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FILED 8602780098
11:15 AM
SEP 30 1988 EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
Fieldcrest Cannon, Inc., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of August 21, 1986,
resolutions were duly adopted setting forth a proposed Restated Certificate of
Incorporation of said corporation, declaring said restated to be advisable and
calling a meeting of the stockholders of said corporation for consideration
thereof. The resolution setting forth the proposed restated is as follows:
NOW, THEREFORE, BE IT RESOLVED: That the Recapitalization
Proposal and the Amendment Proposal, each as set forth and more fully described
in the definitive proxy statement and Appendix A thereto be, and the same
hereby are authorized and approved, it being intended that any action
previously taken with respect thereto by the Board of Directors be superseded
hereby, and that the same be submitted by the Company to its stockholders at a
special meeting of stockholders to be held September 30, 1986, at the Company's
Karastan Sales Office, 919 Third Avenue, New York, New York.
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, a special meeting of the stockholders of said corporation was duly
called and held, upon notice in accordance with Section 222 of the General
Corporation law of the State of Delaware at which meeting the necessary number
of shares as required by statute were voted in favor of the restated.
THIRD: That said restated was duly adopted in accordance with the
provisions of Sections 242 and 243 of the General Corporation Law of the State
of Delaware.
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FOURTH: That the capital of said corporation shall not be reduced under
or by reason of said restated.
IN WITNESS WHEREOF, said Fieldcrest Cannon, Inc. has caused this
certificate to be signed by Joseph B. Ely, II, its Chief Executive Officer,
and M. Kenneth Doss, its Secretary, this 30th day of September, 1986.
By: /s/ JOSEPH B. ELY, II
-----------------------------------
Joseph B. Ely, II
Chairman of the Board and
Chief Executive Officer
ATTEST: /s/ M. KENNETH DOSS
-------------------------------
M. Kenneth Doss
Secretary
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RESTATED
CERTIFICATE OF INCORPORATION
of
FIELDCREST CANNON, INC.
(Adopted in accordance with the provisions of Section 242 and 245 of the
Delaware General Corporation Law)
-----------------------------
Fieldcrest Cannon, Inc. (the "Corporation") was originally incorporated
as Fieldcrest Mills, Inc. The Corporation's original Certificate of
Incorporation was filed with the Secretary of State of Delaware on September
25, 1953. This Restated Certificate of Incorporation was proposed to the
stockholders of the Corporation by the Board of Directors on August 21,
1986, and duly adopted in accordance with the provisions of Sections 242 and
245 of the Delaware General Corporation Law, as amended, by an affirmative
vote of the holders of at least two-thirds of all outstanding stock entitled
to vote at a Meeting of Stockholders of the Corporation held at New York, New
York on September 30, 1986. The Restated Certificate of Incorporation as
previously and herewith amended is hereby restated to read in its entirety as
follows:
FIRST: The name of the Corporation is Fieldcrest Cannon, Inc.
SECOND: The address of the registered office of the Corporation in
the State of Delaware is 229 South State Street, in the City of Dover, County
of Kent. The name of its registered agent at such address is the United
States Corporation Company.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the Delaware General
Corporation Law and to conduct and promote any business in connection
therewith.
FOURTH: A. Classes and Number of Shares. The total number of shares
of all classes of stock which the Corporation shall have authority to issue is
40,000,000 shares. The classes and the aggregate number of shares of stock of
each class which the Corporation shall have authority to issue are 25,000,000
shares of Common Stock, $1.00 par value (hereinafter the "Common Stock") and
15,000,000 shares of Class B Common Stock, $1.00 par value (hereinafter the
"Class B Common Stock"). Upon the filing
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of this Restated Certificate of Incorporation with the Secretary of
the State of Delaware, each issued share of Capital Stock, without par value,
of the Corporation, including any shares of said Capital Stock, without par
value, held in treasury by the Corporation, shall be converted into two shares
of Common Stock.
B. Powers and Rights of the Common Stock and the Class B Common
Stock.
1. VOTING RIGHTS AND POWERS.
With respect to all matters upon which stockholders are entitled to
vote or to which stockholders are entitled to give consent, the holders of the
outstanding shares of the Common Stock and the holders of any outstanding
shares of the Class B Common Stock shall vote together without regard to
class, and every holder of the outstanding shares of the Common Stock shall be
entitled to cast thereon one vote in person or by proxy for each share of the
Common Stock standing in his or her name, and every holder of any
outstanding shares of the Class B Common Stock shall be entitled to cast
thereon ten votes in person or by proxy for each share of the Class B Common
Stock standing in his or her name, except as provided in the next sentence.
For any matter upon which stockholders are entitled to vote, a majority of the
votes which may be cast by the holders of the shares of Common Stock and Class
B Common Stock, voting toqether without regard to class, must be cast in
favor of such matter (either at a meeting or by written consent); provided,
however, that:
(a) in the case of a merger or consolidation of the
Corporation with, or the sale of substantially all of the assets of
the Corporation to, another person (other than a corporation a
majority of whose voting stock is held by the Corporation), two-thirds
of the votes entitled to be cast must be cast in favor of such matter,
and in voting on such matter, if the person with which the Corporation
shall merge or consolidate, or to which substantially all of the
Corporation's assets shall be sold, controls or is under common
control with the Corporation, a holder of the Class B Common Stock
shall be entitled to cast only one vote for each share of Class B
Common Stock standing in his or her name;
(b) with respect to any proposed amendment to the Restated
Certificate of Incorporation which would
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increase or decrease the number of authorized shares of either the
Common Stock or the Class B Common Stock, increase or decrease the par
value of the shares of the Common Stock or the Class B Common Stock,
or alter or change the powers, preferences, relative voting power
or special rights of the shares of the Common Stock or the Class B
Common Stock so as to affect them adversely, a majority of the votes
entitled to be cast by the holders of the class affected by the
proposed amendment, voting separately as a class, must also be cast in
favor of such matter; and
(c) in the case of a proposal to amend the provisions
of clause (a) or (b) of this sentence or this clause (c), two-thirds
of the votes entitled to be cast in favor of such proposal, and in
voting on such proposal, a holder of the Class B Common Stock shall
be entitled to cast only one vote for each share of Class B Common
Stock standing in his or her name.
For purposes of clause (a) above, "control" means the
possession, direct or indirect, of the power to direct or cause the direction
of the policies of the Corporation.
2. ISSUANCE OF THE CLASS B COMMON STOCK.
a. Initial Issuance. The Board of Directors may authorize by
resolution the manner in which shares of the Class B Common Stock shall
initially be issued in exchange for shares of Common Stock issued upon
conversion of the Capital Stock pursuant to the third sentence of Paragraph (A)
of this Article Fourth and may set such terms and conditions as it deems
appropriate or advisable with respect thereto, without any vote or other action
by the stockholders, except as otherwise required by law.
b. Subsequent Issuance. Following intitial issuance, the Board of
Directors may not, without the approval of the holders of a majority of the
outstanding shares of Common Stock, issue shares of the Class B Common Stock
except in the form of a distribution or distributions pursuant to a stock
dividend on or split up of the shares of the Class B Common Stock and only to
the then holders of the outstanding shares of the Class B Common Stock
in conjunction with and in the same ratio as a stock dividend on or split up of
the shares of the Common Stock.
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3. CONVERSION OF THE CLASS B COMMON STOCK.
Each share of the Class B Common Stock may at any time be converted at
the election of the holder thereof into one fully paid and nonassessable share
of the Common Stock. Any holder of shares of the Class B Common Stock may elect
to convert any or all of such shares at one time or at various times in such
holder's discretion. Such right shall be exercised by the surrender of the
certificate representing each share of the Class B Common Stock to be converted
to the Corporation at its principal executive offices or at such other location
as the Corporation shall designate, accompanied by a written notice of the
election by the holder thereof to convert and (if so required by the
Corporation) by instruments of transfer, in form satisfactory to the
Corporation, duly executed by such holder or his duly authorized attorney. The
issuance of a certificate or certificates for shares of the Common Stock upon
conversion of shares of the Class B Common Stock shall be made without charge
for any stamp or other similar tax in respect of such issuance. However, if any
such certificate or certificates is or are to be issued in a name other than
that of the holder of the share or shares of the Class B Common Stock
converted, the person or persons requesting the issuance thereof shall pay to
the Corporation the amount of any tax which may payable in respect of any such
transfer, or shall establish to the satisfaction of the Corporation that such
tax has been paid. As promptly as practicable after the surrender for
conversion of a certificate or certificates representing shares of the Class B
Common Stock and the payment of any tax as hereinbefore provided, the
Corporation will deliver to the holder of such certificate or certificates, a
certificate or certificates representing the number of shares of the Common
Stock issuable upon such conversion, issued in such name or names as such
holder may direct. Such conversion shall be deemed to have been made
immediately prior to the close of business on the date of the surrender of the
certificate or certificates representing shares of the Class B Common Stock (if
on such date the transfer books of the Corporation shall be closed, then
immediately prior to the close of business on the first date thereafter that
said books shall be open), and all rights of such holder arising from ownership
of shares of the Class B Common Stock shall cease at such time, and the person
or persons in whose name or names the certificate or certificates representing
shares of the Common Stock are to be issued shall be treated for all purposes
as having become the record holder or holders of such shares of the Common
Stock at such time and the person
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or persons in whose name or names the certificate or certificates
representing shares of the Common Stock are to be issued shall be treated for
all purposes as having become record holder or holders of such shares of the
Common Stock at such time and shall have and may exercise all rights and powers
appertaining thereto. No adjustments in respect of past cash dividends shall be
made upon the conversion of any share of the Class B Common Stock; provided,
however, that if any shares of the Class B Common Stock shall be converted
subsequent to the record date for payment of a cash or stock dividend or other
distribution on shares of the Class B Common Stock but prior to such payment,
the registered holder of such shares at the close of business on such record
date shall be entitled to receive the cash or stock dividend or other
distribution payable to holders of the Common Stock. The Corporation shall at
all times reserve and keep available, solely for the purpose of issue upon
conversion of outstanding shares of the Class B Common Stock, such number of
shares of the Common Stock as may be issuable upon the conversion of all such
outstanding shares of the Class B Common Stock, provided the Corporation may
deliver shares of the Common Stock which have previously been exchanged for
shares of the Class B Common Stock or which are held in the treasury of the
Corporation for shares of the Class B Common Stock to be converted. If any
shares of the Common Stock require registration with or approval of any
governmental authority under any federal or state law before such shares of the
Common Stock may be issued upon conversion, the Corporation will cause such
shares to be duly registered or approved, as the case may be. The Corporation
will endeavor to list shares of the Common Stock required to be delivered upon
conversion prior to such delivery upon any national securities exchange or
national market system on which the outstanding shares of the Common Stock may
be listed at the time of such delivery. All shares of the Common Stock which
may be issued upon conversion of shares of the Class B Common Stock will, upon
issue, be fully paid and nonassessable.
4. FAIR PRICE PROVISION
In the event any person controlling the Corporation transfers shares of
Class B Common Stock to a person (or group of persons) in a transaction or
series of transactions which result, or are intended to result, directly or
indirectly, in such transferee controlling the Corporation, the transferor
shall cause such transferee to agree that in the event that the transferee
within two years of such transfer acquires other shares of Common Stock or
Class B
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Common Stock, the transferee shall pay a price per share at least equal to the
highest price paid for any of the transferor's Class B Common Stock. Such
agreement need not, however, apply to the transferee's open market purchases.
For purposes of this provision, a person will be considered to control the
Corporation if such person owns shares of Common Stock or Class B Common Stock
which entitled such person to cast a majority of the votes entitled to be cast
in the election of directors.
5. DURATION OF CLASS RIGHTS AND POWERS.
At any time when less than twelve and one-half percent (12.5%) of all
the outstanding shares of Common Stock and Class B Common Stock is represented
by outstanding shares of Class B Common Stock, any shares of the Class B Common
Stock which are then outstanding shall, without any action by the Board of
Directors or the holder or holders thereof, automatically convert into and
become for all purposes shares of the Common Stock, and the provisions of this
Certificate of Incorporation which provide for different voting or cash dividend
rights for the Common Stock and the Class B Common Stock shall not be of any
effect. All shares of either or both the Common Stock or the Class B Common
Stock which are then outstanding shall have equal and general voting power in
the election of directors and in all other matters upon which stockholders of
the Corporation are entitled to vote or give consent, even if at such time
there shall have been fixed by the Board of Directors a record date for voting
at any meeting of stockholders. If any cash dividends shall have been declared
at such time but not paid, holders of the Class B Common Stock shall be
entitled to the same cash dividend payable to holders of the Common Stock and
future cash dividends, as and when declared, shall be payable at the same rate
for all shares of the one class of Common Stock then outstanding. The Board of
Directors is hereby authorized to take such actions, consistent with the
Delaware General Corporation Law, as it deems appropriate or advisable with
respect to the replacement of certificates then outstanding evidencing
ownership of the Class B Common Stock, or otherwise, in order to carry into
effect the foregoing provisions.
6. DIVIDENDS AND DISTRIBUTIONS
a. Cash Dividends. At any time shares of the Class B Common Stock are
outstanding, if any cash dividends are declared by the Board of Directors on
the Class B Common Stock, a cash dividend shall be declared on shares of the
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Common Stock. Dividends declared on the Common Stock shall exceed the
dividends declared on the Class B Common Stock by $.02 per share on a quarterly
basis. Such amount shall be adjusted to reflect stock splits, divisions,
combinations and stock dividends, if the stock dividends declared subsequent to
the filing of this Restated Certificate of Incorporation with the Secretary of
State of the State of Delaware exceed, in the aggregate, 25%. Except as
provided in this Subparagraph 6(a), the Board of Directors shall not be
obligated to declare any dividends on the Common Stock.
b. Other Dividends and Distributions. Each share of the Common Stock
and each share of Class B Common Stock shall be equal in respect of rights to
dividends (other than cash dividends) and distributions, when and as declared,
in the form of stock or other property of the Corporation, except that in the
case of dividends or other distributions payable in stock of the Corporation,
including distributions pursuant to stock split ups or divisions, which occur
after the date shares of the Class B Common Stock are first issued by the
Corporation, only shares of the Common Stock shall be distributed with respect
to the Common Stock and only shares of the Class B Common Stock shall be
distributed with respect to the Class B Common Stock.
7. ISSUANCE OF THE COMMON STOCK.
The Board of Directors of the Corporation may from time to time
authorize by resolution the issuance or any or all shares of the Common Stock
herein authorized in accordance with the terms and conditions set forth in
this Restated Certificate of Incorporation for such purposes, in such amounts,
to such persons, corporations, or entities, and for such consideration, all as
the Board of Directors in its discretion may determine and without any vote or
other action by the stockholders, except as otherwise required by law or as
provided herein in respect of a merger. At any time shares of the Class B
Common Stock are outstanding, the Board of Directors may issue shares of the
Common Stock in the form of a distribution or distributions pursuant to a stock
dividend or split up of the shares of the Common Stock only to the then holders
of the outstanding shares of the Common Stock and in conjunction with and in
the same ratio as a stock dividend or split up of the shares of the Class B
Common Stock.
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8. OTHER RIGHTS.
Except as otherwise required by the Delaware General Corporation Law or
as otherwise provided in this Restated Certificate of Incorporation, each
share of the Common Stock and each share of the Class B Common Stock shall
have identical powers, preferences and rights, including rights in liquidation.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: The following provisions are adopted for the management of the
business and for the conduct of the affairs of the Corporation and for further
creating, defining, limiting and regulating the powers of the Corporation, the
directors and the stockholders:
A. The business and affairs of the Corporation shall be managed by or
under the direction of its Board of Directors. The Board of Directors
shall have and may exercise all the powers of the Corporation, without
any action of or by the stockholders, except as otherwise provided by
the Delaware General Corporation Law, this Certificate of Incorporation
or the By-laws.
B. The Board of Directors shall have and may exercise the power to
adopt, amend or repeal the By-laws.
C. Elections of directors by the Corporation need not be by written
ballot, except to the extent provided for in the By-laws.
SEVENTH: The Corporation shall indemnfiy every officer and director of
the Corporation to the fullest extent allowed by law, except as otherwise
provided in the Corporation's By-laws.
EIGHTH: A director of this corporation shall under no circumstances
have any personal liability to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director except for those
specific breaches and acts or omissions with respect to which the Delaware
General Corporation Law expressly provides that this provision shall not
eliminate or limit such personal liability of directors.
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NINTH: The Corporation reserves the right to amend, alter, change, add
to or repeal any provision contained in this Certificate of Incorporation, in
the manner now or hereafter prescribed by the Delaware General Corporation Law,
and all rights herein conferred on officers, directors and stockholders are
granted subject to this reservation.
IN WITNESS WHEREOF, FIELDCREST CANNON, INC. has caused this Restated
Certificate of Incorporation to be executed by Joseph B. Ely, II, its Chairman
of the Board of Directors and Chief Executive Officer, to be attested to by M.
Kenneth Doss, its Secretary, and its corporate seal to be affixed hereto this
30th day of September, 1986.
ATTEST: FIELDCREST CANNON, INC.
M. KENNETH DOSS By: JOSEPH B. ELY
- -------------------------- ------------------------------
M. Kenneth Doss Joseph B. Ely, II
Secretary Chairman of the Board of Directors
and Chief Executive Officer
[Corporate Seal]
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FILED 877271086
10:00 AM
SEP 28 1987
CERTIFICATE OF OWNERSHIP AND MERGER
OF
BIGELOW-SANFORD, INC.
(a South Carolina corporation)
AND
FIELDCREST CANNON, INC.
(a Delaware corporation)
The undersigned Bigelow-Sanford, Inc., a South Carolina corporation,
with its registered office at I-85 and White Horse Road, Greenville, South
Carolina ("Bigelow"), and Fieldcrest Cannon, Inc., a Delaware corporation, with
its registered office at 326 E. Stadium Drive, Eden, North Carolina
("Fieldcrest"), DO HEREBY MAKE THE FOLLOWING CERTIFICATIONS AND AGREEMENTS:
(A) The plan of merger whereby Bigelow will merge into Fieldcrest is
attached hereto as Exhibit A and incorporated herein by reference. By
resolutions of the Board of Directors of Bigelow and Fieldcrest, the closing
date of the merger of Bigelow into Fieldcrest has been established as
September 29, 1987. By authority of the Board of Directors of Bigelow and
Fieldcrest, the undersigned hereby declare that the merger of Bigelow into
Fieldcrest shall be and is effective as of 5:00 p.m., Eastern Daylight Time on
September 30, 1987. As of and after such time, the separate existence of
Bigelow shall cease.
(B) Fieldcrest is the surviving corporation. Its name is Fieldcrest
Cannon, Inc.
(C) Just prior to the closing of the merger, Bigelow had outstanding
2,400,000 shares of its common stock, all of which were held by Fieldcrest. No
other class or series of stock in Bigelow was then outstanding. The plan of
merger
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was approved by resolution of Fieldcrest, the sole shareholder of Bigelow,
on September 9, 1987, and by Bigelow on September 9, 1987. Attached as Exhibit
B is a copy of said resolutions.
(D) Fieldcrest hereby agrees that it may be served with process in the
State of South Carolina in any proceeding to enforce any obligation of Bigelow.
(E) Fieldcrest hereby irrevocably appoints the Secretary of State of
South Carolina as its agent to accept service in any proceeding described in
Paragraph (D) above. A copy of any process in any such proceeding should be
sent by the Secretary of State to the following address:
Corporate General Counsel
Fieldcrest Cannon, Inc.
326 E. Stadium Drive
Eden, North Caronlina 27288
ATTEST: BIGELOW-SANFORD, INC.
M. K. DOSS, BY: L. W. OWEN
- ------------------------- ---------------------
M. K. Doss, Secretary L. W. Owen, President
ATTEST: FIELDCREST CANNON, INC.
M. K. DOSS, BY: J. B. ELY
- ------------------------- -----------------------
M. K. Doss, Secretary J. B. Ely, II, Chairman
-2-
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STATE OF NORTH CAROLINA }
} ACKNOWLEDGEMENT
COUNTY OF ROCKINGHAM }
Personally appeared before me the aboved named J. B. Ely, II,
known to me and known to me to be the Chairman of Fieldcrest Cannon, Inc., a
Delaware corporation, and who executed the foregoing instrument and acknowledged
the same to be his free act and deed and the free act and deed of Fieldcrest
Cannon, Inc. and that facts stated therein are true, and the aboved named M. K.
Doss, known to me and known to me to be the Secretary of Fieldcrest Cannon,
Inc. who attested to such signature of J. B. Ely, II, and acknowledged the same
to be his free act and deed and the free act and deed of Fieldcrest Cannon,
Inc.
As of September 29, 1987 /s/ JOSEPH B. ELY, II
------------------------
J. B. Ely, II, Chairman
/s/ M. K. DOSS
------------------------
M. K. Doss, Secretary
[NOTARY SEAL]
/s/ CORINDA R. THOMPSON
- --------------------------------
Notary Public for North Carolina
My Commission expires: 8-9-92
Date: September 23, 1987
STATE OF NORTH CAROLINA }
} ACKNOWLEDGEMENT
COUNTY OF ROCKINGHAM }
Personally appeared before me the aboved named L. W. Owen, known to me and
known to me to be the President of Bigelow-Sanford, Inc. a
South Carolina corporation, and who executed the foregoing instrument and
acknowledged the same to be his free act and deed and the free act and deed of
Bigelow-Sanford, Inc. and that the facts stated therein are true, and the
above named M. K. Doss, known to me and known to me to be the Secretary of
Bigelow-Sanford, Inc. who attested to such signature of L. W. Owen, and
acknowledged the same to be his free act and deed and the free act and deed of
Bigelow-Sanford, Inc.
As of September 29, 1987 /s/ L. W. OWEN
------------------------
L. W. OWEN, President
/s/ M. K. DOSS
------------------------
M. K. Doss, Secretary
[NOTARY SEAL]
/s/ CORINDA R. THOMPSON
- --------------------------------
Notary Public for North Carolina
My Commission expires: 8-9-92
Date: September 23, 1987
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EXHIBIT A
AGREEMENT AND PLAN OF MERGER
OF
BIGELOW-SANFORD, INC.
AND
FIELDCREST CANNON, INC.
This Agreement and Plan of Merger is made this 29th day of September,
1987, by and between Bigelow-Sanford, Inc., a South Carolina corporation
("Bigelow"), and Fieldcrest Cannon, Inc., a Delaware corporation
("Fieldcrest").
Fieldcrest is and will be just prior to the time of merger herein provided
for the owner of all the issued and outstanding shares of stock of Bigelow.
In consideration of the mutual agreements contained herein, the parties
agree as follows:
1. Bigelow shall be merged with and into Fieldcrest which shall be the
surviving corporation.
2. The effective date of the merger shall be September 30, 1987. After
the Merger, Fieldcrest shall continue to exist as the surviving corporation
under its present name and the separate existence of the other corporation
shall cease.
3. The total number of shares of common stock which Bigelow has authority
to issue is 12,000,000 shares, $.10 par value per share. There were 2,400,000
such shares issued and outstanding on the date hereof, all of which are owned
by Fieldcrest. No other shares of Bigelow are authorized.
4. On and after the Merger, each issued and outstanding share of common
stock of Fieldcrest shall remain issued and outstanding.
5. The Articles of Incorporation of Fieldcrest in effect on the date of
Merger shall continue in full force and effect.
6. The By-laws of Fieldcrest in effect on the date of the Merger shall
continue in full force and effect.
7. As of the effective date of the merger, all of the liabilities and
assets of every nature of Bigelow shall become those of Fieldcrest.
8. On and after the Merger, the Directors of Fieldcrest will continue to
consist of the those persons who currently constitute its Board of Directors
and they will continue so to serve until the next regular annual meeting of the
shareholders of
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Fieldcrest and thereafter until their successors shall be elected and
qualified.
9. The parties hereto will, promptly on or before the Merger, each cause
to be executed, filed and/or recorded any documents prescribed by the laws of
the State of South Carolina and Delaware, and will each cause to be performed
all necessary acts within said jurisdictions and elsewhere to effectuate the
mergers herein provided for.
10. The respective Board of Directors of and all proper officers of each
of the parties hereto are hereby authorized, empowered and directed to do any
and all acts and things, to make, execute, deliver, file and/or record any and
all instruments, papers and documents which shall be or become necessary,
proper or convenient to carry out or put into effect any of the provisions of
this Agreement and the mergers herein provided for.
11. Approval of the Plan of Merger by the shareholders of Fieldcrest is
not required because it owns 100% of the outstanding shares of Bigelow. Under
the law of Delaware, a Delaware corporation may merge a wholly-owned subsidiary
by authority of its Board of Directors without approval of its shareholders.
IN WITNESS WHEREOF, this Agreement is signed by and on behalf of
Fieldcrest and Bigelow upon the date first above written.
Attest: FIELDCREST CANNON, INC.
/s/ M. K. DOSS BY: JOSEPH B. ELY, II
- -------------------------- -------------------------
M. K. Doss, Secretary J. B. Ely, II, Chairman
Attest: BIGELOW-SANFORD, INC.
/s/ M. L. DOSS BY: LARRY W. OWEN
- -------------------------- -------------------------
M. K. Doss, Secretary L. W. Owen, President
-2-
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EXHIBIT B
---------
FIELDCREST CANNON, INC., RESOLUTION:
The Chairman presented a proposed Agreement and Plan of Merger of
Bigelow-Sanford, Inc., a South Carolina corporation, whereby Bigelow-Sanford,
Inc., a South Carolina corporation, whereby Bigelow-Sanford, Inc., would be
merged into Fieldcrest Cannon, Inc., which would be the surviving corporation.
Upon motion duly made and seconded, it was unanimously,
RESOLVED that the Agreement and Plan of Merger between Bigelow-Sanford,
Inc., and Fieldcrest Cannon, Inc., be, and the same is hereby, approved; and
BE IT FURTHER RESOLVED that J. B. Ely, II, Chairman, and M. K. Doss,
Secretary, be, and they are hereby, authorized to execute on behalf of
Fieldcrest Cannon, Inc., the Agreement and Plan of Merger, the Articles of
Merger, and any and all other documents that may be necessary or proper to
effectuate such merger.
Dated: September 9, 1987.
BIGELOW-SANFORD, INC., RESOLUTION:
The following corporate action for Bigelow-Sanford, Inc., was taken
pursuant to unanimous consent:
BE IT RESOLVED that Bigelow-Sanford, Inc., a wholly-owned subsidiary of
Fieldcrest Cannon, Inc., merge into Fieldcrest Cannon, Inc.; and
BE IT FURTHER RESOLVED that L. W. Owen, President, and M. K. Doss,
Secretary, be, and they are hereby, authorized to execute on behalf of the
Company Articles of Merger and any and all other documents as may be necessary
or proper to effectuate such merger.
Dated: September 9, 1987.
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FILED
1:55 PM
NOV 23 1993
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
FIELDCREST CANNON, INC.
Pursuant to Section 242
of the General Corporation Law of
the State of Delaware
Fieldcrest Cannon, Inc. (hereinafter called the "Corporation"),
organized and existing under and by virtue of the General Corporation Law of
the State of Delaware, does hereby certify as follows:
At a meeting of the Board of Directors of the Corporation a resolution
was duly adopted, pursuant to Section 242 of the General Corporation Law of the
State of Delaware, setting forth an amendment to the Certificate of
Incorporation of the Corporation and declaring said amendment to be
advisable. The stockholders of the Corporation duly approved said proposed
amendment by written consent in accordance with Sections 228 and 242 of the
General Corporation Law of the State of Delaware, and written notice of such
consent has been given to all stockholders who have not consented in writing to
said amendment. The resolution setting forth the amendment is as follows:
RESOLVED: That the first two sentences of Article FOURTH A. of the
Restated Certificate of Incorporation of the Corporation be and hereby are
deleted and the following two sentences be and hereby are inserted in lieu
thereof:
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 50,000,000 shares. The
classes and the aggregate number of shares of stock of each class which
the Corporation shall have authority to issue are (i) 25,000,000 shares
of Common Stock, $1.00 par value (hereinafter the "Common Stock") and
15,000,000 shares of Class B Common Stock, $1.00 par value (hereinafter
the "Class B Common Stock") and (ii) 10,000,000 shares of Preferred
Stock, $.01 par value per share (hereinafter, the "Preferred Stock").
19
FURTHER RESOLVED: That Article FOURTH C. be added following Article
FOURTH B., as follows:
C. Preferred Stock. Preferred Stock may be issued from time to
time in one or more series, each of such series to have such terms as
stated or expressed herein and in the resolution or resolutions
providing for the issue of such series adopted by the Board of
Directors of the Corporation as hereinafter provided; provided,
however, that for so long as any shares of Class B Common Stock are
outstanding, no Preferred Stock shall alter or change the powers,
preferences, relative voting power or special rights of the shares of
the Common Stock or Class B Common Stock so as to affect them
adversely. Any shares of Preferred Stock which may be redeemed,
purchased or acquired by the Corporation may be reissued except as
otherwise provided by law. Different series of Preferred Stock shall
not be construed to constitute different classes of shares for the
purposes of voting by classes unless expressly provided.
Subject to the foregoing, authority is hereby expressly granted
to the Board of Directors from time to time to issue the Preferred
Stock in one or more series, and in connection with the creation of
any such series, by resolution or resolutions providing for the issue
of the shares thereof, to determine and fix the distinctive
designation and number of shares comprising such series and the voting
powers, full or limited, or no voting powers, and such designations,
preferences and relative participating, optional or other special
rights, and qualifications, limitations or restrictions thereof,
including without limitation, dividend rights, special voting rights,
conversion rights, exchange rights, redemption terms and liquidation
rights and preferences of such series, as shall be stated and
expressed in such resolutions, all to the full extent now or hereafter
permitted by the General Corporation Law of Delaware.
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20
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to
be affixed hereto and this Certificate of Amendment to be signed by its
Chairman of the Board and Chief Executive Officer and attested by its Secretary
this 23rd day of November, 1993.
FIELDCREST CANNON, INC.
/s/ JAMES M. FITZGIBBONS
_____________________________
James M. Fitzgibbons
Chairman of the Board and
Chief Executive Officer
ATTEST:
/s/ M. KENNETH DOSS
____________________________
M. Kenneth Doss
Secretary
[Corporate Seal]
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21
Filed 9:45 a.m.
11/24/93
CERTIFICATE OF DESIGNATIONS
of
$3.00 SERIES A CONVERTIBLE PREFERRED STOCK
of
FIELDCREST CANNON, INC.
FIELDCREST CANNON, INC., a Delaware corporation (the "Corporation"),
hereby certifies that, pursuant to authority conferred upon the Board of
Directors of the Corporation by the Corporation's Restated Certificate of
Incorporation, as amended, and in accordance with Section 151 of the General
Corporation Law of the State of Delaware, the following resolution was duly
adopted by the Board of Directors of the Corporation at a meeting held on
November 24, 1993:
RESOLVED that pursuant to the authority granted to and vested
in the Board of Directors of the Corporation in accordance with the
provisions of the Restated Certificate of Incorporation of the
Corporation, as amended, the Board of Directors hereby authorizes and
approves the creation and issuance of 1,600,000 shares of $3.00 Series
A Convertible Preferred Stock, $.01 per share, with the powers,
preferences and rights, and the qualifications, limitations and
restrictions as set forth below; and that the Chairman of the Board,
President, any Vice President and the Secretary or any Assistant
Secretary of the Corporation be and they hereby are authorized to
execute and file with the Secretary of State of the State of Delaware,
in the name and on behalf of the Corporation, a Certificate of
Designations or such other documents as may be necessary or desirable
to effectuate the intent of this resolution.
$3.00 Series A Convertible Preferred Stock
- ------------------------------------------
1. DESIGNATION AND AMOUNT. The shares of this series of Preferred
Stock shall be designated as $3.00 Series A Convertible Preferred Stock
("Convertible Preferred Stock") and the number of shares constituting such
series shall be 1,600,000.
2. RANK. All shares of Convertible Preferred Stock shall rank prior,
both as to payment of dividends and as to distributions of assets upon
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, to all of the Corporation's now or hereafter issued Common Stock,
par value $1.00 per share (the "Common Stock"), to all of the Corporation's now
or hereafter issued Class B Common Stock, par value $1.00 per
22
share (the "Class B Common Stock"), and to all other of the Corporation's
hereafter issued capital stock which by its terms ranks junior to the
Convertible Preferred Stock both as to the payment of dividends and as to
distributions of assets upon liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, when and if issued (the Common
Stock, the Class B Common Stock and any such other capital stock being herein
referred to as the "Junior Stock").
3. DIVIDENDS. The holders of Convertible Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds at the time legally available therefor, dividends at the rate of $3.00
per annum per share, and no more, which shall be fully cumulative, shall accrue
without interest from the date of initial issuance of such shares of
Convertible Preferred Stock (on a daily basis, whether or not declared and
whether or not such amounts would be legally available at that time for
distribution to holders of shares of Convertible Preferred Stock) and shall be
payable in cash quarterly in arrears on March 1, June 1, September 1 and
December 1 of each year commencing December 1, 1993 (with respect to the period
from such date of initial issuance to December 1, 1993) (except that if any
such date is a Saturday, Sunday or legal holiday, then such dividend shall be
payable on the next day that is not a Saturday, Sunday or legal holiday) to
holders of record as they appear upon the stock transfer books of the
Corporation on such record dates, not more than sixty days nor less than ten
days preceding the payment dates for such dividends, as are fixed by the Board
of Directors (or, to the extent permitted by applicable law, a duly authorized
committee thereof). For purposes hereof, the term "legal holiday" shall mean
any day on which banking institutions are authorized to close in New York, New
York. Subject to the next paragraph of this Section 3, dividends on account of
arrears for any past dividend period may be declared and paid at any time,
without reference to any regular dividend payment date. The amount of
dividends payable per share of Convertible Preferred Stock for each quarterly
dividend period shall be computed by dividing the annual dividend amount by
four. The amount of dividends payable for the initial dividend period and any
period shorter than a full quarterly period shall be computed on the basis of a
360-day year of twelve 30-day months. No interest shall be payable in respect
of any dividend payment on the Convertible Preferred Stock which may be in
arrears.
No dividends or other distributions, other than dividends payable
solely in shares of Junior Stock, shall be declared, paid or set apart for
payment on shares of Junior Stock or any other capital stock of the Corporation
ranking junior as to dividends to the Convertible Preferred Stock (the Junior
Stock and any such
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other class or series of the Corporation's capital stock being herein referred
to as "Junior Dividend Stock"), unless and until all accrued and unpaid
dividends on the Convertible Preferred Stock for all dividend payment periods
ending on or before the payment date of such dividends or other distributions
on Junior Dividend Stock shall have been paid or declared and set apart for
payment.
No payment on account of the purchase, redemption, retirement or other
acquisition of shares of Junior Dividend Stock or any other class or series of
the Corporation's capital stock ranking junior to the Convertible Preferred
Stock as to distributions of assets upon liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary (the Junior Stock and any
other class or series of the Corporation's capital stock ranking junior to the
Convertible Preferred Stock as to such distributions being herein referred to
as "Junior Liquidation Stock") shall be made unless and until all accrued and
unpaid dividends on the Convertible Preferred stock for all dividend payment
periods ending on or before such payment for such Junior Dividend Stock or
Junior Liquidation Stock shall have been paid or declared and set apart for
payment, provided, however, that the restrictions set forth in this sentence
shall not apply to the purchase or other acquisition of Junior Dividend Stock
or Junior Liquidation Stock either (A) pursuant to any employee or director
incentive or benefit plan or arrangement (including any employment, severance
or consulting agreement) of the Corporation or any subsidiary of the
Corporation heretofore or hereafter adopted or (B) in exchange solely for
Junior Stock.
No full dividends shall be declared, paid or set apart for payment on
shares of any class or series of the Corporation's capital stock hereafter
issued ranking, as to dividends, on a parity with the Convertible Preferred
Stock (any such class or series of the Corporation's capital stock being herein
referred to as "Parity Dividend Stock") for any period unless full cumulative
dividends have been, or contemporaneously are, paid or declared and set apart
for such payment on the Convertible Preferred Stock for all dividend payment
periods ending on or before the payment date of such dividends on Parity
Dividend Stock. No dividends may be paid on Parity Dividend Stock except on
dates on which dividends are paid on the Convertible Preferred Stock. All
dividends paid or declared and set apart for payment on the Convertible
Preferred Stock and the Parity Dividend Stock shall be paid or declared and set
apart for payment pro rata so that the amount of dividends paid or declared and
set apart for payment per share on the Convertible Preferred Stock and the
Parity Dividend Stock on any date shall in all cases bear to each other the
same ratio that accrued and unpaid dividends to the date of payment on
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24
the Convertible Preferred Stock and the Parity Dividend Stock bear to each
other.
No payment on account of the purchase, redemption, retirement or other
acquisition of shares of Parity Dividend Stock or any class or series of the
Corporation's capital stock ranking on a parity with the Convertible Preferred
Stock as to distributions of assets upon liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary (any such class or series
of the Corporation's capital stock being herein referred to as "Parity
Liquidation Stock") shall be made, and, other than dividends to the extent
permitted by the preceding paragraph, no distributions shall be declared, paid
or set apart for payment on shares of Parity Dividend Stock or Parity
Liquidation Stock, unless and until all accrued and unpaid dividends on the
Convertible Preferred Stock for all dividend payment periods ending on or
before such payment for, or the payment date of such distributions on, such
Parity Dividend Stock or Parity Liquidation Stock shall have been paid or
declared and set apart for payment; PROVIDED, HOWEVER, that the restrictions
set forth in this sentence shall not apply to the purchase or other acquisition
of Parity Dividend Stock or Parity Liquidation Stock either (A) pursuant to any
employee or director incentive or benefit plan or arrangement (including any
employment, severance or consulting agreement) of the Corporation or any
subsidiary of the Corporation hereafter adopted or (B) in exchange solely for
Junior Stock.
Any reference to "distribution" contained in this Section 3 shall not
be deemed to include any distribution made in connection with any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary.
4. LIQUIDATION PREFERENCE. In the event of a liquidation, dissolution
or winding up of the Corporation, whether voluntary or involuntary, the holders
of shares of Convertible Preferred Stock shall be entitled to receive out of
the assets of the Corporation available for distribution to stockholders an
amount equal to the dividends accrued and unpaid on such shares on the date of
final distribution to such holders, whether or not declared, without interest,
plus a sum equal to $50 per share, and no more, before any payment shall be
made or any assets distributed to the holders of shares of any class or series
of the Corporation's capital stock ranking junior to the Convertible Preferred
Stock as to distributions of assets upon such liquidation, dissolution or
winding up; PROVIDED, HOWEVER, that such rights shall accrue to the holders of
shares of Convertible Preferred Stock only with respect to assets (if any)
remaining after the Corporation's payments with respect to the liquidation
preferences of the shares of any class or series of the Corporation's capital
stock
-4-
25
hereafter issued ranking prior to the Convertible Preferred Stock as to
distributions of assets upon such liquidation, dissolution or winding up
("Senior Liquidation Stock") are fully met. The entire assets of the Corporation
available for distribution to stockholders after the liquidation preferences of
the shares of Senior Liquidation Stock are fully met shall be distributed
ratably among the holders of the Convertible Preferred Stock and any other
class or series of the Corporation's capital stock ranking on a parity with the
Convertible Preferred Stock as to distributions of assets upon such
liquidation, dissolution or winding up in proportion to the respective
preferential amounts to which each is entitled (but only to the extent of such
preferential amounts). After payment in full of the liquidation preferences of
the shares of the Convertible Preferred Stock, the holders of such shares shall
not be entitled to any further participation in any distribution of assets by
the Corporation. Neither a consolidation or merger of the Corporation with or
into any other corporation nor a merger of any other corporation with or into
the Corporation, nor a sale or transfer of all or any part of the Corporation's
assets for cash, securities or other property, will be considered a
liquidation, dissolution or winding up of the Corporation.
5. REDEMPTION AT OPTION OF THE CORPORATION. The Convertible Preferred
Stock may not be redeemed by the Corporation prior to September 1, 2004. On or
after September 1, 2004, the Corporation may redeem the Convertible Preferred
Stock, at its option, in whole or in part, at $50 per share, plus accrued and
unpaid dividends thereon. Notwithstanding the foregoing, in the event the
Corporation's 11-1/4% Senior Subordinated Debentures Due 2004 are not
outstanding or have been defeased or amended to permit such redemption, and
subject to the limitations, if any, imposed by the General Corporation Law of
the State of Delaware, the Convertible Preferred Stock may be redeemed, in
whole or in part, at the option of the Corporation, commencing September 10,
1998 for an amount in cash equal to the applicable price per share set forth
for the date fixed for redemption in the following table:
Date Fixed for Redemption Price
------------------------- -----
On or after September 10, 1998 and before $51.50
September 1, 1999
On or after September 1, 1999 and before 51.20
September 1, 2000
On or after September 1, 2000 and before 50.90
September 1, 2001
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26
On or after September 1, 2001 and before 50.60
September 1, 2002
On or after September 1, 2002 and before 50.30
September 1, 2003
On or after September 1, 2003 50
plus, in each case, an amount in cash equal to all per share dividends on the
Convertible Preferred Stock accrued and unpaid thereon, whether or not
declared, to but excluding the date fixed for redemption, such sum being
hereinafter referred to as the "Redemption Price."
In case of the redemption of less than all of the then outstanding
Convertible Preferred Stock, the Corporation shall designate by lot, or in such
other manner as the Board of Directors may determine to be fair, the shares to
be redeemed, or shall effect such redemption pro rata. Notwithstanding the
foregoing, the Corporation shall not redeem less than all of the Convertible
Preferred Stock at any time outstanding until all dividends accrued and in
arrears upon all Convertible Preferred Stock then outstanding shall have been
paid in full for all past dividend periods.
Not more than sixty nor less than twenty days prior to the date fixed
for redemption by the Board of Directors, notice thereof by first class mail,
postage prepaid, shall be given to the holders of record of the shares of
Convertible Preferred Stock to be redeemed, addressed to such holders at their
last addresses as shown upon the stock transfer books of the Corporation. Each
such notice of redemption shall specify the date fixed for redemption, the
Redemption Price, the place or places of payment, that payment will be made
upon presentation and surrender of the shares of Convertible Preferred Stock,
that on and after the date fixed for redemption dividends will cease to accrue
on such shares, the then-effective conversion price pursuant to Section 6 and
that the right of holders to convert shares of Convertible Preferred Stock
shall terminate at the close of business on the fifth business day prior to the
date fixed for redemption (unless the Corporation defaults in the payment of
the Redemption Price).
Any notice that is mailed as herein provided shall be conclusively
presumed to have been duly given, whether or not the holder of shares of
Convertible Preferred Stock receives such notice; and failure to give such
notice by mail, or any defect in such notice, to the holders of any shares
designated for redemption shall not affect the validity of the proceedings for
the redemption of any other shares of Convertible Preferred Stock.
-6-
27
On or after the date fixed for redemption as stated in such notice, each holder
of the shares called for redemption shall surrender the certificate evidencing
such shares to the Corporation at the place designated in such notice and shall
thereupon be entitled to receive payment of the Redemption Price. If less than
all the shares evidenced by any such surrendered certificate are redeemed, a
new certificate shall be issued evidencing the unredeemed shares.
No fractional shares of Convertible Preferred Stock shall be issued
upon redemption of less than all Convertible Preferred Stock. If more than one
certificate evidencing shares of Convertible Preferred Stock shall be held at
one time by the same holder, the number of full shares issuable upon redemption
of less than all of such shares of Convertible Preferred Stock shall be
computed on the basis of the aggregate number of shares of Convertible
Preferred Stock so held. Instead of any fractional share of Convertible
Preferred Stock that would otherwise be issuable to a holder upon redemption of
less than all shares of Convertible Preferred Stock, the Corporation shall pay
a cash adjustment in respect of such fractional share in an amount equal to the
same fraction of the fair value per share of Convertible Preferred Stock (as
determined in good faith by the Board of Directors or in any manner prescribed
by the Board of Directors) at the close of business on the date fixed for
redemption.
Notice having been given as aforesaid, if, on the date fixed for
redemption, funds necessary for the redemption shall be available therefor and
shall have been deposited with a bank or trust company with irrevocable
instructions and authority to pay the Redemption Price to the holders of the
Convertible Preferred Stock, then, notwithstanding that the certificates
evidencing any shares so called for redemption shall not have been surrendered,
dividends with respect to the shares so called shall cease to accrue on and
after the date fixed for redemption, such shares shall no longer be deemed
outstanding, the holders thereof shall cease to be stockholders of the
Corporation and all rights whatsoever with respect to the shares so called for
redemption (except the right of the holders to receive the Redemption Price
without interest upon surrender of their certificates therefor) shall
terminate. If funds legally available for such purpose are not sufficient for
redemption of the shares of Convertible Preferred Stock which were to be
redeemed, then the certificates evidencing such shares shall be deemed not to
be surrendered, such shares shall remain outstanding and the right of holders
of shares of Convertible Preferred Stock thereafter shall continue to be only
those of a holder of shares of the Convertible Preferred Stock.
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The shares of Convertible Preferred Stock shall not be subject to the
operation of any mandatory purchase, retirement or sinking fund.
6. CONVERSION PRIVILEGE.
(a) RIGHT OF CONVERSION. After the expiration of 45 days from
the date of initial issuance of the Convertible Preferred Stock, each share of
Convertible Preferred Stock shall be convertible at the option of the holder
thereof, at any time prior to the close of business on the fifth business day
prior to the date fixed for redemption of such share as herein provided, into
fully paid and nonassessable shares of Common Stock, at the rate of that number
of shares of Common Stock for each full share of Convertible Preferred Stock
that is equal to $50 divided by the conversion price applicable per share of
Common Stock, or into such additional or other securities, cash or property and
at such other rates as required in accordance with the provisions of this
Section 6. For purposes of this resolution, the "conversion price" applicable
per share of Common Stock shall initially be equal to $29.25 and shall be
adjusted from time to time in accordance with the provisions of this Section 6.
(b) CONVERSION PROCEDURES. Any holder of shares of
Convertible Preferred Stock desiring to convert such shares into Common Stock
shall surrender the certificate or certificates evidencing such shares of
Convertible Preferred Stock at the office of the transfer agent for the
Convertible Preferred Stock, which certificate or certificates, if the
Corporation shall so require, shall be duly endorsed to the Corporation or in
blank, or accompanied by proper instruments of transfer to the Corporation or
in blank, accompanied by irrevocable written notice to the Corporation that the
holder elects so to convert such shares of Convertible Preferred Stock and
specifying the name or names (with address or addresses) in which a certificate
or certificates evidencing shares of Common Stock are to be issued.
Subject to Section 6(k) hereof, no payments or adjustments in respect
of dividends on shares of Convertible Preferred Stock surrendered for
conversion or on account of any dividend on the Common Stock issued upon
conversion shall be made upon the conversion of any shares of Convertible
Preferred Stock.
The Corporation shall, as soon as practicable after such deposit of
certificates evidencing shares of Convertible Preferred Stock accompanied by
the written notice and compliance with any other conditions herein contained,
deliver at such office of such transfer agent to the person for whose account
such shares of Convertible Preferred Stock were so surrendered, or to the
nominee
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or nominees of such person, certificates evidencing the number of full shares
of Common Stock to which such person shall be entitled as aforesaid, together
with a cash adjustment in respect of any fraction of a share of Common Stock as
hereinafter provided. Such conversion shall be deemed to have been made as of
the date of such surrender of the shares of Convertible Preferred Stock to be
converted, and the person or persons entitled to receive the Common Stock
deliverable upon conversion of such Convertible Preferred Stock shall be
treated for all purposes as the record holder or holders of such Common Stock
on such date.
(c) ADJUSTMENT OF CONVERSION PRICE. The conversion price at
which a share of Convertible Preferred Stock is convertible into Common Stock
shall be subject to adjustment, without duplication, from time to time as
follows:
(i) In case the Corporation shall pay or make a
dividend or other distribution on its Common Stock exclusively in Common Stock
or shall pay or make a dividend or other distribution on any other class or
series of capital stock of the Corporation which dividend or distribution
includes Common Stock, the conversion price in effect at the opening of
business on the day following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution shall be
reduced by multiplying such conversion price by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination and the denominator
shall be the sum of such number of shares and the total number of shares
constituting such dividend or other distribution, such reduction to become
effective immediately after the opening of business on the day following the
date fixed for such determination. For the purposes of this subparagraph (i),
the number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Corporation. The Corporation shall not pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of the Corporation.
(ii) In case the Corporation shall pay or make a
dividend or other distribution on its Common Stock consisting exclusively of,
or shall otherwise issue to all holders of its Common Stock, rights or warrants
entitling the holders thereof to subscribe for or purchase shares of Common
Stock at a price per share less than the current market price per share
(determined as provided in subparagraph (vii) of this Section 6(c)) of the
Common Stock on the date fixed for the determination of stockholders entitled
to receive such rights or warrants, the conversion price in effect at the
opening of business on the day following the date fixed for such determination
shall be reduced by multiplying such
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conversion price by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of Common Stock
so offered for subscription or purchase would purchase at such current market
price and the denominator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock so offered for subscription or
purchase, such reduction to become effective immediately after the opening of
business on the day following the date fixed for such determination. For the
purposes of this subparagraph (ii), the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the
Corporation. The Corporation shall not issue any rights or warrants in respect
of shares of Common Stock held in the treasury of the Corporation. In case any
rights or warrants referred to in this subparagraph (ii) in respect of which an
adjustment shall have been made shall expire unexercised within 45 days after
the same shall have been distributed or issued by the Corporation, the
conversion price shall be readjusted at the time of such expiration to the
conversion price that would have been in effect if no adjustment had been made
on account of the distribution or issuance of such expired rights or warrants.
(iii) In case outstanding shares of Common Stock
shall be subdivided into a greater number of shares of Common Stock, the
conversion price in effect at the opening of business on the day following the
day upon which such subdivision becomes effective shall be proportionately
reduced, and conversely, in case outstanding shares of Common Stock shall each
be combined into a smaller number of shares of Common Stock, the conversion
price in effect at the opening of business on the day following the day upon
which such combination becomes effective shall be proportionately increased,
such reduction or increase, as the case may be, to become effective immediately
after the opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(iv) Subject to the last sentence of this
subparagraph (iv), in case the Corporation shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its indebtedness,
shares of any class or series of capital stock, cash or assets (including
securities, but excluding any rights or warrants referred to in subparagraph
(ii) of this Section 6(c), any dividend or distribution paid exclusively in
cash and any dividend or distribution referred to in subparagraph (i) of this
Section 6(c)), the conversion price shall be reduced so that the same shall
equal the price determined by
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multiplying the conversion price in effect immediately prior to the
effectiveness of the conversion price reduction contemplated by this
subparagraph (iv) by a fraction of which the numerator shall be the current
market price per share (determined as provided in subparagraph (vii) of this
Section 6(c)) of the Common Stock on the date fixed for the payment of such
distribution (the "Reference Date") less the fair market value (as determined
in good faith by the Board of Directors, whose determination shall be
conclusive and described in a resolution of the Board of Directors), on the
Reference Date, of the portion of the evidences of indebtedness, shares of
capital stock, cash and assets so distributed applicable to one share of Common
Stock and the denominator shall be such current market price per share of the
Common Stock, such reduction to become effective immediately prior to the
opening of business on the day following the Reference Date. If the Board of
Directors determines the fair market value of any distribution for purposes of
this subparagraph (iv) by reference to the actual or when issued trading market
for any securities comprising such distribution, it must in doing so consider
the prices in such market over the same period used in computing the current
market price per share of Common Stock pursuant to subparagraph (vii) of this
Section 6(c). For purposes of this subparagraph (iv), any dividend or
distribution that includes shares of Common Stock or rights or warrants to
subscribe for or purchase shares of Common Stock shall be deemed instead to be
(1) a dividend or distribution of the evidences of indebtedness, cash, assets
or shares of capital stock other than such shares of Common Stock or such
rights or warrants (making any conversion price reduction required by this
subparagraph (iv)) immediately followed by (2) a dividend or distribution of
such shares of Common Stock or such rights or warrants (making any further
conversion price reduction required by subparagraph (i) or (ii) of this Section
6(c), except (A) the Reference Date of such dividend or distribution as defined
in this subparagraph (iv) shall be substituted as "the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution," "the date fixed for the determination of stockholders entitled
to receive such rights or warrants" and "the date fixed for such determination"
within the meaning of subparagraphs (i) and (ii) of this Section 6(c) and (B)
any shares of Common Stock included in such dividend or distribution shall not
be deemed "outstanding at the close of business on the date fixed for such
determination" within the meaning of subparagraph (i) of this Section 6(c)).
(v) In case the Corporation shall pay or make a
dividend or other distribution on its Common Stock exclusively in cash
(excluding, in the case of any quarterly cash dividend on the Common Stock, the
portion thereof that does not exceed the per
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32
share amount of the next preceding quarterly cash dividend paid on the Common
Stock (as adjusted to appropriately reflect any of the events referred to in
subparagraphs (i), (ii), (iii), (iv), (v) and (vi) of this Section 6(c)), or
all of such quarterly cash dividend if the amount thereof per share of Common
Stock multiplied by four does not exceed 15% of the current market price per
share (determined as provided in subparagraph (vii) of this Section 6(c)) of
the Common Stock on the Trading Day (as defined in Section 6(i)) next preceding
the date of declaration of such dividend), the conversion price shall be
reduced so that the same shall equal the price determined by multiplying the
conversion price in effect immediately prior to the effectiveness of the
conversion price reduction contemplated by this subparagraph (v) by a fraction
of which the numerator shall be the current market price per share (determined
as provided in subparagraph (vii) of this Section 6(c)) of the Common Stock on
the date fixed for the payment of such distribution less the amount of cash so
distributed and not excluded as provided above applicable to one share of
Common Stock and the denominator shall be such current market price per share
of the Common Stock, such reduction to become effective immediately prior to
the opening of business on the day following the date fixed for the payment of
such distribution.
(vi) In case a tender or exchange offer made by the
Corporation or any subsidiary of the Corporation for all or any portion of the
Corporation's Common Stock shall expire and such tender or exchange offer shall
involve the payment by the Corporation or such subsidiary of consideration per
share of Common Stock having a fair market value (as determined in good faith
by the Board of Directors, whose determination shall be conclusive and
described in a resolution of the Board of Directors) at the last time (the
"Expiration Time") tenders or exchanges may be made pursuant to such tender or
exchange offer (as it shall have been amended) that exceeds the current market
price per share (determined as provided in subparagraph (vii) of this Section
6(c)) of the Common Stock on the Trading Day next succeeding the Expiration
Time, the conversion price shall be reduced so that the same shall equal the
price determined by multiplying the conversion price in effect immediately
prior to the effectiveness of the conversion price reduction contemplated by
this subparagraph (vi) by a fraction of which the numerator shall be the number
of shares of Common Stock outstanding (including any tendered or exchanged
shares) at the Expiration Time multiplied by the current market price per share
(determined as provided in subparagraph (vii) of this Section 6(c)) of the
Common Stock on the Trading Day next succeeding the Expiration Time and the
denominator shall be the sum of (x) the fair market value (determined as
aforesaid) of the aggregate consideration
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payable to stockholders based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as the "Purchased Shares")
and (y) the product of the number of shares of Common Stock outstanding (less
any Purchased Shares) at the Expiration Time and the current market price per
share (determined as provided in subparagraph (vii) of this Section 6(c)) of
the Common Stock on the Trading Day next succeeding the Expiration Time, such
reduction to become effective immediately prior to the opening of business on
the day following the Expiration Time.
(vii) For the purpose of any computation under
subparagraphs (ii), (iv) and (v) of this Section 6(c), the current market price
per share of Common Stock on any date in question shall be deemed to be the
average of the daily Closing Prices (as defined in Section 6(i)) for the five
consecutive Trading Days prior to and including the date in question; PROVIDED,
HOWEVER, that (1) if the "ex" date (as hereinafter defined) for any event
(other than the issuance or distribution requiring such computation) that
requires an adjustment to the conversion price pursuant to subparagraph (i),
(ii), (iii), (iv), (v) or (vi) above ("Other Event") occurs after the fifth
Trading Day prior to the day in question and prior to the "ex" date for the
issuance or distribution requiring such computation (the "Current Event"), the
Closing Price for each Trading Day prior to the "ex" date for such other Event
shall be adjusted by multiplying such Closing Price by the same fraction by
which the conversion price is so required to be adjusted as a result of such
Other Event, (2) if the "ex" date for any Other Event occurs after the "ex"
date for the Current Event and on or prior to the date in question, the Closing
Price for each Trading Day on and after the "ex" date for such Other Event
shall be adjusted by multiplying such Closing Price by the reciprocal of the
fraction by which the conversion price is so required to be adjusted as a
result of such Other Event, (3) if the "ex" date for any Other Event occurs on
the "ex" date for the Current Event, one of those events shall be deemed for
purposes of clauses (1) and (2) of this proviso to have an "ex" date occurring
prior to the "ex" date for the other event, and (4) if the "ex" date for the
Current Event is on or prior to the date in question, after taking into account
any adjustment required pursuant to clause (2) of this proviso, the Closing
Price for each Trading Day on or after such "ex" date shall be adjusted by
adding thereto the amount of any cash and the fair market value on the date in
question (as determined in good faith by the Board of Directors in a manner
consistent with any determination of such value for purposes of paragraph (iv)
or (v) of this Section 6(c), whose determination shall be conclusive and
described in a resolution of
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the Board of Directors) of the portion of the rights, warrants, evidences of
indebtedness, shares of capital stock or assets being distributed applicable to
one share of Common Stock. For the purpose of any computation under
subparagraph (vi) of this Section 6(c), the current market price per share of
Common Stock on any date in question shall be deemed to be the average of the
daily Closing Prices for such date in question and the next two succeeding
Trading Days; PROVIDED, HOWEVER, that if the "ex" date for any event (other
than the tender or exchange offer requiring such computation) that requires an
adjustment to the conversion price pursuant to subparagraph (i), (ii), (iii),
(iv), (v) or (vi) above occurs after the Expiration Time for the tender or
exchange offer requiring such computation and on or prior to the second Trading
Day following the date in question, the Closing Price for each Trading Day on
and after the "ex" date for such other event shall be adjusted by multiplying
such Closing Price by the reciprocal of the fraction by which the conversion
price is so required to be adjusted as a result of such other event. For
purposes of this paragraph, the term "ex" date, (1) when used with respect to
any issuance or distribution, means the first date on which the Common Stock
trades regular way on the relevant exchange or in the relevant market from
which the Closing Price was obtained without the right to receive such issuance
or distribution, (2) when used with respect to any subdivision or combination
of shares of Common Stock, means the first date on which the Common Stock
trades regular way on such exchange or in such market after the time at which
such subdivision or combination becomes effective, and (3) when used with
respect to any tender or exchange offer means the first date on which the
Common Stock trades regular way on such exchange or in such market after the
Expiration Time of such offer.
(viii) The Corporation may make such reductions in
the conversion price, in addition to those required by subparagraphs (i), (ii),
(iii), (iv), (v) and (vi) of this Section 6(c), as the Board of Directors deems
advisable to avoid or diminish any income tax to holders of Common Stock or
rights to purchase Common Stock resulting from any dividend or distribution of
stock (or rights to acquire stock) or from any event treated as such for income
tax purposes.
(ix) No adjustment in the conversion price shall be
required unless such adjustment would require an increase or decrease of at
least 1% in the conversion price; PROVIDED, HOWEVER, that any adjustments which
by reason of this subparagraph (ix) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment.
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(x) Whenever the conversion price is adjusted as
herein provided:
(1) the Corporation shall compute the
adjusted conversion price and shall prepare a certificate signed by the
Treasurer of the Corporation setting forth the adjusted conversion price and
showing in reasonable detail the facts upon which such adjustment is based, and
such certificate shall forthwith be filed with the transfer agent for the
Convertible Preferred Stock; and
(2) a notice stating the conversion price
has been adjusted and setting forth the adjusted conversion price shall
forthwith be required, and as soon as practicable after it is required, such
notice shall be mailed by the Corporation to all record holders of shares of
Convertible Preferred Stock at their last addresses as they shall appear upon
the stock transfer books of the Corporation.
(d) No Fractional Shares. No fractional shares of Common
Stock shall be issued upon conversion of Convertible Preferred Stock. If more
than one certificate evidencing shares of Convertible Preferred Stock shall be
surrendered for conversion at one time by the same holder, the number of full
shares issuable upon conversion thereof shall be computed on the basis of the
aggregate number of shares of Convertible Preferred Stock so surrendered.
Instead of any fractional share of Common Stock that would otherwise be
issuable to a holder upon conversion of any shares of Convertible Preferred
Stock, the Corporation shall pay a cash adjustment in respect of such
fractional share in an amount equal to the same fraction of the market price
per share of Common Stock (as determined by the Board of Directors or in any
manner prescribed by the Board of Directors, which, so long as the Common Stock
is listed on the New York Stock Exchange, shall be the reported last sale price
as reported on the New York Stock Exchange) at the close of business on the day
of conversion.
(e) Reclassification, Consolidation, Merger or Sale of
Assets. In the event that the Corporation shall be a party to any transaction
(including without limitation any recapitalization or reclassification of the
Common Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination of the Common Stock), any consolidation of the Corporation with, or
merger of the Corporation into, any other person, any merger of another person
into the Corporation (other than a merger which does not result in a
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock of the Corporation), any sale or transfer of all or substantially
all of
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the assets of the Corporation or any compulsory share exchange) pursuant to
which the Common Stock is converted into the right to receive other securities,
cash or other property, then lawful provisions shall be made as part of the
terms of such transaction whereby the holder of each share of Convertible
Preferred Stock remaining outstanding following such transaction shall have the
right thereafter to convert such share only into (i) in the case of any such
transaction other than a Common Stock Fundamental Change, and subject to funds
being legally available for such purpose under applicable law at the time of
such conversion, the kind and amount of securities, cash and other property
receivable upon such transaction by a holder of the number of shares of Common
Stock of the Corporation into which such share of Convertible Preferred Stock
might have been converted immediately prior to such transaction, after giving
effect, in the case of any Non-Stock Fundamental Change, to any adjustment in
the conversion price required by the provisions of Section 6(h), and (ii) in
the case of a Common Stock Fundamental Change, common stock of the kind
received by holders of Common Stock as a result of such Common Stock
Fundamental Change in an amount determined pursuant to the provisions of
Section 6(h). The Corporation or the person formed by such consolidation or
resulting from such merger or which acquires such assets or which acquires the
Corporation's shares, as the case may be, shall make appropriate provisions, in
its certificate or articles of incorporation or other constituent document or
otherwise, to establish such right. Such provision shall provide for adjustments
which, for events subsequent to the effective date of such provision, shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Section 6. The above provisions shall similarly apply to successive
transactions of the foregoing type.
(f) Reservation of Shares; Etc. The Corporation shall at all
times reserve and keep available, free from preemptive rights out of its
authorized and unissued stock or stock held in the treasury of the Corporation,
solely for the purpose of effecting the conversion of the Convertible Preferred
Stock, such number of shares of its Common Stock as shall from time to time be
sufficient to effect the conversion of all shares of Convertible Preferred
Stock from time to time outstanding. The Corporation shall from time to time,
in accordance with the General Corporation Law of the State of Delaware,
increase the authorized number of shares of Common Stock if at any time the
number of shares of authorized and unissued Common Stock or Common Stock held
in the treasury of the Corporation shall not be sufficient to permit the
conversion of all the then-outstanding shares of Convertible Preferred Stock.
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If any shares of Common Stock required to be reserved for purposes of
conversion of the Convertible Preferred Stock hereunder require registration
with or approval of any governmental authority under any Federal or State law
before such shares may be issued upon conversion, the Corporation will in good
faith and as expeditiously as possible endeavor to cause such shares to be duly
registered or approved as the case may be. If the Common Stock is listed on the
New York Stock Exchange or any other national securities exchange, the
Corporation will, if permitted by the rules of such exchange, list and keep
listed on such exchange, upon official notice of issuance, all shares of Common
Stock issuable upon conversion of the Convertible Preferred Stock.
(g) Prior Notice of Certain Events. In case:
(i) the Corporation shall (1) declare any dividend
(or any other distribution) on its Common Stock, other than (A) a dividend
payable in shares of Common Stock or (B) a dividend payable in cash out of its
retained earnings other than any special or nonrecurring or other extraordinary
dividend or (2) declare or authorize a redemption or repurchase of in excess of
10% of the then-outstanding shares of Common Stock; or
(ii) the Corporation shall authorize the granting to
all holders of Common Stock of rights or warrants to subscribe for or purchase
any shares of stock of any class or series or of any other rights or warrants;
or
(iii) of any reclassification of Common Stock (other
than a subdivision or combination of the outstanding Common Stock, or a change
in par value, or from par value to no par value, or from no par value to par
value), or of any consolidation or merger to which the Corporation is a party
and for which approval of any stockholders of the Corporation shall be
required, or of the sale or transfer of all or substantially all of the assets
of the Corporation or of any compulsory share exchange whereby the Common Stock
is converted into other securities, cash or other property; or
(iv) of the voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
then the Corporation shall cause to be filed with the transfer agent for the
Convertible Preferred Stock, and shall cause to be mailed to the holders of
record of the Convertible Preferred Stock, at their last addresses as they
shall appear upon the stock transfer books of the Corporation, at least fifteen
days prior to the applicable record or effective date hereinafter specified, a
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notice stating (x) the date on which a record (if any) is to be taken for the
purpose of such dividend, distribution, redemption, repurchase, rights or
warrants or, if a record is not to be taken, the date as of which the holders
of Common Stock of record to be entitled to such dividend, distribution,
redemption, rights or warrants are to be determined or (y) the date on which
such reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, share exchange, dissolution, liquidation or winding up (but no
failure to mail such notice or any defect therein or in the mailing thereof
shall affect the validity of the corporate action required to be specified in
such notice).
(h) Adjustments in Case of Fundamental Changes.
Notwithstanding any other provision in this Section 6 to the contrary, if any
Fundamental Change (as defined in Section 6(i)) occurs, then the conversion
price applicable to any Convertible Preferred Stock remaining outstanding after
such Fundamental Change will be adjusted immediately after such Fundamental
Change as described below. In addition, in the event of a Common Stock
Fundamental Change (as defined in Section 6(i)), each share of Convertible
Preferred Stock remaining outstanding after such Common Stock Fundamental
Change shall be convertible solely into common stock of the kind received by
holders of Common Stock as the result of such Common Stock Fundamental Change.
For purposes of calculating any adjustment to be made pursuant to this
section 6(h) in the event of a Fundamental Change, immediately after such
Fundamental Change:
(i) in the case of a Non-Stock Fundamental Change
(as defined in Section 6(i)), the conversion price of the Convertible Preferred
Stock shall thereupon become the lower of (A) the conversion price in effect
immediately prior to such Non-Stock Fundamental Change, but after giving effect
to any other prior adjustments effected pursuant to this Section 6, and (B) the
result obtained by multiplying the greater of the Applicable Price (as defined
in Section 6(i)) or the then applicable Reference Market Price (as defined in
Section 6(i)) by a fraction of which the numerator shall be $50 and the
denominator shall be (x) the then-current Redemption Price per share of
Convertible Preferred Stock or (y) for any Non-Stock Fundamental Change that
occurs before the Convertible Preferred Stock becomes redeemable by the
Corporation pursuant to Section 5, the applicable price per share
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set forth for the date of such Non-Stock Fundamental Change in the following
table:
Date of Non-Stock Fundamental Change Price
------------------------------------ -----
After date of original issuance of Convertible $53
Preferred Stock and on or before September 1,
1994
After September 1, 1994 and on or before 52.70
September 1, 1995
After September 1, 1995 and on or before 52.40
September 1, 1996
After September 1, 1996 and on or before 52.10
September 1, 1997
After September 1, 1997 and on or before 51.80
September 9, 1998
plus, in any case referred to in this clause (y), an amount equal to all per
share dividends on the Convertible Preferred Stock accrued and unpaid thereon,
whether or not declared, to but excluding the date of such Non-Stock
Fundamental Change; and
(ii) in the case of a Common Stock Fundamental Change, the
conversion price of the Convertible Preferred Stock in effect immediately prior
to such Common Stock Fundamental Change, but after giving effect to any other
prior adjustments effected pursuant to this Section 6, shall thereupon be
adjusted by multiplying such conversion price by a fraction of which the
numerator shall be the Purchaser Stock Price (as defined in Section 6(i)) and
the denominator shall be the Applicable Price; PROVIDED, HOWEVER, that in the
event of a Common Stock Fundamental Change in which (A) 100% by value of the
consideration received by a holder of Common Stock is common stock of the
successor, acquiror or other third party (and cash, if any, is paid with
respect to any fractional interests in such common stock resulting from such
Common Stock Fundamental Change) and (B) all of the Common Stock shall have
been exchanged for, converted into or acquired for common stock (and cash with
respect to fractional interests) of the successor, acquiror or other third
party, the conversion price of the Convertible Preferred Stock in effect
immediately prior to such Common Stock Fundamental Change shall thereupon be
adjusted by multiplying such conversion price by a fraction of which the
numerator shall be one (1) and the denominator shall be the number of shares of
common stock of the successor, acquiror, or other third party received by a
holder of
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one share of Common Stock as a result of such Common Stock Fundamental Change.
(i) Definitions. The following definitions shall apply to
terms used in this Section 6:
(1) "Applicable Price" shall mean (i) in the event
of a Non-Stock Fundamental Change in which the holders of the Common Stock
receive only cash, the amount of cash received by the holder of one share of
Common Stock and (ii) in the event of any other Non-Stock Fundamental Change or
any Common Stock Fundamental Change, the average of the daily Closing Prices of
the Common Stock for the ten consecutive Trading Days prior to and including
the record date for the determination of the holders of Common Stock entitled
to receive cash, securities, property or other assets in connection with such
Non-Stock Fundamental Change or Common Stock Fundamental Change, or, if there
is no such record date, the date upon which the holders of the Common Stock
shall have the right to receive such cash, securities, property or other
assets, in each case, as adjusted in good faith by the Board of Directors of
the Corporation to appropriately reflect any of the events referred to in
subparagraphs (i), (ii), (iii), (iv), (v) and (vi) of Section 6(c).
(2) "Closing Price" of any common stock on any day
shall mean the last reported sale price regular way on such day or, in case no
such sale takes place on such day, the average of the reported closing bid and
asked prices regular way of the common stock in each case on the New York stock
Exchange, or, if the common stock is not listed or admitted to trading on such
Exchange, on the principal national securities exchange or quotation system on
which the common stock is listed or admitted to trading or quoted, or, if not
listed or admitted to trading or quoted on any national securities exchange or
quotation system, the average of the closing bid and asked prices of the common
stock in the over-the-counter market on the day in question as reported by the
National Quotation Bureau Incorporated, or a similarly generally accepted
reporting service, or, if not so available in such manner, as furnished by any
New York Stock Exchange member firm selected from time to time by the Board of
Directors of the Corporation for that purpose.
(3) "Common Stock Fundamental Change" shall mean any
Fundamental Change in which more than 50% by value (as determined in good faith
by the Board of Directors of the Corporation) of the consideration received by
holders of Common Stock consists of common stock that for each of the ten
consecutive Trading Days referred to with respect to such Fundamental Change in
Section 6(i)(1) above has been admitted for
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listing or admitted for listing subject to notice of issuance on a national
securities exchange or quoted on the National Association of Securities
Dealers, Inc. ("NASDAQ") National Market System; PROVIDED, HOWEVER, that a
Fundamental Change shall not be a Common Stock Fundamental Change unless either
(i) the Corporation continues to exist after the occurrence of such Fundamental
Change and the outstanding shares of Convertible Preferred Stock continue to
exist as outstanding shares of Convertible Preferred Stock, or (ii) not later
than the occurrence of such Fundamental Change, the outstanding shares of
Convertible Preferred Stock are converted into or exchanged for shares of
convertible preferred stock of a corporation succeeding to the business of the
Corporation, which convertible preferred stock has powers, preferences and
relative, participating, optional or other rights, and qualifications,
limitations and restrictions, substantially similar to those of the Convertible
Preferred Stock.
(4) "Fundamental Change" shall mean the occurrence
of any transaction or event in connection with a plan pursuant to which all or
substantially all of the Common Stock shall be exchanged for, converted into,
acquired for or constitute solely the right to receive cash, securities,
property or other assets (whether by means of an exchange offer, liquidation,
tender offer, consolidation, merger, combination, reclassification,
recapitalization or otherwise); PROVIDED, HOWEVER, in the case of a plan
involving more than one such transaction or event, for purposes of adjustment
of the conversion price, such Fundamental Change shall be deemed to have
occurred when substantially all of the Common Stock of the Corporation shall be
exchanged for, converted into, or acquired for or constitute solely the right
to receive cash, securities, property or other assets, but the adjustment shall
be based upon the highest weighted average of consideration per share which a
holder of Common Stock could have received in such transactions or events as a
result of which more than 50% of the Common Stock of the Corporation shall have
been exchanged for, converted into, or acquired for or constitute solely the
right to receive cash, securities, property or other assets.
(5) "Non-Stock Fundamental Change" shall mean any
Fundamental Change other than a Common Stock Fundamental Change.
(6) "Purchaser Stock Price" shall mean, with respect
to any Common Stock Fundamental Change, the average of the daily Closing Prices
of the common stock received in such Common Stock Fundamental Change for the
ten consecutive Trading Days prior to and including the record date for the
determination of the holders of Common Stock entitled to receive such common
stock, or, if there is no such record date, the date upon which the
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holders of the Common Stock shall have the right to receive such common stock,
in each case, as adjusted in good faith by the Board of Directors of the
Corporation to appropriately reflect any of the events referred to in
subparagraphs (i), (ii), (iii), (iv), (v) and (vi) of Section 6(c); PROVIDED,
HOWEVER, if no such Closing Prices of the common stock for such Trading Days
exist, then the Purchaser Stock Price shall be set at a price determined in
good faith by the Board of Directors of the Corporation.
(7) "Reference Market Price" shall initially mean
$15.833 (which is an amount equal to 66-2/3% of the reported last sale price
for the Common Stock on the New York Stock Exchange on September 13, 1993), and
in the event of any adjustment to the conversion price other than as a result
of a Fundamental Change, the Reference Market Price shall also be adjusted so
that the ratio of the Reference Market Price to the conversion price after
giving effect to any such adjustment shall always be the same as the ratio of
$15.833 to the initial conversion price per share set forth in the last
sentence of Section 6(a).
(8) "Trading Day" shall mean a day on which
securities are traded on the national securities exchange or quotation system
or in the over-the-counter market used to determine the Closing Price.
(j) Dividend or Interest Reinvestment Plans. Notwithstanding
the foregoing provisions, the issuance of any shares of Common Stock pursuant
to any plan providing for the reinvestment of dividends or interest payable on
securities of the Corporation and the investment of additional optional amounts
in shares of Common Stock under any such plan, and the issuance of any shares
of Common Stock or options or rights to purchase such shares pursuant to any
employee benefit plan or program of the Corporation or pursuant to any option,
warrant, right or exercisable, exchangeable or convertible security outstanding
as of the date the Convertible Preferred Stock was first designated, shall not
be deemed to constitute an issuance of Common Stock or exercisable,
exchangeable or convertible securities by the Corporation to which any of the
adjustment provisions described above applies. There shall also be no
adjustment of the conversion price in case of the issuance of any stock (or
securities convertible into or exchangeable for stock) of the Corporation
except as specifically described in this Section 6. If any action would
require adjustment of the conversion price pursuant to more than one of the
provisions described above, only one adjustment shall be made and such
adjustment shall be the amount of adjustment which has the highest absolute
value to holders of Convertible Preferred Stock.
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(k) Certain Additional Rights. In case the Corporation shall,
by dividend or otherwise, declare or make a distribution on its Common Stock
referred to in Section 6(c)(iv) or 6(c)(v) (including, without limitation,
dividends or distributions referred to in the last sentence of Section
6(c)(iv)), the holder of each share of Convertible Preferred Stock, upon the
conversion thereof subsequent to the close of business on the date fixed for
the determination of stockholders entitled to receive such distribution and
prior to the effectiveness of the conversion price adjustment in respect of
such distribution, shall also be entitled to receive for each share of Common
Stock into which such share of Convertible Preferred Stock is converted, the
portion of the shares of Common Stock, rights, warrants, evidences of
indebtedness, shares of capital stock, cash and assets so distributed
applicable to one share of Common Stock; PROVIDED, HOWEVER, that, at the
election of the Corporation (whose election shall be evidenced by a resolution
of the Board of Directors) with respect to all holders so converting, the
Corporation may, in lieu of distributing to such holder any portion of such
distribution not consisting of cash or securities of the Corporation, pay such
holder an amount in cash equal to the fair market value thereof (as determined
in good faith by the Board of Directors, whose determination shall be
conclusive and described in a resolution of the Board of Directors). If any
conversion of a share of Convertible Preferred Stock described in the
immediately preceding sentence occurs prior to the payment date for a
distribution to holders of Common Stock which the holder of the share of
Convertible Preferred Stock so converted is entitled to receive in accordance
with the immediately preceding sentence, the Corporation may elect (such
election to be evidenced by a resolution of the Board of Directors) to
distribute to such holder a due bill for the shares of Common Stock, rights,
warrants, evidences of indebtedness, shares of capital stock, cash or assets to
which such holder is so entitled, provided that such due bill (i) meets any
applicable requirements of the principal national securities exchange or other
market on which the Common Stock is then traded and (ii) requires payment or
delivery of such shares of Common Stock, rights, warrants, evidences of
indebtedness, shares of capital stock, cash or assets no later than the date of
payment or delivery thereof to holders of shares of Common Stock receiving such
distribution.
(l) Preferred or Common Stock Purchase Rights.
Notwithstanding the foregoing provisions, there shall be no adjustment of the
Conversion Price by reason of (i) the issuance of any rights ("Rights") to
purchase shares of Common Stock or preferred stock pursuant to any stockholder
rights plan adopted by the Board of Directors (a "Rights Plan"), or (ii) the
issuance of any shares of Common Stock or preferred stock upon the exercise,
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exchange or redemption of Rights in accordance with the terms of such Rights
Plan. Until such time as the Rights become exercisable pursuant to the terms of
the Rights Plan, each share of Common Stock issued upon conversion of the
shares of Convertible Preferred Stock shall be issued with Rights in an amount
equal to the number of Rights then associated with each such outstanding share
of Common Stock.
7. VOTING RIGHTS.
(a) General. The holders of shares of Convertible Preferred
Stock will not have any voting rights except as set forth below or as otherwise
from time to time required by law. In connection with any right to vote, each
holder of a share of Convertible Preferred Stock will have one vote for each
share held. Any shares of Convertible Preferred Stock held by the Corporation
or any entity controlled by the Corporation shall not have voting rights
hereunder and shall not be counted in determining the presence of a quorum.
(b) Default Voting Rights. Whenever dividends on the
Convertible Preferred Stock or any other class or series of Parity Dividend
Stock shall be in arrears in an aggregate amount equal to at least six
quarterly dividends (whether or not consecutive), (i) the number of members of
the Board of Directors of the Corporation shall be increased by two, effective
as of the time of election of such directors as hereinafter provided and (ii)
the holders of shares of Convertible Preferred Stock (voting separately as a
class with all other affected classes or series of Parity Dividend Stock upon
which like voting rights have been conferred and are exercisable) will have the
exclusive right to vote for and elect such two additional directors of the
Corporation at any meeting of stockholders of the Corporation at which
directors are to be elected held during the period such dividends remain in
arrears. The right of the holders of shares of Convertible Preferred Stock to
vote for such two additional directors shall terminate when all accrued and
unpaid dividends on the Convertible Preferred Stock and all other affected
classes or series of Parity Dividend Stock have been declared and paid or set
apart for payment. The terms of office of all directors so elected shall
terminate immediately upon the termination of the right of the holders of
shares of Convertible Preferred Stock and such Parity Dividend Stock to vote
for such two additional directors, and the number of directors of the Board of
Directors of the Corporation shall immediately thereafter be reduced by two.
The foregoing right of the holders of shares of Convertible Preferred
Stock with respect to the election of two directors may be exercised at any
annual meeting of stockholders or at any
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special meeting of stockholders held for such purpose. If the right to elect
directors shall have accrued to the holders of shares of Convertible Preferred
Stock more than ninety days preceding the date established for the next annual
meeting of stockholders, the President of the Corporation shall, within twenty
days after the delivery to the Corporation at its principal office of a written
request for a special meeting signed by the holders of at least 10% of all
outstanding shares of Convertible Preferred Stock, call a special meeting of
the holders of Convertible Preferred Stock to be held within sixty days after
the delivery of such request for the purpose of electing such additional
directors.
The holders of shares of Convertible Preferred Stock and any Parity
Dividend Stock referred to above voting as a class shall have the right to
remove without cause at any time and replace any directors such holders shall
have elected pursuant to this Section 7.
(c) Class Voting Rights. So long as the Convertible
Preferred Stock is outstanding, the Corporation shall not, without the
affirmative vote or consent of the holders of at least 66-2/3% (unless a higher
percentage shall then be required by applicable law) of all outstanding shares
of Convertible Preferred Stock voting separately as a class, (i) amend, alter
or repeal any provision of the Restated Certificate of Incorporation or the By-
Laws of the Corporation, each as amended, so as to affect adversely the
relative rights, preferences, qualifications, limitations or restrictions of
the Convertible Preferred Stock or (ii) create, authorize or issue, or
reclassify any authorized stock of the Corporation into, or increase the
authorized amount of, any class or series of the Corporation's capital stock
ranking prior to the Convertible Preferred Stock as to dividends or as to
distributions of assets upon liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, or any security convertible into
shares of such a class or series. A class vote on the part of the Convertible
Preferred Stock shall, without limitation, specifically not be deemed to be
required (except as otherwise required by law or resolution of the
Corporation's Board of Directors) in connection with: (a) the authorization,
issuance or increase or decrease in the authorized amount of any shares of
Junior Stock or any class or series of the Corporation's capital stock ranking
on a parity with the Convertible Preferred Stock both as to dividends and as to
distributions of assets upon liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary; or (b) the authorization,
issuance or increase or decrease in the amount of any bonds, mortgages,
debentures or other obligations of
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the Corporation (other than those that may be covered by clause (ii) of the
preceding sentence).
8. OUTSTANDING SHARES. For purposes of this Certificate of
Designations, all shares of Convertible Preferred Stock issued by the
Corporation shall be deemed outstanding except (i) from the date fixed for
redemption pursuant to Section 5 hereof, all shares of Convertible Preferred
Stock that have been so called for redemption under Section 5, to the extent
provided thereunder; (ii) from the date of surrender of certificates evidencing
shares of Convertible Preferred Stock, all shares of Convertible Preferred
Stock converted into Common Stock; and (iii) from the date of registration of
transfer, all shares of Convertible Preferred Stock held of record by the
Corporation or any majority-owned subsidiary of the Corporation.
9. PARTIAL PAYMENTS. Upon an optional redemption by the Corporation,
if at any time the Corporation does not pay amounts sufficient to redeem all
Convertible Preferred Stock, then such funds which are paid shall be applied to
redeem such shares of Convertible Preferred Stock as the Corporation may
designate by lot or in such other manner as the Board of Directors may
determine to be fair, or such redemption shall be effected pro rata.
10. TRANSFER RESTRICTIONS:
(a) Legends on Convertible Preferred Stock and Common Stock.
(i) The certificates evidencing shares of
Convertible Preferred Stock shall, until a registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), is declared
effective with respect to the Convertible Preferred Stock and any shares of
Common Stock issuable upon conversion of the Convertible Preferred Stock or the
third anniversary of the date of original issuance of Convertible Preferred
Stock, unless otherwise agreed by the Corporation and the holders of any such
certificates, bear a legend substantially to the following effect:
"The Security (or its predecessor) evidenced
hereby was originally issued in a transaction exempt
from registration under Section 5 of the United
States Securities Act of 1933 (the "Securities Act"),
and the Security evidenced hereby and any shares
of Common Stock issued upon conversion hereof may
not be offered, sold or otherwise transferred in
the absence of such registration or an applicable
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exemption therefrom. Each purchaser of the Security
evidenced hereby is hereby notified that the seller
may be relying on the exemption from the provisions of
Section 5 of the Securities Act provided by Rule 144A
thereunder.
The holder of the security evidenced hereby agrees for
the benefit of Fieldcrest Cannon, Inc. that (A) such
Security and any shares of Common Stock issued upon
conversion hereof may be resold, pledged or otherwise
transferred, only (1) pursuant to an effective
registration statement under the Securities Act, (2)
inside the United States to a person who the seller
reasonably believes is a Qualified Institutional Buyer
(as defined in Rule 144A under the Securities Act) in
a transaction meeting the requirements of Rule 144A or
(3) outside the United States to a foreign person in a
transaction meeting the requirements of Rule 904 under
the Securities Act and (4) in each case, in accordance
with any applicable securities laws of any State of
the United States or any other applicable jurisdiction
and (B) the holder will, and each subsequent holder is
required to, notify any purchaser from it of the
Security evidenced hereby or any Common Stock issued
upon conversion hereof of the resale restrictions set
forth in (A) above."
Until the earlier of the date on which a registration statement under the
Securities Act is declared effective with respect to the Convertible Preferred
Stock and any shares of Common Stock issuable upon conversion of the
Convertible Preferred Stock or the third anniversary of the date of original
issuance of the Convertible Preferred Stock, certificates representing the
shares of Common Stock issued upon conversion of Convertible Preferred Stock
shall bear a comparable legend. The shares of Convertible Preferred Stock, and
the shares of Common Stock issued upon conversion thereof, shall be subject to
the restrictions on transfer set forth in the legends referred to above until
the earlier of the date on which a registration statement under the Securities
Act is declared effective with respect to the Convertible Preferred Stock and
any shares of Common Stock issuable upon conversion of the Convertible
Preferred Stock or the third anniversary of the date of original issuance of
the Convertible Preferred Stock.
(ii) The certificates evidencing shares of Convertible Preferred Stock (and
shares of Common Stock issued
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upon conversion thereof) initially issued to any "accredited investor" within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is
not a "qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act shall, until such time as the Corporation and the transfer agent
for the Convertible Preferred Stock or Common Stock, as the case may be, shall
have received evidence satisfactory to each of them that the transfer of such
shares of Convertible Preferred Stock or Common Stock has been effected in
accordance with the limitations on transfer set forth in paragraph (a)(i)
above, bear the following additional legend:
"In connection with any transfer, the holder will deliver to
the registrar and transfer agent such certificates and other
information as it may reasonably require to confirm that the
transfer complies with the foregoing restrictions."
(b) Transfer Agent Requirements. The transfer agent for the
Convertible Preferred Stock and the transfer agent and registrar for the Common
Stock, as the case may be, shall not be required to accept for registration of
transfer any Convertible Preferred Stock or Common Stock bearing the legend
contained in paragraph (a)(ii) above, except upon presentation of satisfactory
evidence that the restrictions on transfer of the Convertible Preferred Stock
or Common Stock, as the case may be, referred to in the legend in paragraph
(a)(i) have been complied with, all in accordance with such reasonable
regulations as the Corporation may from time to time agree with the transfer
agent for the Convertible Preferred Stock and the transfer agent and registrar
for the Common Stock.
(c) Delivery of Certain Information. At any time prior to the
date on which a registration statement under the Securities Act is declared
effective with respect to the Convertible Preferred Stock and any shares of
Common Stock issuable upon conversion of the Convertible Preferred Stock and
the Corporation is not subject to Section 13 or 15(d) of the United States
Securities Exchange Act of 1934, upon the request of a holder of shares of
Convertible Preferred Stock or shares of Common Stock issued upon conversion of
Convertible Preferred Stock, the Corporation will promptly furnish or cause to
be furnished Rule 144A Information (as defined below) to such holder or to a
prospective purchaser of such shares designated by such holder in order to
permit compliance by such holder with Rule 144A under the Securities Act in
connection with the resale of such shares by such holder; PROVIDED, HOWEVER,
the Corporation shall not be required to furnish such information in connection
with any request made on or after the date which is three years from the
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49
later of (i) the date such shares were acquired from the Corporation or (ii)
the date such shares were last acquired from an "affiliate" of the Corporation
within the meaning of Rule 144 under the Securities Act; and provided, further,
however, the Corporation shall not be required to furnish such information at
any time to a prospective purchaser located outside the United States who is
not a "U.S. person" within the meaning of Regulation S under the Securities Act
if such shares of Convertible Preferred Stock may then be sold to such
prospective purchaser in accordance with Rule 904 under the Securities Act (or
any successor provision thereto). "Rule 144A Information" shall be such
information as is specified pursuant to Rule 144A(d)(4) under the Securities
Act (or any successor provision thereto).
11. STATUS OF ACQUIRED SHARES. Shares of Convertible Preferred
Stock redeemed by the Corporation, received upon conversion pursuant to Section
6 or otherwise acquired by the Corporation will be restored to the status of
authorized but unissued shares of Preferred Stock, without designation as to
series, and may thereafter be issued, but not as shares of Convertible
Preferred Stock.
12. PREEMPTIVE RIGHTS. The Convertible Preferred Stock is not
entitled to any preemptive or subscription rights in respect of any securities
of the Corporation.
13. 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.
14. MISCELLANEOUS. (a) The Corporation shall pay any and all stock
transfer and documentary stamp taxes that way be payable in respect of any
issuance or delivery of shares of Convertible Preferred Stock or Common Stock
or other securities issued on account of Convertible Preferred Stock pursuant
hereto or certificates or instruments evidencing such shares or securities. The
Corporation shall not, however, be required to pay any such tax which may be
payable in respect of any transfer involved in the issuance or delivery of
shares of Convertible Preferred Stock
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or Common Stock or other securities in a name other than that in which the
shares of Convertible Preferred Stock with respect to which such shares or
other securities are issued or delivered were registered, or in respect of any
payment to any person with respect to any such shares or securities other than
a payment to the registered holder thereof, and shall not be required to make
any such issuance, delivery or payment unless and until the person otherwise
entitled to such issuance, delivery or payment has paid to the Corporation the
amount of any such tax or has established, to the satisfaction of the
Corporation, that such tax has been paid or is not payable.
(b) In the event that a holder of shares of
Convertible Preferred stock shall not by written notice designate the name in
which shares of Common Stock to be issued upon conversion of such shares should
be registered or to whom payment upon redemption of shares of Convertible
Preferred Stock should be made or the address to which the certificates or
instruments evidencing such shares or such payment, should be sent, the
Corporation shall be entitled to register such shares and make such payment, in
the name of the holder of such Convertible Preferred Stock as shown on the
records of the Corporation and to send the certificates or instruments
evidencing such shares or such payment, to the address of such holder shown on
the records of the Corporation.
IN WITNESS WHEREOF, I have executed and subscribed this Certificate of
Designations and do affirm the foregoing as true under the penalties of perjury
this 24th day of November, 1993.
FIELDCREST CANNON, INC.
/s/ JAMES M. FITZGIBBONS
__________________________
James M. Fitzgibbons
Chairman of the Board and
Chief Executive Officer
Attest:
/s/ M. KENNETH DOSS
___________________________
M. Kenneth Doss
Secretary
[Corporate Seal]
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FILED
3:00 PM
NOV 29 93
CERTIFICATE OF DESIGNATIONS
of
FIELDCREST CANNON, INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
______________________________
Fieldcrest Cannon, Inc., a corporation organized and existing
under the General Corporation Law of the State of Delaware
(hereinafter called the "Corporation"), hereby certifies that the
following resolution was adopted by the Board of Directors of the
Corporation as required by Section 151 of the General Corporation
Law at a meeting duly called and held on November 24, 1993:
RESOLVED, that pursuant to the authority granted to and
vested in the Board of Directors of this Corporation (hereinafter
called the "Board of Directors" or the "Board") in accordance with
the provisions of the Certificate of Incorporation, the Board of
Directors hereby creates a series of Preferred Stock, $.01 par
value (the "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:
Series B Junior Participating Preferred Stock:
Section 1. DESIGNATION AND AMOUNT. The shares of such
series shall be designated as "Series B Junior Participating
Preferred Stock" (the "Series B Preferred Stock") and the number
of shares constituting the Series B Preferred Stock shall be
500,000. 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 Series B Preferred Stock to a
number less than the number of shares then outstanding plus the
number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the conversion of
any outstanding securities issued by the Corporation convertible
into Series B Preferred Stock.
52
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the rights of the holders of any
shares of any series of Preferred Stock (or any similar
stock) ranking prior and superior to the Series B
Preferred Stock with respect to dividends, the holders
of shares of Series B Preferred Stock, in preference to
the holders of Common Stock, par value $1.00 per share
and Class B Common Stock, par value $1.00 per share
(collectively, the "Common Stock"), of the Corporation,
and of any other junior stock, shall be entitled to
receive, when, as and if declared by the Board of
Directors out of funds of the Corporation legally
available for the payment of dividends, quarterly
dividends payable in cash on March 31, June 30,
September 30 and December 31 in each year (each such
date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a
share or fraction of a share of Series B Preferred
Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $1 or (b) subject to
the provision for adjustment hereinafter set forth, 100
times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in shares
of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date
or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction
of a share of Series B Preferred Stock. In the event
the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each
such case the amount to which holders of shares of
Series B Preferred Stock were entitled immediately prior
to such event under clause (b) of the preceding sentence
shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares
of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to
such event.
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53
(B) The Corporation shall declare a dividend or
distribution on the Series B Preferred Stock as provided
in paragraph (A) of this Section immediately after it
declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common
Stock) and the Corporation shall pay such dividend or
distribution on the Series B Preferred Stock before the
dividend or distribution declared on the Common Stock is
paid or set apart; provided that, in the event no
dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $1 per share on the
Series B Preferred Stock shall nevertheless be payable
on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series B Preferred
Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares, unless the
date of issue of such shares is prior to the record date
for the first Quarterly Dividend Payment Date, in which
cash dividends on such shares shall begin to accrue from
the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders
of shares of Series B Preferred Stock entitled to
receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from
such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends
paid on the shares of Series B Preferred Stock in an
amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all
such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of
holders of shares of Series B Preferred Stock entitled
to receive payment of a dividend or distribution
declared thereon, which record date shall be not more
than 60 days prior to the date fixed for the payment
thereof.
Section 3. VOTING RIGHTS. The holders of shares of Series B
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment
hereinafter set forth, each share of Series B Preferred
Stock shall entitle the holder thereof to 100 votes on
all matters submitted to a vote of the stockholders of
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54
the Corporation. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a
subdivision, combination or consolidation of the
outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the number of
votes per share to which holders of shares of Series B
Preferred Stock were entitled immediately prior to such
event shall be adjusted by multiplying such number by a
fraction, the numerator of which is the number of shares
of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to
such event.
(B) Except as otherwise provided herein, in the
Certificate of Incorporation or bylaw, the holders of
shares of Series B Preferred Stock and the holders of
shares of Common Stock shall vote together as one class
on all matters submitted to a vote of stockholders of
the Corporation.
(C)(i) If any time dividends on any Series B
Preferred Stock shall be in arrears in an amount equal
to six quarterly dividends thereon, the holders of the
Series B Preferred Stock, voting as a separate series
from all other series of Preferred Stock and classes of
capital stock, shall be entitled to elect two members of
the Board of Directors in addition to any Directors
elected by any other series, class or classes of
securities and the authorized number of Directors will
automatically be increased by two. Promptly thereafter,
the Board of Directors of this Corporation shall, as
soon as may be practicable, call a special meeting of
holders of Series B Preferred Stock for the purpose of
electing such members of the Board of Directors. Said
special meeting shall in any event be held within 45
days of the occurrence of such arrearage.
(ii) During any period when the holders of
Series B Preferred Stock, voting as a separate series,
shall be entitled and shall have exercised their right
to elect two Directors, then and during such time as
such right continues (a) the then authorized number of
Directors shall be increased by two, and the holders of
Series B Preferred Stock, voting as a separate series,
shall be entitled to elect the additional Director so
provided for, and (b) each such additional Director
shall not be a member of any existing class of the Board
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55
of Directors, but shall serve until the next annual
meeting of stockholders for the election of Directors,
or until his successor shall be elected and shall
qualify, or until his right to hold such office
terminates pursuant to the provisions of this
Section 3(C).
(iii) A Director elected pursuant to the terms
hereof may be removed with or without cause by the
holders of Series B Preferred Stock entitled to vote in
an election of such Director.
(iv) If, during any interval between annual
meetings of stockholders for the election of Directors
and while the holders of Series B Preferred Stock shall
be entitled to elect two Directors, there is no such
Director in office by reason of resignation, death or
removal, then, promptly thereafter, the Board of
Directors shall cause a special meeting of the holders
of Series B Preferred Stock for the purpose of filling
such vacancy and such vacancy shall be filled at such
special meeting. Such special meeting shall in any
event be held within 45 days of the occurrence of such
vacancy.
(v) At such time as the arrearage is fully
cured, and all dividends accumulated and unpaid on any
shares of Series B Preferred Stock outstanding are paid,
and, in addition thereto, at least one regular dividend
has been paid subsequent to curing such arrearage, the
term of office of any Director elected pursuant to this
Section 3(C), or his successor, shall automatically
terminate, and the authorized number of Directors shall
automatically decrease by two, the rights of the holders
of the shares of the Series B Preferred Stock to vote as
provided in this Section 3(C) shall cease, subject to
renewal from time to time upon the same terms and
conditions, and the holders of shares of the Series B
Preferred Stock shall have only the limited voting
rights elsewhere herein set forth.
(D) Except as set forth herein, or as otherwise
provided by law, holders of Series B Preferred Stock
shall have no special voting rights and their consent
shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set
forth herein) for taking any corporate action.
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Section 4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other
dividends or distributions payable on the Series B
Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on shares of
Series B Preferred Stock outstanding shall have been
paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any
other distributions, on any shares of stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred
Stock;
(ii) declare or pay dividends, or make any
other distributions, on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series B Preferred
Stock, except dividends paid ratably on the Series B
Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares
are then entitled;
(iii) redeem or purchase or otherwise acquire
for consideration shares of any stock ranking junior
(either as to dividends or upon liquidation, dissolution
or winding up) to the Series B Preferred Stock, provided
that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in
exchange for shares of any stock of the Corporation
ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series B
Preferred Stock; or
(iv) redeem or purchase or otherwise acquire
for consideration any shares of Series B Preferred
Stock, or any shares of stock ranking on a parity with
the Series B Preferred Stock, except in accordance with
a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend
rates and other relative rights and preferences of the
respective series and classes, shall determine in good
faith will result in fair and equitable treatment among
the respective series or classes.
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57
(B) The Corporation shall not permit any
subsidiary of the Corporation to purchase or otherwise
acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under
paragraph (A) of this Section 4, purchase or otherwise
acquire such shares at such time and in such manner.
Section 5. REACQUIRED SHARES. Any shares of Series B
Preferred Stock 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 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 6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(A) Upon any liquidation, dissolution or winding
up of the Corporation, no distribution shall be made
(1) to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution
or winding up) to the Series B Preferred Stock unless,
prior thereto, the holders of shares of Series B
Preferred Stock shall have received $100 per share, plus
an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the
date of such payment, provided that the holders of
shares of Series B Preferred Stock shall be entitled to
receive an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal to
100 times the aggregate amount to be distributed per
share to holders of shares of Common Stock, or (2) to
the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution
or winding up) with the Series B Preferred Stock, except
distributions made ratably on the Series B Preferred
Stock and all such parity stock in proportion to the
total amounts to which the holders of all such shares
are entitled upon such liquidation, dissolution or
winding up.
(B) Neither the consolidation, merger or other
business combination of the Corporation with or into any
other corporation nor the sale, lease, exchange or
conveyance of all or any part of the property, assets or
business of the Corporation shall be deemed to be a
liquidation, dissolution or winding up of the
Corporation for purposes of this Section 6.
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(C) In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable
in shares of Common Stock, or effect a subdivision,
combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than
by payment of a dividend in shares of Common Stock) into
a greater or lesser number of shares of Common Stock,
then in each such case the aggregate amount to which
holders of shares of Series B Preferred Stock were
entitled immediately prior to such event under the
proviso in clause (1) of paragraph (A) of this Section 6
shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares
of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to
such event.
Section 7. CONSOLIDATION, MERGER, ETC. Notwithstanding
anything to the contrary contained herein, in case the Corporation
shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for
or changed into other stock or securities, cash and/or any other
property, then in any such case each share of Series B Preferred
Stock shall at the same time be similarly exchanged or changed
into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable in
kind), as the case may be, into which or for which each share of
Common Stock is changed or exchanged. In the event the
Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a
subdivision, combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case
the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series B Preferred Stock shall be
adjusted by multiplying such amount by a fraction, the numerator
of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 8. NO REDEMPTION. The shares of Series B Preferred
Stock shall not be redeemable.
Section 9. RANK. The Series B Preferred Stock shall rank,
with respect to the payment of dividends and the distribution of
assets, junior to all series of any other class of the Preferred
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Stock issued either before or after the issuance of the Series B
Preferred Stock, unless the terms of any such series shall provide
otherwise.
Section 10. AMENDMENT. The Certificate of Incorporation of
the Corporation shall not be amended in any manner which would
materially alter or change the powers, preferences or special
rights of the Series B Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of at least
two-thirds of the outstanding shares of Series B Preferred Stock,
voting together as a single class.
Section 11. FRACTIONAL SHARES. Series B Preferred Stock may
be issued in fractions of a share which shall entitle the holder,
in proportion to such holder's fractional shares, to exercise
voting rights, receive dividends, participate in distributions and
have the benefit of all other rights of holders of Series B
Preferred Stock.
IN WITNESS WHEREOF, this Certificate of Designations is
executed on behalf of the Corporation by its Chairman of the Board
and Chief Executive Officer and attested by its Secretary this
24th day of November, 1993.
/s/ JAMES M. FITZGIBBONS
______________________________
James M. Fitzgibbons
Chairman and Chief Executive
Officer
Attest:
/s/ M. KENNETH DOSS
________________________________
M. Kenneth Doss
Secretary
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