EXHIBIT 3.13(i)
CERTIFICATE OF RESTATED
CERTIFICATE OF INCORPORATION
OF
CHICOPEE, INC.
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James G. Boyd, being the duly elected Executive Vice President of
Chicopee, 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 December 9, 1994 (the
"Certificate").
2. That the board of directors of the Corporation, pursuant to
unanimous written consent, adopted resolutions authorizing the Corporation to
amend, integrate and restate the Corporation's Certificate in its entirety in
accordance with Sections 141(f), 241 and 245 of the General Corporation Law of
the State of Delaware to read as set forth in Exhibit A attached hereto and made
a part hereof (the "Restated Certificate").
3. The Corporation has not received any payment for its stock.
IN WITNESS WHEREOF, the undersigned, being the Executive Vice
President 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 15th day of March,
1995.
CHICOPEE, INC.
By: /s/ James G. Boyd
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James G. Boyd
Executive Vice President
EXHIBIT A
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RESTATED CERTIFICATE OF INCORPORATION
OF
CHICOPEE, INC.
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ARTICLE ONE
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The name of the corporation is Chicopee, Inc. (the "Corporation").
ARTICLE TWO
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The address of the Corporation's registered office in the State of
Delaware is 32 Loockerman Square, Suite L-100, in the City of Dover, County of
Kent 19904. The name of the Corporation's registered agent at such address is
The Prentice-Hall Corporation System, Inc.
ARTICLE THREE
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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
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4. CAPITAL STOCK. A statement of the designations, numbers, relative rights,
preferences and limitations of the capital stock of the Corporation and of
certain other matters is as follows:
4.1. Authorized Shares. The total number of shares of capital stock which
the Corporation has authority to issue shall be Forty-One Thousand (41,000)
shares, consisting of:
(a) One Thousand (1,000) shares of Common Stock, par value $0.01 per
share ("Common Stock"); and
(b) Forty Thousand (40,000) shares of Redeemable Cumulative Preferred
Stock, par value $0.01 per ("Preferred Stock").
The shares of Common Stock and Preferred Stock shall have the rights,
preferences, privileges and limitations set forth below.
4.2. Definitions. As used in this Article 4, the following terms have
the following definitions:
4.2.1 "Board of Directors" shall mean the Board of Directors of
the Corporation.
4.2.2 "Closing Date" shall mean the first date on which the
Corporation issues any shares of Preferred Stock.
4.2.3 "Distributions" shall mean all distributions made by the
Corporation in cash, securities or property to holders of Common Stock, whether
by dividend, repurchase of shares of Common Stock, in connection with a merger
or consolidation, or otherwise.
4.2.4 "Person" shall mean any individual, partnership,
corporation, association, trust, joint venture, unincorporated organization or
other entity.
4.3. Voting.
4.3.1 General Voting Rights of Common Stock. Except as otherwise
expressly provided in this Certificate of Incorporation or as required by
applicable law which cannot be superseded by the provisions of this Certificate
of Incorporation, the holders of the outstanding shares of Common Stock shall
possess voting power for the election of directors and for all other purposes,
each holder of record of shares of Common Stock being entitled to one vote for
each share of Common Stock standing in his name on the books of the Corporation.
4.3.2 Voting Rights of Preferred Stock. Except as otherwise
expressly provided in this Certificate of Incorporation or as required by
applicable law which cannot be superseded by the provisions of this Certificate
of Incorporation, the holders of the outstanding shares of Preferred Stock shall
possess no voting power whatsoever, either general or specific.
4.3.2.1. So long as any shares of Preferred Stock shall be
outstanding, the holders of the Preferred Stock shall be entitled to
vote together as a single class on any amendments to the terms of the
Preferred Stock, and such terms shall not be amended without the
affirmative vote of the holders of at least 66 2/3% of the outstanding
shares of Preferred Stock.
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4.4. Dividends.
4.4.1 Dividends on Preferred Stock.
4.4.1.1. Dividends shall accrue, whether or not declared, on
each share of Preferred Stock on a daily basis and at the Dividend
Rate (as defined herein) from time to time in effect, beginning on the
Closing Date (regardless of the date of issuance of the share of
Preferred Stock on which a dividend is being paid). The holders of
shares of the Preferred Stock shall be entitled to receive, when and
as declared by the Board of Directors, dividends payable on March 31,
June 30, September 30 and December 31 in each year (each such date
being a "Dividend Payment Date"), in an amount equal to all accrued
and unpaid dividends on the Preferred Stock; provided, however, that
if and to the extent that the holder of a share of the Preferred Stock
does not receive on any given Dividend Payment Date payment of the
accrued and unpaid dividend on such share of the Preferred Stock or
any previously cumulated dividend for the period ending on such
Dividend Payment Date and beginning on the immediately preceding
Dividend Payment Date (or, with respect to the Dividend Payment Date
occurring on March 31, 1995 beginning on the Closing Date), such
dividend shall be cumulative and shall itself accrue dividends,
whether or not declared, from and after such date on a daily basis and
at an annual rate equal to the Dividend Rate from time to time in
effect divided by $1,000 and expressed as a percentage.
4.4.1.2. As used herein, the term "Dividend Rate" shall mean
$130 per share per annum; provided, however, that with respect to any
Dividend Payment Date occurring on and after March 31, 2000, if the
full amount of the accrued dividend payable on such date is not paid
in full in cash the term "Dividend Rate" shall mean $150 per share per
annum, which rate shall remain in effect until all accrued but unpaid
dividends due and payable on Dividend Payment Dates occurring on and
after March 31, 2000 have been paid in full in cash.
4.4.1.3. Dividends may be paid on the Preferred Stock, from time
to time at the option of the Board of Directors, (a) in cash, (b) in
shares of Preferred Stock, each share valued at $1,000, having an
aggregate value equal to the amount of such dividends
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which may be accrued until paid in full, or (c) in any combination of
the forms described in the immediately preceding clauses (a) and (b).
4.4.2 Limitation on Dividend Rights of Common Stock. No dividends or
Distributions shall be declared or paid on any other shares of capital stock of
the Corporation while any shares of Preferred Stock remain outstanding.
4.5. Redemptions of Preferred Stock.
4.5.1 Preferred Redemption Price. The Preferred Stock shall be
redeemable as hereinafter set forth upon payment in cash in respect of
each share redeemed of the Basic Redemption Price (as defined herein)
or the Preferred Redemption Price (as defined herein), as the case may
be. The "Basic Redemption Price" of a share of Preferred Stock shall
mean the Liquidation Price (as defined herein) as of the date of
redemption plus an amount equal to dividends accrued but unpaid on
such share for the period ending on the date of redemption and
beginning on the immediately preceding Dividend Payment Date. The
"Preferred Redemption Price" of a share of Preferred Stock shall mean
the sum of the Liquidation Price as of the date of redemption plus the
Call Premium as of such date plus an amount equal to dividends accrued
but unpaid on such share for the period ending on the date of
redemption and beginning on the immediately preceding Dividend Payment
Date. The "Liquidation Price" as of any date shall mean the sum of
$1,000 plus an amount equal to dividends accrued but unpaid as of the
immediately preceding Dividend Payment Date. Subject to the provisions
hereof, the Board of Directors shall have authority to prescribe the
manner in which the Preferred Stock shall be redeemed from time to
time; provided, however, that in the case of the redemption of only a
part of the outstanding shares thereof, there shall be so redeemed
from each record holder thereof in whole shares of Preferred Stock, as
nearly as practicable to the nearest whole share, the proportion of
all of the shares of Preferred Stock to be redeemed which the number
of shares of Preferred Stock held of record by such holder bears to
the total number of shares of Preferred Stock then outstanding.
4.5.2 Mandatory Redemption of Preferred Stock. The Corporation
shall, on the earlier of (i) last business day of March, 2004, and
(ii) the date on which
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a Triggering Event (as defined herein) occurs, redeem out of funds
legally available therefor under the General Corporation Law of the
State of Delaware, at the Preferred Redemption Price, payable in cash,
all of the shares of Preferred Stock then outstanding. If on such
date, the Corporation does not have funds legally available to redeem
all of the shares required to be redeemed on such date, the
Corporation will on such date, and quarterly thereafter until all of
such shares are redeemed, redeem the maximum number of such shares for
which it then has funds legally available. The term "Triggering Event"
shall mean the earlier to occur of the following: (i) the Corporation
no longer being an indirectly wholly-owned subsidiary of Polymer
Group, Inc., a Delaware corporation ("Polymer"), or (ii) the date on
which the Corporation consummates a sale of all or substantially all
of the assets of the Corporation.
4.5.3 Optional Redemption by the Holders. Upon the occurrence of
a Polymer Change of Control (as defined herein) the holders of the
Preferred Stock shall have the right, at their option exercised within
90 days after receipt of notice of the occurrence of such Polymer
Change of Control, to send a written put notice (the "Put Notice") to
the Corporation instructing the Corporation to redeem all of the
outstanding shares of Preferred Stock. Upon receipt by the Corporation
of a Put Notice, the Corporation shall, within 30 days of the receipt
by the Corporation of the Put Notice, redeem out of funds legally
available therefor under the General Corporation Law of the State of
Delaware, at the Basic Redemption Price plus 1% of the Liquidation
Price, payable in cash, all of the shares of Preferred Stock. If on
such date, the Corporation does not have funds legally available to
redeem all of the shares required to be redeemed on such date, the
Corporation will on such date, and quarterly thereafter until all of
such shares are redeemed, redeem the maximum number of such shares for
which it then has funds legally available. The term "Polymer Change of
Control" shall mean any sale of stock, merger, consolidation or other
event as a result of which the stockholders of Polymer as of the
Closing Date cease to own, in the aggregate, (a) at least 35% of the
outstanding voting power of Polymer or the surviving corporation, as
the case may be, if Polymer or such surviving corporation then has its
voting common stock publicly traded on a recognized exchange or
automated quotations system or (b) at least 50% of
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the outstanding voting power of Polymer or the surviving corporation,
as the case may be, if Polymer or such surviving corporation does not
have its voting common stock publicly traded on a recognized exchange
or automated quotations system. Upon the occurrence of a Polymer
Change of Control, the Corporation shall notify in writing the holders
of Preferred Stock of such occurrence.
4.5.4 Optional Redemption by the Corporation. At any time and
from time to time, the Corporation may at its option by resolution of
its Board of Directors redeem, at the Preferred Redemption Price, all
or any part of the shares of the Preferred Stock then outstanding;
provided, however, that in the case of any redemption under this
Article 4.5.4 of only a part of the outstanding shares of Preferred
Stock, there shall be so redeemed from each record holder thereof in
whole shares of Preferred Stock, as nearly as possible to the nearest
whole share, the proportion of all shares of Preferred Stock to be
redeemed which the number of shares of Preferred Stock held of record
as of the record date for such redemption by such holder bears to the
total number of shares of Preferred Stock of record outstanding as of
such date. Not fewer than 5 nor more than 60 days' prior written
notice shall be given by certified mail, postage prepaid, to each
holder of record of the shares of Preferred Stock to be redeemed
pursuant to this Article 4.5.4, at such holder's post office address
as shown in the records of the Corporation, and said notice shall
specify the amount to be paid per share upon such redemption, the
place and the date, which date shall not be a legal holiday, on which
the shares called for redemption will be redeemed.
4.5.5 Call Premium. The term "Call Premium" shall mean, as of
any date, with respect to each share of Preferred Stock, an amount
equal to the Liquidation Price in effect on such date multiplied by
the percentage applicable to such date set forth below.
Period Percentage
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Closing Date through March 31, 1996 113%
April 1, 1996 through March 31, 1997 112%
April 1, 1997 through March 31, 1998 111%
April 1, 1998 through March 31, 1999 109%
April 1, 1999 through March 31, 2000 107%
April 1, 2000 through March 31, 2001 105%
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April 1, 2001 through March 31, 2002 102%
April 1, 2002 and thereafter 100%
Notwithstanding the foregoing, if any share of Preferred Stock is redeemed
contemporaneously with the consummation of a Qualified IPO (as defined
herein) the term "Call Premium" shall mean with respect to each such share
of Preferred Stock, in lieu of the amounts set forth above, an amount equal
to the Liquidation Price in effect on the date of such redemption
multiplied by the percentage applicable to such date set forth below:
Period Percentage
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Closing Date through March 31, 1998 100%
April 1, 1998 through March 31, 1999 104.5%
April 1, 1999 through March 31, 2000 103.5%
April 1, 2000 through March 31, 2001 105%
April 1, 2001 through March 31, 2002 102%
April 1, 2002 and thereafter 100%
4.5.6 Qualified IPO. The term "Qualified IPO" shall mean a firm
underwritten bona fide public offering with a nationally recognized
underwriting firm of securities of Polymer which results in the
receipt by Polymer of at least $40,000,000 (net of underwriting
discounts and commissions).
4.5.7 Payment of Redemption Price. The redemption price of
shares of Preferred Stock shall be paid in cash.
4.5.8 Retirement of Shares. Any shares of the Preferred Stock
redeemed pursuant to the foregoing provisions of this Article 4.5 or
otherwise acquired by the Corporation in any manner whatsoever shall
be permanently retired and shall not under any circumstances be
reissued.
4.6. Preference Rights of Preferred Stock. Upon any liquidation,
dissolution or winding up of the Corporation, in a voluntary or involuntary
bankruptcy proceeding, the holders of the shares of the Preferred Stock shall be
entitled, before any Distribution is made upon any share of the Common Stock, to
be paid in cash an amount equal to the Basic Redemption Price for each such
share to and including the date full payment shall be tendered to the holders of
Preferred Stock with respect to such liquidation, dissolution or winding up.
Upon any other liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary,
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the holders of the shares of the Preferred Stock shall be entitled, before any
Distribution is made upon any share of the Common Stock, to be paid in cash an
amount equal to the Preferred Redemption Price for each such share to and
including the date full payment shall be tendered to the holders of Preferred
Stock with respect to such liquidation, dissolution or winding up. If, upon any
such liquidation, dissolution or winding up, the assets to be distributed among
the holders of the shares of Preferred Stock shall be insufficient to permit
payment to said holders of the Basic Redemption Price or the Preferred
Redemption Price, as the case may be, then all of the assets of the Corporation
then remaining shall be distributed ratably among the holders of the shares of
Preferred Stock in proportion to the aggregate redemption price owed to such
holders.
ARTICLE FIVE
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The Corporation is to have perpetual existence.
ARTICLE SIX
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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 SEVEN
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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
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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 personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
Any modification or repeal of this Article Eight shall not adversely affect any
right or protection of a director of the Corporation existing at the time of
such modification or repeal.
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ARTICLE NINE
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The Corporation expressly elects not to be governed by Section 203 of
the General Corporation Law of the State of Delaware.
ARTICLE TEN
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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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