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EXHIBIT 99.5
CERTIFICATE OF DESIGNATIONS
of
CLASS D JUNIOR NON-VOTING PARTICIPATING PREFERRED STOCK
of
TCR Holding Corporation
(Pursuant to Section 151(g) of the
Delaware General Corporation Law)
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TCR Holding Corporation, a corporation organized and existing
under the laws of the State of Delaware (hereinafter called the "CORPORATION"),
hereby certifies that the following resolution was adopted at a meeting of the
board of directors of the Corporation (the "BOARD OF DIRECTORS") pursuant to
Section 151(g) of the Delaware General Corporation Law on ____, 1998:
RESOLVED, that pursuant to the authority granted to and vested
in the Board of Directors in accordance with the provisions of the Amended and
Restated Certificate of Incorporation of the Corporation, the Board of Directors
hereby creates a series of Preferred Stock, liquidation preference $0.01 per
share (the "CLASS D JUNIOR NON-VOTING PARTICIPATING PREFERRED STOCK"), of the
Corporation and hereby states the designation and number of shares, and fixes
the relative rights, preferences and limitations thereof as follows:
Class D Junior Non-Voting Participating Preferred Stock:
SECTION 1. DESIGNATION AND AMOUNT. The shares of this series
shall be designated as "Class D Junior Non-Voting Participating Preferred Stock"
(the "CLASS D JUNIOR PREFERRED STOCK") and the number of shares constituting the
Class D Junior Preferred Stock shall be 10,875,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors; provided, that
no decrease shall reduce the number of shares of Class D Junior Preferred Stock
to a number less than the number of shares then outstanding.
SECTION 2. LIQUIDATION PREFERENCE. In the event of a
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, (a) before any payment or distribution of the assets of the
Corporation (whether capital or surplus) shall be made to or set apart for the
holders of classes or series of stock or other securities of the Corporation
ranking junior to the Class D Junior Preferred Stock upon liquidation,
dissolution or winding up and (b) after the payment or distribution of the
assets of the Corporation (whether capital or surplus)
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shall be made to or set apart for the holders of classes or series of stock or
other securities of the Corporation ranking prior, to the Class D Junior
Preferred Stock upon liquidation, dissolution or winding up, the holders of the
Class D Junior Preferred Stock shall be entitled to receive $0.01 per share. The
holders of the Class D Junior Preferred Stock shall not be entitled to receive
or participate in any payment or distribution of the assets of the Corporation
upon such liquidation, dissolution or winding up in excess of $0.01 per share
until the holders of the Common Stock shall have received payment upon such
liquidation, dissolution or winding up of the Corporation of $0.01 per share,
and thereafter the holders of the Common Stock and the Class D Junior Preferred
Stock (together with the holders of any series of preferred stock and/or Class D
Junior Preferred Stock which, pursuant to the resolution or resolutions of the
Board of Directors providing for the issue of such series, shall be entitled to
participate therein with the holders of the Common Stock and the Class D Junior
Preferred Stock) shall be entitled to participate equally, share for share as if
a single class, in any further payment or distribution of the assets of the
Corporation upon such liquidation, dissolution or winding up of the Corporation.
The Class D Junior Preferred Stock shall rank, as to the payment or
distribution of the assets of the Corporation (whether capital or surplus) upon
liquidation, dissolution or winding up of the Corporation, (a) junior to the
Corporation's Class A Participating Preferred Stock Series A and Class A
Participating Preferred Stock Series B (but only to the extent of the
liquidation preference thereon) and (b) on parity with all other securities of
the Corporation (except as provided in the preceding paragraph).
SECTION 3. VOTING. Except as otherwise required by law, the
holders of Class D Junior Preferred Stock shall not be entitled to vote such
shares on any matter on which the stockholders of the Corporation shall be
entitled to vote, and shares of Class D Junior Preferred Stock shall not be
included in determining the number of shares voting or entitled to vote on any
such matters.
SECTION 4. DIVIDENDS. The holders of Class D Junior Preferred
Stock shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for that purpose, dividends and
distributions per share equal to the aggregate amount per share (payable in
kind) of all cash dividends or other distributions (whether by way of a dividend
or a reclassification of stock, a recapitalization, reorganization or a partial
liquidation of the Corporation or otherwise) declared on the Common Stock. The
Corporation shall declare a dividend or other distribution on the Class D Junior
Preferred Stock at the same time it declares a dividend or other distribution on
the Common Stock. No cash or non-cash dividend or other distribution shall be
paid or set aside for payment on the Common Stock (or any other securities
ranking, as to the payment of dividends, on a parity with or junior to the Class
D Junior Preferred Stock) unless a dividend or other distribution in respect of
such dividend or other distribution on the Common Stock shall be simultaneously
paid, or set aside for payment on the Class D Junior Preferred Stock in the
amount required by this Section 4. If the Corporation in any manner splits,
subdivides or combines the outstanding shares of Common Stock, the outstanding
shares of Class D Junior Preferred Stock shall be split, subdivided or combined
in the same manner proportionately and on the same basis per share.
The Class D Junior Preferred Stock shall rank, as to the payment of
dividends, (a) junior to the Corporation's Class A Participating Preferred Stock
Series A and Class A Participating Preferred Stock Series B (but only to the
extent of the liquidation preference thereon and except as to Special
Distributions as defined in the certificate of designations as to such Class A
Preferred Stock) and (b) on a parity with all other securities of the
Corporation.
SECTION 5. CONVERSION; NO PREEMPTIVE RIGHTS; NO REDEMPTION.
Except as set forth in Section 2 and Section 6, the shares of Class D Junior
Preferred Stock shall not be convertible. The Class D Junior Preferred Stock
shall not be entitled to any preemptive or subscription rights in respect of any
securities of the Corporation. The Class D Junior Preferred Stock shall not be
redeemable at the option of the Corporation or any holder thereof except as
otherwise required by law.
SECTION 6. CONVERSION.
(A) Forced Conversion. The Company may force the conversion of
each share of Class D Junior Preferred Stock into one fully paid and
non-assessable, non-voting (or, with the approval of the Board of Directors,
voting) share of Common Stock at any time after (i) the closing of the sale of
the Common Stock in a firm commitment, underwritten public offering registered
under the Securities Act of 1933, as amended (the "SECURITIES ACT"), other than
a registration relating solely to a transaction under Rule 145 promulgated under
the Securities Act or to an employee benefit plan of the Company,
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(ii) the consummation of a merger of the Corporation with and into any other
Person or sale of all or substantially all of the assets of the Corporation to
any other Person, (iii) the Transfer of the Majority Voting Securities to a
Third Party (each of such capitalized terms as defined in the TCR Holding
Stockholders Agreement dated as of the date of initial issuance of securities
hereunder, as amended (the "STOCKHOLDERS AGREEMENT")) and (iv) the exercise by
TransAmerican Energy Corporation, a Delaware corporation, of its repurchase
rights under that certain Repurchase Rights Agreement dated as of the date of
initial issuance of securities hereunder (the "REPURCHASE RIGHTS AGREEMENT").
"PERSON" means any corporation, individual, joint stock company, joint venture,
partnership, unincorporated association, governmental regulatory entity,
country, state, or political subdivision thereof, trust, municipality, or other
entity.
Such conversion shall be effective immediately upon notice of
such conversion by the Corporation to the stockholders and, from and after the
time of such notice, each certificate representing shares of Class D Junior
Preferred Stock shall be deemed to represent shares of non-voting (or, with the
approval of the Board of Directors, voting) Common Stock and the holder of any
such certificates representing shares of Class D Junior Preferred Stock shall be
entitled to have the Corporation exchange such certificate for a certificate
representing such Common Stock of the Corporation.
(B) Right of Conversion. Subject to and upon compliance with
the provisions of this Section 6(B), each share of Class D Junior Preferred
Stock shall, at the option of the holder of record thereof, be convertible at
any time, into one fully paid and non-assessable, non-voting share of Common
Stock (calculated as to each conversion to the nearest 1/100th of a share).
In order to exercise the conversion privilege, the holder of
one or more shares of Class D Junior Preferred Stock to be converted shall
surrender such shares at the principal executive office of the Corporation (or
at any other office or agency that is to be maintained for such purpose of which
the Corporation gives notice to such holders) accompanied by the funds, if any,
required below and shall give written notice of conversion in the form provided
on such shares of Class D Junior Preferred Stock (or such other notice as is
acceptable to the Corporation) to the Corporation at such office or agency that
the holder specifies in said notice. Such notice shall also state the name or
names, together with the address or addresses, in which the certificate or
certificates shall be issued for shares of non-voting Common Stock which shall
be issuable in such conversion. Each share of Class D Junior Preferred Stock
surrendered for conversion shall, unless the shares issuable on conversion are
to be issued in the same name as the name in which such share is registered, be
accompanied by instruments of transfer, in form satisfactory to the Corporation,
duly executed by the holder of record or his duly authorized attorney and an
amount sufficient to pay any transfer or similar tax. As promptly as practicable
after the surrender of such shares of Class D Junior Preferred Stock and the
receipt of such notice, instruments of transfer and funds, if any, as aforesaid,
the Corporation shall issue and deliver at such office or agency to such holder,
or on such holder's written order, a certificate or certificates for the number
of full shares of non-voting Common Stock issuable upon the conversion of such
share of Class D Junior Preferred Stock in accordance with the provisions of
this Section 6(B).
Each conversion shall be deemed to have been effected
immediately prior to the close of business on the date on which such shares of
Class D Junior Preferred Stock shall have
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been surrendered and such notice (and any applicable instruments of transfer and
any required taxes) received by the Corporation as aforesaid, and the person or
persons in whose name or names any certificate or certificates for shares of
non-voting Common Stock shall be issuable upon such conversion shall be deemed
to have become the holder or holders of record of the shares represented thereby
at such time on such date, unless the stock transfer books of the Corporation
shall be closed on that date, in which event such person or persons shall be
deemed to have become such holder or holders of record at the close of business
on the next succeeding day on which such stock transfer books are open.
The Corporation covenants that it will at all times take
action to reserve and keep available, free from preemptive rights, out of the
aggregate of its authorized but unissued shares of non-voting Common Stock or
its issued shares of non-voting Common Stock held in its treasury, or both, for
the purpose of effecting conversions of shares of Class D Junior Preferred
Stock, the full number of shares of non-voting Common Stock deliverable upon the
conversion of all outstanding shares of Class D Junior Preferred Stock not
theretofore converted and on or before (and as a condition of) taking any action
that would result in an increase in the number of shares of non-voting Common
Stock deliverable upon conversion above the number thereof previously reserved
and available therefor, the Corporation shall take all such action so required.
The Corporation covenants that all shares of non-voting Common Stock which may
be delivered upon conversions of shares of Class D Junior Preferred Stock will
upon delivery be duly and validly issued and fully paid and non-assessable, free
of all liens and charges and not subject to any preemptive rights.
SECTION 7. REACQUIRED SHARES. Any shares of Class D Preferred
Stock redeemed, purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock subject to the conditions and restrictions on issuance set
forth herein, in the Amended and Restated Certificate of Incorporation or in any
other certificate of designations creating a series of Preferred Stock or any
similar stock or as otherwise required by law.
SECTION 8. OTHER RIGHTS AND PREFERENCES. Except as otherwise
specifically set forth herein, all shares of Class D Junior Preferred Stock and
Common Stock shall have the same rights, preferences and privileges.
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SECTION 9. TRANSFER RESTRICTIONS. Holders of the Class D
Junior Preferred Stock shall not be permitted to transfer any shares of Class D
Junior Preferred Stock by sale, assignment, gift or other disposition
("TRANSFER") at any time if such transfer would require registration under the
Securities Act. In addition, no holder may Transfer shares of Class D Junior
Preferred Stock in violation of the Stockholders Agreement or of the Repurchase
Rights Agreement.
SECTION 10. SEVERABILITY OF PROVISIONS. Whenever possible,
each provision hereof shall be interpreted in a manner as to be effective and
valid under applicable law, but if any provision hereof is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating or otherwise
adversely affecting the remaining provisions hereof. If a court of competent
jurisdiction should determine that a provision hereof would be valid or
enforceable if a period of time were extended or shortened or a particular
percentage were increased or decreased, then such court may make such change as
shall be necessary to render the provision in question effective and valid under
applicable law.
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IN WITNESS WHEREOF, TCR Holding Corporation has caused this
Certificate of Designations of Class D Junior Preferred Stock to be duly
executed by its ____________, this __th day of December, 1998.
TCR Holding Corporation
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