AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 5, 2002
REGISTRATION NO. 333-86394
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 3 TO
FORM S-3
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
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COLLINS & AIKMAN CORPORATION COLLINS & AIKMAN PRODUCTS CO.
(Exact name of co-registrant as specified in its charter) (Exact name of co-registrant as specified in its charter)
DELAWARE DELAWARE
(State or other jurisdiction of incorporation or organization) (State or other jurisdiction of incorporation or organization)
13-3489233 13-0588710
(I.R.S. Employer Identification Number.) (I.R.S. Employer Identification Number.)
250 STEPHENSON HIGHWAY
TROY, MICHIGAN 48083
(248) 824-2500
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive office)
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THOMAS E. EVANS
250 STEPHENSON HIGHWAY
TROY, MICHIGAN 48083
(248) 824-2500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copy to:
GARY A. BROOKS, ESQ.
JONATHAN A. SCHAFFZIN, ESQ.
CAHILL GORDON & REINDEL
80 PINE STREET
NEW YORK, NEW YORK 10005-1702
(212) 701-3000
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Approximate date of commencement of proposed sale to the public: From time
to time after the registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED
TITLE OF EACH CLASS OF AMOUNT TO BE MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED (1) REGISTERED AGGREGATE OFFERING PRICE (2) REGISTRATION FEE (3)
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Securities being offered by the registrants
Unsecured debt securities (4)(6)
Collins & Aikman Corporation Guarantees of
Collins & Aikman Products Co. unsecured debt
securities (4)(5)
Preferred stock (6)
Common stock, par value $0.01 per share (6)
Units consisting of two or more of the above
Total securities being offered by the registrants $ 750,000,008.90 $ 69,000.00
Securities being offered by selling stockholders
Common stock, par value $0.01 per share 9,174,311 shares $ 249,999,991.10 $ 23,000.00
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Total $ 1,000,000,000.00 $ 92,000.00(7)
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(1) Securities to be registered are securities of Collins & Aikman
Corporation, except for unsecured debt securities, which may be unsecured
obligations of Collins & Aikman Corporation or Collins & Aikman Products
Co.
(2) There are being registered under this registration statement such
indeterminate amount of securities of the registrants as shall have an
aggregate initial offering price not to exceed $750,000,008.90. If any
debt securities are issued at an original issue discount, then the
securities registered shall include such additional unsecured debt
securities as may be necessary such that the aggregate initial public
offering price of all securities issued pursuant to this registration
statement will equal $750,000,008.90. In addition, pursuant to Rule 416
under the Securities Act of 1933, this registration statement will cover
such indeterminate number of shares of common stock of the registrant
that may be issued in respect of stock splits, stock dividends and
similar transactions. Any securities offered by the registrants
registered under this registration statement may be sold separately or as
units with other securities offered by the registrants registered under
this registration statement. The proposed maximum initial offering price
per security offered by the registrants will be determined from time to
time by the registrants in connection with the sale of the securities
registered under this registration statement.
(3) The estimated registration fee for the common stock, preferred stock and
unsecured debt securities offered by the registrants has been calculated
pursuant to Rule 457(o). The estimated registration fee for the common
stock offered by selling stockholders has been calculated pursuant to
Rule 457(c), based on the average of the high and low reported prices on
the New York Stock Exchange on May 14, 2002 of $25.63 per share.
(4) Unsecured debt securities to be registered may be the unsecured
obligations of Collins & Aikman Corporation or Collins & Aikman Products
Co. Unsecured debt securities issued by Collins & Aikman Products Co.
will be fully and unconditionally guaranteed by Collins & Aikman
Corporation.
(5) Pursuant to Rule 457(a), no registration fee is required with respect to
the guarantees.
(6) The unsecured debt securities and preferred stock being registered hereby
may be convertible into shares of common stock of Collins & Aikman
Corporation being registered hereunder. The common stock of Collins &
Aikman Corporation being registered hereunder includes such indeterminate
number of shares as may be issued upon conversion in full of all
convertible unsecured debt securities and convertible preferred stock
registered hereunder and issued from time to time by the registrants.
Pursuant to Rule 457(i), no registration fee is required with respect to
such common stock of Collins & Aikman Corporation.
(7) Previously paid.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED JUNE 5, 2002
COLLINS & AIKMAN CORPORATION
COMMON STOCK
PREFERRED STOCK
UNSECURED DEBT SECURITIES
COLLINS & AIKMAN PRODUCTS CO.
UNSECURED DEBT SECURITIES
GUARANTEED BY COLLINS & AIKMAN CORPORATION
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Collins & Aikman Corporation may offer, from time to time, common stock,
preferred stock and unsecured debt securities, and Collins & Aikman Products
Co. may offer, from time to time, unsecured debt securities which are fully and
unconditionally guaranteed by Collins & Aikman Corporation, collectively
resulting in gross proceeds to the issuers of up to $750,000,008.90. In
addition, up to 9,174,311 shares of common stock of Collins & Aikman
Corporation, may also be sold hereunder by registration rights holders as
described herein.
INVESTING IN THE SECURITIES INVOLVES RISKS THAT ARE DESCRIBED IN THE "RISK
FACTORS" SECTION OF THE ACCOMPANYING PROSPECTUS SUPPLEMENT.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
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The securities may be offered in amounts, at prices and on terms determined at
the time of offering. The securities will only be sold to you through
underwriters which we will select from time to time.
This prospectus may not be used to consummate sales of securities unless
accompanied by a prospectus supplement.You should read this prospectus and the
prospectus supplement carefully before you invest in the securities.
Collins & Aikman Corporation's common stock is listed on the New York Stock
Exchange under the symbol "CKC." The closing price of Collins & Aikman
Corporation's common stock was $17.80 per share on May 30, 2002. We effected a
one-for-2.5 reverse stock split effective as of the close of business on May
28, 2002. All information in this prospectus gives effect to this reverse stock
split.
, 2002
TABLE OF CONTENTS
PAGE
-----
ABOUT THIS PROSPECTUS .......................................... 1
FORWARD-LOOKING STATEMENTS ..................................... 1
WHERE YOU CAN FIND ADDITIONAL INFORMATION ...................... 2
INCORPORATION OF DOCUMENTS BY REFERENCE ........................ 2
USE OF PROCEEDS ................................................ 3
RATIOS OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS .......... 3
INFORMATION ABOUT OUR COMPANY .................................. 4
DESCRIPTION OF C&A CAPITAL STOCK ............................... 5
DESCRIPTION OF C&A COMMON STOCK ................................ 5
DESCRIPTION OF C&A PREFERRED STOCK ............................. 8
DESCRIPTION OF C&A AND PRODUCTS DEBT SECURITIES ................ 13
REGISTRATION RIGHTS HOLDERS .................................... 25
PLAN OF DISTRIBUTION ........................................... 28
LEGAL MATTERS .................................................. 29
EXPERTS ........................................................ 29
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No person has been authorized to give any information or to make any
representation not contained or incorporated by reference in this prospectus or
the accompanying prospectus supplement and, if given or made, such information
or representation must not be relied upon as having been authorized by us or
any underwriter, dealer or agent. Neither this prospectus nor the accompanying
prospectus supplement constitutes an offer to sell or a solicitation of an
offer to buy securities in any jurisdiction in which such offer or solicitation
is not authorized or in which the person making such offer or solicitation is
not qualified to do so or to any person to whom it is unlawful to make such
offer or solicitation.
Both Collins & Aikman Corporation and its direct, wholly-owned subsidiary,
Collins & Aikman Products Co., are Delaware corporations. The principal
executive offices of each company are located at 250 Stephenson Highway, Troy,
Michigan 48083 and our telephone number at that address is (248) 824-2500.
Unless the context otherwise requires, all information in this prospectus
which refers to (a) "C&A Corporation," "C&A" or the "Company" refers only to
Collins & Aikman Corporation, (b) "Products" refers only to Collins & Aikman
Products Co., and (c) "Collins & Aikman," "we," "us" or "our" refers to Collins
& Aikman Corporation together with its subsidiaries.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed
with the Securities and Exchange Commission (the "SEC") utilizing a "shelf"
registration process, relating to the securities described herein.
Under this shelf process, the securities described in this prospectus may
be sold in one or more underwritten offerings for up to an aggregate initial
offering price of $1,000,000,000. This prospectus provides you with a general
description of the securities that may be offered. This prospectus does not
contain all of the information set forth in the registration statement as
permitted by the rules and regulations of the SEC. For additional information
regarding C&A or Products and the offered securities, please refer to the
registration statement. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this prospectus
and any prospectus supplement together with additional information described
under the heading "Where You Can Find Additional Information."
On May 28, 2002, we effected a one-for-2.5 reverse stock split. All
information in this prospectus gives effect to this reverse stock split.
FORWARD-LOOKING STATEMENTS
This prospectus contains "forward-looking" information, as that term is
defined by the federal securities laws, about our financial condition, results
of operations and business. You can find many of these statements by looking
for words such as "may," "will," "expect," "anticipate," "believe," "estimate"
and similar words used in this prospectus.
These forward-looking statements are subject to numerous assumptions,
risks and uncertainties (including trade relations and competition). Because
the statements are subject to risks and uncertainties, actual results may
differ materially from those expressed or implied by the forward-looking
statements. We caution readers not to place undue reliance on the statements,
which speak only as of the date of this prospectus.
The cautionary statements set forth above should be considered in
connection with any subsequent written or oral forward-looking statements that
we or persons acting on our behalf may issue. We do not undertake any
obligation to review or confirm analysts' expectations or estimates or to
release publicly any revisions to any forward-looking statements to reflect
events or circumstances after the date of this prospectus or to reflect the
occurrence of unanticipated events.
Risks and uncertainties that could cause actual results to vary materially
from those anticipated in the forward-looking statements included in this
prospectus include general economic conditions in the market in which we
operate and industry-based factors such as:
o declines in the North American, South American and European automobile
and light truck builds,
o labor costs and strikes at our major customers and at our facilities,
o changes in consumer preferences,
o dependence on significant automotive customers,
o the level of competition in the automotive supply industry and pricing
pressure from automotive customers and
o risks associated with conducting business in foreign countries.
In addition, factors more specific to us could cause actual results to
vary materially from those anticipated in the forward-looking statements
included in this prospectus such as substantial leverage, limitations imposed
by our debt instruments, our ability to successfully integrate acquired
businesses including actions we have identified as providing cost saving
opportunities, and pursue our prime contractor business strategy and our
customer concentration.
1
Our divisions may also be affected by changes in the popularity of
particular vehicle models or particular interior trim packages or the loss of
programs on particular vehicle models.
These cautionary statements qualify all forward-looking statements
attributable to us or persons acting on our behalf. When we indicate that an
event, condition or circumstance could or would have an adverse effect on us,
we mean to include effects upon our business, financial and other conditions,
results of operations and ability to make payments on the notes.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
C&A files annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document that C&A
files at the SEC's public reference room at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for more
information on the public reference rooms. C&A's SEC filings are also available
to you at the SEC's web site at http://www.sec.gov.
INCORPORATION OF DOCUMENTS BY REFERENCE
Rather than include certain information in this prospectus that C&A has
already included in reports filed with the SEC, we are incorporating this
information by reference, which means that we can disclose important
information to you by referring to those publicly filed documents containing
the information. This information incorporated by reference is considered to be
part of this prospectus, and the information that C&A files with the SEC after
the date of this prospectus and prior to the termination of the offerings of
the securities offered hereby will automatically update and supersede the
information in this prospectus. We incorporate by reference the following
documents filed by C&A with the SEC:
o Proxy Statement on Schedule 14A for C&A's annual meeting of stockholders
to be held on May 15, 2002 (other than the sections entitled "Executive
Compensation -- Report of the Compensation Committee," "Performance
Graph," "Report of the Audit Committee of the Board of Directors," and
"Audit Fees.")
o Annual Report on Form 10-K for the fiscal year ended December 31, 2001,
as amended by an Annual Report to be filed on June 6, 2002;
o Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
2002, as amended by a Quarterly Report on Form 10-Q/A to be filed on June
6, 2002;
o Current Report on Form 8-K filed July 3, 2001 and the report on Form
8-K/A filed September 17, 2001;
o Current Report on Form 8-K filed October 4, 2001 and the report on Form
8/KA filed October 10, 2001;
o Current Report on Form 8-K filed January 4, 2002 and the report on Form
8-K/A filed January 14, 2002;
o Current Report on Form 8-K filed April 17, 2002;
o Current Report on Form 8-K filed May 21, 2002;and
o Current Report on Form 8-K filed May 29, 2002
All documents we file subsequent to the date of this prospectus pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to the
termination of the offering of the securities covered hereby shall be deemed to
be incorporated by reference into the prospectus.
We will provide to each person, including any beneficial owner, to whom
this prospectus is delivered, a copy of any or all of the information that has
been incorporated in this prospectus but is not being delivered with this
prospectus. We will provide this information upon written or oral request, at
no cost to the requester, directed to Collins & Aikman Corporation, 250
Stephenson Highway, Troy, Michigan 48083, telephone (248) 824-2500, attention:
Chief Financial Officer.
2
USE OF PROCEEDS
Except as may otherwise be described in the prospectus supplement relating
to an offering of securities, the net proceeds from the sale of the securities
included in this prospectus will be used for general corporate purposes. Any
specific allocation of the net proceeds of an offering of securities to a
specific purpose will be determined at the time of such offering and will be
described in the related prospectus supplement.
RATIOS OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The ratio of earnings to fixed charges for each of C&A and Products and
the ratio of earnings to combined fixed charges and preferred stock dividends
of C&A for each of the periods indicated is as follows:
FISCAL YEAR ENDED(1) THREE MONTHS ENDED
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DECEMBER 31, DECEMBER 31, DECEMBER 25, DECEMBER 26, DECEMBER 27, MARCH 31, MARCH 31,
2001 2000 1999 1998 1997 2001 2002
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Ratio of earnings to
fixed charges of
Collins & Aikman(2)..... 0.32x(3) 1.02x 0.98x(4) 1.05x 1.02x 0.4x(5) 1.00x(6)
Ratio of earnings to
fixed charges of
Products(2) ............ 0.32x(3) 1.02x 0.98x(4) 1.05x 1.02x 0.4x(5) 1.00x(6)
Ratio of earnings to
combined fixed
charges and preferred
stock dividends of
Collins & Aikman(4)..... 0.32x(3) 1.02x 0.98x(4) 1.05x 1.02x 0.4x(5) 1.00x(6)
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(1) Fiscal year 2000 was a 53-week year. All other years were 52 weeks.
(2) For purposes of calculating the ratio of earnings to fixed charges,
earnings represents income or loss from continuing operations before
income taxes, exclusive of income or loss from minority interest and
equity method investments, plus fixed charges, plus amortization of
capitalized interest and income distributions from equity method
investments, less capitalized interest. Fixed charges include interest
expense (including amortization of deferred financing costs), capitalized
interest, and the portion of operating rental expense which management
believes is representative of the interest component of rent expense
(assumed to be 33%).
(3) For the year ended December 31, 2001, additional earnings of $68 million
would have been required to make the ratio 1.00x during the period.
(4) For the fiscal year ended 1999, additional earnings of $1.7 million would
have been required to make the ratio 1.00x during the period.
(5) For the three months ended March 31, 2001, additional earnings of $15.1
million would have been required to make the ratio 1.00x during the
period.
(6) For the three months ended March 31, 2002, additional earnings of $0.1
million would have been required to make the ratio 1.00x during the
period.
The ratios for future periods will be included in our reports on Forms
10-K and 10-Q. These reports will be incorporated by reference into this
prospectus at the time they are filed.
3
INFORMATION ABOUT OUR COMPANY
We are a global leader in the design, engineering and manufacturing of
automotive interior components, including instrument panels, fully assembled
cockpit modules, floor and acoustic systems, automotive fabric, interior trim
and convertible top systems. We have the number one or two North American
market share position in terms of sales in seven out of ten major automotive
interior categories tracked by CSM Worldwide. We are also the largest North
American supplier of convertible top systems in terms of sales. Following our
acquisition of TAC-Trim in December 2001, we became a leading global supplier
of fully assembled cockpit modules, a market segment we expect to grow
significantly over the next five years. In North America, we manufacture
components for approximately 90% of all light vehicle production platforms. We
have over 25,000 employees and more than 120 plants and facilities in North
America, Europe and South America.
C&A is a holding company and all of its operations are conducted through
Products and Products' subsidiaries. In February 2001, Heartland Industrial
Partners, L.P. acquired a controlling interest in C&A. Since the investment, we
have pursued acquisitions that have furthered a strategy of serving as a prime
contractor to both Tier I integrators, which are shifting capital and emphasis
away from interior components manufacturing and towards electronics and the
delivery of fully integrated interior modules, and to OEMs, which continue to
increase their outsourcing of complete interior manufacturing.
o On July 3, 2001, we acquired the Becker Group, a leading supplier of
plastic components to the automotive industry.
o On September 21, 2001, we acquired Joan Automotive Industries, a leading
supplier of automotive fabric to the automotive industry, and the assets
of Joan's affiliated automotive yarn dyeing operation, Western Avenue
Dyers, L.P.
o On December 20, 2001, we acquired the Textron Automotive Company's Trim
division (TAC-Trim), one of the largest suppliers of instrument panels
and fully assembled cockpit modules and a major automotive plastics
manufacturer of interior and exterior trim components in North America,
Europe and South America.
The combination of Collins & Aikman, Becker, Joan and TAC-Trim created one
of the industry's largest and most broadly based manufacturers of automotive
interior components, systems and modules. We have the capability to supply
diverse combinations of stylistically matched, functionally engineered and
acoustically integrated interior trim components, systems and modules and
market interior products to customers through a single "global commercial
operations" group, which supplies products from three primary categories:
plastic components and cockpits, carpet and acoustics and automotive fabrics.
In addition, we continue to market our convertible top systems through the Dura
convertible group.
4
DESCRIPTION OF C&A CAPITAL STOCK
The authorized capital stock of C&A consists of 300,000,000 shares of
common stock, par value $0.01 per share, and 16,000,000 shares of preferred
stock, par value $0.01 per share. As of May 30, 2002, there were 67,577,687
shares of common stock outstanding, excluding 1,057,595 shares of common stock
subject to outstanding options granted pursuant to our stock option plans,
5,800,000 shares of common stock which may be issued pursuant to the exercise
of common stock purchase rights described below under "Description of C&A
Common Stock -- Common Stock Purchase Rights," and 160,000 shares subject to a
warrant that is presently exercisable. As of May 30, 2002, C&A had no shares of
preferred stock outstanding.
DESCRIPTION OF C&A COMMON STOCK
Subject to the rights of holders of preferred stock then outstanding,
holders of C&A common stock are entitled to receive such dividends as may from
time to time be declared by the Board. Holders of C&A common stock are entitled
to one vote per share on all matters on which the holders of C&A common stock
are entitled to vote. Because holders of C&A common stock do not have
cumulative voting rights, the holders of the majority of the shares of C&A
common stock represented at a meeting can select all the directors. In the
event of liquidation, dissolution or winding up of C&A, holders of C&A common
stock would be entitled to share ratably in all assets of the Company available
for distribution to the holders of the Company common stock.
Upon full payment of the purchase price therefor, shares of C&A common
stock will not be liable to further calls or assessments by the Company. There
are no preemptive rights for C&A common stock in the restated certificate of
incorporation.
The transfer agent and registrar for C&A common stock is First Union
National Bank of North Carolina.
COMMON STOCK PURCHASE RIGHTS
On May 17, 2002, we announced a distribution of non-transferable rights to
purchase C&A common stock to all holders of our common stock as of May 28,
2002. Each shareholder (other than certain shareholders who have agreed to
contractually waive their right to exercise rights) will be granted one
non-transferable right to purchase 0.4 shares of common stock per share of
common stock held by such holder. Shareholders holding an aggregate of
approximately 52,704,000 shares of common stock have agreed that they will not
exercise their rights. This means that the rights offering will be exercisable
for an aggregate of approximately 5,800,000 shares of common stock. The
exercise price of the non-transferable rights is $12.50 per whole share of
common stock for which the rights are exercisable. The non-transferable rights
become exercisable for a 16-day minimum period once a registration statement
for the issuance of the underlying shares has been declared effective by the
SEC. We are obligated to use our best efforts to have a registration statement
for the underlying shares declared effective prior to October 31, 2002, but
such date will be extended, at the request of the underwriters for any offering
of our common stock, to the 180th day following the closing of this offering.
ANTI-TAKEOVER PROVISIONS
The amended and restated certificate of incorporation and the bylaws of
C&A contain certain provisions that may delay, defer or prevent a change in
control of C&A and make removal of management more difficult. These provisions
are intended to enhance the likelihood of continuity and stability in the
composition of the board and in the policies formulated by the Board of
Directors and to discourage certain types of transactions which may involve an
actual or threatened change of control of C&A. The provisions are designed to
reduce the vulnerability of C&A to an unsolicited proposal for a takeover of
C&A that does not contemplate the acquisition of all its outstanding shares or
an unsolicited proposal for the restructuring or sale of all or part of C&A.
The provisions also are intended to discourage certain tactics that may be used
in proxy fights. Set forth below is a description of such provisions in the
restated certificate of Incorporation and the bylaws.
5
Pursuant to the amended and restated certificate of incorporation, the
Board of Directors is divided into three classes serving staggered three-year
terms. This provision may only be amended or repealed by vote of 80% or more of
the outstanding voting stock. Directors can be removed from office only for
cause and only by the affirmative vote of the holders of a majority of the
combined voting power of the then outstanding shares of voting stock, voting
together as a single class. Vacancies on the Board of Directors and newly
created directorships may be filled only by the remaining directors and not by
the stockholders.
The amended and restated certificate of incorporation provides that the
number of directors will be fixed by, or in the manner provided in, the bylaws.
The bylaws provide that the whole Board of Directors will consist of such
number of members as fixed from time to time by the Board of Directors.
Accordingly, the Board of Directors, and not the stockholders, has the
authority to determine the number of directors and (to the extent such action
is consistent with its fiduciary duties) could delay any stockholder from
obtaining majority representation on the Board of Directors by enlarging the
Board of Directors and filling the new vacancies with its own nominees until
the next stockholder election.
The bylaws establish an advance notice procedure with regard to the
nomination, other than by or at the direction of the Board of Directors or a
committee thereof, of candidates for election as directors and with regard to
certain matters to be brought before an annual meeting of stockholders of C&A.
In general, notice as to any such stockholder nomination or other proposal must
be received by C&A with respect to annual meetings not less than 90 nor more
than 120 days prior to the anniversary of the immediately preceding annual
meeting and must contain certain specified information concerning the person to
be nominated or the matters to be brought before the meeting and concerning the
stockholder submitting the proposal.
If at any time the parties (other than C&A) to the stockholders agreement
contemplated by that certain share purchase agreement, dated as of January 12,
2001, to which C&A is a party (as such stockholders agreement may be amended,
amended and restated, or otherwise modified or replaced) beneficially own in
the aggregate less than 25% of the outstanding capital stock of C&A, then on
and after such date, any action required or permitted to be taken by the
stockholders of C&A may be effected only at a duly called annual or special
meeting of such stockholders and may not be effected by consent in writing by
such stockholders.
Special meetings of the stockholders may be called only by the Chairman or
one of the co-chairmen of the Board of Directors or a majority of the entire
Board of Directors, and the business transacted at any special meeting will be
confined to the matters specified in the notice of meeting.
The foregoing provisions, together with the ability of the Board of
Directors to issue C&A preferred stock without further stockholder action,
could delay or frustrate the removal of incumbent directors or the assumption
of control by the holder of a large block of C&A's common stock even if such
removal or assumption would be beneficial, in the short term, to stockholders
of C&A. The provisions could also discourage or make more difficult a merger,
tender offer or proxy contest even if such event would be favorable to the
interests of stockholders.
The amended and restated certificate of incorporation also contains a
provision which provides that a Business Combination (as hereinafter defined)
shall require the affirmative vote of the holders of 662/3% or more of the
combined voting power of the then outstanding shares of voting stock of C&A,
voting together as a single class.
A "Business Combination" is
(1) any merger or consolidation of C&A (whether or not C&A is the
surviving corporation);
(2) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of related transactions)
of all or substantially all the assets of C&A;
(3) the adoption of any plan or proposal for the liquidation, dissolution,
spinoff, splitup, splitoff, or winding up of the affairs of C&A
(whether voluntary or involuntary); or
(4) any agreement, contract or other arrangement providing for any of the
transactions described in this definition of Business Combination.
6
SECTION 203 OF DELAWARE GENERAL CORPORATE LAW
Section 203 of Delaware General Corporate Law ("DGCL") prevents an
"interested stockholder" (defined in Section 203, generally, as a person owning
15% or more of a corporation's outstanding voting stock), from engaging in a
"business combination" (as defined in Section 203) with a publicly held
Delaware corporation for three years following the date such person became an
interested stockholder unless (i) before such person became an interested
stockholder, the board of directors of the corporation approved the transaction
in which the interested stockholder became an interested stockholder or
approved the business combination; (ii) upon consummation of the transaction
that resulted in the interested stockholder becoming an interested stockholder,
the interested stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced (excluding stock
held by directors who are also officers of the corporation and by employee
stock plans that do not provide employees with the rights to determine
confidentially whether shares held subject to the plan will be tendered in a
tender or exchange offer); or (iii) following the transaction in which such
person became an interested stockholder, the business combination is approved
by the board of directors of the corporation and authorized at a meeting of
stockholders by the affirmative vote of the holders of two-thirds of the
outstanding voting stock of the corporation not owned by the interested
stockholder.
DIRECTORS' LIABILITY AND INDEMNIFICATION
C&A's amended and restated certificate of incorporation contains a
provision which eliminates the personal liability of C&A's directors for
monetary damages resulting from breaches of their fiduciary duty to the fullest
extent permitted by the DGCL. Under the DGCL, C&A may not eliminate directors'
liability for breaches of the duty of loyalty, acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
violations under Section 174 of the DGCL or any transaction from which the
director derived an improper personal benefit. This provision also has no
effect on the ability of stockholders to seek equitable relief, such as an
injunction, that may be available to redress a breach of fiduciary duty, even
though such stockholders could not seek monetary damages from the directors for
such breach. The bylaws contain provisions requiring, subject to certain
procedures, the indemnification of C&A's directors and officers to the fullest
extent permitted by Section 145 of the DGCL, including circumstances in which
indemnification is otherwise discretionary, and provide for the mandatory
advancement of litigation expenses incurred in defense of a claim upon the
receipt by the C&A of any undertaking required by law. C&A's Board of Directors
is further authorized, in its discretion, to provide such rights to employees
and agents of C&A. In addition, C&A may enter into indemnification agreements
with its directors and executive officers that generally provide for similar
rights to indemnification and advancement of expenses. Management believes that
these provisions are necessary to attract and retain qualified persons as
directors and officers.
REGISTRATION RIGHTS
We have granted to certain stockholders (the "Registration Rights
Holders") certain demand registration rights and "piggy-back" registration
rights with respect to certain C&A common stock held by them. Based on a review
of Schedule 13Ds filed by the respective parties through May 16, 2002 and other
information available to the Company, as of May 16, 2002, the Registration
Rights Holders hold approximately 62,120,187 million shares of C&A common
stock, in the aggregate. They are entitled to rights with respect to the
registration of their shares under the Securities Act of 1933 as follows:
Demand Registration Rights
Under the terms of the agreements between us and the Registration Rights
Holders, certain of such Registration Rights Holders may require us to file a
registration statement under the Securities Act with respect to shares of
common stock owned by them, under certain circumstances, and we are required to
use our reasonable best efforts to effect such a registration. Such rights are
subject to various customary cutback and holdback provisions. No shares are
being sold under this prospectus pursuant to any demand registration rights.
7
Piggy-Back Registration Rights
If we propose to register any of our securities under the Securities Act,
subject to certain exceptions, pursuant to the terms of the agreements between
us and the Registration Rights Holders for our account or for the account of
other stockholders, the Registration Rights Holders are entitled to notice of,
and to include in the registration, shares of common stock owned by them,
subject to customary cutback and holdback provisions. This prospectus may be
used by Registration Rights Holders only when the Company is selling shares
pursuant to an underwritten offering of Company common stock in accordance with
the requirements of the applicable agreement.
The description of the common stock contained in our registration
statement on Form 8-A filed on June 20, 1994 pursuant to Section 12 of the
Exchange Act, including any amendment or report filed for the purpose of
updating such description is incorporated by reference herein.
DESCRIPTION OF C&A PREFERRED STOCK
Pursuant to the restated certificate of incorporation of the Company, the
Board is authorized, subject to any limitations prescribed by law, to provide
for the issuance of the shares of Company preferred stock in series and to
establish from time to time the number of shares to be included in each such
series and to fix the designation, powers, preferences and rights of the shares
of each such series and any qualifications, limitations or restrictions
thereof. Because the Board has the power to establish the preferences and
rights of each series, it may afford the holders of any Company preferred stock
preferences, powers and rights (including voting rights) senior to the rights
of the holders of Company common stock. The issuance of shares of Company
preferred stock, or the issuance of rights to purchase such shares, could be
used to discourage an unsolicited acquisition proposal.
FUTURE SERIES OF PREFERRED STOCK
The following description of C&A preferred stock sets forth certain
general terms and provisions of C&A preferred stock to which any prospectus
supplement may relate. The statements below describing C&A preferred stock are
in all respects subject to and qualified in their entirety by reference to the
applicable provisions of C&A's amended and restated certificate of
incorporation and bylaws and any applicable amendment to the amended and
restated certificate of incorporation designating terms of preferred stock (a
"Designating Amendment").
Reference is made to the prospectus supplement relating to C&A preferred
stock for specific terms, including:
o The title and stated capital value of such preferred stock;
o The number of shares of preferred stock offered, the liquidation
preference per share and the offering price of the preferred stock;
o The dividend rate(s), period(s) and/or payment date(s) or method(s) of
calculation thereof applicable to the preferred stock;
o The date from which dividends on the preferred stock shall accumulate,
if applicable;
o The procedures for any auction and remarketing, if any, for the
preferred stock;
o The provisions for a sinking fund, if any, for the preferred stock;
o The provision for redemption, if applicable, of the preferred stock;
o Any listing of the preferred stock on any securities exchange;
o The terms and conditions, if applicable, upon which the preferred stock
will be convertible into C&A common stock, including the conversion price
(or manner of calculation thereof);
o Any other specific terms, preferences, rights, limitations or
restrictions of the preferred stock;
o A discussion of U.S. federal income tax considerations applicable to the
preferred stock;
8
o The voting rights of the preferred stock and the relative ranking and
preference of the preferred stock as to dividends rights and rights upon
liquidation, dissolution or winding up of the affairs of C&A; and
o Any limitations on issuance of any series of preferred stock ranking
senior to or on a parity with such series of preferred stock as to
dividend rights and rights upon liquidation, dissolution or winding up of
the affairs of C&A.
RANK
Unless otherwise specified in the prospectus supplement, C&A preferred
stock will, with respect to dividend rights upon liquidation, dissolution or
winding up of the Company, rank
o senior to all classes or series of C&A common stock, and to all equity
securities ranking junior to the preferred stock with respect to dividend
rights or rights upon liquidation, dissolution or winding up of the
Company;
o on a parity with all equity securities issued by the Company the terms
of which specifically provide that such equity securities rank on a
parity with the preferred stock with respect to dividend rights or rights
upon liquidation, dissolution or winding up of the Company; and
o junior to all equity securities issued by the Company the terms of which
specifically provide that such equity securities rank senior to the
preferred stock with respect to dividend rights or rights upon
liquidation, dissolution or winding up of the Company.
The term "equity securities" does not include convertible debt securities.
DIVIDENDS
Holders of C&A preferred stock of each series will be entitled to receive,
when, as and if declared by C&A's board of directors, out of our assets legally
available for payment, cash dividends at such rates and on such dates as will
be set forth in the prospectus supplement. Each such dividend shall be payable
to holders of record as they appear on our share transfer books on such record
dates as shall be fixed by C&A's board of directors.
Dividends on any series of C&A preferred stock may be cumulative or
non-cumulative, as provided in the applicable prospectus supplement. Dividends,
if cumulative, will be cumulative from and after the date set forth in the
applicable prospectus supplement. If C&A's board of directors fails to declare
a dividend payable on a dividend payment date on any series of C&A Preferred
Stock for which dividends are non-cumulative, then the holders of such series
of C&A preferred stock will have no right to receive a dividend in respect of
the dividend period ending on such dividend payment date, and the Company will
have no obligation to pay the dividend accrued for such period, whether or not
dividends on such series are declared payable on any future dividend payment
date.
If C&A preferred stock of any series is outstanding, no dividends will be
declared or paid or set apart for payment on any stock of the Company of any
other series ranking, as to dividends, on a parity with or junior to the C&A
preferred stock of such series for any period unless:
(a) if such series of preferred stock has a cumulative dividend,
full cumulative dividends have been, or contemporaneously are,
declared and paid or declared and a sum sufficient for the
payment thereof is set apart for such payment on the preferred
stock of such series for all past dividend periods and the then
current dividend period or
(b) if such series of preferred stock does not have a cumulative
dividend, full dividends for the then current dividend period
have been, or contemporaneously are, declared and paid or
declared and a sum sufficient for the payment thereof is set
apart for such payment on the preferred stock of such series.
When dividends are not paid in full (or a sum sufficient for such full
payment is not so set apart) upon C&A preferred stock of any series and the
shares of any other series of C&A preferred stock ranking on
9
a parity as to dividends with the C&A preferred stock of such series, all
dividends declared upon C&A preferred stock of such series and any other series
of C&A preferred stock ranking on a parity as to dividends with C&A preferred
stock shall be declared pro rata so that the amount of dividends declared per
share of C&A preferred stock of such series and such other series of C&A
preferred stock shall in all cases bear to each other the same ratio that
accrued dividends per share on the C&A preferred stock of such series (which
shall not include any accumulation in respect of unpaid dividends for prior
dividends periods if C&A preferred stock does not have a cumulative dividend)
and such other series of C&A preferred stock bear to each other. No interest,
or sum of money in lieu of interest, shall be payable in respect of any
dividend payment or payments on C&A preferred stock of such series which may be
in arrears.
Except as provided in the immediately preceding paragraph, unless,
(a) if such series of C&A preferred stock has a cumulative dividend, full
cumulative dividends on C&A preferred stock of such series have been,
or contemporaneously are, declared and paid or declared and a sum
sufficient for the payment thereof is set apart for payment for all
past dividend periods and the then current dividend period, and
(b) if such series of C&A preferred stock does not have a cumulative
dividend, full dividends on the C&A preferred stock of such series
have been, or contemporaneously are, declared and paid or declared and
a sum sufficient for the payment thereof is set apart for payment for
the then current dividend period,
no dividends (other than in shares of C&A common stock or other shares of stock
raking junior to the C&A preferred stock of such series as to dividends and
upon liquidation) shall be declared or paid or set aside for payment nor shall
any other distribution be declared or made upon the C&A common stock, or any
other stock of the Company ranking junior to or on a parity with the C&A
preferred stock of such series as to dividends or upon liquidation, nor shall
any shares of C&A common stock, or any other shares of the Company raking
junior to or on a parity with the C&A preferred stock of such series as to
dividends or upon liquidation be redeemed, purchased or otherwise acquired for
any consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any such shares) by the Company (except by
conversion into or exchange for other stock of the Company ranking junior to
the C&A preferred stock of such series as to dividends and upon liquidation).
Any dividend payment made on shares of a series of C&A preferred stock
shall be credited against the earliest accrued but unpaid dividend due with
respect to shares of such series which remains payable.
REDEMPTION
If so provided in the applicable prospectus supplement, the C&A preferred
stock will be subject to mandatory redemption or redemption at the option of
the Company, as a whole or in part, in each case upon terms, at the times and
at the redemption prices set forth in the prospectus supplement.
The prospectus supplement relating to a series of C&A preferred stock that
is subject to mandatory redemption will specify the number of shares of C&A
preferred stock that shall be redeemed by the Company in each year commencing
after a date to be specified, at a redemption price per share to be specified,
together with an amount equal to all accrued and unpaid dividends thereon
(which shall not, if the C&A preferred stock does not have a cumulative
dividend, including any accumulation in respect of unpaid dividends for prior
dividend periods) to the date of redemption. The redemption price may be
payable in cash or other property, as specified in the applicable prospectus
supplement. If the redemption price for the C&A preferred stock of any series
is payable only from the net proceeds of the issuance of shares of stock of the
Company, the terms of the C&A preferred stock may provide that, if no such
shares of stock shall have been issued or to the extent the net proceeds from
any issuance are insufficient to pay in full the aggregate redemption price
then due, the C&A preferred stock shall automatically and mandatorily be
converted into the applicable shares of stock of the Company pursuant to
conversion provisions specified in the applicable prospectus supplement.
10
Notwithstanding the foregoing, unless:
(a) if a series of C&A preferred stock has a cumulative dividend,
full cumulative dividends on all shares of such series of C&A
preferred stock shall have been, or contemporaneously are,
declared and paid or declared and a sum sufficient for the
payment thereof set apart for payment for all past dividend
periods and the then current dividend period, and
(b) if a series of C&A preferred stock does not have a cumulative
dividend, full dividends on all shares of the C&A preferred stock
of such series have been, or contemporaneously are, declared and
paid or declared and a sum sufficient for the payment thereof set
apart for payment for the then current dividend period,
no shares of such series of C&A preferred stock shall be redeemed unless all
outstanding shares of preferred stock of such series are simultaneously
redeemed; provided, however, that the foregoing shall not prevent the purchase
or acquisition of C&A preferred stock of such series pursuant to a purchase or
exchange offer made on the same terms to holders of all outstanding shares of
C&A preferred stock of such series. In addition, unless:
(a) if such series of C&A preferred stock has a cumulative dividend,
full cumulative dividends on all outstanding shares of such
series of C&A preferred stock have been, or contemporaneously
are, declared and paid or declared and a sum sufficient for the
payment thereof set apart for payment for all past dividend
periods and the then current dividend period, and
(b) if such series of C&A preferred stock does not have a cumulative
dividend, full dividends on the C&A preferred stock of such
series have been, or contemporaneously are, declared and paid or
declared and a sum sufficient for the payment thereof set apart
for payment for the then current dividend period,
the Company shall not purchase or otherwise acquire directly or indirectly any
shares of C&A preferred stock of such series (except by conversion into or
exchange for shares of stock of the Company ranking junior to the C&A preferred
stock of such series as to dividends and upon liquidation); provided, however,
that the foregoing shall not prevent the purchase or acquisition of shares of
C&A preferred stock of such series pursuant to a purchase or exchange offer
made on the same terms to holders of all outstanding shares of C&A preferred
stock of such series.
If fewer than all of the outstanding shares of C&A preferred stock of any
series are to be redeemed, the number of shares to be redeemed will be
determined by the Company and such shares may be redeemed pro rata from the
holders of record of such shares in proportion to the number of such shares
held or for which redemption is requested by such holder (with adjustments to
avoid redemption of fractional shares) or by any other equitable manner
determined by the Company.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of record of C&A preferred stock
of any series to be redeemed at the address shown on the stock transfer books
of the Company. Each notice shall state:
o the redemption date;
o the number of shares and series of the C&A preferred stock to be
redeemed;
o the redemption price;
o the place or places where certificates for the C&A preferred stock are
to be surrendered for payment of the redemption price;
o that dividends on the shares to be redeemed will cease to accrue on such
redemption date; and
o the date upon which the holder's conversion rights, if any, as to such
shares shall terminate.
If fewer than all the shares of C&A preferred stock of any series are to
be redeemed, the notice mailed to each such holder thereof shall also specify
the number of shares of C&A preferred stock to be redeemed from each such
holder. If notice of redemption of any C&A preferred stock has been given and
11
if the funds necessary for such redemption have been set aside by the Company
in trust for the benefit of the holders of any C&A preferred stock so called
for redemption, then from and after the redemption date dividends will cease to
accrue on the C&A preferred stock, and all rights of the holders of such shares
will terminate, except the right to receive the redemption price.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the Company, then, before any distribution or payment shall
be made to the holders of any C&A common stock or any other class or series of
stock of the Company ranking junior to the C&A preferred stock in the
distribution of assets upon any liquidation, dissolution or winding up of the
Company, the holders of each series of C&A preferred stock shall be entitled to
receive out of assets of the Company legally available for distribution to
stockholders liquidating distributions in the amount of the liquidation
preference per share, if any, set forth in the applicable prospectus
supplement, plus an amount equal to all dividends accrued and unpaid thereon
(which shall not include any accumulation in respect of unpaid noncumulative
dividends for prior dividend periods). After payment of the full amount of the
liquidating distributions to which they are entitled, the holders of C&A
preferred stock will have no right or claim to any of the remaining assets of
the Company. In the event that, upon any such voluntary or involuntary
liquidation, dissolution or winding up, the available assets of the Company are
insufficient to pay the amount of the liquidating distributions on all
outstanding shares of C&A preferred stock and the corresponding amounts payable
on all shares of other classes or series of stock of the Company ranking on a
parity with the C&A preferred stock in the distribution of assets, then the
holders of the C&A preferred stock and all other such classes or series of
stock shall share ratably in any such distribution of assets in proportion to
the full liquidating distributions to which they would otherwise be
respectively entitled.
If liquidating distributions shall have been made in full to all holders
of C&A preferred stock, the remaining assets of the Company shall be
distributed among the holders of any other classes or series of stock ranking
junior to the C&A preferred stock upon liquidation, dissolution or winding up,
according to their respective rights and preferences and in each case according
to their respective number of shares. For such purposes, the consolidation or
merger of the Company with or into any other corporation, trust or entity, or
the sale, lease or conveyance of all or substantially all of the property or
business of the Company, shall not be deemed to constitute a liquidation,
dissolution or winding up of the Company.
VOTING RIGHTS
Holders of the C&A preferred stock will not have any voting rights, except
as set forth below or as otherwise from time to time required by law or as
indicated in the applicable prospectus supplement.
Unless provided otherwise for any series of C&A preferred stock, so long
as any shares of C&A preferred stock of a series remain outstanding, the
Company will not, without the affirmative vote or consent of the holders of at
least two-thirds of the shares of such series of C&A preferred stock
outstanding at the time, given in person or by proxy, either in writing or at a
meeting (such series voting separately as a class):
o authorize or create, or increase the authorized or issued amount of, any
class or series of stock ranking prior to such series of C&A preferred
stock with respect to payment of dividends or the distribution of assets
upon liquidation, dissolution or winding up or reclassify any authorized
stock of the Company into such shares, or create, authorize or issue any
obligation or security convertible into or evidencing the right to
purchase any such shares; or
o amend, alter or repeal the provisions of C&A's amended and restated
certificate of incorporation or the Designating Amendment for such series
of C&A preferred stock, whether by merger, consolidation or otherwise (an
"Event"), so as to materially and adversely affect any right, preference,
privilege or voting power of such series of Preferred Stock or the
holders thereof; provided, however, with respect to the occurrence of any
of the Events set forth in the prior bullet point, so long as the C&A
preferred stock remains outstanding with the terms thereof materially
12
unchanged, taking into account that upon the occurrence of an Event the
Company may not be the surviving entity, the occurrence of any such Event
shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting power of holders of C&A preferred
stock, and provided, further that
(x) any increase in the amount of the authorized C&A preferred stock or
the creation or issuance of any other series of C&A preferred stock,
or
(y) any increase in the amount of authorized shares of such series or any
other series of C&A preferred stock, in each case ranking on a parity
with or junior to the C&A preferred stock of such series with respect
to payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up, shall not be deemed to
materially and adversely affect such rights, preferences, privileges
or voting powers.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected all outstanding shares of such series of C&A preferred stock shall
have been redeemed or called for redemption and sufficient funds shall have
been deposited in trust to effect such redemption.
CONVERSION RIGHTS
The terms and conditions, if any, upon which any series of C&A preferred
stock is convertible into C&A common stock will be set forth in the applicable
prospectus supplement relating thereto. Such terms will include the number of
shares of C&A common stock into which the shares of C&A preferred stock are
convertible, the conversion price (or manner of calculation thereof), the
conversion period, provisions as to whether conversion will be at the option of
the holders of the C&A preferred stock or the Company, the events requiring an
adjustment of the conversion price and provisions affecting conversion in the
event of the redemption of such series of C&A preferred stock.
TRANSFER AGENT
The transfer agent and registrar for the C&A preferred stock will be set
forth in the applicable prospectus supplement.
DESCRIPTION OF C&A AND PRODUCTS DEBT SECURITIES
GENERAL
C&A or Products may issue debt securities from time to time in one or more
series, under one or more indentures, each dated as of a date on or prior to
the issuance of the debt securities to which it relates. Senior debt securities
and subordinated debt securities may be issued pursuant to separate indentures,
a senior indenture and a subordinated indenture, respectively, in each case
between us and a trustee qualified under the Trust Indenture Act. Products may
issue debt securities from time to time in one or more series, under one or
more indentures, each dated as of a date on or prior to the issuance of the
debt securities to which it relates. Senior debt securities and subordinated
debt securities may be issued pursuant to separate indentures, a senior
indenture and a subordinated indenture, respectively, in each case between
Products and a trustee qualified under the Trust Indenture Act.
The form of such indentures have been filed as an exhibit to the
registration statement of which this prospectus is a part, subject to such
amendments or supplements as may be adopted from time to time. The senior
indentures and the subordinated indentures, as amended or supplemented from
time to time, are sometimes referred to individually as an "indenture" and
collectively as the "indentures." Each indenture will be subject to and
governed by the Trust Indenture Act. The aggregate principal amount of debt
securities which may be issued under each indenture will be unlimited and each
indenture will set forth the specific terms of any series of debt securities or
provide that such terms shall be set forth in, or determined pursuant to, an
authorizing resolution, as defined in the applicable prospectus supplement,
and/or a supplemental indenture, if any, relating to such series.
13
The statements made below relating to the C&A and Products debt securities
and the indentures are summaries of the anticipated provisions thereof, do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all of the provisions of the applicable indenture and any
applicable U.S. federal income tax considerations as well as any applicable
modifications of or additions to the general terms described below in the
applicable prospectus supplement. The applicable prospectus supplement may also
state that any of the terms set forth herein are inapplicable to such series of
C&A and Products and securities.
TERMS
The debt securities will be C&A's or Products' unsecured obligations.
C&A's and Products' senior debt securities will rank equal in right of
payment with all of C&A's or Products' other unsecured and unsubordinated
indebtedness, as applicable.
C&A's and Products' subordinated debt securities will be subordinated in
right of payment to the prior payment in full of all of C&A's or Products'
senior indebtedness, as applicable, which is defined in the section called "--
Ranking of Debt Securities" below.
The specific terms of each series of C&A's and Products' debt securities
will be set forth in the applicable prospectus supplement relating thereto,
including the following, as applicable:
(1) the title of such debt securities and whether such debt securities
are senior debt securities or subordinated debt securities and, if
subordinated debt securities, the specific subordination provisions
applicable thereto;
(2) the aggregate principal amount of such debt securities and any limit
on such aggregate principal amount;
(3) the price (expressed as a percentage of the principal amount thereof)
at which such debt securities will be issued and, if other than the
principal amount thereof, the portion of the principal amount thereof
payable upon declaration of acceleration of the maturity thereof;
(4) if convertible into shares of common stock or preferred stock, the
terms on which such debt securities are convertible, including the
initial conversion price, the conversion period, any events requiring
an adjustment of the applicable conversion price and any requirements
relating to the reservation of such common stock or preferred stock
for purposes of conversion;
(5) the date(s), or the method for determining such date or dates, on
which the principal of such debt securities will be payable and, if
applicable, the terms on which such maturity may be extended;
(6) the rate(s) (which may be fixed or floating), or the method by which
such rate or rates shall be determined, at which such debt securities
will bear interest, if any;
(7) the date(s), or the method for determining such date or dates, from
which any such interest will accrue, the dates on which any such
interest will be payable, the record dates for such interest payment
dates, or the method by which such dates shall be determined, the
persons to whom such interest shall be payable, and the basis upon
which interest shall be calculated if other than that of a 360-day
year of twelve 30-day months;
(8) the place(s) where the principal of and interest, if any, on such
debt securities will be payable, where such debt securities may be
surrendered for registration of transfer or exchange and where notices
or demands to or upon us in respect of such debt securities and the
applicable indenture may be served;
(9) the period(s), if any, within which, the price or prices at which and
the other terms and conditions upon which such debt securities may,
pursuant to any optional or mandatory redemption provisions, be
redeemed, as a whole or in part, at our option;
14
(10) our obligation, if any, to redeem, repay or purchase such debt
securities pursuant to any sinking fund (as defined in the applicable
indenture) or analogous provision or at the option of a holder
thereof, and the period or periods within which, the price or prices
at which and the other terms and conditions upon which such debt
securities will be redeemed, repaid or purchased, as a whole or in
part, pursuant to such obligations;
(11) if other than U.S. dollars, the currency or currencies in which the
principal of and interest, if any, on such debt securities are
denominated and payable, which may be a foreign currency or units of
two or more foreign currencies or a composite currency or currencies,
and the terms and conditions relating thereto;
(12) whether the amount of payments of principal of or interest, if any,
on such debt securities may be determined with reference to an index,
formula or other method (which index, formula or method may, but need
not be, based on the yield on or trading price of other securities,
including United States Treasury securities, or on a currency,
currencies, currency unit or units, or composite currency or
currencies) and the manner in which such amounts shall be determined;
(13) whether the principal of or interest, if any, on the debt securities
of the series are to be payable, at our election or a holder thereof,
in a currency or currencies, currency unit or units or composite
currency or currencies other than that in which such debt securities
are denominated or stated to be payable and the period or periods
within which, and the terms and conditions upon which, such election
may be made;
(14) provisions, if any, granting special rights to the holders of debt
securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the events of
default or our covenants with respect to debt securities of the
series, whether or not such events of default or covenants are
consistent with the events of default or covenants described herein;
(16) whether debt securities of the series are to be issuable initially in
temporary global form and whether any debt securities of the series
are to be issuable in permanent global form and, if so, whether
beneficial owners of interests in any such security in permanent
global form may exchange such interests for debt securities of such
series and of like tenor of any authorized form and denomination and
the circumstances under which any such exchanges may occur, if other
than in the manner provided in the applicable indenture, and, if debt
securities of the series are to be issuable as a global security, the
identity of the depository for such series;
(17) the applicability, if any, of the defeasance and covenant defeasance
provisions of the applicable indenture to the debt securities of the
series;
(18) if exchangeable into another series of debt securities, the terms on
which such debt securities are exchangeable;
(19) if other than denominations of $1,000 and any integral multiple
thereof the denominations in which such Securities shall be issuable;
and
(20) any other terms of the series of debt securities and any additions,
deletions or modifications to the applicable indenture.
If the applicable prospectus supplement provides, C&A and Products debt
securities may be issued at a discount below their principal amount and provide
for less than the entire principal amount thereof to be payable upon
declaration of acceleration of the maturity thereof. In such cases, all
material U.S. federal income tax considerations will be described in the
applicable prospectus supplement.
15
The applicable prospectus supplement will contain information with respect
to any deletions from, modifications of or additions to the events of default
or covenants described below.
PARENT GUARANTEE
All debt securities issued by Products will be fully and unconditionally
guaranteed by the Company. Additional terms relating to such guarantee will be
set forth in the applicable prospectus supplement relating to Products debt
securities.
DENOMINATION, INTEREST, REGISTRATION AND TRANSFER
The C&A and Products debt securities of each series only in registered
form, without coupons, in denominations of $1,000, or in such other currencies
or denominations as may be set forth in the applicable indenture or specified
in, or pursuant to, an authorizing resolution and/or supplemental indenture, if
any, relating to such series of debt securities.
The principal of and interest, if any, on any series of C&A and Products
debt securities will be payable at the corporate trust office of the trustee,
the address of which will be stated in the applicable prospectus supplement.
However, the issuer's option, interest payments may be made by check mailed to
the address of the person entitled thereto as it appears in the applicable
register for such debt securities.
Subject to certain limitations imposed upon debt securities issued in
book-entry form, C&A and Products debt securities of any series:
o will be exchangeable for any authorized denomination of other debt
securities of the same series and of a like aggregate principal amount
and tenor upon surrender of such debt securities at the trustee's
corporate trust office or at the office of any registrar designated by us
for such purpose; and
o may be surrendered for registration of transfer or exchange thereof at
the corporate trust office of the trustee or at the office of any
registrar designated by us for such purpose.
No service charge will be made for any registration of transfer or
exchange, but we may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection with certain transfers and
exchanges. We may act as registrar and may change any registrar without notice.
COVENANTS
The applicable prospectus supplement will describe any material covenants
in respect of a series of debt securities.
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RANKING OF DEBT SECURITIES
Senior debt securities
The senior debt securities will be unsecured unsubordinated obligations of
C&A or Products, as the case may be and will:
o rank equally in right of payment with all other unsecured and
unsubordinated indebtedness of the issuer;
o be effectively subordinated in right of payment to all secured
indebtedness of the issuer to the extent of the value of the assets
securing such indebtedness; and
o be effectively subordinated to all of the issuer's subsidiaries'
indebtedness.
Except as otherwise set forth in the applicable senior indenture or
specified in an authorizing resolution and/or supplemental indenture, if any,
relating to a series of senior debt securities to be issued, there will be no
limitations in any senior indenture on the amount of additional indebtedness
which may rank equal with the senior debt securities or on the amount of
indebtedness, secured or otherwise, which may be incurred by any of our
subsidiaries.
Subordinated debt securities
The subordinated debt securities will be the unsecured subordinated
obligations of C&A or Products, as the case may be. Unless otherwise provided
in the applicable prospectus supplement, the payment of principal of, interest
on and all other amounts owing in respect of the subordinated debt securities
will be subordinated in right of payment to the prior payment in full in cash
of principal of, interest on and all other amounts owing in respect of all of
the issuer's senior indebtedness. Upon any payment or distribution of assets of
any kind or character, whether in cash, property or securities, to creditors of
the issuer upon any total or partial liquidation, dissolution, winding up,
reorganization, assignment for the benefit of creditors or marshaling of the
issuer's assets or in a bankruptcy, reorganization, insolvency, receivership or
other similar proceeding relating to the issuer or the issuer's property,
whether voluntary or involuntary, all principal of, interest on and all other
amounts due or to become due shall be paid, first, to all senior indebtedness
of the issuer in full in cash, or such payment duly provided for to the
satisfaction of the holders of senior indebtedness, before any payment or
distribution of any kind or character is made on account of any principal of,
interest on or other amounts owing in respect of the subordinated debt
securities, or for the acquisition of any of the subordinated debt securities
for cash, property or otherwise.
If any default occurs and is continuing in the payment when due, whether
at maturity, upon any redemption, by declaration or otherwise, of any principal
of, interest on, unpaid drawings for letters of credit issued in respect of, or
regularly accruing fees with respect to, any senior indebtedness, no payment of
any kind or character shall be made by or on behalf of the issuer or any other
person on the issuer's or its behalf with respect to any principal of, interest
on or other amounts owing in respect of the subordinated debt securities or to
acquire any of the subordinated debt securities for cash, property or
otherwise.
If any other event of default occurs and is continuing with respect to any
senior indebtedness, as such event of default is defined in the instrument
creating or evidencing such senior indebtedness, permitting the holders of such
senior indebtedness then outstanding to accelerate the maturity thereof and if
the representative (as defined in the applicable indenture) for the respective
issue of senior indebtedness gives written notice of the event of default to
the trustee (a "default notice"), then, unless and until all events of default
have been cured or waived or have ceased to exist or the trustee receives
notice from the representative for the respective issue of senior indebtedness
terminating the blockage period (as defined below), during the 179 days after
the delivery of such default notice (the "blockage period"), neither the issuer
nor any other person on its behalf shall:
(1) make any payment of any kind or character with respect to any
principal of, interest on or other amounts owing in respect of the
subordinated debt securities; or
(2) acquire any of the subordinated debt securities for cash, property or
otherwise.
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Notwithstanding anything herein to the contrary, in no event will a
blockage period extend beyond 179 days from the date the payment on the
subordinated debt securities was due and only one such blockage period may be
commenced within any 360 consecutive days. No event of default which existed or
was continuing on the date of the commencement of any blockage period with
respect to the senior indebtedness shall be, or be made, the basis for
commencement of a second blockage period by the representative of such senior
indebtedness whether or not within a period of 360 consecutive days unless such
event of default shall have been cured or waived for a period of not less than
90 consecutive days (it being acknowledged that any subsequent action, or any
breach of any financial covenants for a period commencing after the date of
commencement of such blockage period that, in either case, would give rise to
an event of default pursuant to any provisions under which an event of default
previously existed or was continuing shall constitute a new event of default
for this purpose).
The subordinated indentures will not restrict the amount of senior
indebtedness or other indebtedness of an issuer or its subsidiaries. As a
result of the foregoing provisions, in the event of the issuer's insolvency,
holders of the subordinated debt securities may recover ratably less than the
issuer's general creditors.
"senior indebtedness" of an issuer, unless otherwise specified in one or
more applicable supplemental indentures or approved pursuant to a board
resolution in accordance with the applicable indenture, means, with respect to
C&A or Products, as applicable:
(1) the principal (including redemption payments), premium, if any,
interest and other payment obligations in respect of (A) the issuer's
indebtedness for money borrowed and (B) the issuer's indebtedness
evidenced by securities, debentures, bonds, notes or other similar
instruments issued by the issuer, including any such securities issued
under any deed, indenture or other instrument to which the issuer is a
party (including, for the avoidance of doubt, indentures pursuant to
which senior debt securities have been or may be issued);
(2) all of the issuer's obligations issued or assumed as the deferred
purchase price of property, all of our conditional sale obligations,
all of the issuer's hedging agreements and agreements of a similar
nature thereto and all agreements relating to any such agreements, and
all of the issuer's obligations under any title retention agreement
(but excluding trade accounts payable arising in the ordinary course
of business);
(3) all of the issuer's obligations for reimbursement on any letter of
credit, banker's acceptance, security purchase facility or similar
credit transaction;
(4) all obligations of the type referred to in clauses (1) through (3)
above of other persons for the payment of which the issuer is
responsible or liable as obligor, guarantor or otherwise;
(5) all obligations of the type referred to in clauses (1) through (4)
above of other persons secured by any lien on any of the issuer's
property or assets (whether or not such obligation is assumed by the
issuer) and
(6) any deferrals, amendments, renewals, extensions, modifications and
refundings of all obligations of the type referred to in clauses (1)
through (5) above, in each case whether or not contingent and whether
outstanding at the date of effectiveness of the applicable indenture
or thereafter incurred,
except, in each case, for the subordinated debt securities and any such other
indebtedness or deferral, amendment, renewal, extension, modification or
refunding that contains express terms, or is issued under a deed, indenture or
other instrument, which contains express terms, providing that it is
subordinate to or ranks equal with the subordinated debt securities.
Such senior indebtedness shall continue to be senior indebtedness and be
entitled to the benefits of the subordination provisions of the applicable
indenture irrespective of any amendment, modification or waiver of any term of
such senior indebtedness and notwithstanding that no express written
subordination agreement may have been entered into between the holders of such
senior indebtedness and the trustee or any of the holders.
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DISCHARGE
Under the terms of each indenture, the issuer will be discharged from any
and all obligations in respect of the debt securities of any series that have
become due and payable or will become due and payable within one year of the
within mentioned deposit and the applicable indenture (except in each case for
certain obligations, including to register the transfer or exchange of debt
securities, replace stolen, lost or mutilated debt securities, maintain paying
agencies and hold moneys for payment in trust) if the issuer irrevocably
deposits with the applicable trustee, in trust, moneys or U.S. government
obligations in an amount sufficient to pay all the principal of, and interest
on, the debt securities of such series on the dates such payments are due in
accordance with the terms of such debt securities.
In addition, unless the applicable prospectus supplement and supplemental
indenture provide otherwise, the issuer may elect either (1) to defease and be
discharged from any and all obligations with respect to such debt securities
("defeasance") or (2) to be released from our obligations with respect to such
debt securities under certain covenants in the applicable indenture, and any
omission to comply with such obligations will not constitute a default or an
event of default with respect to such debt securities ("covenant defeasance"):
(a) by delivering all outstanding debt securities of such series to
the trustee for cancellation and paying all sums payable by it
under such debt securities and the indenture with respect to such
series; or
(b) after giving notice to the trustee of its intention to defease
all of the debt securities of such series, by irrevocably
depositing with the trustee or a paying agent
(x) in the case of any debt securities of any series denominated
in U.S. dollars, cash or U.S. government obligations
sufficient to pay all principal of and interest on such debt
securities; and
(y) in the case of any debt securities of any series denominated
in any currency other than U.S. dollars, an amount of the
applicable currency in which the debt securities are
denominated sufficient to pay all principal of and interest
on such debt securities.
Such a trust may only be established if, among other things:
(1) the applicable defeasance or covenant defeasance does not result in a
breach or violation of, or constitute a default under or any material
agreement or instrument to which the issuer or any subsidiary of the
issuer is a party or by which it is bound;
(2) no event of default or event which with notice or lapse of time or
both would become an event of default with respect to the debt
securities to be defeased will have occurred and be continuing on the
date of establishment of such a trust after giving effect to such
establishment and, with respect to defeasance only, no bankruptcy
proceeding with respect to the issuer will have occurred and be
continuing at any time during the period ending on the 91st day after
such date; and
(3) the issuer has delivered to the trustee an opinion of counsel (as
specified in the applicable supplemental indenture) to the effect that
the holders will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such defeasance or covenant
defeasance and will be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such defeasance or covenant defeasance had not occurred,
and such opinion of counsel, in the case of defeasance, must refer to
and be based upon a letter ruling of the Internal Revenue Service
received by us, a Revenue Ruling published by the Internal Revenue
Service or a change in applicable U.S. federal income tax law
occurring after the date of the applicable supplemental indenture.
In the event the issuer effects covenant defeasance with respect to any
debt securities and such debt securities are declared due and payable because
of the occurrence of any event of default, other than an event of default with
respect to any covenant as to which there has been covenant defeasance, the
19
government obligations on deposit with the trustee will be sufficient to pay
amounts due on such debt securities at the time of the stated maturity but may
not be sufficient to pay amounts due on such debt securities at the time of the
acceleration resulting from such event of default.
MODIFICATION AND WAIVER
The issuer, when authorized by a board resolution, and the trustee may
modify, amend and/or supplement the applicable indenture and the applicable
debt securities with the consent of the holders of not less than a majority in
principal amount of the outstanding debt securities of all series affected
thereby (voting as a single class); provided, however, that such modification,
amendment or supplement may not, without the consent of each holder of the debt
securities affected thereby:
(1) change the stated maturity of the principal of or any installment of
interest with respect to the debt securities;
(2) reduce the principal amount of, or the rate of interest on, the debt
securities;
(3) change the currency of payment of principal of or interest on the debt
securities;
(4) change the redemption provisions, if any, of any debt securities in
any manner adverse to the holders of such series of debt securities;
(5) impair the right to institute suit for the enforcement of any payment
on or with respect to the debt securities;
(6) reduce the above-stated percentage of holders of the debt securities
of any series necessary to modify or amend the indenture relating to
such series;
(7) modify the foregoing requirements or reduce the percentage of
outstanding debt securities necessary to waive any covenant or past
default;
(8) in the case of any subordinated indenture, modify the subordination
provisions thereof in a manner adverse to the holders of subordinated
debt securities of any series then outstanding; or
(9) in the case of any convertible debt securities, adversely affect the
right to convert the debt securities into common shares or preference
shares in accordance with the provisions of the applicable indenture.
Holders of not less than a majority in principal amount of the outstanding
debt securities of all series affected thereby (voting as a single class) may
waive certain past defaults and may waive compliance by the issuer with any
provision of the indenture relating to such debt securities (subject to the
immediately preceding sentence); provided, however, that:
(1) without the consent of each holder of debt securities affected
thereby, no waiver may be made of a default in the payment of the
principal of or interest on any debt security; and
(2) only the holders of a majority in principal amount of debt securities
of a particular series may waive compliance with a provision of the
indenture relating to such series or the debt securities of such
series having applicability solely to such series.
The issuer, when authorized by a board resolution, and the trustee may
amend or supplement the indentures or waive any provision of such indentures
and the debt securities without the consent of any holders of debt securities
in some circumstance, including:
o to cure any ambiguity, omission, defect or inconsistency;
o to make any change that does not, in the good faith opinion of our board
of directors, adversely affect the interests of holders of such debt
securities in any material respect;
o to provide for the assumption of our obligations under the applicable
indenture by a successor upon any merger, consolidation or asset transfer
permitted under the applicable indenture;
20
o to provide any security for or guarantees of such debt securities;
o to add events of default with respect to such debt securities;
o to add covenants that would benefit the holders of such debt securities
or to surrender any rights or powers the issuer has under the applicable
indenture;
o to make any change necessary for the registration of the debt securities
under the Securities Act or to comply with the Trust Indenture Act of
1939, or any amendment thereto, or to comply with any requirement of the
SEC in connection with the qualification of the applicable indenture
under the Trust Indenture Act of 1939; provided, however, that such
modification or amendment does not, in the good faith opinion of the
issuer's board of directors and the trustee, adversely affect the
interests of the holders of such debt securities in any material respect;
o to provide for uncertificated debt securities in addition to or in place
of certificated debt securities;
o to add to or change any of the provisions of the applicable indenture to
such extent as shall be necessary to permit or facilitate the issuance of
the debt securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons;
o to change or eliminate any of the provisions of the applicable
indenture, provided, however, that any such change or elimination shall
become effective only when there is no debt security outstanding of any
series created prior to the execution of such supplemental indenture
which is entitled to the benefit of such provision;
o to establish the form or terms of debt securities of any series as
permitted by the applicable indenture; or
o to evidence and provide for the acceptance of appointment by a successor
trustee with respect to the debt securities of one or more series and to
add to or change any of the provisions of the applicable indenture as
shall be necessary to provide for or facilitate the administration of the
trusts under the applicable indenture by more than one trustee, pursuant
to the requirements of the applicable indenture.
EVENTS OF DEFAULT AND NOTICE THEREOF
The following events are "events of default" with respect to any series of
debt securities issued thereunder:
(1) failure to pay interest on any debt securities of such series within
60 days of when due or principal of any debt securities of such series
when due (including any sinking fund installment);
(2) failure to perform any other agreement contained in the debt
securities of such series or the indenture relating to such series
(other than an agreement relating solely to another series of debt
securities) for 60 days after notice; and
(3) certain events of bankruptcy, insolvency or reorganization with
respect to us.
Additional or different events of default, if any, applicable to the
series of debt securities in respect of which this prospectus is being
delivered will be specified in the applicable prospectus supplement.
The trustee under such indenture shall, within 90 days after the
occurrence of any default (the term "default" to include the events specified
above without grace or notice) with respect to any series of debt securities
actually known to it, give to the holders of such debt securities notice of
such default; provided, however, that, except in the case of a default in the
payment of principal of or interest on any of the debt securities of such
series or in the payment of a sinking fund installment, the trustee for such
series shall be protected in withholding such notice if it in good faith
determines that the withholding of such notice is in the interest of the
holders of such debt securities; and provided, further, that in the case of any
default of the character specified in clause (2) above with respect to debt
securities of such series, no such notice to holders of such debt securities
will be given until at least 30 days after the occurrence thereof. We shall
certify to the trustee quarterly as to whether any default exists.
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In the case of an event of default, other than an event of default
resulting from bankruptcy, insolvency or reorganization, with respect to any
series of debt securities shall occur and be continuing, the trustee for such
series or the holders of at least 25% in aggregate principal amount of the debt
securities of such series then outstanding, by notice in writing to the issuer
(and to the trustee for such series if given by the holders of the debt
securities of such series), will be entitled to declare all unpaid principal of
and accrued interest on such debt securities then outstanding to be due and
payable immediately.
In the case of an event of default resulting from certain events of
bankruptcy, insolvency or reorganization, all unpaid principal of and accrued
interest on all debt securities of such series then outstanding shall be due
and payable immediately without any declaration or other act on the part of the
trustee for such series or the holders of any debt securities of such series.
Such acceleration may be annulled and past defaults (except, unless
theretofore cured, a default in payment of principal of or interest on the debt
securities of such series) may be waived by the holders of a majority in
principal amount of the debt securities of such series then outstanding upon
the conditions provided in the applicable indenture.
No holder of the debt securities of any series issued thereunder may
pursue any remedy under such indenture unless the trustee for such series shall
have failed to act after, among other things, notice of an event of default and
request by holders of at least 25% in principal amount of the debt securities
of such series of which the event of default has occurred and the offer to the
trustee for such series of indemnity satisfactory to it; provided, however,
that such provision does not affect the right to sue for enforcement of any
overdue payment on such debt securities.
CONVERSION AND EXCHANGE RIGHTS
The terms and conditions, if any, upon which the debt securities of any
series will be convertible into C&A common stock or C&A preferred stock or upon
which the senior debt securities of any series will be exchangeable into
another series of debt securities will be set forth in the applicable
prospectus supplement. Such terms will include the conversion or exchange price
(or manner of calculation thereof), the conversion or exchange period,
provisions as to whether conversion or exchange will be at the option of the
holders of such series of debt securities or at our option or automatic, the
events requiring an adjustment of the conversion or exchange price and
provisions affecting conversion or exchange in the event of the redemption of
such series of debt securities.
THE TRUSTEE
The trustee for each series of debt securities will be named in the
applicable prospectus supplement. Each indenture will contain certain
limitations on a right of the trustee, as our creditor, to obtain payment of
claims in certain cases, or to realize on certain property received in respect
of any such claim as security or otherwise. The trustee will be permitted to
engage in other transactions; provided, however, that if it acquires any
conflicting interest, it must eliminate such conflict or resign.
The holders of a majority in principal amount of all outstanding debt
securities of a series (or if more than one series is affected thereby, of all
series so affected, voting as a single class) will have the right to direct the
time, method and place of conducting any proceeding for exercising any remedy
or power available to the trustee for such series or all such series so
affected.
In case an event of default shall occur (and shall not be cured) under any
indenture relating to a series of debt securities and is actually known to a
responsible officer of the trustee for such series, such trustee shall exercise
such of the rights and powers vested in it by such indenture and use the same
degree of care and skill in its exercise as a prudent person would exercise or
use under the circumstances in the conduct of his own affairs. Subject to such
provisions, the trustee will not be under any obligation to exercise any of its
rights or powers under the applicable indenture at the request of any of the
holders of debt securities unless they shall have offered to the trustee
security and indemnity satisfactory to it.
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GOVERNING LAW
The indentures and the debt securities will be governed by the laws of the
State of New York.
GLOBAL SECURITIES; BOOK-ENTRY SYSTEM
The issuers may issue the debt securities of any series in whole or in
part in the form of one or more global securities to be deposited with, or on
behalf of, a depository (the "depository") identified in the applicable
prospectus supplement. Global securities, if any, issued in the United States
are expected to be deposited with The Depository Trust Company ("DTC"), as
depository. Global securities will be issued in fully registered form and may
be issued in either temporary or permanent form. Unless and until it is
exchanged in whole or in part for the individual debt securities represented
thereby, a global security may not be transferred except as a whole by the
depository for such global security to a nominee of such depository or by a
nominee of such depository to such depository or another nominee of such
depository or by such depository or any nominee of such depository to a
successor depository or any nominee of such successor.
The specific terms of the depository arrangement with respect to any
series of debt securities will be described in the applicable prospectus
supplement. We expect that unless otherwise indicated in the applicable
prospectus supplement, the following provisions will apply to depository
arrangements.
Upon the issuance of a global security, the depository for such global
security or its nominee will credit on its book-entry registration and transfer
system the respective principal amounts of the individual debt securities
represented by such global security to the accounts of persons that have
accounts with such depository ("participants"). Such accounts will be
designated by the underwriters, dealers or agents with respect to such debt
securities or by us if such debt securities are offered directly by us.
Ownership of beneficial interests in such global security will be limited to
participants or persons that may hold interests through participants.
We expect that, pursuant to procedures established by DTC, ownership of
beneficial interests in any global security with respect to which DTC is the
depository will be shown on, and the transfer of that ownership will be
effected only through, records maintained by DTC or its nominee (with respect
to beneficial interests of participants) and records of participants (with
respect to beneficial interests of persons who hold through participants).
Neither the issuer nor the trustee will have any responsibility or liability
for any aspect of the records of DTC or for maintaining, supervising or
reviewing any records of DTC or any of its participants relating to beneficial
ownership interests in the debt securities. The laws of some states require
that certain purchasers of securities take physical delivery of such securities
in definitive form. Such limits and laws may impair the ability to own, pledge
or transfer beneficial interest in a global security.
So long as the depository for a global security or its nominee is the
registered owner of such global security, such depository or such nominee, as
the case may be, will be considered the sole owner or holder of the debt
securities represented by such global security for all purposes under the
applicable indenture. Except as described below or in the applicable prospectus
supplement, owners of beneficial interest in a global security will not be
entitled to have any of the individual debt securities represented by such
global security registered in their names, will not receive or be entitled to
receive physical delivery of any such debt securities in definitive form and
will not be considered the owners or holders thereof under the applicable
indenture. Beneficial owners of debt securities evidenced by a global security
will not be considered the owners or holders thereof under the applicable
indenture for any purpose, including with respect to the giving of any
direction, instructions or approvals to the trustee thereunder. Accordingly,
each person owning a beneficial interest in a global security with respect to
which DTC is the depository must rely on the procedures of DTC and, if such
person is not a participant, on the procedures of the participant through which
such person owns its interests, to exercise any rights of a holder under the
applicable indenture. We understand that, under existing industry practice, if
it requests any action of holders or if an owner of a beneficial interest in a
global security desires to give or take any action which a holder is entitled
to give or take under the applicable indenture, DTC would authorize the
participants holding the relevant beneficial interest to give or take such
action, and such participants would authorize
23
beneficial owners through such participants to give or take such actions or
would otherwise act upon the instructions of beneficial owners holding through
them.
Payments of principal of, and any interest on, individual debt securities
represented by a global security registered in the name of a depository or its
nominee will be made to or at the direction of the depository or its nominee,
as the case may be, as the registered owner of the global security under the
applicable indenture. Under the terms of the applicable indenture, the issuer
and the trustee may treat the persons in whose name debt securities, including
a global security, are registered as the owners thereof for the purpose of
receiving such payments. Consequently, neither the issuer nor the trustee has
or will have any responsibility or liability for the payment of such amounts to
beneficial owners of debt securities (including principal and interest). We
believe, however, that it is currently the policy of DTC to immediately credit
the accounts of relevant participants with such payments, in amounts
proportionate to their respective holdings of beneficial interests in the
relevant global security as shown on the records of DTC or its nominee. We also
expect that payments by participants to owners of beneficial interests in such
global security held through such participants will be governed by standing
instructions and customary practices, as is the case with securities held for
the account of customers in bearer form or registered in street name, and will
be the responsibility of such participants. Redemption notices with respect to
any debt securities represented by a global security will be sent to the
depository or its nominee. If less than all of the debt securities of any
series are to be redeemed, we expect the depository to determine the amount of
the interest of each participant in such debt securities to be redeemed to be
determined by lot. None of us, the trustee, any paying agent or the registrar
for such debt securities will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in the global security for such debt securities or for
maintaining any records with respect thereto.
Neither the issuer nor the trustee will be liable for any delay by the
holders of a global security or the depository in identifying the beneficial
owners of debt securities and we and the trustee may conclusively rely on, and
will be protected in relying on, instructions from the holder of a global
security or the depository for all purposes. The rules applicable to DTC and
its participants are on file with the SEC.
If a depository for any debt securities is at any time unwilling, unable
or ineligible to continue as depository and a successor depository is not
appointed by us within 90 days, the issuer will issue individual debt
securities in exchange for the global security representing such debt
securities. In addition, the issuer may at any time and in our sole discretion,
subject to any limitations described in the prospectus supplement relating to
such debt securities, determine not to have any of such debt securities
represented by one or more global securities and in such event we will issue
individual debt securities in exchange for the global security or securities
representing such debt securities. Individual debt securities so issued will be
issued in denominations of $1,000 and integral multiples thereof.
All moneys paid by the issuer to a paying agent or a trustee for the
payment of the principal of or interest on any debt security which remain
unclaimed at the end of two years after such payment has become due and payable
will be repaid to the issuer, and the holder of such debt security thereafter
may look only to the issuer for payment thereof.
24
REGISTRATION RIGHTS HOLDERS
The following table sets forth, as of May 30, 2002, information on common
stock ownership by the Registration Rights Holders which in each case
represents all the common stock beneficially owned by each potential selling
stockholder, as determined by a review of 13Ds filed on behalf of each of the
Registration Rights Holders as of May 30, 2002 and/or other information
available to us. The registration of the Registration Rights Holders' common
stock does not necessarily mean that the Registration Rights Holders will elect
to offer or sell any of their shares or be permitted by the applicable
registration rights agreement or the plan of distribution to sell any of their
shares. To the extent any shares are to be offered or sold by a Registration
Rights Holder, their names and the number of shares to be offered or sold by
them will be set forth in a prospectus supplement.
The common stock of the Registration Rights Holders is being registered in
contemplation of their "piggy-back" registration rights under certain
registration rights agreements between us and the Registration Rights Holders.
Common stock of the Registration Rights Holders will be able to be sold under
this prospectus and any prospectus supplement only if the Company undertakes an
underwritten offering of common stock.
We have only allocated 9,174,311 shares of the C&A common stock registered
under the registration statement of which this prospectus is a part to sales by
the Registration Rights Holders. It is not practicable to presently allocate
shares for sale by individual holders because each holder can only sell shares
based upon the priorities set forth in the registration rights agreements and
those priorities will be defined by the extent to which holders desire to sell
their shares and have not previously sold shares under Rule 144 and become
ineligible for use of this prospectus by the terms of their agreements.
Accordingly, the table below sets forth the maximum number of shares of C&A
common stock that may be sold by any single Registration Rights Holder under
the best of assumptions. The accompanying prospectus supplement will specify
the number of shares of C&A common stock being sold in the offering to which it
relates by each Registration Rights Holder participating as a selling
stockholder, if any.
SHARES OF COMMON STOCK
SUBJECT TO REGISTRATION RIGHTS
BENEFICIALLY OWNED PRIOR TO SHARES OF COMMON STOCK
NAME OF REGISTRATION RIGHTS HOLDER THIS OFFERING AVAILABLE FOR SALE
- ---------------------------------------------- ------------------------------- -----------------------
Charles E. Becker 7,539,262(1) 7,539,262(1)
c/o Becker Ventures, L.L.C.
6600 East 15 Mile Road
Sterling Heights, Michigan 48312
Blackstone Capital Partners L.P. 4,187,348(2) 4,187,348(2)
345 Park Avenue
New York, NY 10019
Canada Pension Plan Investment Board 1,600,000 1,600,000
One Queen Street East
Suite 2700
Toronto, Ontario, Canada
M5C 2WS
Comerica Capital Advisors Incorporated 160,000 160,000
500 Woodward Avenue
Detroit, MI 48226
Dresdner Kleinwort Capital Partners 2001 LP. 2,000,000 2,000,000
75 Wall Street
New York, NY 10005
Heartland Industrial Partners L.P. 26,880,000(3) 9,174,311(3)
55 Railroad Avenue
Greenwich, CT 06830
25
SHARES OF COMMON STOCK
SUBJECT TO REGISTRATION RIGHTS
BENEFICIALLY OWNED PRIOR TO SHARES OF COMMON STOCK
NAME OF REGISTRATION RIGHTS HOLDER THIS OFFERING AVAILABLE FOR SALE
- ------------------------------------ ------------------------------- -----------------------
Jens Hohnel 340,737(4) 340,737(4)
Krutzpart 16
Krefeld 47804
Germany
Joan Fabrics Corporation 5,504,000(5) 5,104,000(5)
100 Vesper Executive Park
Tyngsboro, MA 01879
Masco Capital Corporation 400,000 400,000
1400 North Woodward Avenue
Suite 130
Bloomfield Hills, MI 48180
Michael E. McInerney 680,000(6) 680,000(6)
5755 New King Court
Troy, Michigan 48098
Mesirow Capital Partners VII, L.P. 560,000(7) 560,000(7)
Mesirow Capital Partners VIII, L.P.
350 N Clark 4th Floor
Chicago, IL 60610
ML IBK Positions, Inc. 400,000 400,000
4 World Financial Center
4th Floor
New York, NY 10080
Textron Inc. 7,200,000(8) 7,200,000(8)
40 Westminster Street
Providence, RI 02903
Wasserstein/C&A Holdings, LLC 4,668,840(9) 4,668,840(9)
1301 Avenue of the Americas
New York, NY 10019
- ----------
(1) Such shares represent (a) 5,440,000 shares acquired by Mr. Becker as
consideration for the Becker acquisition, (b) 339,262 shares acquired by
Mr. Becker immediately following the closing of the Becker acquisition
from one of the other former Becker shareholders, (c) 160,000 shares
subject to presently exercisable warrants to purchase such common stock
at $12.50 per share acquired by Mr. Becker as consideration for the
Becker acquisition and (d) 1,600,000 shares acquired by Becker Ventures
LLC ("Becker Ventures") as part of the financing for the TAC-Trim
acquisition. Mr. Becker is the managing member of Becker Ventures and
holds a controlling interest in Becker Ventures.
(2) Of these shares (i) 3,296,448 shares are held directly by Blackstone
Capital Partners L.P., a Delaware limited partnership ("Blackstone
Partners"), the sole general partner of which is Blackstone Management
Associates L.P. ("Blackstone Associates"), (ii) 170,089 shares are held
directly by Blackstone Family Investment Partnership I L.P., a Delaware
limited partnership ("BFIP"), the sole general partner of which is
Blackstone Management Associates I L.L.C. ("BMA"), (iii) 14,943 shares
are held directly by Blackstone Advisory Directors Partnership L.P., a
Delaware limited partnership ("BADP"), the sole general partner of which
is Blackstone Associates, and (iv) 705,868 shares are held directly by
Blackstone Capital Company II L.L.C., a Delaware limited liability
company, all the ownership interest of which is owned directly and
indirectly by Blackstone Partners, BFIP and BADP.
(3) The 26,880,000 shares beneficially owned are indirectly owned by
Heartland Industrial Associates L.L.C. as the general partner of each of
the following limited partnerships, which hold the shares
26
directly: (a) 304,125 shares are held directly by Heartland Industrial
Partners (FF), L.P., a Delaware limited partnership, (b) 391,400 shares are
held directly by Heartland Industrial Partners (E1), L.P., a Delaware
limited partnership, (c) 229,951 shares are held directly by Heartland
Industrial Partners (K1), L.P., a Delaware limited partnership, (d) 114,976
shares are held directly by Heartland Industrial Partners (C1), L.P., a
Delaware limited partnership, and (e) 25,839,549 shares are held directly
by Heartland Industrial Partners, L.P., a Delaware limited partnership.
(4) Such shares were acquired by Mr. Hohnel as consideration for the Becker
acquisition.
(5) Of the shares, (a) 5,104,000 shares were acquired by Joan Fabrics Corp.
("Joan") as a part of the consideration for the sale of Joan Automotive
to us and (b) 400,000 shares were acquired by Elkin McCallum as
consideration in the Southwest Laminates acquisition which was
consummated on April 12, 2002. An additional 39,600 shares in aggregate
are owned by Mr. McCallum and the McCallum Family Foundation and are not
subject to registration rights. The sole stockholder of Joan Fabrics
Corporation is JFC Holding Trust, in which Mr. McCallum is the Trustee
and has a 75% beneficial interest and his spouse, Donna McCallum, owns
the balance. Mr. McCallum became a director of Collins & Aikman upon the
consummation of the Joan Fabrics acquisition.
(6) Such shares were acquired by Mr. McInerney as consideration for the
Becker acquisition.
(7) Of the 560,000 shares, 160,000 shares are held by Mesirow Capital
Partners VII and 400,000 shares are held by Mesirow Capital Partners
VIII.
(8) Such shares are beneficially owned by Textron Inc. ("Textron"). Under the
purchase agreement for the acquisition of the trim division of Textron
Automotive Company, Inc. ("TAC-Trim"), Textron has the right to designate
a director to serve on the Collins & Aikman Corporation Board of
Directors. As of this date, it has not yet identified the individual that
it will designate. Accordingly, the table does not include the Textron
designee, who is expected to disclaim beneficial ownership of all
securities beneficially owned by Textron.
(9) Of these shares (i) 4,636,684 are held directly by Wasserstein/C&A
Holdings, L.L.C. (the "Wasserstein L.L.C."), which is controlled by
Wasserstein Perella Partners, L.P. ("WP Partners"), the sole general
partner of which is Wasserstein Perella Management Partners, Inc.
("Wasserstein Management"), which is controlled by Cypress Capital
Advisors, LLC ("CCA"), (ii) 7,200 are held directly by WPPN, Inc., an
indirect subsidiary of WP Group, (iii) 18,000 shares are held directly
33% by each of three trusts for which Bruce Wasserstein, the Chairman and
Chief Executive Officer of WP Management (who is also a director and
stockholders of WP Group), is the Co-Trustee, (iv) 4,201 are owned
directly by Bruce Wasserstein and (v) 2,755 are held by Bruce
Wasserstein's descendants trusts.
Certain of the Registration Rights Holders may be affiliated with
broker-dealers, such as Comerica Capital Advisors (Comerica Securities),
Dresdner Kleinwort Capital Partners (Dresdner Kleinwort Wasserstein), ML IBK
Positions (Merrill Lynch, Pierce, Fenner & Smith Incorporated) and Wasserstein/
C&A Holdings, LLC (Dresdner Kleinwort Wasserstein). Such Registration Rights
Holders, in each case, acquired their shares in the ordinary course of business
and, at the time of acquisition, did not have any agreement or understanding,
directly or indirectly, with any person to distribute such shares. The
applicable prospectus supplement will describe any broker-dealer affiliations
of each selling stockholder thereunder and, if applicable, the offering to
which such prospectus supplement relates will be conducted in accordance with
any applicable rules of the National Association of Securities Dealers, Inc.
The only material relationships (other than as investors or sellers of
businesses for which they recieved their shares) that the Registration Rights
Holders have had with C&A in the past three years are set forth below, to the
best of C&A's knowledge. Elkin McCallum, the beneficial owner of the shares
owned by Joan Fabrics Corporation, and Charles Becker serve on our Board of
Directors. Representatives of Blackstone and Wasserstein have served on our
Board of Directors in the past and they have been a party to various
arrangements prior to Heartland's investment in us, which are disclosed in our
2000 Form 10-K. We are a party to various transactions with Heartland
Industrial Partners, which are described in our 2001 Form 10-K under
"Management's Discussion and Analysis of Financial Condition and Results of
Operations." Becker Ventures, which is controlled by Charles Becker, is also a
party to a sale-leaseback transaction with us that is also described in our
2001 Form 10-K under "Management's Discussion and
27
Analysis of Financial Condition and Results of Operations." ML IBK Partners is
affiliated with Merrill Lynch, Pierce, Fenner & Smith Incorporated, which has
acted as an initial purchaser in connection with our December 2000 senior notes
offering and as a financial advisor to us from time to time. We are a party to
a number of ongoing agreements with Messrs. McCallum and Becker and their
respective affiliates and Textron arising out of the acquisitions that we have
entered into, which are also described in our 2001 Form 10-K under
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
PLAN OF DISTRIBUTION
We will only sell the securities through underwriters. Registration Rights
Holders that sell any shares of Company Common Stock will sell only through
underwriters. The terms of the offering of the securities with respect to which
this prospectus is being delivered will be set forth in the applicable
prospectus supplement and will include:
o the name or names of the underwriters;
o the purchase price of such securities and the proceeds to us from such
sale;
o any underwriting discounts and other items constituting underwriters'
compensation;
o the public offering price; and
o any discounts or concessions which may be allowed or reallowed or paid
to dealers and any securities exchanges on which the securities may be
listed.
However, we will not offer any Company Common Stock in an "at the market"
offering.
Securities will be acquired by the underwriters for their own account and
may be resold from time to time in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale. The securities may be offered to the public
either through underwriting syndicates represented by managing underwriters or
directly by one or more underwriters acting alone. Unless otherwise set forth
in the applicable prospectus supplement, the obligations of the underwriters to
purchase the securities described in the applicable prospectus supplement will
be subject to certain conditions precedent, and the underwriters will be
obligated to purchase all such securities if any are so purchased by them. Any
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
If so indicated in the applicable prospectus supplement, we will authorize
underwriters to solicit offers by certain specified institutions to purchase
the securities to which this prospectus and the applicable prospectus
supplement relates from us at the public offering price set forth in the
applicable prospectus supplement, plus, if applicable, accrued interest,
pursuant to delayed delivery contracts providing for payment and delivery on a
specified date in the future. Such contracts will be subject only to those
conditions set forth in the applicable prospectus supplement, and the
applicable prospectus supplement will set forth the commission payable for
solicitation of such contracts.
Underwriters will not be obligated to make a market in any securities. No
assurance can be given regarding the activity of trading in, or liquidity of,
any securities.
Underwriters may be entitled, under agreements entered into with us to
indemnification by us against certain civil liabilities, including liabilities
under the Securities Act of 1933, as amended, or to contribution to payments
they may be required to make in respect thereof. Underwriters may be customers
of, engage in transactions with, or perform services for, us in the ordinary
course of business.
Each series of securities will be a new issue and, other than the common
stock, which is listed on the New York Stock Exchange, will have no established
trading market. We may elect to list any series of securities on an exchange,
and in the case of the common stock, on any additional exchange, but, unless
otherwise specified in the applicable prospectus supplement, we shall not be
obligated to do so. No assurance can be given as to the liquidity of the
trading market for any of the securities.
28
The place, time of delivery and other terms of the offered securities will
be described in the prospectus supplement.
LEGAL MATTERS
The legality of the C&A common stock and C&A preferred stock, and the
enforceability of the C&A debt securities, the Products debt securities and all
guarantees thereof, will be passed upon for us by Cahill Gordon & Reindel, New
York, New York.
EXPERTS
The consolidated financial statements of Collins & Aikman for the year
ended December 31, 2001, incorporated in this prospectus by reference to the
Annual Report on Form 10-K for the year ended December 31, 2001 have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
The consolidated financial statements of Collins & Aikman for the years
ended December 31, 2000 and December 25, 1999, included in the Annual Report on
Form 10-K for the year ended December 31, 2001 and incorporated by reference
into this prospectus, to the extent and for the periods indicated in their
report, have been audited by Arthur Andersen LLP, independent public
accountants, and are included herein in reliance upon the authority of said
firm as experts in giving said report. Arthur Andersen LLP has not consented to
the incorporation by reference of their report in this prospectus, and we have
dispensed with the requirement to file their consent in reliance upon Rule 437a
of the Securities Act of 1933. Because Arthur Andersen LLP has not consented to
the incorporation by reference of their report in this prospectus, you will not
be able to recover against Arthur Andersen LLP under Section 11 of the
Securities Act of 1933 for any untrue statements of a material fact contained
in the financial statements audited by Arthur Andersen LLP or any omissions to
state a material fact required to be stated therein.
The combined financial statements of TAC-Trim included in the Current
Report on Form 8-K filed on January 4, 2002 (as amended on January 14, 2002)
and incorporated by reference into this prospectus have been audited by Ernst &
Young LLP, independent auditors, as set forth in their report thereon and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given on the
authority of such firm as experts in auditing and accounting, to the extent and
for the periods indicated in their report with respect to such financial
statements.
The combined financial statements of Becker, included in the Current
Report on Form 8-K filed on April 17, 2001 and incorporated by reference into
this prospectus have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given on the authority of such firm as experts in
auditing and accounting, to the extent and for the periods indicated in their
report with respect to such financial statements.
The combined financial statements of Joan, included in the Current Report
on Form 8-K filed on October 10, 2001 incorporated by reference into this
prospectus have been audited by KPMG LLP, independent auditors, given on the
authority of said firm as experts in auditing and accounting, to the extent and
for the periods indicated in their report with respect to such financial
statements.
29
PART II INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, incurred in connection with the
distribution of the securities being registered (all amounts are estimated
except the SEC registration fee).
SEC registration fee ...................... $ 92,000
Printing and engraving expenses ........... 75,000
Legal fees and expenses ................... 500,000
Accounting fees and expenses .............. 150,000
Trustees and transfer agents fees ......... 75,000
Miscellaneous ............................. 108,000
----------
Total .................................... $1,000,000
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") makes
provision for the indemnification of officers and directors of corporations in
terms sufficiently broad to indemnify the officers and directors of the
registrant under certain circumstances for liabilities (including reimbursement
of expenses incurred) arising under the Securities Act.
The Company's restated certificate of incorporation (the "Certificate")
provides that to the fullest extent permitted by Delaware law or another
applicable law, a director of the Company shall not be liable to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a
director. Under current Delaware law, liability of a director may not be
limited (i) for any breach of the director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) in respect of
certain unlawful dividend payments or stock redemptions or repurchases and (iv)
for any transaction from which the director derives an improper personal
benefit. The effect of the provision of the Certificate is to eliminate the
rights of the Company and its stockholders (through stockholders' derivative
suits on behalf of the Company) to recover monetary damages against a director
for breach of the fiduciary duty of care as a director (including breaches
resulting from negligent or grossly negligent behavior) except in the
situations described in clauses (i) through (iv) above. This provision does not
limit or eliminate the rights of the Company or any stockholder to seek
non-monetary relief such as an injunction or rescission in the event of a
breach of a director's duty of care. In addition, the Company's Restated Bylaws
(the "Bylaws") provide that the Company shall indemnify its directors, officers
and employees to the fullest extent permitted by applicable law.
The Bylaws provide that the Company may indemnify any person who is or was
involved in any manner or is threatened to be made so involved in any
threatened, pending or completed investigation, claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative (including
any action, suit or proceeding by or in the right of the registrant to procure
a judgment in its town), by reason of the fact that he is or was or had agreed
to become a director, officer or employee of the registrant or is or was or had
agreed to become at the request of the board or an officer of the registrant a
director, officer or employee of another corporation, partnership, joint
venture, trust or other entity against all expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such Proceeding.
ITEM 16. EXHIBITS.
See Exhibit Index immediately preceding the Exhibits.
II-1
ITEM 17. UNDERTAKINGS.
THE UNDERSIGNED REGISTRANTS HEREBY UNDERTAKE:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of the prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to
section 13(a) or section 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(5) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as
part of a registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497 (h) under the Securities Act shall be
deemed to be part of this registration statement as of the time it was
declared effective.
(6) For the purposes of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(7) To file an application for the purpose of determining the eligibility
of the trustee to act under subsection (a) of section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed
by the Commission under section 305(b)(2) of the Trust Indenture Act.
II-2
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrants will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 5th day of June, 2002.
COLLINS & AIKMAN CORPORATION
By: *
-----------------------------------
Name: Thomas E. Evans
Title: Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- -------------------------- ------------------------------------------- -------------
* Chairman of the Board and Chief Executive June 5, 2002
- -------------------------- Officer (Principal Executive Officer)
Thomas E. Evans
* Chief Financial Officer and Director June 5, 2002
- -------------------------- (Principal Financial Officer)
J. Michael Stepp
* Vice President, Finance and Controller June 5, 2002
- -------------------------- (Principal Accounting Officer)
James L. Murawski
* Vice Chairman of the Board June 5, 2002
- --------------------------
Charles E. Becker
* Director June 5, 2002
- --------------------------
Robert C. Clark
* Director June 5, 2002
- --------------------------
Marshall A. Cohen
* Director June 5, 2002
- --------------------------
Cynthia Hess
Director
- --------------------------
Timothy D. Leuliette
* Director June 5, 2002
- --------------------------
Elkin McCallum
* Director June 5, 2002
- --------------------------
W. Gerald McConnell
* Director June 5, 2002
- --------------------------
Warren B. Rudman
* Director June 5, 2002
- --------------------------
David A. Stockman
II-4
SIGNATURE TITLE DATE
- -------------------------- ---------- -------------
* Director June 5, 2002
- --------------------------
Daniel P. Tredwell
* Director June 5, 2002
- --------------------------
Samuel Valenti
*By: /s/ Ronald T. Lindsay
------------------------
Ronald T. Lindsay
Attorney-in-Fact
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 5th day of June, 2002.
COLLINS & AIKMAN PRODUCTS CO.
By: /s/ *
-----------------------------------
Name: Thomas E. Evans
Title: Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------- ------------------------------------------- -------------
* Chairman of the Board and Chief Executive June 5, 2002
- ----------------------- Officer (Principal Executive Officer)
Thomas E. Evans
* Chief Financial Officer and Director June 5, 2002
- ----------------------- (Principal Financial Officer)
J. Michael Stepp
* Vice President, Finance and Controller June 5, 2002
- ----------------------- (Principal Accounting Officer)
James L. Murawski
* Director June 5, 2002
- -----------------------
Samuel Valenti
*By: /s/ Ronald T. Lindsay
------------------------
Ronald T. Lindsay
Attorney-in-Fact
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 5th day of June 2002.
AKRO MATS, LLC
COLLINS & AIKMAN AUTOMOTIVE MATS, LLC
By: *
-------------------------------------
Name: Thomas E. Evans
Title: Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------- ------------------------------------------- -------------
* June 5, 2002
Chief Executive Officer
- ----------------------- (Principal Executive Officer)
Thomas E. Evans
* Executive Vice President and Chief June 5, 2002
- ----------------------- Financial Officer
J. Michael Stepp
(Principal Financial Officer and Principal
Accounting Officer)
* Manager June 5, 2002
- -----------------------
Michael Geaghan
* Manager June 5, 2002
- -----------------------
Millard King
* Manager June 5, 2002
- -----------------------
Jeffrey Kies
*By: /s/ Ronald T. Lindsay
------------------------
Ronald T. Lindsay
Attorney-in-Fact
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 5th day of June 2002.
AMCO CONVERTIBLE FABRICS, INC.
DURA CONVERTIBLE SYSTEMS, INC.
By: *
-----------------------------------
Name: Thomas E. Evans
Title: Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- -------------------------- ------------------------------------ -------------
* Chief Executive Officer June 5, 2002
- ----------------------- (Principal Executive Officer)
Thomas E. Evans
* Executive Vice President and Chief June 5, 2002
- ----------------------- Financial Officer
J. Michael Stepp
(Principal Financial Officer)
* Controller June 5, 2002
- -----------------------
Jeffrey Johnson
*
- -----------------------
* Director June 5, 2002
- -----------------------
Thomas E. Evans
/s/ Ronald T. Lindsay Director June 5, 2002
- -----------------------
Ronald T. Lindsay
*By: /s/ Ronald T. Lindsay
------------------------
Ronald T. Lindsay
Attorney-in-Fact
II-8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 5th day of June 2002.
BECKER GROUP, LLC
By: *
-----------------------------------
Name: Lou Gasperut
Title: President
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- -------------------------- ------------------------------ -------------
* President June 5, 2002
- ----------------------- (Principal Executive Officer)
Lou Gasperut
* Controller June 5, 2002
- ----------------------- (Principal Financial Officer)
James Babiasz
/s/ Ronald T. Lindsay Managing Director June 5, 2002
- -----------------------
Ronald T. Lindsay
*By: /s/ Ronald T. Lindsay
------------------------
Ronald T. Lindsay
Attorney-in-Fact
II-9
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 5th day of June 2002.
BRUT PLASTICS, INC.
By: *
-----------------------------------
Name: Lou Gasperut
Title: President
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- -------------------------- ------------------------------ -------------
* President June 5, 2002
- ----------------------- (Principal Executive Officer)
Lou Gasperut
* Controller June 5, 2002
- ----------------------- (Principal Financial Officer)
James Babinsz
* Director June 5, 2002
- -----------------------
Lou Gasperut
/s/ Ronald T. Lindsay Director June 5, 2002
- -----------------------
Ronald T. Lindsay
*By: /s/ Ronald T. Lindsay
------------------------
Ronald T. Lindsay
Attorney-in-Fact
II-10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 5th day of June 2002.
COLLINS & AIKMAN ACCESSORY MATS, INC.
By: *
-----------------------------------
Name: Thomas E. Evans
Title: Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------- ------------------------------------------- -------------
* Chief Executive Officer June 5, 2002
- ----------------------- (Principal Executive Officer)
Thomas E. Evans
* Executive Vice President and Chief June 5, 2002
- ----------------------- Financial Officer
J. Michael Stepp
(Principal Financial Officer and Principal
Accounting Officer)
* Director June 5, 2002
- -----------------------
Michael Geaghan
*By: /s/ Ronald T. Lindsay
------------------------
Ronald T. Lindsay
Attorney-in-Fact
II-11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 5th day of June 2002.
COLLINS & AIKMAN ADVANCED PROCESSES, INC.
COLLINS & AIKMAN AUTOMOTIVE INTERNATIONAL, INC.
COLLINS & AIKMAN CANADA DOMESTIC HOLDING COMPANY
COLLINS & AIKMAN DEVELOPMENT COMPANY
COLLINS & AIKMAN EUROPE, INC.
COLLINS & AIKMAN INTERIORS, INC.
By: *
------------------------------------------------------
Name: Thomas E. Evans
Title: Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- -------------------------- ------------------------------ -------------
* Chief Executive Officer June 5, 2002
- ----------------------- (Principal Executive Officer)
Thomas E. Evans
* Chief Financial Officer June 5, 2002
- ----------------------- (Principal Financial Officer)
J. Michael Stepp
* Controller June 5, 2002
- -----------------------
James L. Murawski
* Director June 5, 2002
- -----------------------
Thomas E. Evans
/s/ Ronald T. Lindsay Director June 5, 2002
- -----------------------
Ronald T. Lindsay
*By: /s/ Ronald T. Lindsay
------------------------
Ronald T. Lindsay
Attorney-in-Fact
II-12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 5th day of June 2002.
COLLINS & AIKMAN ASSET SERVICES, INC.
By: /s/ Ronald T. Lindsay
----------------------------------------
Name: Ronald T. Lindsay
Title: Senior Vice President, General
Counsel and Secretary
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- -------------------------- ----------------------------------------- -------------
* Senior, Vice President, General Counsel June 5, 2002
- ----------------------- and Secretary
Ronald T. Lindsay
(Principal Executive Officer)
* Controller June 5, 2002
- ----------------------- (Principal Financial Officer)
James L. Murawski
/s/ Ronald T. Lindsay Director June 5, 2002
- -----------------------
Ronald T. Lindsay
*By: /s/ Ronald T. Lindsay
------------------------
Ronald T. Lindsay
Attorney-in-Fact
II-13
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 5th day of June 2002.
COLLINS & AIKMAN CARPET & ACOUSTICS (MI), INC.
COLLINS & AIKMAN CARPET & ACOUSTICS (TN), INC.
By: *
--------------------------------------------
Name: Thomas E. Evans
Title: Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- -------------------------- ------------------------------------------- -------------
* Chief Executive Officer June 5, 2002
- ----------------------- (Principal Executive Officer)
Thomas E. Evans
* Executive Vice President and Chief June 5, 2002
- ----------------------- Financial Officer
J. Michael Stepp
(Principal Financial Officer and Principal
Accounting Officer)
* Director June 5, 2002
- -----------------------
Thomas E. Evans
/s/ Ronald T. Lindsay Director June 5, 2002
- -----------------------
Ronald T. Lindsay
*By: /s/ Ronald T. Lindsay
------------------------
Ronald T. Lindsay
Attorney-in-Fact
II-14
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 5th day of June 2002.
COLLINS & AIKMAN FABRICS, INC.
By: *
-----------------------------------
Name: Gerald Jones
Title: President
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------- ------------------------------ -------------
* President June 5, 2002
- ----------------------- (Principal Executive Officer)
Gerald Jones
* Vice President of Finance June 5, 2002
- ----------------------- (Principal Financial Officer)
James L. Murawski
* Controller June 5, 2002
- -----------------------
Robert J. Cardin
* Director June 5, 2002
- -----------------------
Gerald Jones
* Director June 5, 2002
- -----------------------
Thomas E. Evans
* Director June 5, 2002
- -----------------------
James L. Murawski
*By: /s/ Ronald T. Lindsay
------------------------
Ronald T. Lindsay
Attorney-in-Fact
II-15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 5th day of June 2002.
COLLINS & AIKMAN PLASTICS, INC.
By: *
-----------------------------------
Name: Thomas E. Evans
Title: Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- -------------------------- ------------------------------------------- -------------
* Chief Executive Officer June 5, 2002
- ----------------------- (Principal Executive Officer)
Thomas E. Evans
* Executive Vice President and Chief June 5, 2002
- ----------------------- Financial Officer
J. Michael Stepp
(Principal Financial Officer and Principal
Accounting Officer)
* Director June 5, 2002
- -----------------------
Thomas E. Evans
/s/ Ronald T. Lindsay Director June 5, 2002
- -----------------------
Ronald T. Lindsay
*By: /s/ Ronald T. Lindsay
------------------------
Ronald T. Lindsay
Attorney-in-Fact
II-16
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 5th day of June 2002.
COMET ACOUSTICS, INC.
By: *
-----------------------------------
Name: Graham Tompson
Title: President
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------- ----------------------------------------- -------------
* President June 5, 2002
- ----------------------- (Principal Executive Officer)
Graham Tompson
* Vice President of Finance and Corporate June 5, 2002
- ----------------------- Controller
James L. Murawski
(Principal Financial Officer)
* Director June 5, 2002
- -----------------------
Kenneth J. Arndorfer
* Director June 5, 2002
- -----------------------
James L. Murawski
* Director June 5, 2002
- -----------------------
Graham Tompson
*By: /s/ Ronald T. Lindsay
------------------------
Ronald T. Lindsay
Attorney-in-Fact
II-17
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 5th day of June 2002.
JPS AUTOMOTIVE, INC.
By: *
-----------------------------------
Name: Thomas E. Evans
Title: Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- -------------------------- ------------------------------ -------------
* Chief Executive Officer June 5, 2002
- ----------------------- (Principal Executive Officer)
Thomas E. Evans
* Executive Vice President and June 5, 2002
- ----------------------- Chief Financial Officer
J. Michael Stepp
(Principal Financial Officer)
* Controller June 5, 2002
- -----------------------
James L. Murawski
/s/ Ronald T. Lindsay Director June 5, 2002
- -----------------------
Ronald T. Lindsay
*By: /s/ Ronald T. Lindsay
------------------------
Ronald T. Lindsay
Attorney-in-Fact
II-18
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 5th day of June 2002.
COLLINS & AIKMAN INTERNATIONAL CORPORATION
By: *
---------------------------------------------
Name: Monte L. Miller
Title: President
POWER OF ATTORNEY
Each
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------- ------------------------------------------- -------------
* President June 5, 2002
- ----------------------- (Principal Executive Officer)
Monte L. Miller
* Vice President of Finance June 5, 2002
- ----------------------- (Principal Financial Officer and Principal
James L. Murawski
Account Officer)
* Director June 5, 2002
- -----------------------
Monte L. Miller
* Director June 5, 2002
- -----------------------
James L. Murawski
* Director June 5, 2002
- -----------------------
Robert S. Fenton
*By: /s/ Ronald T. Lindsay
------------------------
Ronald T. Lindsay
Attorney-in-Fact
II-19
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 5th day of June 2002.
COLLINS & AIKMAN PROPERTIES, INC.
By: *
-----------------------------------
Name: Monte L. Miller
Title: President
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------- ------------------------------------------- -------------
* President June 5, 2002
- ----------------------- (Principal Executive Officer)
Monte L. Miller
* Vice President of Finance June 5, 2002
- ----------------------- (Principal Financial Officer and Principal
James L. Murawski
Accounting Officer)
* Director June 5, 2002
- -----------------------
Monte L. Miller
* Director June 5, 2002
- -----------------------
James L. Murawski
* Director June 5, 2002
- -----------------------
Robert S. Fenton
Director
- -----------------------
Jonathan L. Peisner
*By: /s/ Ronald T. Lindsay
------------------------
Ronald T. Lindsay
Attorney-in-Fact
II-20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 5th day of June 2002.
GAMBLE DEVELOPMENT COMPANY
WICKES ASSET MANAGEMENT, INC.
WICKES MANUFACTURING COMPANY
By: *
-----------------------------------
Name: Thomas E. Evans
Title: President and Chief
Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------- --------------------------------------- -------------
* President and Chief Executive Officer June 5, 2002
- ----------------------- (Principal Executive Officer)
Thomas E. Evans
* Executive Vice President and June 5, 2002
- ----------------------- Chief Financial Officer
J. Michael Stepp
(Principal Financial Officer)
* Controller June 5, 2002
- -----------------------
James L. Murawski
* Director June 5, 2002
- -----------------------
Eugene A. White
*By: /s/ Ronald T. Lindsay
------------------------
Ronald T. Lindsay
Attorney-in-Fact
II-21
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 5th day of June 2002.
M&C ADVANCED PROCESSES, INC.
TEXTRON AUTOMOTIVE EXTERIORS INC.
TEXTRON AUTOMOTIVE (ASIA) INC.
TEXTRON AUTOMOTIVE (ARGENTINA) INC.
TEXTRON AUTOMOTIVE INTERIORS INC.
TEXTRON AUTOMOTIVE OVERSEAS INVESTMENT INC.
TEXTRON AUTOMOTIVE INTERNATIONAL SERVICES INC.
TEXTRON PROPERTIES INC.
By: *
------------------------------------------------
Name: Thomas E. Evans
Title: Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- -------------------------- ------------------------------ -------------
* Chief Executive Officer June 5, 2002
- ----------------------- (Principal Executive Officer)
Thomas E. Evans
* Executive Vice President and June 5, 2002
- ----------------------- Chief Financial Officer
J. Michael Stepp
(Principal Financial Officer)
* Controller June 5, 2002
- -----------------------
James L. Murawski
* Director June 5, 2002
- -----------------------
Thomas E. Evans
/s/ Ronald T. Lindsay Director June 5, 2002
- -----------------------
Ronald T. Lindsay
* Director June 5, 2002
- -----------------------
J. Michael Stepp
*By: /s/ Ronald T. Lindsay
------------------------
Ronald T. Lindsay
Attorney-in-Fact
II-22
EXHIBITS
Please note that in the following description of exhibits, the title of
any document entered into, or filing made, prior to July 7, 1994 reflects the
name of the entity, a party thereto or filing, as the case may be, at such
time. Accordingly, documents and filings described below may refer to Collins &
Aikman Holdings Corporation, Collins & Aikman Group, Inc. or Wickes Companies,
Inc., if such documents and filings were made prior to July 7, 1994.
EXHIBIT
NUMBER DESCRIPTION
- ------------- --------------------------------------------------------------------------------------
1.1*** Form of Underwriting Agreement (Equity).
1.2** Form of Underwriting Agreement (Debt securities).
2.1 Agreement and Plan of Merger dated May 14, 2001 by and among Collins & Aikman
Corporation, Collins & Aikman Products Co., Becker Group, L.L.C., CE Becker Inc.,
ME McInerney Inc., J Hoehnel Inc. and the individuals party thereto as sellers is
hereby incorporated by reference to Exhibit 2.1 of Collins & Aikman Corporation's
Current Report on Form 8-K dated July 13, 2001.
2.2 Agreement and Plan of Merger dated as of August 17, 2001 by and among Collins &
Aikman Corporation, Collins & Aikman Products Co., JAII Acquisition Co., Elkin
McCallum, Joan Fabrics Corporation and Joan Automotive Industries, Inc is hereby
incorporated by reference to Exhibit 2.1 of Collins & Aikman Corporation's Current
Report on Form 8-K dated September 21, 2001.
2.3 First Amendment to Agreement and Plan of Merger by and among Collins & Aikman
Corporation, Collins & Aikman Products Co., JAII Acquisition Co., Elkin McCallum,
Joan Fabrics Corporation and Joan Automotive Industries, Inc dated as of
September 21, 2001 is hereby incorporated by reference to Exhibit 2.2 of Collins &
Aikman Corporation's Current Report on Form 8-K dated September 21, 2001.
2.4 Purchase Agreement dated as of August 7, 2001, as amended and restated as of
November 30, 2001, by and among Textron Inc., Collins & Aikman Corporation and
Collins & Aikman Products Co., including Exhibit 1 (Certificate of Designation of the
15% Series A Redeemable Preferred Stock, the 16% Series B Redeemable Preferred
Stock and the 16% Series C Redeemable Preferred Stock) and Exhibit 7 (Asset
Purchase Agreement dated as of August 7 by and between Textron Automotive
Exteriors Inc. and JPS Automotive, Inc.), which is incorporated by reference to
Collins and Aikman Corporation Current Report on Form 8-K dated December 20,
2001 and filed on January 4, 2002. The Table of Contents of the Purchase Agreement
listed as Exhibit 2.4 contains a list briefly identifying the contents of all omitted
schedules and exhibits. Collins & Aikman Corporation will supplementally furnish a
copy of any omitted schedule or Exhibit to the Commission upon request.
2.5 Asset Purchase Agreement dated as of August 7, 2001, as amended and restated as of
November 30, 2001, by and between Textron Automotive Exteriors Inc. and JPS
Automotive, Inc., which is incorporated herein by reference to Exhibit 2.2 of Collins
& Aikman Corporation's Current Report on Form 8-K dated December 20, 2001 and
filed on January 4, 2002.
2.6 Asset Purchase Agreement dated as of August 17, 2001 by and among Collins &
Aikman Products Co., Western Avenue Dyers, L.P., Elkin McCallum, Kerry
McCallum, Penny Richards and Tyng Textiles LLC, which is incorporated by
reference to Exhibit 2.3 to Collins & Aikman Corporation's Current Report on Form
8-K filed on October 4, 2001.
EXHIBIT
NUMBER DESCRIPTION
- -------- -------------------------------------------------------------------------------------
2.7 First Amendment to Asset Purchase Agreement dated as of September 21, 2001,
which is incorporated by reference to Exhibit 2.4 to Collins & Aikman Corporation's
Current Report on Form 8-K filed on October 4, 2001.
3.1 Restated Certificate of Incorporation of Collins & Aikman Corporation is hereby
incorporated by reference to Exhibit 3.1 of Collins & Aikman Corporation's Report
on Form 10-Q for the fiscal quarter ended June 26, 1999.
3.2 Certificate of Amendment to the Restated Certificate of Incorporation of Collins &
Aikman Corporation, which is incorporated by reference to Exhibit 3.2 of Collins &
Aikman Corporation's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000.
3.3 By-laws of Collins & Aikman Corporation, as amended, are hereby incorporated by
reference to Exhibit 3.2 of Collins & Aikman Corporation's Report on Form 10-K for
the fiscal year ended January 27, 1996.
3.4 Certificate of Elimination of Cumulative Exchangeable Redeemable Preferred Stock
of Collins & Aikman Corporation is hereby incorporated by reference to Exhibit 3.3
of Collins & Aikman Corporation's Report on Form 10-Q for the fiscal quarter ended
October 28, 1995.
4.1 Specimen Stock Certificate for the Common Stock is hereby incorporated by
reference to Exhibit 4.3 of Amendment No. 3 to Collins & Aikman Holdings
Corporation's Registration Statement on Form S-2 (Registration No. 33-53179) filed
June 21, 1994.
4.2 Indenture, dated as of June 1, 1996, between Collins & Aikman Products Co., Collins
& Aikman Corporation and First Union National Bank of North Carolina, as Trustee,
is hereby incorporated by reference to Exhibit 4.2 of Collins & Aikman Corporation's
Report on Form 10-Q for the fiscal quarter ended April 27, 1996.
4.3 First Supplemental Indenture dated as of June 1, 1996, between Collins & Aikman
Products Co., Collins & Aikman Corporation and First Union National Bank of
North Carolina, as Trustee, is hereby incorporated by reference to Exhibit 4.3 of
Collins & Aikman Corporation's Report on Form 10-Q for the fiscal quarter ended
April 27, 1996.
4.4 Waiver dated as of October 27, 1998 under the Credit Agreement dated as of May 28,
1998, among Collins & Aikman Products Co., Collins & Aikman Canada, Inc. and
Collins & Aikman Plastics, Ltd., as Canadian Borrowers, Collins & Aikman
Corporation, as Guarantor, the Lender Parties thereto, Bank of America, N.T.S.A., as
Documentation Agent, The Chase Manhattan Bank, as Administrative Agent, and
The Chase Manhattan Bank of Canada, as Canadian Administrative Agent is hereby
incorporated by reference to Exhibit 4.5 of Collins & Aikman Corporation's Report
on Form 10-Q for the fiscal quarter ended September 26, 1998.
4.5 Waiver dated as of December 22, 1998 under the Credit Agreement dated as of
May 28, 1998, among Collins & Aikman Products Co., Collins & Aikman Canada,
Inc. and Collins & Aikman Corporation, as Guarantor, the Lender Parties thereto,
Bank of America, N.T.S.A., as Documentation Agent, The Chase Manhattan Bank, as
Administrative Agent, and The Chase Manhattan Bank of Canada, as Canadian
Administrative Agent is hereby incorporated by reference to Exhibit 4.6 of Collins &
Aikman Corporation's Report on Form 10-K for the year ended December 26, 1998.
EXHIBIT
NUMBER DESCRIPTION
- -------- --------------------------------------------------------------------------------------
4.6 Amendment and Waiver dated as of March 8, 1999, among Collins & Aikman
Products Co., Collins & Aikman Canada, Inc., Collins & Aikman Plastics Ltd., Collins
& Aikman Corporation, as Guarantor, the Lender Parties thereto, Bank of America
N.T.S.A., as Documentation Agent, The Chase Manhattan Bank, as Administrative
Agent, and The Chase Manhattan Bank of Canada, as Canadian Administrative
Agent is hereby incorporated by reference to Exhibit 4.7 of Collins & Aikman
Corporation's Report on Form 10-K for the year ended December 26, 1998.
4.7 Tranche C Term Loan Supplement dated as of May 12, 1999 to the Credit Agreement
dated as of May 28, 1998 among Collins & Aikman Products Co., Collins & Aikman
Canada, Inc., Collins & Aikman Plastics, Ltd., Collins & Aikman Corporation, the
Financial Institutions parties thereto, Bank of America N.T.S.A., as Documentation
Agent, The Chase Manhattan Bank, as Administrative Agent, and The Chase
Manhattan Bank of Canada, as Canadian Administrative Agent is hereby
incorporated by reference to Exhibit 4.1 of Collins & Aikman Corporation's Report
on Form 10-Q for the fiscal quarter ended June 26, 1999.
4.8 Indenture dated as of June 28, 1994, between JPS Automotive Products Corp., as
Issuer, JPS Automotive L.P., as Guarantor and Shawmut Bank Connecticut, N.A., as
Trustee, is hereby incorporated by reference to Exhibit 4.2 of JPS Automotive Corp.'s
Registration Statement on Form S-1, Registration No. 33-75510.
4.9 First Supplemental Indenture, dated as of October 5, 1994, between JPS Automotive
Products Corp. and JPS Automotive L.P., as Co-Obligors, and Shawmut Bank
Connecticut, N.A., as Trustee is hereby incorporated by reference to Exhibit 4.48A of
JPS Automotive L.P.'s and JPS Automotive Products Corp.'s Report on Form 10-Q
for the fiscal quarter ended October 2, 1994.
4.10 Second Supplemental Indenture, dated as of February 8, 2001, by and among Collins
& Aikman Products Co., as Issuer, Collins & Aikman Corporation, as Guarantor, and
First Union National Bank, as Trustee, which is incorporated by reference to Exhibit
4.11 of Collins & Aikman Corporation's Annual Report on Form 10-K for the fiscal
year ended December 31, 2000.
4.11 Form of Warrant is hereby incorporated by reference to Exhibit 4.1 of Collins &
Aikman Corporation's Current Report on Form 8-K dated July 13, 2001.
4.12 Certificate of Designation of Series A Redeemable Preferred Stock, Series B
Redeemable Preferred Stock and Series C Redeemable Preferred Stock, which is
incorporated herein by reference to Exhibit 4.1 of Collins & Aikman Corporation's
Current Report of Form 8-K dated December 20, 2001 and filed on January 4, 2002.
4.13 Indenture dated as of December 20, 2001 by and among Collins & Aikman Products
Co., as Issuer, the Guarantors parties thereto, and BNY Midwest Trust Company, as
Trustee, which is incorporated herein by reference to Exhibit 4.2 of Collins & Aikman
Corporation's Current Report on Form 8-K dated December 20, 2001 and filed on
January 4, 2002.
4.14 Receivables Transfer Agreement dated as of December 20, 2001 by and among
Carcorp, Inc., as Transferor, Collins & Aikman Products Co., individually and as
Collection Agent, the persons parties thereto, as CP Conduit Purchasers, Committed
Purchasers and Funding Agents and JPMorgan Chase Bank, as Administrative Agent,
which is incorporated herein by reference to Exhibit 4.3 of Collins & Aikman
Corporation's Current Report on Form 8-K dated December 20, 2001 and filed on
January 4, 2002.
EXHIBIT
NUMBER DESCRIPTION
- --------------- ---------------------------------------------------------------------------------------
4.15 Amended and Restated Receivables Purchase Agreement dated as of December 20,
2001 among Collins & Aikman Products Co. and its wholly-owned direct and indirect
subsidiaries named therein, as Sellers, and Carcorp, Inc., as Purchaser, and the other
Sellers from time to time named therein, which is incorporated herein by reference to
Exhibit 4.4 of Collins & Aikman Corporation's Current Report on Form 8-K dated
December 20, 2001 and filed on January 4, 2002.
4.16 Credit Agreement dated as of December 20, 2001 among Collins & Aikman Products
Co., as Borrower, Collins & Aikman Canada Inc., as a Canadian Borrower, Collins &
Aikman Plastics, Ltd., as a Canadian Borrower, Collins & Aikman Corporation, the
Lenders named therein, Deutsche Banc Alex. Brown Inc. and Merrill Lynch Capital
Corporation, as Co-Documentation Agents, Credit Suisse First Boston Corporation,
as Syndication Agent, JPMorgan Chase Bank, as Administrative Agent, and
J.P.Morgan Bank Canada, as Canadian Administrative Agent, which is incorporated
herein by reference to Exhibit 4.5 of Collins & Aikman Corporation's Current Report
on Form 8-K dated December 20, 2001 and filed on January 4, 2002.
4.17 Guarantee and Collateral Agreement dated as of December 20, 2001 by and among
Collins & Aikman Corporation, Collins & Aikman Products Co. and certain of their
subsidiaries and JPMorgan Chase Bank, as Collateral Agent, which is incorporated
herein by reference to Exhibit 4.6 of Collins & Aikman Corporation's Current Report
on Form 8-K dated December 20, 2001 and filed on January 4, 2002.
4.18 Third Supplemental Indenture, dated as of December 20, 2001, among Collins &
Aikman Products Co., Collins & Aikman Corporation, the Subsidiary Guarantors
listed on the signature page thereto, and First Union National Bank (as successor in
interest to First Union National Bank of North Carolina), which is incorporated
herein by reference to Exhibit 4.7 of Collins & Aikman Corporation's Current Report
on Form 8-K dated December 20, 2001 and filed on January 4, 2002.
4.19* Form of C&A Senior Indenture.
4.20 Form of C&A Senior Debt Security (included as Exhibit A to Exhibit 4.19).
4.21* Form of C&A Senior Subordinated Indenture.
4.22 Form of C&A Senior Subordinated Debt Security (included as Exhibit A to Exhibit
4.21).
4.23* Form of Products Senior Indenture.
4.24 Form of Products Senior Debt Security (included as Exhibit A to Exhibit 4.23).
4.25* Form of Products Senior Subordinated Indenture.
4.26 Form of Products Senior Subordinated Debt Security (included as Exhibit A to
Exhibit 4.25).
5.1* ** Opinion of Cahill Gordon & Reindel.
10.1 Registration Rights Agreement, dated February 23, 2001, by and among Collins &
Aikman Corporation, Blackstone Capital Company II, L.L.C., Heartland Industrial
Partners, L.P. and Wasserstein/C&A Holdings, L.L.C., which is incorporated by
reference to Annex D to Exhibit 10.1 to Collins & Aikman Corporation's Current
Report on Form 8-K dated January 12, 2001.
EXHIBIT
NUMBER DESCRIPTION
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10.2 Registration Rights Agreement, dated July 3, 2001, by and among Collins & Aikman
Corporation, Charles E. Becker, Michael E. McInerney and Jens H|f-hnel and,
together with the Joan Investors (as defined therein), which is incorporated by
reference to Collins & Aikman Corporation's Annual Report on Form 10-K for the
year ended December 31, 2001.
10.3 Registration Rights Agreement dated as of December 20, 2001 by and among Becker
Ventures, LLC, Dresdner Kleinwort Capital Partners 2001 LP, Masco Capital
Corporation, ML IBK Positions, Inc. and Collins & Aikman Corporation, which is
incorporated by reference to Collins & Aikman Corporation's Annual Report on
Form 10-K for the year ended December 31, 2001.
10.4 Registration Rights Agreement, dated December 20, 2001, by and between Collins &
Aikman Corporation, Textron Inc., and Textron Holdco Inc., which is incorporated by
reference to Collins & Aikman Corporation's Annual Report on Form 10-K for the
year ended December 31, 2001.
12.1 Statement regarding Computation of Earnings to Fixed Charges and Preferred Stock
Dividends for Collins & Aikman Corporation.
12.2 Statement regarding Computation of Earnings to Fixed Charges for Collins &
Aikman Corporation.
12.3 Statement regarding Computation of Earnings to Fixed Charges for Collins &
Aikman Products Co.
23.1 Consent of Cahill Gordon & Reindel (included as part of Exhibit 5.1).
23.2* Consent of PricewaterhouseCoopers LLP, independent accountants
23.3**** Consent of Arthur Andersen LLP, independent accountants.
23.4* Consent of Ernst & Young LLP, independent accountants.
23.5* Consent of Ernst & Young LLP, independent accountants.
23.6* Consent of KPMG LLP, independent accountants.
24*** Powers of Attorney.
25** Statement regarding eligibility of Trustee on Form T-1.
99.1* Preliminary Prospectus Supplement dated May 21, 2002.
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* Filed Herewith
** To be filed by amendment or incorporated by reference to the Company's
Exchange Act reports.
*** Previously filed in connection with this Registration Statement.
**** Omitted pursuant to Rule 437a under the Securities Act.