CERTIFICATE OF
RESTATED CERTIFICATE OF INCORPORATION
OF
ANVIL HOLDINGS, INC.
Jacob Hollander, being the duly elected Vice President, Secretary
and General Counsel of Anvil Holdings, Inc., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "Corporation"), does hereby certify as follows:
1. That the Corporation filed its original Certificate of
Incorporation with the Delaware Secretary of State on November 23, 1994 (the
"Certificate").
2. That the original name of the Corporation was K-Wear Holdings,
Inc.
3. That the Board of Directors of the Corporation, pursuant to
Sections 141, 242 and 245 of the General Corporation Law of the State of
Delaware, adopted resolutions authorizing the Corporation to amend, integrate
and restate the Corporation's Certificate in its entirety to read as set forth
in Exhibit A attached hereto and made a part hereof (the "Restated
Certificate").
4. That the holders of a majority of the Corporation's issued and
outstanding capital stock approved and adopted the Restated Certificate in
accordance with Sections 228, 242 and 245 of the General Corporation Law of the
State of Delaware. Written notice of the adoption of the Restated Certificate
herein certified has been given to those stockholders who have not consented in
writing thereto, as provided in Section 228 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being the Vice President,
Secretary and General Counsel hereinabove named, for the purpose of amending and
restating the Certificate of Incorporation of the Corporation pursuant to the
General Corporation Law of the State of Delaware, under penalties of perjury
does hereby declare and certify that this is the act and deed of the Corporation
and the facts stated herein are true, and accordingly has hereunto signed this
Certificate of Restated Certificate of Incorporation this 13th day of March,
1997.
By:
-------------------------
Jacob Hollander
Vice President, Secretary and
General Counsel
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EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
OF
ANVIL HOLDINGS, INC.
ARTICLE FIRST
The name of the Corporation is Anvil Holdings, Inc.
ARTICLE SECOND
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, Wilmington Delaware 19805, in the County of New
Castle. The name of the corporation's registered agent at such address shall be
The Corporation Trust Company. The registered office and/or registered agent of
the corporation may be changed from time to time by action of the board of
directors.
ARTICLE THIRD
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 FOURTH
1. AUTHORIZED SHARES
The total number of shares of capital stock which the Corporation
has authority to issue is 14,400,000 shares, consisting of:
A. 500,000 shares of Class A Common Stock, par value $0.01 per share
(the "Class A Common"), which shall be designated either Series-1 or
Series-2 Class A Common;
B. 7,500,000 shares of Class B Common Stock, par value $0.01 per share
(the "Class B Common");
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C. 1,300,000 shares of Class C Common Stock, par value $0.01 per share
(the "Class C Common"); and
D. 5,100,000 shares of Preferred Stock, par value $0.01 per share (the
"Preferred Stock").
In addition to any other consent or approval which may be required
pursuant to this Certificate of Incorporation, no amendment or waiver of any
provision of this Section 1 shall be effective without the prior approval of the
holders of a majority of the then outstanding Common Stock voting as a single
class, and no amendment or waiver of any provision of Section 1 which has the
effect of increasing the number of authorized shares of the Class A Common shall
be effective without the prior approval of a majority of the then outstanding
shares of Class A Common voting as a single class. For purposes of votes on
amendments and waivers to this Section 1, each share of capital stock shall be
entitled to one vote.
2. PREFERRED STOCK The Board of Directors is authorized, subject to limitations
prescribed by law, to provide for the issuance of shares of Preferred Stock in
one or more series, to establish 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 any qualifications, limitations or restrictions
thereof.
3. COMMON STOCK The Common Stock shall be subject to any right or preference of
any series of Preferred Stock. Except as otherwise provided in this Section 3 or
as otherwise required by applicable law, all shares of Common Stock, shall be
identical in all respects and shall entitle the holders thereof to the same
rights and privileges, subject to the same qualifications, limitations and
restrictions.
A. Voting Rights. Except as otherwise provided herein and as
otherwise required by law: (i) the Class A Common shall have no voting rights
(provided, that each holder of Class A Common shall be entitled to notice of all
stockholders meetings at the same time and in the same manner as notice is given
to the stockholders entitled to vote at such meeting; with respect to any issue
required to be voted on and approved by holders of Class A Common, the holders
of Class A Common will vote as a single class, and provided further, that the
holders of Class A Common shall have the right to vote as a separate class on
any merger or consolidation of the Corporation with or into another entity or
entities, or any recapitalization or reorganization of the Corporation); (ii)
the Class B Common shall be entitled to one vote per share on all matters to be
voted on by the Corporation's stockholders; and (iii) the Class C Common shall
have no voting rights (provided, that each holder of Class C Common shall be
entitled to notice of all stockholders meetings at the same time and in the same
manner as notice is given to the stockholders entitled to vote at such meeting;
with respect to any issue required to be voted on and approved by holders of
Class C Common, the holders of Class C Common will vote as a single class, and
provided further, that the holders of Class C Common shall have the right to
vote as a separate class on any merger or consolidation of the Corporation with
or into another entity or entities, or any recapitalization or reorganization of
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the Corporation in which shares of Class C Common would receive or be exchanged
for consideration different on a per share basis from consideration received
with respect to or in exchange for the shares of Class B Common).
B. Distributions. At the time of each Distribution, such
Distribution shall be made to the holders of Series-1 Class A Common, Series-2
Class A Common, Class B Common and Class C Common in the following priority:
(1) The holders of Series-1 Class A Common and Series-2 Class
A Common, together as a group, shall be entitled to receive all or a portion of
such Distribution (ratably among such holders based upon the number of shares of
Series-1 Class A Common and Series-2 Class A Common held by each such holder as
of the time of such Distribution) equal to the aggregate Unpaid Yield on the
outstanding shares of Series-1 Class A Common and Series-2 Class A Common,
respectively, as of the time of such Distribution, and no Distribution or any
portion thereof shall be made under paragraphs B(2) or B(3) below until the
entire amount of the Unpaid Yield on the outstanding shares of Series-1 Class A
Common and Series-2 Class A Common as of the time of such Distribution has been
paid in full. The Distributions made pursuant to this paragraph B(1) to holders
of Series-1 Class A Common and Series-2 Class A Common shall constitute a
payment of Yield on Series-1 Class A Common and Series-2 Class A Common,
respectively.
(2) After the aggregate Unpaid Yield on the outstanding shares
of Series-1 Class A Common and the Series-2 Class A Common has been made in full
pursuant to paragraph B(1) above, the holders of Series-1 Class A Common and
Series-2 Class A Common, together as a group, shall be entitled to receive all
or a portion of any Distribution (ratably among such holders based upon the
number of shares of Series-1 Class A Common and Series-2 Class A Common held by
each such holder as of the time of such Distribution) equal to the aggregate
Unreturned Original Cost of the outstanding shares of Series-1 Class A Common
and Series-2 Class A Common, respectively, as of the time of such Distribution,
and no Distribution or any portion thereof shall be made under paragraph B(3)
below until the entire amount of the Unreturned Original Cost of the outstanding
shares of Series-1 Class A Common and Series-2 Class A Common as of the time of
such Distribution has been paid in full. The Distributions made pursuant to this
paragraph B(2) to holders of Series-1 Class A Common and Series-2 Class A Common
shall constitute a return of Original Cost of Series-1 Class A Common and
Series-2 Class A Common, respectively.
(3) After the required amount of a Distribution has been made
pursuant to paragraphs B(1) and B(2) above, holders of Common Stock as a group,
shall be entitled to receive the remaining portion of such Distribution (ratably
among such holders based upon the number of Common Stock held by each such
holder as of the time of such Distribution).
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C. Optional Redemptions.
(1) Optional Redemptions. The Corporation may at any time
redeem all or any portion of the Class A Common then outstanding for per share
consideration equal to one share of Class B Common plus an additional amount
equal to the Class A Preference; provided, that all partial optional redemptions
of Class A Common pursuant to this Section 3B, shall be made pro rata among the
holders of such Class A Common on the basis of the number of shares held by each
such holder.
(2) Redemption Price. For each share of Class A Common which
is to be redeemed, the Corporation will be obligated on the Redemption Date to
deliver to the holder thereof (upon surrender by such holder at the
Corporation's principal office of the certificate representing such share) an
amount in immediately available funds equal to the Class A Preference plus one
share of duly authorized, fully paid and nonassessable Class B Common. If the
Corporation's funds which are legally available for redemption of shares on any
Redemption Date are insufficient to redeem the total number of shares to be
redeemed on such date, those funds which are legally available will be used to
redeem the maximum possible number of shares ratably among the holders of the
shares to be redeemed based upon the aggregate Class A Preference held by each
such holder. At any time thereafter when additional funds of the Corporation are
legally available for the redemption of shares, such funds will be immediately
used to redeem the balance of the shares which the Corporation has become
obligated to redeem on any Redemption Date but which it has not redeemed.
(3) Notice of Redemption. The Corporation will mail written
notice of each redemption of Class A Common to each record holder not more than
30 nor less than 10 days prior to the date on which such redemption is to be
made. Upon mailing any notice of redemption which relates to a redemption at the
Corporation's option, the Corporation will become obligated to redeem the total
number of shares specified in such notice at the time of redemption specified
therein. In case fewer than the total number of shares represented by any
certificate are redeemed, a new certificate representing the number of
unredeemed shares will be issued to the holder thereof without cost to such
holder within three business days after surrender of the certificate
representing the redeemed shares.
(4) Determination of the Number of Each Holder's shares to be
Redeemed. Except as otherwise provided herein, the number of shares of Class A
Common to be redeemed from each holder thereof in redemptions hereunder will be
the number of shares determined by multiplying the total number of shares to be
redeemed times a fraction, the numerator of which will be the total number of
shares then held by such holder and the denominator of which will be the total
number of shares of Class A Common then outstanding.
(5) Redeemed or Otherwise Acquired shares. Any shares which
are redeemed or otherwise acquired by the Corporation will be canceled and will
not be reissued, sold or transferred.
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D. Priority of Class A Common. So long as any Class A Common remains
outstanding, the Corporation shall not redeem, repurchase, or recapitalize any
Common Stock or declare or pay any dividends on any Common Stock (other than
dividends declared in connection with any stock splits, stock dividends, share
combinations, share exchanges, or other recapitalizations in which such
dividends are made in the form of Class B Common).
E. Conversion of Class C Common.
(1) Right to Convert. At any time and from time to time, each
holder of Class C Common shall be entitled to convert into an equal number of
shares of Class B Common, the specified amount of the shares of such holder's
Class C Common. Additionally, the holder or holders of a majority of the
outstanding shares of Class C Common shall be entitled at any time to cause the
conversion of any or all of the outstanding shares of Class C Common into the
same number of shares of Class B Common. Any such conversion of Class C Common
into Class B Common will be effected among the holders of the Class C Common on
a basis determined by the holder or holders of a majority of outstanding shares
of Class C Common.
(2) Surrender of Certificates. Each conversion of Class C
Common into shares of Class B Common shall be effected by the surrender of the
certificate or certificates representing the shares to be converted at the
principal office of the Corporation at any time during normal business hours,
together with a written notice by the holder of shares of such Class C Common
stating that such holder desires to convert the shares, or a stated number of
the shares of Class C Common represented by such certificate or certificates
into Class B Common. Each conversion of Class C Common shall be deemed to have
been effected as of the close of business on the date on which the Conversion
Notice has been received by the Company, and at such time the rights of the
holder of the converted Class C Common as such holder shall cease, and the
person or persons in whose name or names the certificate or certificates for
shares of Class B Common are to be issued upon such conversion shall be deemed
to have become the holder or holders of record of the shares of Class B Common
represented thereby.
(3) Issuance of Certificates. Promptly after the surrender of
certificates of Class C Common and the receipt of written notice, the
Corporation shall issue and deliver in accordance with the surrendering holder's
instructions the certificate or certificates for the Class B Common issuable
upon such conversion.
(4) No Charge. The issuance of certificates for Class B Common
upon conversion of Class C Common will be made without charge to the holders of
such shares of any issuance tax in respect thereof or other cost incurred by the
Corporation in connection with such conversion and the related issuance of
Corporation in connection with such issuance.
(5) The Corporation shall at all times reserve and keep
available out of its authorized but unissued shares of Class B Common, solely
for the purpose of issuance upon the conversion of the Class C Common, such
number of shares of Class B Common issuable upon the
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conversion of all outstanding Class C Common. All shares of Class B Common which
are so issuable shall, when issued, be duly and validly issued, fully paid and
nonassessable and free from all taxes, liens and charges. The Corporation shall
take all such actions as may be necessary to assure that all such shares of
Class B Common may be so issued without violation of any applicable law or
governmental regulation or any requirements of any domestic securities exchange
upon which shares of Class B Common may be listed (except for official notice of
issuance which shall be immediately transmitted by the Corporation upon
issuance).
F. Stock Splits. If the Corporation in any manner subdivides or
combines the outstanding shares of one class of Common Stock, the outstanding
shares of each other class of Common Stock shall be proportionately subdivided
or combined in a similar manner. All such subdivisions and combinations shall be
payable only in Series-1 Class A Common to the holders of Series-1 Class A
Common, in Series-2 Class A Common to the holders of Series-2 Class A Common, in
Class B Common Stock to the holders of Class B Common Stock and in Class C
Common Stock to the holders of Class C Common Stock. In no event shall a stock
split or stock dividend constitute a payment of Yield or a return of Original
Cost.
G. Registration of Transfer. The Corporation shall keep at its
principal office (or such other place as the Corporation reasonably designates)
a register for the registration of shares of Common Stock. Upon the surrender of
any certificate representing shares of any class of Common Stock at such place,
the Corporation shall, at the request of the record holder of such certificate,
execute and deliver (at the Corporation's expense) a new certificate or
certificates in exchange therefor representing in the aggregate the number of
shares of such class represented by the surrendered certificate and the
Corporation shall forthwith cancel such surrendered certificate. Each such new
certificate shall be registered in such name and shall represent such number of
shares of such class as is requested by the holder of the surrendered
certificate and shall be substantially identical in form to the surrendered
certificate. The issuance of new certificates shall be made without charge to
the holders of the surrendered certificates for any issuance tax in respect
thereof or other cost incurred by the Corporation in connection with such
issuance.
H. Replacement. Upon receipt of evidence reasonably satisfactory to
the Corporation (provided, that an affidavit of the registered holder will be
satisfactory) of the ownership and the loss, theft, destruction or mutilation of
any certificate evidencing one or more shares of any class of Common Stock, and
in the case of any such loss, theft or destruction, upon receipt of indemnity
reasonably satisfactory to the Corporation (provided that if the holder is a
financial institution or other institutional investor its own agreement will be
satisfactory), or, in the case of any such mutilation upon surrender of such
certificate, the Corporation shall (at its expense) execute and deliver in lieu
of such certificate a new certificate of like kind representing the number of
shares of such class represented by such lost, stolen, destroyed or mutilated
certificate and dated the date of such lost, stolen, destroyed or mutilated
certificate.
I. Defined Terms
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"Class A Preference" means, with respect to each share of Class A
Common, an amount per share equal to the sum of (a) the Unpaid Yield and (b) the
Unreturned Original Cost thereof.
"Common Stock" means, collectively, all shares of the Series-1 Class
A Common, Series-2 Class A Common, Class B Common and Class C Common, in each
case as adjusted for any stock split, stock dividend, share combination, share
exchange, recapitalization, merger, consolidation or other reorganization.
"Distribution" means each distribution made by the Corporation to
holders of Common Stock, whether in cash, property, or securities of the
Corporation and whether by dividend, liquidating distributions or otherwise;
provided that neither of the following shall be a Distribution: (a) any
redemption or repurchase by the Corporation of any Common Stock for any reason
or (b) any recapitalization or exchange of any Common Stock, or any subdivision
(by stock split, stock dividend or otherwise) or any combination (by stock
split, stock dividend or otherwise) of any outstanding Common Stock.
"Original Cost" of each share of Class A Common shall be equal to
the amount originally paid for such share when it was issued by the Corporation
(as proportionally adjusted for all stock splits, stock dividends and other
recapitalizations affecting the Class A Common); provided that, with respect to
the Class A Common issued pursuant to the Purchase Agreement, all such shares
shall be deemed to have an Original Cost equal to $100.00 per share (as
proportionally adjusted for all stock splits, stock dividends and other
recapitalizations affecting the Class A Common).
"Person" means an individual, a partnership, a company, an
association, a joint stock corporation, a trust, a joint venture, an
unincorporated organization and a governmental entity or any department, agency
or political subdivision thereof.
"Redemption Date" as to any share of Class A Common means the date
specified in the notice of any redemption at the Corporation's option or the
applicable date specified herein in the case of any other redemption; provided,
that no such date will be a Redemption Date unless the applicable Class A
Preference is actually paid, and if not so paid, the Redemption Date will be the
date on which such Class A Preference is fully paid.
"Unpaid Yield" of any share of Class A Common means an amount equal
to the excess, if any, of (a) the aggregate Yield accrued on such share, over
(b) the aggregate amount of Distributions made by the Corporation that
constitute payment of Yield on such share.
"Unreturned Original Cost" of any share of Class A Common means an
amount equal to the excess, if any, of (a) the Original Cost of such share, over
(b) the aggregate amount of Distributions made by the Corporation that
constitute a return of Original Cost of such share.
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"Yield" means, (a) with respect to each share of Series-1 Class A
Common for each calendar quarter, the amount accruing on such share each day
during such quarter at the rate of 12.5% per annum, and (b) with respect to each
share of Series-2 Class A Common for each calendar quarter, the amount accruing
on such share each day during such quarter at the rate of 12.5% per annum, on
the sum of (x) such share's Unreturned Original Cost, plus (y) the Unpaid Yield
thereon for all prior quarters. In calculating the amount of any Distribution to
be made during a calendar quarter, the portion of a Class A Common share's Yield
for such portion of such quarter elapsing before such Distribution is made shall
be taken into account.
J. Amendment and Waiver No amendment or waiver of any provision of
this Section 3 shall be effective without the prior consent of the holders of at
least 662/3% of the then outstanding shares of Common Stock voting as a single
class; provided, that no amendment, modification or waiver which adversely and
prejudicially affects the holders of the Class A Common vis-a-vis the other
holders of Common Stock shall be effective against the holders of the Class A
Common without the prior written consent of the holders of Class A Common with a
Class A Preference representing at least sixty-six and two-thirds percent
(662/3%) of the aggregate Class A Preference of such Class A Common then
outstanding. For purposes of votes on amendments and waivers to this Section 3,
each share of Common Stock shall be entitled to one vote.
K. Notices. Except as otherwise expressly provided, all notices
referred to herein will be in writing and will be delivered by registered or
certified mail, return receipt requested, postage prepaid and will be deemed to
have been given when so mailed (i) to the Corporation, at its principal
executive offices and (ii) to any stockholder, at such holder's address as it
appears in the stock records of the Corporation (unless otherwise indicated by
any such holder).
L. Effectiveness. Reference is made to that certain Recapitalization
Agreement, dated as of February 12, 1997, by and among the Corporation, certain
of the Corporation's stockholders, Citicorp Venture Capital, Ltd. and Bruckmann,
Rosser, Sherrill & Co., L.P. (the "Recapitalization Agreement"). In the event
that the transactions contemplated by the Recapitalization Agreement are not
consummated by March 20, 1997, the provisions of this Article Fourth shall cease
to have any further force or effect, in which case Article Fourth of the
Corporation's Certificate of Incorporation as in effect immediately prior to the
effectiveness of this Restated Certificate of Incorporation shall govern the
relative rights of the Corporation's stockholders, retroactive to the date of
filing this Restated Certificate of Incorporation.
ARTICLE FIFTH
The Corporation is to have perpetual existence.
ARTICLE SIXTH
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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.
ARTICLE SEVENTH
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 EIGHTH
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 EIGHTH shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
ARTICLE NINTH
Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 291 of Title 8 of the Delaware Code or on the application
of trustees in dissolution or of any receiver or receivers appointed for the
Corporation under the provisions of Section 279 of Title 8 of the Delaware Code,
order a meeting of the creditors or class of creditors, and/or the stockholders
or class of stockholders of the Corporation, as the case may be, to be summoned
in such manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of the
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders, or class of
stockholders, of the Corporation, as the case may be, and also on this
Corporation.
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ARTICLE TENTH
To the fullest extent permitted by the General Corporation Law of
the State of Delaware (including, without limitation, Section 102(b)(7)), as
amended from time to time, no director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director. Any repeal or amendment of this Article TENTH or adoption of
any provision of the Certificate of Incorporation inconsistent with this Article
TENTH shall have prospective effect only and shall not adversely affect the
liability of a director of the Corporation with respect to any act or omission
occurring at or before the time of such repeal, amendment or adoption of an
inconsistent provision.
ARTICLE ELEVENTH
The Corporation shall, to the fullest extent permitted by the
General Corporation Law of the State of Delaware (including, without limitation,
Section 145 thereof), as amended from time to time, indemnify any promoter or
director whom it shall have power to indemnify from and against any and all of
the expenses, liabilities or other losses of any nature. The indemnification
provided in this Article ELEVENTH shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his or her official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be
promoter or director and shall inure to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE TWELFTH
The Corporation expressly elects not to be governed by Section 203
of the General Corporation Law of the State of Delaware.
ARTICLE THIRTEENTH
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.
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