EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
PACKAGING CORPORATION OF AMERICA
The corporation was incorporated under the name "Packaging
Corporation of America" by the filing of its original Certificate of
Incorporation with the Secretary of State of the State of Delaware on January
25, 1999. This Restated Certificate of Incorporation of the corporation, which
both restates and further amends the provisions of the corporation's Certificate
of Incorporation, was duly adopted in accordance with the provisions of Sections
241 and 245 of the General Corporation Law of the State of Delaware. The
corporation has not received any payment for any of its stock. The Certificate
of Incorporation of the corporation is hereby amended and restated to read in
its entirety as follows:
ARTICLE ONE
The name of the corporation is Packaging Corporation of America (the
"Corporation").
ARTICLE TWO
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust
Company.
ARTICLE THREE
The nature of the business or purposes to be conducted or promoted
is to engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of Delaware.
ARTICLE FOUR
4.1 Authorized Shares. The total number of shares of stock which the
Corporation has authority to issue is 4,000,100 shares, consisting of 3,000,000
shares of initially undesignated Preferred Stock, with a par value of $0.01 per
share (the "Preferred Stock"), 100 shares
of Junior Preferred Stock, with a par value of $0.01 per share (the "Junior
Preferred Stock"), and 1,000,000 shares of Common Stock, with a par value of
$0.01 per share (the "Common Stock").
4.2 Preferred Stock. The Preferred Stock may be issued from time to
time in one or more series. The board of directors of the Corporation is hereby
authorized to provide for the issuance of shares of Preferred Stock in one or
more series and, by filing a certificate pursuant to the applicable law of the
State of Delaware (hereinafter referred to as a "Preferred Stock Designation"),
to establish from time to time the number of shares to be included in each such
series, and to fix the designations, powers, preferences and rights of the
shares of each such series and the qualifications, limitations and restrictions
thereof. The authority of the board of directors with respect to each series
shall include, but not be limited to, determination of the following:
A. The designation of the series, which may be by distinguishing
number, letter or title.
B. The number of shares of the series, which number the board of
directors may thereafter (except where otherwise provided in the Preferred Stock
Designation) increase or decrease (but not below the number of shares thereof
then outstanding).
C. The amounts payable on, and the preferences, if any, of shares of
the series in respect of dividends, and whether such dividends, if any, shall be
cumulative or noncumulative.
D. Dates at which dividends, if any, shall be payable.
E. The redemption rights and price or prices, if any, for shares of
the series.
F. The terms and amount of any sinking fund provided for the
purchase or redemption of shares of the series.
G. The amounts payable on, and the preferences, if any, of shares of
the series in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the affairs of the Corporation.
H. Whether the shares of the series shall be convertible into or
exchangeable for shares of any other class or series, or any other security, of
the Corporation or any other corporation, and, if so, the specification of such
other class or series or such other security, the conversion or exchange price
or prices or rate or rates, any adjustments thereof, the date or dates at which
such shares shall be convertible or exchangeable and all other terms and
conditions upon which such conversion or exchange may be made.
I. Restrictions on the issuance of shares of the same series or of
any other class or series.
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J. The voting rights, if any, of the holders of shares of the
series.
4.3 Junior Preferred Stock.
A. General. Except as otherwise may be required by law, all shares
of Junior Preferred Stock shall be identical in all respects and shall entitle
the holders thereof to the same rights, preferences and privileges, subject to
the same qualifications, limitations and restrictions as set forth herein.
B. Voting Rights. Unless otherwise agreed to in writing by all of
the holders of Junior Preferred Stock, until such time when the Stockholders
Agreement, to be dated as of April 12, 1999, among Tenneco Packaging Inc., PCA
Holdings LLC and the Corporation (as the same may be amended from time to time,
the "Stockholders Agreement"), or Section 3.3 thereof is terminated or is no
longer effective, whether by its terms or pursuant to agreement of the parties
thereto, the holders of the shares of Junior Preferred Stock shall have the
right, voting separately as a class, to elect one director (the "CEO Director")
to the board of directors of the Corporation. Except as set forth in the
immediately preceding sentence and except as otherwise required by applicable
law, holders of Junior Preferred Stock shall not be entitled to vote at or
receive notice of any meeting of stockholders.
C. Dividends. The holders of the shares of Junior Preferred Stock,
as such, shall not be entitled to receive any dividends or other distributions
in respect thereof (except as provided below in Section 4.3(D) hereof).
D. Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation and after the payment
of any preferential amounts to be distributed to the holders of the Preferred
Stock, before any payment or distribution of assets of the Corporation shall be
made or set apart for payment to the holders of any shares of Common Stock, the
holders of the shares of Junior Preferred Stock shall be entitled to receive
$1.00 per share (the "Liquidation Preference"), but such holders shall not be
entitled to any further payment. If, upon any liquidation, dissolution or
winding up of the Corporation, the assets of the Corporation, or proceeds
thereof, distributable among the holders of the shares of Junior Preferred Stock
shall be insufficient to pay in full the Liquidation Preference and the
liquidation preference on all other shares of any class or series of stock of
the Corporation that ranks on a parity with the Junior Preferred Stock as to
amounts distributable upon liquidation, dissolution or winding up of the
Corporation, then such assets, or the proceeds thereof, shall be distributed to
the holders of the shares of Junior Preferred Stock and any such other parity
stock ratably in accordance with the respective amounts that would be payable on
such shares of Junior Preferred Stock and any such other parity stock if all
amounts payable thereon were paid in full. For purposes of this Section 4.3(D),
a consolidation or merger of the Corporation or a sale, lease, exchange or
transfer of all or substantially all of the Corporation's assets shall not be
deemed to be a liquidation, dissolution or winding up of the Corporation.
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E. Transfer. Except as contemplated by Section 8.1 of the
Stockholders Agreement, the shares of Junior Preferred Stock are not
transferrable by the original holders thereof without the prior written approval
of all of the holders of Junior Preferred Stock; provided that shares of Junior
Preferred Stock may be redeemed, at the election of the Corporation, at any
time, at a price of $1.00 per share.
F. Retirement. Shares of Junior Preferred Stock which shall have
been issued, redeemed or otherwise reacquired in any manner by the Corporation
shall, upon such acquisition, be retired automatically (without any further
action by the Corporation or the board of directors of the Corporation) and
shall not be reissued by the Corporation.
4.4 Common Stock.
A. General. Except as otherwise may be required by law, all shares
of Common Stock shall be identical in all respects and shall entitle the holders
thereof to the same rights, preferences and privileges, subject to the same
qualifications, limitations and restrictions as set forth herein.
B. Voting Rights. Except as otherwise provided by the General
Corporation Law of the State of Delaware or by a Preferred Stock Designation,
all of the voting power of the Corporation shall be vested in the holders of the
Common Stock, and each holder of Common Stock shall have one (1) vote for each
share of Common Stock held by such holder on all matters voted upon by the
stockholder, and holders of Preferred Stock and, except as expressly provided in
Section 4.3, the Junior Preferred Stock shall not be entitled to vote at or
receive notice of any meeting of stockholders.
C. Dividends. Subject to the express terms of any Preferred Stock
Designation, the board of directors may declare a dividend upon the Common
Stock. The holders of the Common Stock shall share ratably in any such dividend
in proportion to the number of shares of Common Stock held by each.
D. Liquidation. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation and after the payment
of any preferential amounts to be distributed to the holders of Preferred Stock
and Junior Preferred Stock, the remaining assets of the Corporation shall be
distributed ratably among the holders of the Common Stock in proportion to the
number of shares held by each. For purposes of this Section 4.4(D), a
consolidation or merger of the Corporation or a sale, lease, exchange or
transfer of all or substantially all of the Corporation's assets shall not be
deemed to be a liquidation, dissolution or winding up of the Corporation.
E. Director Approval. In addition to any other vote of the board of
directors required by applicable law, the Corporation shall not take any action
which, as of the time the proposed action is taken, requires the affirmative
vote of at least four of the five TPI/PCA Directors
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(as defined in the Stockholders Agreement) under Section 3.6 of the Stockholders
Agreement without such affirmative vote, so long as the applicable provision of
such Section of the Stockholders Agreement is effective and enforceable by the
parties to such agreement and has not otherwise terminated by its terms, by
operation of law or by agreement of the parties thereunder.
ARTICLE FIVE
The Corporation is to have perpetual existence.
ARTICLE SIX
In furtherance and not in limitation of the powers conferred by
statute, the board of directors of the Corporation is expressly authorized to
make, alter or repeal the by-laws of the Corporation upon the affirmative vote
of a majority of the board of directors, except as may otherwise be required by
Section 4.4(E). Each director of the Corporation shall be entitled to cast one
vote as such; provided that in any instance in which the CEO Director is present
and purports to vote and the vote of the CEO Director would result in an equal
number of votes of the directors being cast for and against the proposal or
matter, the CEO Director shall be deemed not entitled to vote on such matter or
proposal.
ARTICLE SEVEN
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws of the Corporation may provide. The books of the
Corporation may be kept outside the State of Delaware at such place or places as
may be designated from time to time by the board of directors or in the by-laws
of the Corporation. Election of directors need not be by written ballot unless
the by-laws of the Corporation so provide.
ARTICLE EIGHT
To the fullest extent permitted by the General Corporation Law of
the State of Delaware as the same exists or may hereafter be amended, a director
of this Corporation shall not be liable to the Corporation or its stockholders
for monetary damages for a breach of fiduciary duty as a director. Any repeal or
modification of this ARTICLE EIGHT shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
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ARTICLE NINE
The Corporation expressly elects not to be governed by Section 203
of the General Corporation Law of the State of Delaware.
ARTICLE TEN
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this certificate of incorporation in the manner now
or hereafter prescribed herein and by the laws of the State of Delaware, and all
rights conferred upon stockholders herein are granted subject to this
reservation.
I, THE UNDERSIGNED, being the Secretary of the Corporation, do make
this certifi cate, hereby declaring and certifying that this is my act and deed
and the facts stated herein are true, and accordingly have hereunto set my hand
on the 8th day of April, 1999.
/s/ Thomas S. Souleles
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Thomas S. Souleles
Secretary
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