EXHIBIT 1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
BOLLE INC.
BOLLE INC., a corporation organized and existing under the laws of the
State of Delaware, hereby certifies as follows:
1. The name of the corporation is BOLLE INC., and the name under which the
corporation was originally incorporated is BOLLE, INC. The date of the filing
of its original Certificate of Incorporation with the Secretary of State was
February 3, 1997.
2. This Amended and Restated Certificate of Incorporation restates and
integrates and further amends the Certificate of Incorporation of this
corporation by increasing the total number of shares of stock which the
Corporation shall have authority to issue to 30,000,000 shares of common stock,
having a par value of $.01 per share and 200,000 shares of preferred stock
having a par value of $.01 per share.
3. The text of the Certificate of Incorporation as amended or supplemented
heretofore is further amended hereby to read as herein set forth in full:
FIRST: The name of the Corporation (hereinafter referred to as the
"Corporation") is
BOLLE INC.
SECOND: The address, including street, number, city and county, of
the registered office of the Corporation in the State of Delaware is 1013
Centre Road, Wilmington, Delaware 19805, County of New Castle, and the
name of the registered agent of the Corporation in the State of Delaware
is Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is 30,000,000 shares of common stock, having
a par value of $.01 per share and 200,000 shares of preferred stock having
a par value of $.01 per share. To the extent not otherwise provided for
by, and not inconsistent with, this Certificate of Incorporation, there is
hereby expressly vested in the Board of Directors the authority to fix in
the resolution or resolutions providing for the issue of each series of
such
preferred stock, the voting power and the designations, preferences
and relative, participating, operational or other rights of each such
series, and the qualifications, limitations or restrictions thereof.
Shares of preferred stock may be issued from time to time in one or more
series as may from time to time be determined by the Board of Directors,
each such series to be distinctly designated.
a. Series A Preferred Stock. There shall be created a series of
preferred stock of the Corporation, which shall be designated "Series A
Preferred Stock" and shall consist of Sixty Four Thousand One Hundred
Twenty (64,120) shares, and have the powers, designations, preferences and
relative, participating, and other rights of the shares of such series,
and the qualifications, limitations and restrictions thereof, as set forth
below:
Section 1. Dividends. The holders of the Series A Preferred
Stock shall not be entitled to dividends.
Section 2. Rights on Liquidation. In the event of any voluntary
or involuntary liquidation, dissolution or winding up of the
Corporation (any such event being hereinafter referred to as a
"Liquidation"), before any distribution of assets of the Corporation
shall be made to or set apart for the holders of Common Stock, the
holders of Series A Preferred Stock shall be entitled to receive
payment out of such assets of the Corporation in an amount equal to
the greater of (i) One Thousand French Francs (FF1,000) per share of
Series A Preferred Stock or (ii) the French Franc equivalent of US
$172.41 per share of Series A Preferred Stock (such greater amount
being referred to as the "Liquidation Preference" for the Series A
Preferred Stock). If the assets of the Corporation available for
distribution to the holders of the Series A Preferred Stock shall not
be sufficient to make in full the payment herein required, such
assets shall be distributed pro-rata among the holders of Series A
Preferred Stock based on the aggregate Liquidation Preference of the
shares of Series A Preferred Stock held by each such holder. If the
assets of the Corporation available for distribution to the holders
of Series A Preferred Stock shall exceed the distribution required to
be made to the holders of Series A Preferred Stock as herein
described, such excess assets shall be distributed pro-rata among the
holders of Common Stock and the holders of Series A Preferred Stock
shall not participate in any such excess distribution in their
capacity as holders of Series A Preferred Stock.
Section 3. Conversion. The holders of any share of Series A
Preferred Stock shall not have the
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right to convert any such shares into shares of Common Stock of the
Corporation.
Section 4. Redemption.
(a) Optional Redemption. Following notice pursuant to Section
4(c) hereof given to all holders of Series A Preferred Stock during
the period that shares of Series A Preferred Stock are outstanding
(the "Redemption Period"), the Corporation may at the option of the
Board of Directors of the Corporation, redeem, out of funds legally
available therefor, in whole or in part the shares of Series A
Preferred Stock. The Corporation shall effect any such redemption by
paying in cash for each such share to be redeemed an amount equal to
the Liquidation Preference, per share, on such shares being redeemed
on the Redemption Date (as hereinafter defined) (such per share
amount is hereinafter referred to as the "Redemption Amount").
(b) Mandatory Redemption. (i) Subject to the terms of the Senior
Indebtedness (as defined below), on the third anniversary date from
the issuance of the Series A Preferred Stock, the Corporation shall
redeem, out of funds legally available therefor, all of the shares of
the Series A Preferred Stock (if not previously redeemed) at the
Redemption Amount per share pursuant to the terms of this Section 4
following notice pursuant to Section 4(c) hereof given to all holders
of Series A Preferred Stock.
(ii) Notwithstanding anything to the contrary contained herein,
in the event that the Corporation's EBITDA (as defined below) exceeds
US$18,400,000 for the year ended December 31, 1998 and Bollee Inc.
will be in compliance with the terms of Bolle Inc.'s senior
indebtedness pursuant to the terms of the credit agreement among the
Corporation, the lenders executing a signature thereto and
NationsBank, National Association, as Agent, entered into in
connection with the Corporation becoming a separate public company as
a result of a spinoff by BEC Group, Inc., as may be amended from time
to time (the "Senior Indebtedness") after taking into account the
redemption pursuant to the terms of this Section 4(b)(ii), to the
extent that Bolle Inc. will have at least US$2,000,000 available to
borrow pursuant to the terms of the Senior Indebtedness after taking
into account such redemption, the Corporation shall redeem, out of
funds legally available therefor, the shares of the Series A
Preferred Stock (if not previously redeemed) at the Redemption Amount
per share pursuant to the terms of this Section 4 herein following
notice given within ten days after the Determination Date (as defined
below) in respect of the year ended
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December 31, 1998 pursuant to Section 4(c) hereof given to all
holders of Series A Preferred Stock. The determination of EBITDA
required to be made under this Section 4, shall be made by the
Corporation within ninety days following the Corporation's year end
(the "Determination Date").
(iii) Notwithstanding anything to the contrary contained herein,
in the event that the Corporation's EBITDA exceeds US$24,700,000 for
the year ended December 31, 1999 Bolle Inc. will be in compliance
with the terms of the Senior Indebtedness after taking into account
the redemption pursuant to the terms of this Section 4(b)(iii), to
the extent that Bolle Inc. will have at least US$2,000,000 available
to borrow pursuant to the terms of the Senior Indebtedness after
taking into account such redemption, the Corporation shall redeem,
out of funds legally available therefor, the shares of the Series A
Preferred Stock (if not previously redeemed) at the Redemption Amount
per share pursuant to the terms of this Section 4 herein following
notice given within ten days after the Determination Date in respect
of year ended December 31, 1999 pursuant to Section 4(c) hereof given
to all holders of Series A Preferred Stock.
(iv) For purposes of this Section 4, "EBITDA" means, with
respect to the Corporation and its subsidiaries for any period of
computation thereof, the sum of, without duplication, (i)
consolidated net income, (ii) consolidated interest expense, (iii)
taxes on income, (iv) amortization, and (v) depreciation, all
determined on a consolidated basis in accordance with generally
accepted accounting principles on a consistent basis.
(c) Redemption Procedures. In the event of any redemption
pursuant hereto, the Corporation shall effect such redemption as
described below. During the Redemption Period, and at least 10 days
prior to the date fixed for any redemption of Series A Preferred
Stock pursuant to Section 4(a) or 4(b) above (the "Redemption Date"),
written notice shall be sent to each holder of record of Series A
Preferred Stock to be redeemed, notifying such holder of the
redemption to be effected, specifying the Redemption Date, the
Redemption Amount, the place at which payment may be obtained and
calling upon such holder to surrender to the Corporation, in the
manner and at the place designated, his certificate or certificates
representing the shares to be redeemed (the "Redemption Notice"). On
or after the Redemption Date, each holder of Series A Preferred Stock
to be redeemed shall surrender to the Corporation the certificate or
certificates representing such
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shares, in the manner and at the place designated in the
Redemption Notice, and thereupon the Redemption Amount of such shares
shall be payable to the order of the person whose name appears on
such certificate or certificates as the owner thereof and each
surrendered certificate shall be cancelled. In the event less than
all the shares represented by any such certificate are redeemed, a
new certificate shall be issued representing the unredeemed shares.
(d) Status of Redeemed or Purchased Shares. Any shares of the
Series A Preferred Stock at any time purchased, redeemed or otherwise
acquired by the Corporation shall not be reissued and shall be
retired.
(e) Sale of Business. In the event that the Corporation does not
give notice on or before the third anniversary date from the issuance
of the Series A Preferred Stock, that it will redeem the Series A
Preferred Stock in full pursuant to the provisions of Section 4(c)
hereof, the holders of more than 90% of the Series A Preferred Stock
shall have the right, until the Series A Preferred Stock has been
redeemed, (i) subject to the terms and provisions of the agreements
entered into in connection with the Senior Indebtedness, to appoint a
majority of the members of the Board of Directors of the Corporation,
so long as the Corporation is privately or closely held, and (ii)
subject to the terms and provisions of the agreements entered into in
connection with the Senior Indebtedness, to cause the Corporation to
use commercially reasonable efforts to either obtain cash in order to
redeem in full the Series A Preferred Stock or to effect a
commercially reasonable sale of the Corporation's assets or the
merger, consolidation or other reorganization of the Corporation as
soon as reasonably practicable thereafter.
SECTION 5. Voting Rights. Subject to the provisions of Section
4(c)(i) hereof, the holders of the Series A Preferred Stock shall not
be entitled to vote except as to matters in respect of which they
shall at the time be indefeasibly vested by statute with such right.
SECTION 6. Protective Provisions. So long as any shares of
Series A Preferred Stock are outstanding, the Corporation shall not,
without first obtaining the approval (by vote or written consent, as
provided by law) of the holders of at least 90% of the then
outstanding shares of Series A Preferred Stock:
(i) alter or change the rights, preferences or privileges
of the shares of Series A
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Preferred Stock so as to affect adversely the shares of such
series; and
(ii) the Corporation shall not issue any class or series of
Preferred Stock that ranks Senior to or pari passu with the Series A
Preferred Stock with respect to dividend, redemption or liquidation
rights.
SECTION 7. TRANSFERABILITY. The holders of shares of the Series
A Preferred Stock are entitled to transfer shares of the Series A
Preferred Stock to any of the other holders of shares of Series A
Preferred Stock, subject to strict compliance with all applicable
laws.
FIFTH: The name and the mailing address of the incorporator is as
follows:
Name Mailing Address
---- ---------------
Peter H. Trembath c/o BEC Group, Inc.
1601 Valley View Lane
Dallas, TX 75234
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed between
this Corporation and its creditors or any class of them and/or between
this Corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the
application in a summary way of this Corporation or of any creditor or
stockholder thereof or on the application of any receiver or receivers
appointed for this Corporation under the provisions of Section 291 of
Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation
under Section 279 of Title 8 of the Delaware Code order a meeting of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in
such manner as the said court directs. If a majority in number
representing three-fourths in value of the creditors or class of
creditors, and/or the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement
and to any reorganization of this Corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholders or class of stockholders of this
Corporation, as the case may be, and also on this Corporation.
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EIGHTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and
regulation of the powers of the Corporation and of its directors and of
its stockholders or any class thereof, as the case may be, it is further
provided:
1. The management of the business and the conduct of the
affairs of the Corporation shall be vested in its Board of
Directors. The number of directors which shall constitute the
whole Board of Directors shall be fixed by, or in the manner
provided in, the By-laws. The phrase "whole Board" and the
phrase "total number of directors" shall be deemed to have the
same meaning to wit, the total number of directors which the
Corporation would have if there were no vacancies.
2. After the original or other By-laws of the Corporation
have been adopted, amended, or repealed, as the case may be, in
accordance with the provisions of Section 109 of the General
Corporation Law of the State of Delaware, and, after the
Corporation has received any payment for any of its stock, the
power to adopt, amend, or repeal the By-laws of the Corporation
may be exercised by the Board of Directors of the Corporation;
provided, however, that any provision for the classification of
directors of the Corporation for staggered terms pursuant to the
provisions of subsection (d) of Section 141 of the General
Corporation Law of the State of Delaware shall be set forth in
the initial By-laws or in by-laws adopted by the stockholders
entitled to vote of the Corporation unless provisions for such
classification shall be set forth in this Certificate of
Incorporation.
3. Whenever the Corporation shall be authorized to issue
only one class of stock, each outstanding share shall entitle
the holder thereof to notice of, and the right to vote at, any
meeting of stockholders. Whenever the Corporation shall be
authorized to issue more than one class of stock, no outstanding
share of any class of stock which is denied voting power under
the provisions of the certificates of incorporation shall
entitle the holder thereof to the right to vote at any meeting
of the stockholders except as the provisions of paragraph (2) of
the subsection (b) of (section) 242 of the General Corporation
Law of the State of Delaware shall otherwise require;
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provided, that no share of any such class which is otherwise
denied voting power shall entitle the holder thereof
to vote upon the increase or decrease in the number of
authorized shares of said class.
4. Elections of directors need not be by written ballot.
NINTH: The personal liability of the directors of the Corporation is
hereby eliminated to the fullest extent permitted by paragraph (7) of
subsection (b) of Section 102 of the General Corporation Law of the State
of Delaware, as the same may be amended and supplemented.
TENTH: (a) The Corporation shall, to the fullest extent permitted by
the General Corporation Law, as the same may be amended and supplemented,
indemnify any and all persons whom it shall have the power to indemnify
under the General Corporation Law from and against any and all of the
expenses, liabilities or other matters referred to in or covered by the
General Corporation Law, and the indemnification provided for herein shall
not be deemed exclusive of any other rights to which those indemnified may
be entitled under any By-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office,
and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(b) Expenses incurred in defending a civil or criminal action, suit
or proceeding shall (in the case of any action, suit or proceeding against
a director of the Corporation) or may (in the case of any action, suit or
proceeding against an officer, trustee, employee or agent) be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding as authorized by the Board upon receipt of an undertaking by or
on behalf of the indemnified person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized in this Article.
(c) No director shall be personally liable to the Corporation or any
stockholder for monetary damages for breach of fiduciary duty as director,
except for any matter in respect of which such director (a) shall be
liable under Section 174 of the General Corporation Law or successor
provisions thereto, or (b) shall be liable by reason that, in addition to
any and all other requirements for liability, he
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(i) shall have breach his duty of loyalty to the Corporation or its
stockholders;
(ii) shall not have acted in good faith or, in failing to act,
shall not have acted in good faith;
(iii) shall have acted in a manner involving intentional misconduct
or a knowing violation of the law or, in failing to act, shall have acted
in a manner involving intentional misconduct or knowing violation of the
law; or
(iv) shall have derived an improper personal benefit.
ELEVENTH: The Board of Directors shall have the power to make, add
to, delete from, alter and repeal the Corporation's By-laws.
TWELFTH: The Corporation expressly elects not to be governed by
Section 203 of the Delaware General Corporation Law.
THIRTEENTH: From time to time any of the provisions of this
Certificate of Incorporation may be amended, altered or repealed after
authorization by the Board of Directors and the affirmative vote of the
holders of record of a majority of all of the issued and outstanding
shares of the Corporation entitled to vote in respect thereof, and other
provisions authorized by the laws of the State of Delaware at the time in
force may be added or inserted in the manner and at the time prescribed by
said laws, and all rights at any time conferred upon the stockholders of
the Corporation by this Certificate of Incorporation are granted subject
to the provisions of this Article Fourteenth.
4. This Amended and Restated Certificate of Incorporation was duly adopted
by unanimous written consent of the holders of the Corporation's common stock
and Series A Preferred Stock in accordance with the applicable provisions of
Sections 228, 242 and 245 of the General Corporation Law of the State of
Delaware.
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IN WITNESS WHEREOF, said BOLLE INC. has caused this certificate to be
signed and attested by Ian G.H. Ashken, its Chief Financial Officer, this 12th
day of February, 1998.
BOLLE INC.
By: /s/ Ian G.H. Ashken
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Name: Ian G.H. Ashken
Title: Chief Financial Officer