)
any class or series of capital stock which expressly provides that such
class or series of capital stock ranks senior to the Voting Preferred Stock
as to dividends or distributions upon the liquidation, winding up or
dissolution of the Corporation (such class or series of capital stock being
referred to hereafter as "Senior Stock"); or (B) any obligation or security
convertible into, or any rights or options entitling the holder thereof to
purchase, shares of Senior Stock;
(vii) Authorize, create, increase the number of shares of or issue (A)
any class or series of capital stock (other than Common Stock) with voting
rights (other than as required by law) (such class or series of capital
stock being referred to hereafter as "Additional Voting Stock") or (B) any
obligation or security convertible into, or any rights or options entitling
the holder thereof to purchase, shares of Additional Voting Stock;
(viii) Increase the number of directors to more than eight or amend or
otherwise modify the first sentence of Article FIFTH of the Certificate of
Incorporation;
(ix) Amend the Certificate of Incorporation or the By-Laws of the
Corporation to provide that the directors of the Corporation elected by the
holders of the Common Stock be divided into classes as provided in the
first sentence of Section 141(d) of the DGCL; or
(x) Amend the Certificate of Incorporation or the By-Laws of the
Corporation, so as to limit, restrict or in any way regulate the right of
stockholders to act by written consent in lieu of a meeting.
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(e) in any case in which the Holders shall be entitled to vote pursuant to
this Section 8 or pursuant to Delaware law, each Holder shall have one vote per
share of Voting Preferred Stock held.
9. Conversion. Immediately prior to a Sale of the Voting Preferred Stock
pursuant to Section 7.1 of the Stock Purchase Agreement, each outstanding share
of Voting Preferred Stock shall automatically and without further action convert
into one share of a new series of Preferred Stock of the Corporation, such new
series to contain such covenants and other terms, including, but not limited to,
the dividend rate, as are determined by the Board of Directors of the
Corporation, with the advice of an investment bank or banks of national
reputation, to be reasonably necessary to effect such Sale, in light of the then
prevailing market conditions, at a price such that the Holders shall receive,
after deducting all underwriting discounts and commissions and all expenses of
the Holders in connection with such Sale and the registration thereof, net
proceeds per share equal to the Issue Price plus an amount equal to all accrued
but unpaid Preferred Dividends and Participating Dividends plus an amount equal
to the Optional Redemption Premium, if any, and the Early Redemption Premium, if
any, that would be applicable with respect to such shares under Section 6 of
this Certificate of Designation if such shares were being redeemed in accordance
with Section 6 on the date of conversion.
10. Payments and Computations. (a) If any payment or redemption shall be
required by the terms hereof to be made on a day that is not a Business Day,
such payment or redemption shall be made on the next preceding Business Day.
(b) Each payment to be made hereunder by the Corporation shall be made not
later than 12:00 P.M. (New York City time) on the day when due in United States
dollars to an account or accounts specified in writing by each Holder not less
than five Business Days prior to the date of such payment in immediately
available funds.
(c) All computations of Preferred Dividends payable with respect to any
Dividend Period based on the Adjusted LIBO Rate or the Federal Funds Rate shall
be made on the basis of a year of 360 days, in each case for the actual number
of days (including the first day but excluding the last day) occurring in such
Dividend Period. All computations of Preferred Dividends payable with respect to
any Dividend Period based on the Base Rate shall be made on the basis of a year
of 365 or 366 days, as the case may be.
11. Documents. All documents referred to herein shall be made available by
the Corporation to any stockholder upon written request therefor delivered to
the Corporation addressed to the Secretary of the Corporation.
12. Powers of Directors. Upon the occurrence and during the continuation of
a Financial Condition Transition Event, without limiting, in any way, the rights
of Holders of the Voting Preferred Stock upon the occurrence of a Market Failure
Transition Event or a Major Shareholder Default, or the powers under Delaware
law of any directors elected by
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such Holders following any such event, the Board of Directors shall (to the
fullest extent permitted by Delaware law) have the power and authority (i) to
recommend dissolution and/or liquidation of the Company and (ii) to exercise the
right of Optional Redemption subject to and in accordance with this Certificate
of Designation.
13. Definitions.
Unless otherwise defined herein, all capitalized terms used herein shall
have the meanings given such terms in the Stock Purchase Agreement.
"Adjusted LIBO Rate" means, for any Dividend Period or other period, the
Eurodollar Rate for such Dividend Period or such other period, as the case may
be.
"Base Rate" means a fluctuating interest rate per annum in effect from time
to time, which rate per annum shall at all times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank, N.A. in New York,
New York, from time to time, as Citibank, N.A.'s base rate; and
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"Business Day" means a day of the year on which banks are not required or
authorized to close in New York City and, if the applicable Business Day relates
to Voting Preferred Stock entitled to receive dividends based on the Adjusted
LIBO Rate, on which dealings are carried on in the London interbank market.
"Certificate of Designation" means this Tenneco International Holding Corp.
Certificate of Designation. Preferences and Rights of Preferred Stock by
Resolution of the Board of Directors Providing for an Issue of 12,000,000 Shares
of Preferred Stock Designated "Variable Rate Voting Participating Preferred
Stock."
"Dividend Period" means the period commencing on each Dividend Payment Date
and ending on the immediately succeeding Dividend Payment Date, provided that,
in the case of the initial Preferred Dividend payable on March 31, 1995,
"Dividend Period" means each of the successive periods: (i) commencing on the
Issue Date and ending on January 31, 1995, (ii) commencing on January 31, 1995
and ending on February 28, 1995 and (iii) commencing on February 28, 1995 and
ending on March 31, 1995.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Rate" means, for any Dividend Period or other period, an
interest rate per annum equal to the rate per annum obtained by dividing (a) the
rate which appears from time to time on Telerate Screen Page 3750 (or any
successor page) as the Fixed USD Rate in
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effect at 11:00 A.M. (London time) two Business Days before the first day of
such Dividend Period or such other period, as the case may be, for a period
equal (or substantially equal) to such Dividend Period or such other period, as
the case may be, provided that in the event such offered rate is not readily
available from such Telerate Page, "Eurodollar Rate" shall mean, the rate per
annum at which deposits in U.S. dollars are offered by the principal office of
Citibank, N.A. in London. England to prime banks in the London interbank market
at 11:00 A.M. (London time) two Business Days before the first day of such
Dividend Period or such other period, as the case may be, in an amount
substantially equal to the aggregate Issue Price of the shares of Voting
Preferred Stock outstanding at such time and for a period equal to such Dividend
Period or such other period, as the case may be, by (b) a percentage equal to
100% minus the Eurodollar Rate Reserve Percentage for such Dividend Period or
such other period, as the case may be.
"Eurodollar Rate Reserve Percentage" means, for any Dividend Period or
other period, the reserve percentage applicable two Business Days before the
first day of such Dividend Period or such other period, as the case may be,
under regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities
that includes deposits by reference to which the Preferred Dividend Rate on
Preferred Stock entitled to dividends based on the Adjusted LIBO Rate is
determined) having a term equal to such Dividend Period or such other period, as
the case may be.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the rate which appears from time
to time on Telerate Screen Page 118 (or any successor page) as the Federal Funds
Effective Rate in effect on such day.
"Issue Price" shall mean, with respect to shares of Voting Preferred Stock,
twenty five dollars ($25) per share.
"Optional Redemption Premium" means, with respect to any redemption (or
liquidation, dissolution or winding up payment pursuant to Section 4 or
conversion pursuant to Section 9) on any date other than a Dividend Payment Date
of Voting Preferred Stock entitled to dividends based on the Adjusted LIBO Rate,
the amount calculated in accordance with the following formula:
A x [(Old LIBOR - New LIBOR)/360] x Number of Days Remaining
Where:
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A = The aggregate Issue Price of the shares of Voting
Preferred Stock to be redeemed.
New LIBOR = Adjusted LIBO Rate determined in respect of such Voting
Preferred Stock for the Number of Days Remaining.
Old LIBOR = Adjusted LIBO Rate in effect with respect to such Voting
Preferred Stock immediately prior to the Redemption Date.
Number of Days
Remaining = Number of days remaining in the Dividend Period
applicable to such Voting Preferred Stock as of the
Redemption Date.
provided, however, that if such amount is a negative number, the Optional
Redemption Premium shall be zero.
"Preferred Dividend Rate" means a rate per annum equal to (i) 1.120% over
the Adjusted LIBO Rate, which rate shall be adjusted for each Dividend Period or
(ii) if adequate and fair means do not exist to enable the determination of the
Adjusted LIBO, Rate, 0.395% over the Base Rate.
"Redemption Amount" means, with respect to any redemption of Voting
Preferred Stock, the Optional Redemption Amount or the Mandatory Redemption
Amount, as the case may be.
"Redemption Date" means any Mandatory Redemption Date and any date fixed by
the Board of Directors to redeem Voting Preferred Stock under Section 6.
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"Stock Purchase Agreement" means the Stock Purchase Agreement, dated as Of
December 29, 1994, between, the Corporation and MW Investors L.L.C., as the same
may be modified or amended from time to time.
IN WITNESS WHEREOF, said Tenneco International Holding Corp. has caused
this Certificate of Designation to be signed by Robert G. Simpson, as Vice
President, this 29th day of December, 1994.
TENNECO INTERNATIONAL HOLDING CORP.
By: /s/ Robert G. Simpson
----------------------------------
Robert G. Simpson, Vice President
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RESTATED
CERTIFICATE OF INCORPORATION
OF
TENNECO INTERNATIONAL HOLDING CORP.
(Originally incorporated as
Tenneco Norge Inc.
on
October 19, 1979)
This Restated Certificate of Incorporation, which restates and amends the
original Certificate of Incorporation of Tenneco International Holding Corp. as
heretofore amended, was duly adopted by action of the Board of Directors of the
corporation and by written consent of the sole stockholder of the corporation
pursuant to the provisions of Sections 228, 242 and 245 of the General
Corporation Law of the State of Delaware.
FIRST: The name of the corporation is Tenneco International Holding Corp.
SECOND: 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.
THIRD: The nature of the business or purposes to be conducted or promoted
by the corporation is to engage in the following activities:
(a) to own, hold, acquire, sell and otherwise deal from time to time
with the capital stock of any company which may become a subsidiary
of the corporation;
(b) to enter into and exercise and perform its rights and
obligations under (i) a Preferred Stock Purchase Agreement (as
amended or otherwise modified from time to time, the "Preferred
Stock Agreement") with MW Investors L.L.C., a Delaware limited
liability company, (ii) a Voting Trust Agreement (as amended or
modified from time to time, the "Voting Trust Agreement"), among
Wilmington Trust Company, as Voting Trustee, and one or more holders
of capital stock of the corporation, (iii) a Stockholders Agreement
(as amended or otherwise modified from time to time, the
"Stockholders Agreement"), with MW Investors L.L.C. and one or more
holders of capital stock of the corporation, (iv) a Put Agreement
(as amended or otherwise modified from time to time, the "Tenneco
Put"), with Tenneco Inc., a Delaware corporation, and (v) a
Liquidity Facility (as amended or otherwise modified from time to
time, the "Liquidity Facility") with either of Tenneco Inc., Tenneco
Credit Corporation, a Delaware corporation, another
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direct or indirect wholly owned subsidiary of Tenneco or one or more
financial institutions (the Preferred Stock Agreement the Voting
Trust Agreement, the Stockholders Agreement, the Tenneco Put and the
Liquidity Facility being hereinafter collectively referred to as
the "Operative Agreements");
(c) to execute, deliver and perform all agreements, documents,
instruments or certificates, including without limitation the
issuance of stock certificates, evidencing, necessitated by or in
connection with, any or all of the Operative Agreements or any or
all of the activities and powers referred to herein or in clause (d)
or (e) below;
(d) to engage in any activity and to exercise any power permitted to
corporations under the laws of the State of Delaware to the extent
the corporation is required to do so or not prohibited from doing so
under the Operative Agreements; and
(e) to engage in any activity and to exercise any powers permitted
to corporations under the laws of the State of Delaware that are
related or incidental to the foregoing and necessary, convenient or
advisable to accomplish the foregoing.
FOURTH: The total number of shares of all classes of stock which the
corporation shall have authority to issue is 81,000,000 shares, divided into
30,000,000 shares of Preferred Stock, par value $0.01 per share (herein called
"Preferred Stock"), 1,000,000 shares of Junior Preferred Stock, par value $0.01
per share (herein called "Junior Preferred Stock") and 50,000,000 shares of
Common Stock, par value of each of $0.01 per share (herein called "Common
Stock").
The following is a statement of the designations and the powers,
preferences and rights, and the qualifications, limitations or restrictions
thereof, of the classes of stock of the corporation:
I.
1. The Preferred Stock may be issued in one or more series. The
designations, preferences and relative, participating, optional, or other
special rights, and the qualifications, limitations or restrictions thereof, of
the Preferred Stock of each series shall be such as are stated and expressed
herein and, to the extent not stated and expressed herein, shall be such as may
be fixed by the Board of Directors (authority so to do being hereby expressly
granted) and stated and expressed in a resolution or resolutions adopted by the
Board of Directors providing for the issue of Preferred Stock of such series.
Such resolution or resolutions shall (a) specify the series to which such
Preferred Stock shall belong, (b) fix the dividend rate or rates, if any,
therefor, (c) fix the amount, if any, which the holders of
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the Preferred Stock of such series shall be entitled to be paid in the event of
a voluntary or involuntary liquidation, dissolution or winding up of the
corporation, (d) state whether or not the Preferred Stock of such series shall
be redeemable and at what times and under what conditions and the amount or
amounts payable thereon in the event of redemption; and may, in a manner not
inconsistent with the provisions of this Article FOURTH, (i) limit the number of
shares of such series which way be issued, (ii) provide for a sinking fund for
the purchase or redemption, or a purchase fund for the purchase, of shares of
such series and the terms and provisions governing the operation of any such
fund and the status as to reissuance of shares of Preferred Stock of such series
purchased or otherwise reacquired or redeemed or retired through the operation
thereof, and that so long as the corporation is in default as to such sinking or
purchase fund the corporation shall not (with such exceptions, if any, as may be
provided) pay any dividends upon or purchase or redeem shares of capital stock
ranking junior to the Preferred Stock with respect to dividends or distributions
of assets upon liquidation (referred to in this Part I of Article FOURTH as
"stock ranking junior to the Preferred Stock"), (iii) grant voting rights to the
holders of shares of such series in addition to and not inconsistent with those
granted by this Part I of Article FOURTH to the holders of Preferred Stock, and
in the absence of such grant the holders of such series of Preferred Stock shall
have no such additional voting rights, (iv) impose conditions or restrictions
upon the creation of indebtedness of the corporation or upon the issue of
additional Preferred Stock or other capital stock ranking junior thereto or on a
parity therewith or prior thereto with respect to dividends or distribution of
assets upon liquidation, (v) impose conditions or restrictions upon the payment
of dividends upon, or the making of other distributions to, or the redemption,
repurchase or other acquisition of, stock ranking junior to or on a parity with
the Preferred Stock, (vi) grant to the holders of the Preferred Stock of such
series the right to convert such stock into shares of stock ranking on a parity
with or junior to the Preferred Stock, and (vii) grant such other special rights
to the holders of shares of such series as the Board of Directors may determine
and as shall not be inconsistent with the provisions of this Article FOURTH. The
term "fixed for such series" and similar terms as used in this Part I of Article
FOURTH shall mean stated and expressed in this Part I of Article FOURTH or in a
resolution or resolutions adopted by the Board of Directors providing for the
issue of Preferred Stock of the series referred to therein.
2. The holders of the Preferred Stock shall be entitled to receive, when
and as declared by the Board of Directors, out of any funds legally available
therefor, cumulative preferential dividends in cash, at the rate or rates, if
any, fixed for such series, payable as specified in the resolution or
resolutions of the Board of Directors providing for the issuance of the series
of Preferred Stock. Dividends, if any, on shares of the Preferred Stock of any
series shall accrue from the date of issuance, or from such other date or dates
as may be fixed by the Board of Directors for any series, and shall be
cumulative. Each share of Preferred Stock shall rank on a parity with each other
share of Preferred Stock, irrespective of series, with respect to preferential
dividends at the respective rates, if any, fixed for such series, and no
dividend shall be declared or paid or set apart for payment for the Preferred
Stock of any series unless at the same time a dividend in like proportion to the
dividends, if any, accrued upon the Preferred Stock of each other series shall
be declared or paid or set
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apart for payment, as the case may be, on Preferred Stock of each other series
then outstanding.
3. So long as any shares of Preferred Stock shall remain outstanding, in no
event shall any dividends whatsoever, whether in cash, stock, or otherwise, be
paid or declared, or any distribution be made, on any class of stock ranking
junior to the Preferred Stock, nor shall any share of stock ranking junior to
the Preferred Stock be redeemed, purchased, retired or otherwise acquired for a
valuable consideration (or any monies be paid or made available for a sinking
fund for the purchase or redemption, or a purchase fund for the purchase, of
such shares) by the corporation or any subsidiary thereof, unless all dividends
on the Preferred Stock for all past periods shall have been paid, or declared
and a sum sufficient for the payment thereof set apart. In addition, except as
hereinafter provided, no dividends shall be declared or paid or set apart for
payment on any class or series of stock ranking on a parity with any series of
the Preferred Stock for any period unless full cumulative dividends have been or
contemporaneously are declared and paid on such series for all past dividend
periods. When such dividends are not paid in full upon the shares of such series
and any other class or series of stock ranking on a parity as to dividends with
such series, all dividends declared upon the shares of such series and any other
class or series of stock ranking on a parity as to dividends with such series
shall be declared pro rata so that the amount of dividends declared per share on
such series and such other class or series shall in all cases bear to each other
the same ratio that accrued dividends per share on the shares of such series and
such other class or series bear to each other.
4. So long as any shares of Preferred Stock are outstanding the corporation
shall not, without the consent of the holders of at least a majority of the
number of shares of Preferred Stock at the time outstanding, given in person or
by proxy, either in writing or by vote at an annual meeting or a special meeting
called for the purpose, amend any of the provisions of this Restated Certificate
of Incorporation if the amendment would increase or decrease the aggregate
number of authorized shares of Preferred Stock, increase or decrease the par
value of the shares of Preferred Stock or alter or change the powers,
preferences or special rights of the shares of Preferred Stock so as to affect
them adversely. If any proposed amendment to this Restated Certificate of
Incorporation would alter or change the powers, preferences, or special rights
of one or more series of Preferred Stock so as to affect them adversely, but
shall not so affect the entire class, then only the shares of the series so
affected by the amendment shall be considered a separate class for the purposes
of this paragraph.
5. In the event of any liquidation, dissolution or winding up of the
affairs of the corporation, then, before any distribution or payment shall be
made to the holders of any class of stock of the corporation ranking junior to
the Preferred Stock, the holders of the Preferred Stock of the respective series
shall be entitled to be paid in full the respective amounts, if any, fixed for
such series. Each share of Preferred Stock shall rank on a parity with each
other share of Preferred Stock, irrespective of series, with respect to
distributions in the event of any liquidation, dissolution or winding up of the
affairs of the corporation.
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After such payment shall have been made in full to the holders of the Preferred
Stock, the remaining assets and funds of the corporation shall be distributed
among the holders of the stock of the corporation ranking junior to the
Preferred Stock according to their respective rights. In the event that the
assets of the corporation available for distribution to holders of Preferred
Stock shall not be sufficient to make the payment herein required to be made in
full, such assets, shall be distributed to the holders of the respective shares
of Preferred Stock pro rata in proportion to the amounts payable hereunder upon
each share thereof.
6. Except as otherwise provided in any resolution of the Board of Directors
providing for the issuance of any particular series of Preferred Stock,
Preferred Stock redeemed or otherwise acquired by the corporation shall be
retired and assume the status of authorized but unissued Preferred Stock without
designation as to series and may thereafter, subject to the provisions of this
Part I of Article FOURTH and of any restrictions contained in any resolution of
the Board of Directors providing for the issue of any particular series of
Preferred Stock, be reissued in the same manner as other authorized but unissued
Preferred Stock.
II.
1. The Junior Preferred Stock may be issued in one or more series. The
Junior Preferred Stock shall rank junior to the Preferred Stock in all respects,
including, but not limited to, dividends and distributions upon the liquidation,
dissolution or winding up of the corporation. The designations, preferences and
relative, participating, optional, or other special rights, and the
qualifications, limitations or restrictions thereof, of the Junior Preferred
Stock of each series shall be such as are stated and expressed herein and, to
the extent not stated and expressed herein, shall be such as may be fixed by the
Board of Directors (authority so to do being hereby expressly granted) and
stated and expressed in a resolution or resolutions adopted by the Board of
Directors providing for the issue of Junior Preferred Stock of such series. Such
resolution or resolutions shall (a) specify the series to which such Junior
Preferred Stock shall belong, (b) fix the dividend rate or rates, if any,
therefor, (c) fix the amount, if any, which the holders of the Junior Preferred
Stock of such series shall be entitled to be paid in the event of a voluntary or
involuntary liquidation, dissolution or winding up of the corporation, (d) state
whether or not the Junior Preferred Stock of such series shall be redeemable and
at what times and under what conditions and the amount or amounts payable
thereon in the event of redemption; and may, in a manner not inconsistent with
the provisions of this Article FOURTH, (i) limit the number of shares of such
series which may be issued, (ii) provide for a sinking fund for the purchase or
redemption, or a purchase fund for the purchase, of shares of such series and
the terms and provisions governing the operation of any such fund and the status
as to reissuance of shares of Junior Preferred Stock of such series purchased or
otherwise reacquired or redeemed or retired through the operation thereof, and
that so long as the corporation is in default as to such sinking or purchase
fund the corporation shall not (with such exceptions, if any, as may be
provided) pay any dividends upon or purchase or redeem shares of capital stock
ranking
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junior to the Junior Preferred Stock with respect to dividends or distributions
of assets upon liquidation (referred to in this Part II of Article FOURTH as
"stock ranking junior to the Junior Preferred Stock"), (iii) impose conditions
or restrictions upon the creation of indebtedness of the corporation or upon the
issue of additional Junior Preferred Stork or other capital stock ranking on a
parity therewith or prior thereto with respect to dividends or distribution of
assets upon liquidation, (iv) impose conditions or restrictions upon the payment
of dividends upon or the making of other distributions to, or the acquisition
of, stock ranking junior to the Junior Preferred Stock, (v) grant to the holders
of the Junior Preferred Stock of such series the right to convert such stock
into shares of stock ranking on a parity with or junior to the Junior Preferred
Stock, and (vi) grant such other special rights to the holders of shares of such
series as the Board of Directors may determine and as shall not be inconsistent
with the provisions of this Article FOURTH or the prior rights of the holders of
Preferred Stock as set forth in Part I of this Article FOURTH; provided,
however, that the Junior Preferred Stock shall have no voting power whatsoever
except as required by law and except as set forth in Article FOURTH II.3. The
term "fixed for such series" and similar terms as used in this Part II of
Article FOURTH shall mean stated and expressed in this Part II of Article FOURTH
or in a resolution or resolutions adopted by the Board of Directors providing
for the issue of Junior Preferred Stock of the series referred to therein.
2. So long as any shares of Junior Preferred Stock shall remain
outstanding, in no event shall any dividends whatsoever, whether in cash, stock,
or otherwise, be paid or declared, or any distribution be made, on any class of
stock ranking junior to the Junior Preferred Stock, nor shall any shares of
stock ranking junior to the Junior Preferred Stock be purchased, retired or
otherwise acquired for a valuable consideration by the corporation, unless all
dividends on the Junior Preferred Stock for all past periods shall have been
paid, or declared and a sum sufficient for the payment thereof set apart.
3. (A) So long as any shares of Junior Preferred Stock are outstanding the
corporation shall not, without the consent of the holders of at least a majority
of the number of shares of Junior Preferred Stock at the time outstanding, given
in person or by proxy, either in writing or by vote at an annual meeting or a
special meeting called for the purpose, amend any of the provisions of this
Restated Certificate of Incorporation if the amendment would increase or
decrease the aggregate number of authorized shares of Junior Preferred Stock,
increase or decrease the par value of the shares of Junior Preferred Stock or
alter or change the powers, preferences or special rights of the shares of
Junior Preferred Stock so as to affect them adversely. If any proposed amendment
to this Restated Certificate of Incorporation would alter or change the powers,
preferences, or special rights of one or more series of Junior Preferred Stock
so as to affect them adversely, but shall not so affect the entire class, then
only the shares of the series so affected by the amendment shall be considered a
separate class for the purposes of this paragraph.
(B) So long as any shares of Junior Preferred Stock are outstanding the
corporation shall not, without the consent of the holders of at least a majority
of the number of shares of Junior Preferred Stock at the time outstanding, given
in person or by proxy, either in writing
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or by vote at an annual meeting or a special meeting called for that purpose,
create or authorize any class of stock (other than the Preferred Stock) ranking
prior to the Junior Preferred Stock in respect of dividends or distribution of
assets on liquidation; or create or authorize any obligation or security
convertible into shares of stock of any class of stock (other than the Preferred
Stock) ranking prior to the Junior Preferred Stock in respect of dividends or
distribution of assets on liquidation.
(C) So long as any shares of Junior Preferred Stock are outstanding the
corporation shall not, without the consent of the holders of at least a majority
of the number of shares of Junior Preferred Stock at the time outstanding, given
in person or by proxy, either in writing or by vote at an annual meeting or a
special meeting called for the purpose:
(a) create or authorize any class of stock ranking on a parity with
the Junior Preferred Stock in respect of dividends or distribution of
assets on liquidation; or
(b) increase the authorized amount of the Junior Preferred Stock or
of any class of stock ranking on a parity with the Junior Preferred Stock
in respect of dividends or distributions of assets on liquidation: or
(c) create or authorize any obligation or security convertible into
shares of stock of any class ranking on a parity with the Junior Preferred
Stock in respect of dividends or distribution of assets on liquidation.
(D) So long as any shares of Junior Preferred Stock are outstanding the
corporation shall not purchase, redeem or otherwise acquire for value any shares
of Junior Preferred Stock or of any other stock ranking on a parity with the
Junior Preferred Stock in respect of dividends or distribution of assets on
liquidation during the continuance of any default in the payment of dividends on
the Junior Preferred Stock without the consent, given in person or by proxy,
either in writing or by vote at an annual meeting or a special meeting called
for the purpose, of the holders of at least a majority of the number of shares
of Junior Preferred Stock present in person or by proxy at such meeting,
provided that a quorum, consisting of at least a majority of the then
outstanding shares of Junior Preferred Stock, is present.
(E) Any action specified in this subdivision 3 as requiring the consent of
the holders of at least a specified proportion of the number of shares of Junior
Preferred Stock or of any particular series thereof at the time outstanding or
represented at a meeting may be taken with such consent and with such additional
vote or consent, if any, of stockholders as may be from time to time required by
this Certificate of Incorporation, as amended from time to time, or by law.
4. In the event of any liquidation, dissolution or winding up of the
affairs of the corporation, then, before any distribution or payment shall be
made to the holders of any class of stock of the corporation ranking junior to
the Junior Preferred Stock, the holders of
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the Junior Preferred Stock of the respective series (subject to the rights of
the Preferred Stock) shall be entitled to be paid in full the respective
amounts, if any, fixed for such series. After such payment shall have been made
in full to the holders of the Junior Preferred Stock, the remaining assets and
funds of the corporation shall be distributed among the holders of the stock of
the corporation ranking junior to the Junior Preferred Stock according to their
respective rights. In the event that the assets of the corporation available for
distribution to holders of Junior Preferred Stock shall not be sufficient to
make the payment herein required to be made in full, such assets shall be
distributed to the holders of the respective shares of Junior Preferred Stock
pro rata in proportion to the amounts payable hereunder upon each share thereof.
5. Except as otherwise provided in any resolution of the Board of Directors
providing for the issuance of any particular series of Junior Preferred Stock,
shares of Junior Preferred Stock redeemed or otherwise acquired by the
corporation shall be retired and assume the status of authorized but unissued
Junior Preferred Stock without designation as to series and may thereafter,
subject to the provisions of this Part II of Article FOURTH and of any
restrictions contained in any resolution of the Board of Directors providing for
the issue of any particular series of Preferred Stock, be reissued in the same
manner as other authorized but unissued Junior Preferred Stock.
III.
Subject to the prior and superior rights of the Preferred Stock and the
Junior Preferred Stock, and on the conditions set forth in the foregoing Parts I
and II of this Article FOURTH or in any resolution of the Board of Directors
providing for the issuance of any particular series of Preferred Stock or Junior
Preferred Stock, and not otherwise, such dividends (payable in cash, stock or
otherwise) as may be determined by the Board of Directors may be declared and
paid on the Common Stock from time to time out of any funds legally available
therefor.
Subject to the provisions of Parts I and II of this Article FOURTH, the
holders of the Common Stock shall be entitled to one vote for each share held at
all meetings of the stockholders of the corporation.
After payment shall have been made in full to the holders of the Preferred
Stock and the Junior Preferred Stock in the event of any liquidation,
dissolution or winding up of the affairs of the corporation, the remaining
assets and funds of the corporation shall be distributed among the holders of
the Common Stock according to their respective shares.
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IV.
Subject to the rights of the holders of any series of Preferred Stock or
Junior Preferred Stock as provided for in a resolution or resolutions adopted by
the Board of Directors providing for the issue thereof, ownership of shares of
any class of the capital stock of the corporation shall not entitle the holders
thereof to any preemptive right to subscribe for or purchase or to have offered
to them for subscription or purchase any additional shares of capital stock of
any class of the corporation or any securities convertible into any class of
capital stock of the corporation, however acquired, issued or sold by the
corporation, it being the purpose and intent that the Board of Directors shall
have full right, power and authority, subject to the rights of the holders of
any series of Preferred Stock or Junior Preferred Stock as provided for in a
resolution or resolutions adopted by the Board of Directors providing for the
issue thereof, to offer for subscription or sell or to make any disposal of any
or all unissued shares of the capital stock of the corporation or any securities
convertible into stock or any or all shares of stock or convertible securities
issued and thereafter acquired by the corporation, for such consideration, not
less than the par value of shares having a par value, in money or property, as
the Board of Directors shall determine.
FIFTH: The business and affairs of the corporation shall be managed by or
under the direction of a Board of Directors consisting of not less than one nor
more than eight directors, the exact number of directors to be fixed as set
forth in, or in the manner provided in, the By-Laws of the corporation. A
director shall hold office until the annual meeting for the year in which his
term expires and until his successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement, disqualification or
removal from office. Subject to the rights of the holders of any series of
Preferred Stock or Junior Preferred Stock as provided for in a resolution or
resolutions adopted by the Board of Directors providing for the issue thereof,
any vacancy or newly created directorship on the Board of Directors may be
filled by a majority of the directors then in office, even if less than a
quorum, or by a sole remaining director. Any director elected to fill a vacancy
not resulting from an increase in the number of directors shall have the same
remaining term as that of his predecessor.
(B) In furtherance and not in limitation of the powers which are now or may
hereafter be conferred by statute or the By-Laws of the corporation, the Board
of Directors is expressly authorized:
(a) To fix, determine and vary from time to time the amount to be
maintained as surplus and the amount or amounts to be set apart as
working capital.
(b) To set apart out of any of the funds of the corporation
available for dividends a reserve or reserves for any proper
purposes and/or to abolish any such reserve in the manner in which
it was created.
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(c) To make, amend, alter, change, add to or repeal By-Laws for the
corporation, without any action on the part of the stockholders.
(d) To authorize and cause to be executed mortgages and liens,
without limit as to amount, upon the real and personal property of
the corporation.
(e) From time to time to determine whether and to what extent, at
what time and place, and under what conditions and regulations the
accounts and books of the corporation or any of them, shall be open
to the inspection of any stockholder, and no stockholder shall have
any right to inspect any account or book or document of the
corporation except as conferred by statute or the By-Laws or as
authorized by a resolution of the Board of Directors.
(f) To authorize the payment of compensation to the directors for
services to the corporation, including fees for attendance at
meetings of the Board of Directors, and of any committees, and to
determine the amount of such compensation and fees.
(g) To designate by resolution or resolutions passed by a majority
of the whole Board of Directors one or more committees, each
committee to consist of one 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.
(h) Subject to Article FOURTH and to the rights of the holders of
any series of Preferred Stock or Junior Preferred Stock as provided
for in a resolution or resolutions adopted by the Board of Directors
providing for the issue thereof, at any time or from time to time
(without any action by the stockholders of the corporation) to
create and issue, whether or not in connection with the issue and
sale of any shares of stock or other securities of the corporation,
rights or options entitling the holders thereof to purchase from the
corporation any shares of its capital stock of any class or classes
or of any series of any class or classes, such rights or options to
be evidenced by or in such instrument or instruments as shall be
approved by the Board of Directors. The terms upon which, the time
or times, which may be limited or unlimited in duration, at or
within which, and the price or prices at which any such shares may
be purchased from the corporation upon the exercise of any such
right or option shall be such as shall be fixed and stated in the
resolution or resolutions adopted by the Board of Directors
providing for the creation and issue of such rights or options and,
in every case, set forth or incorporated by reference in the
instrument or instruments evidencing such rights or options.
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SIXTH: The corporation is to have perpetual existence.
SEVENTH: A director of this corporation shall not be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent such exemption from liability or
limitation thereof is not permitted under the General Corporation Law of the
State of Delaware as the same exists or may hereafter by amended. Any amendment,
modification or repeal of the foregoing sentence by the stockholders of the
corporation shall not adversely affect any right or protection of a director of
the corporation in respect of any act or omission occurring prior to the time of
such amendment, modification or repeal.
EIGHTH: Elections of directors need not be by written ballot unless
otherwise provided in the By-Laws of the corporation.
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IN WITNESS WHEREOF, said TENNECO INTERNATIONAL HOLDING CORP. has caused
this Restated Certificate of Incorporation to be signed by its Vice President
this 29th day of December, 1994.
TENNECO INTERNATIONAL HOLDING CORP.
By: /s/ Robert G. Simpson
-------------------------------------
Vice President
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