FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
COLLINS & AIKMAN HOLDINGS CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 13-3489233
(State or other jurisdiction of
incorporation or organization) (I.R.S. Employer Identification Number)
8320 University Executive Park, Suite 102, Charlotte, North Carolina 28262
(Address of Principal Executive Offices) (Zip Code)
Collins & Aikman Holdings Corporation 1993 Employee Stock Option Plan
(Full title of the plan)
Elizabeth R. Philipp, Executive Vice President, Secretary and General Counsel;
210 Madison Avenue, Sixth Floor, New York, New York 10016
(Name and address of agent for service)
(212) 578-1336
Telephone number, including area code, of agent for service
Calculation of Registration Fee
<TABLE>
Title of Securities Amount ot be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered (1) Offering Aggregate Registration Fee
Price Per Share (2) Offering Price (2)
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 per
share. 3,119,466 $8.26 $25,766,789 $8,885.10
Notes:
(1) Based upon the maximum number of shares of Common Stock, par value $.01 per share (the "Common Stock"),
that will be subject to issuance upon the exercise of options granted or to be granted pursuant to the
Collins & Aikman Holdings Corporation 1993 Employee Stock Option Plan (the "Plan") described herein.
The shares being registered also include an indeterminate number of additional shares of Common Stock
that may become issuable pursuant to antidilution provisions of the Plan.
(2) Estimated solely for the purpose of calculating the registration fee and based, pursuant to Rule 457(h)
under the Securities Act of 1933, as amended, upon the maximum exercise price of the options currently
proposed to be issued under the Plan.
</TABLE>
PART I
Information Required in the Section 10(a) Prospectus
The documents containing the information specified in this Part I
will be sent or given to plan participants as specified by Rule 428 of the
Securities Act of 1933.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents By Reference.
Collins & Aikman Holdings Corporation (the "Corporation") hereby
incorporates by reference the following documents into this registration
statement:
(a) Collins & Aikman Holdings Corporation's Annual Report on
Form 10-K for the Fiscal Year ended January 30, 1993.
(b) (i) Collins & Aikman Holdings Corporation's
Quarterly Report on Form 10-Q for the Fiscal Quarter ended May 1, 1993.
(ii)Collins & Aikman Holdings Corporation's Quarterly
Report on Form 10-Q for the Fiscal Quarter ended July 31, 1993.
(iii)Collins & Aikman Holdings Corporation's
Quarterly Report on Form 10-Q for the fiscal quarter ended October 30, 1993.
(iv)Collins & Aikman Holdings Corporation's Current
Report on Form 8-K filed on February 11, 1994.
(c) Not applicable.
The Corporation further states that all documents subsequently
filed by the Corporation pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be part thereof
from the date of filing of such documents.
Item 4. Description of Securities.
The securities that will be purchased by participants in
the Collins & Aikman Holdings Corporation 1993 Employee Stock Option Plan
(the "Plan") and are being offered hereby are shares of the Corporation's
Common Stock, par value $.01 per share (the "Common Stock"). Holders of the
Common Stock are entitled to
receive dividends when, as, and if declared by the Board of Directors of the
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Corporation out of funds legally available therefor, and to share in all
amounts available for distribution to the Corporation's stockholders upon any
liquidation, dissolution or winding up, subject to the rights of the holders of
the Corporation's 15-1/2% Cumulative Exchangeable Redeemable Preferred Stock,
par value $.01 per share (the "Preferred Stock"), which ranks senior to the
Common Stock with respect to dividend rights and rights on liquidation,
winding-up and dissolution of the Corporation, or any other class or series of
preferred stock subsequently created and issued by the Corporation. The Common
Stock entitles holders thereof to vote generally (one vote per share) on all
matters to be voted upon by the Corporation's stockholders, except for matters
requiring a separate class vote of the holders of the Preferred Stock.
The Common Stock is not
redeemable or convertible, and holders thereof are not entitled to preemptive
rights. The shares of Common Stock issued upon payment of the exercise
price for options under the Plan will be fully paid and nonassessable.
Item 6. Indemnification of Officers and Directors.
Reference is made to the provisions of Article Seventh and Article
Ninth of the Certificate of Incorporation of the Corporation (the
"Certificate"),
of Article XI of the Bylaws of the Corporation (the "Bylaws") and of Section
145 of the Delaware General Corporation Law ("DGCL"), which contain provisions
relating to indemnification of officers, directors, employees and agents of the
Corporation.
Article Seventh of the Certificate provides as follows:
No director shall be personally liable to the
Corporation or
any of its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct for a knowing violation of law, (iii)
pursuant to Section 174 of the Delaware General Corporation Law or
(iv) for any transaction from which the director derived an improper
personal benefit. Any repeal or modification of this Article
SEVENTH by the stockholders of the Corporation shall not adversely
affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification with respect to
acts or omissions occurring prior to such repeal or modification.
Article Ninth of the Certificate provides as follows:
The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or
was a director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection
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with such action, suit or proceeding, in accordance with the laws of
the State of Delaware, and to the full extent permitted by such laws
except as the by-laws of the Corporation may otherwise provide.
Such indemnification shall not be deemed exclusive of any other
rights to which those seeking indemnification may be entitled under
any by-law, agreement, vote of shareholders or disinterested
directors or otherwise, including insurance purchased and maintained
by the Corporation, 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.
Article XI of the Bylaws provides as follows:
Indemnification
SECTION 1. Right to Indemnification. The Corporation shall
to the fullest extent permitted by applicable law as then in effect
indemnify any person (the "Indemnitee") who is or was involved in
any manner ( including, without limitation, as a party or a witness)
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,
without limitation, any action, suit or proceeding by or in the
right of the Corporation to procure a judgment in its favor) (a
"Proceeding") by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust
or other enterprise (including, without limitation, any employee
benefit plan), against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by the Indemnitee in connection with such
Proceeding. Such indemnification shall be a contract right and
shall include the right to receive payment in advance of any
expenses incurred by the Indemnitee in connection with such
Proceeding, consistent with the provisions of applicable law as then
in effect.
SECTION 2.Insurance, Contracts and Funding. The
Corporation may purchase and maintain insurance to protect itself
and any person entitled to indemnification under this Article XI
against any expenses, judgments, fines and amounts payable as
specified in this Article XI, to the fullest extent permitted by
applicable law as then in effect. The Corporation may enter into
contracts with any person entitled to indemnification under this
Article XI in furtherance of the provisions of this Article XI and
may create a trust fund, grant a security interest or use other
means (including, without limitation, a letter of credit) to ensure
the payment of such amounts as may be necessary to effect
indemnification as provided in this Article XI.
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SECTION 3.Indemnification Not Exclusive Right. The right
of indemnification provided in this Article XI shall not be
exclusive of any other rights to which those seeking indemnification
may otherwise be entitled, and the provisions of this Article XI
shall inure to the benefit of the heirs and legal representatives of
any person entitled to indemnification under this Article XI and
shall be applicable to Proceedings commenced or continuing after the
adoption of this Article XI, whether arising from acts or omissions
occurring before or after such adoption.
SECTION 4. Advancement of Expenses. In furtherance and not
in limitation of the foregoing provisions, all reasonable expenses
incurred by or on behalf of the Indemnitee in connection with any
Proceeding shall be advanced to the Indemnitee by the Corporation
within 20 calendar days after the receipt by the Corporation of a
statement or statements from the Indemnitee requesting such advance
or advances from time to time, whether prior to or after final
disposition of such Proceeding. Such statement or statements shall
reasonably evidence the expenses incurred by the Indemnitee and, if
required by law at the time of such advance, shall include or be
accompanied by an undertaking by or on behalf of the Indemnitee to
repay the amounts advanced if it shall ultimately be determined that
the Indemnitee is not entitled to be indemnified against such
expenses pursuant to this Article XI.
SECTION 5. Effects of Amendments. Neither the amendment or
repeal of, nor the adoption of a provision inconsistent with, any
provision of this Article XI (including, without limitation, this
Section 5) shall adversely affect the rights of any Indemnitee under
this Article XI with respect to any Proceeding commenced or
threatened prior to such amendment, repeal or adoption of an
inconsistent provision.
SECTION 6. Severability. If any provision or provisions of
this Article XI shall be held to be invalid, illegal or
unenforceable for any reason whatsoever: (a) the validity,
legality and enforceability of the remaining provisions of this
Article XI (including, without limitation, all portions of any
paragraph of this Article XI containing any such provision held to
be invalid, illegal or unenforceable, that are not themselves
invalid, illegal or unenforceable), shall not in any way be affected
or impaired thereby; and (b) to the fullest extent possible, the
provisions of this Article XI (including, without limitation, all
portions of any paragraph of this Article XI containing any such
provision held to be invalid, illegal or unenforceable, that are not
themselves invalid, illegal or unenforceable) shall be construed so
as to give effect to the intent manifested by the provision held
invalid, illegal or unenforceable.
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Section 145 of the DGCL provides as follows:
(a) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his
conduct was unlawful.
(b) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or
was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation and
except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the
extent that the Court of Chancery or the court in which such action
or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
(c) To the extent that a director, officer, employee or
agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to
in subsections (a) and (b) of this section, or in defense of any
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claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of
this section (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in subsections (a) and
(b) of this section. Such determination shall be made (1) by the
board of directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding,
or (2) if such a quorum is not obtainable, or, even if obtainable a
quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal, administrative
or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of such
director or officer 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 section. Such expenses (including
attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the board of
directors deems appropriate.
(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other subsections of this section
shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled
under any bylaw, 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.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him
against such liability under this section.
(h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and
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authority to indemnify its directors, officers, and employees or
agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand
in the same position under this section with respect to the
resulting or surviving corporation as he would have with respect to
such constituent corporation if its separate existence had
continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at
the request of the corporation" shall include any service as a
director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith
and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests
of the corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided
by, or granted pursuant to, this section shall, unless otherwise
provided when authorized or ratified, 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.
The Corporation has insurance coverage under a policy issued to Collins &
Aikman Holdings II Corporation (formerly named WCI Holdings II Corporation) for
losses by any person who is or hereafter may be a director or officer of the
Corporation arising from claims against that person for any wrongful act
(subject to certain exceptions) in his capacity as a director or officer of the
Corporation or any of its subsidiaries. The policy also provides for
reimbursement to the Corporation for indemnification given by the Corporation
pursuant to common or statutory law or the Certificate of Incorporation or the
By-Laws to any such person arising from any such claims. The policy's present
coverage is limited to a maximum of $40 million for claims made in a single
year and there is a deductible of $1 million for reimbursement to the Company.
Item 8. Exhibits.
Exhibit
Number Description
4.1 -Certificate of Incorporation of Collins & Aikman Holdings
Corporation, as amended.
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Exhibit
Number Description
4.2 -Bylaws of Collins & Aikman Holdings Corporation are hereby
incorporated by reference to Exhibit 3.2 to Collins & Aikman
Holdings Corporation's Report on Form 10-K for the Fiscal Year
ended January 30, 1993.
4.3 -Collins & Aikman Holdings Corporation 1993 Employee Stock Option
Plan is hereby incorporated by reference to Exhibit 10.12 to
Collins & Aikman Holdings Corporation's Registration Statement on
Form S-2 (File No. 33-53179) filed with the Securities and
Exchange Commission on April 19, 1994.
5.1 -Opinion of Corporate Counsel of Collins & Aikman Holdings
Corporation concerning legality.
23.1 -Consent of Corporate Counsel (contained in Exhibit 5.1).
23.2 -Consent of Arthur Andersen & Co.
24. -Power of Attorney (contained in the signature section of this
Registration Statement).
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(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;
(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 (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and 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
9
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.
The undersigned registrant hereby undertakes 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
(4) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Corporation pursuant to the foregoing provisions, or otherwise,
the Corporation has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Corporation of expenses incurred or paid by a director, officer or controlling
person of the Corporation 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 Corporation 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 against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and 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 April 28, 1994.
(Registrant) Collins & Aikman Holdings Corporation
By:/S/ DAVID A. STOCKMAN By:/S/ BRUCE WASSERSTEIN
David A. Stockman Bruce Wasserstein
Co-Chairman of the Board of Co-Chairman of the Board of
Directors Directors
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POWER OF ATTORNEY
Each person whose signature appears below on this Registration
Statement hereby constitutes and appoints David A. Stockman and Randall J.
Weisenburger, and each of them, with full power to act without the other, his
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities (until revoked in writing) to sign any and all amendments
(including post-effective amendments and amendments thereto) to this
Registration Statement on Form S-8 of Collins & Aikman Holdings Corporation,
and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary fully to all intents and purposes as he might or could
do in person thereby ratifying and confirming all that said attorneys-in-fact
and agents or either of them, or their or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
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 date indicated.
Signature Title Date
/S/ DAVID A. STOCKMAN Co-Chairman of the Board April 28, 1994
David A. Stockman of Directors
/S/ BRUCE WASSERSTEIN Co-Chairman of the Board April 28, 1994
Bruce Wasserstein of Directors
/S/ STEPHEN A. SCHWARZMAN President and Director April 28, 1994
Stephen A. Schwarzman (Principal Executive
Officer)
/S/ DAVID J. McKITTRICK Principal Financial and
David J. McKittrick Accounting Officer April 28, 1994
/S/ RANDALL J. WEISENBURGER Vice Chairman and April 28, 1994
Randall J. Weisenburger Director
/S/ JAMES R. BIRLE Director April 28, 1994
James R. Birle
/S/ W. TOWNSEND ZIEBOLD, JR. Director April 28, 1994
W. Townsend Ziebold, Jr.
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EXHIBIT 4.1
CERTIFICATE OF INCORPORATION
OF
WCI HOLDINGS CORPORATION
ARTICLE FIRST
The name of the corporation is WCI Holdings Corporation
(the "Corporation").
ARTICLE SECOND
The address of the registered office of the Corporation
in the State of Delaware is 1209 Orange Street, City of Wilmington,
County of New Castle. The name of the registered agent of the
Corporation at such address is The Corporation Trust Company.
ARTICLE 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.
ARTICLE FOURTH
The total number of shares of stock which the Corporation
shall have authority to issue is 1,000 shares of the par value of
$1.00 per share. All such shares shall be of one class and shall
be designated "Common Stock."
ARTICLE FIFTH
The name and mailing address of the incorporator is as
follows:
Name Address
Neil E. Grayson Cravath, Swaine & Moore
ARTICLE SIXTH
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 stockholders, it is further provided that:
(a) the number of directors of the Corporation
shall be fixed by, or in the manner provided in, the By-
laws of the Corporation;
(b) in furtherance and not in limitation of the
powers conferred by the laws of the State of Delaware,
the Board of Directors is expressly authorized and
empowered to make, alter, amend or repeal the By-laws of
the Corporation in any manner not inconsistent with the
laws of the State of Delaware or this Certificate of
Incorporation, subject to the power of the stockholders
of the Corporation having voting power to alter, amend or
repeal the By-laws of the Corporation;
(c) in addition to the powers and authorities
herein or by statute expressly conferred upon it, the
Board of Directors may exercise all such powers and do
all such acts and things as may be exercised or done by
the Corporation, subject, nevertheless, to the provisions
of the laws of the State of Delaware, this Certificate of
Incorporation and the By-laws of the Corporation;
(d) any director or any officer elected or
appointed by the stockholders or by the Board of
Directors, or any Committee thereof, may be removed at
any time by a unanimous consent of the stockholders or in
such other manner as shall be provided in the By-laws of
the Corporation; and
(e) unless and except to the extent that the By-
laws of the Corporation shall so require, the election of
directors of the Corporation need not be by written
ballot.
ARTICLE SEVENTH
No director shall be personally liable to the Corporation
or any of its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the Delaware General Corporation Law or
(iv) for any transaction from which the director derived an
improper personal benefit. Any repeal or modification of this
Article SEVENTH by the stockholders of the Corporation shall not
adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification
with respect to acts or omissions occurring prior to such repeal or
modification.
ARTICLE EIGHTH
No contract or transaction between the Corporation and
one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or
other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because
the director or officer is present at or participates in the
meeting of the board of directors or committee thereof which
authorizes the contract or transaction, or solely because his or
their votes are counted for such purpose, if:
(a) the material facts as to his or their interest
and as to the contract or transaction are disclosed or
are known to the board of directors or the committee, and
the board or committee in good faith authorizes the
contract or transaction by a vote sufficient for such
purpose without counting the vote of the interested
director or directors; or
(b) the material facts about his or their interest
and about the contract or transaction are disclosed or
are known to the shareholders entitled to vote thereon,
and the contract or transaction is specifically approved
in good faith by vote of the shareholders; or
(c) the contract or transaction is fair to the
Corporation as of the time it is authorized, approved or
ratified, by the board of directors, a committee thereof,
or the shareholders.
Interested directors shall be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of
a committee which authorizes such contract or transaction. No
director or officer shall be liable to account to the Corporation
for any profit realized by him from or through such contract or
transaction solely by reason of the fact that he or any other
corporation, partnership, association, or other organization in
which he is a director or officer, or has a financial interest, was
interested in such contract or transaction.
ARTICLE NINTH
The Corporation shall indemnify any person who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact
that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding, in accordance with
the laws of the State of Delaware, and to the full extent permitted
by such laws except as the by-laws of the corporation may otherwise
provide. Such indemnification shall not be deemed exclusive of any
other rights to which those seeking indemnification may be entitled
under any by-law, agreement, vote of shareholders or disinterested
directors or otherwise, including insurance purchased and
maintained by the Corporation, 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.
ARTICLE TENTH
The Corporation reserves the right at any time and from
time to time to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation (including
provisions as may hereafter be added or inserted in this
Certificate of Incorporation as authorized by the laws of the State
of Delaware) in the manner now or hereafter prescribed by law; and
all rights, preferences and privileges of whatsoever nature
conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Certificate of Incorporation in
its present form or as hereafter amended are granted subject to the
right reserved in this Article TENTH.
IN WITNESS WHEREOF, I, Neil E. Grayson, the sole
incorporator of WCI Holdings Corporation, have executed this
Certificate of Incorporation ont his 20th day of September, 1988,
and DO HEREBY CERTIFY under the penalties of perjury that the facts
stated in this Certificate of Incorporation are true.
/ S / NEIL E. GRAYSON
Neil E. Grayson
Sole Incorporator
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
WCI HOLDINGS CORPORATION
WCI Holdings Corporation, a corporation organized and
existing under and by virtue of the General Corporation Law of the
State of Delaware (the "Corporation"), DOES HEREBY CERTIFY as
follows:
FIRST:That Article FOURTH of the Certificate of
Incorporation of the Corporation is hereby deleted and the
following is substituted therefor:
"The total number of shares of stock which the
Corporation shall have authority to issue is 16,001,000,
consisting of:
"(a) 1,000 shares of Common Stock, par value $1.00
per share, which shall be designated "Common Stock".
Each share of Common Stock shall be entitled to one vote
per share; and
"(b) 16,000,000 shares of Preferred Stock, par value
$0.01 per share ('Preferred Stock'). The Board of
Directors of the Corporation is hereby expressly
authorized to provide for the issuance of shares of
Preferred Stock in one or more series, by resolution or
resolutions and by filing a certificate pursuant to the
applicable laws of the State of Delaware, 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 series and
the qualifications, limitations or restrictions thereof.
Before any shares of any such series are issued, the
Board of Directors shall fix, and hereby is expressly
empowered to fix, the provisions of the shares thereof
including, but not limited to, the following:
"(1) the distinctive designation of such series, the
number of shares to constitute such series and the stated
value thereof if different from the par value thereof;
"(2) whether the shares of such series shall have
voting rights, in addition to any voting rights provided
by law, and, if so, the terms of such voting rights,
which may be general or limited;
"(3) The dividends, if any, payable on such series,
whether any such dividends shall be cumulative, and, if
so, from what dates, the conditions and dates upon which
such dividends shall be payable, the preference or
2
relation which such dividends shall bear to the dividends
payable on any shares of stock of any other class or any
other series of this class;
"(4) whether the shares of such series shall be
subject to redemption by the Corporation and, if so, the
times, prices and other conditions of such redemption;
"(5) the amount or amounts payable upon shares of
such series upon, and the rights of the holders of such
series in, the voluntary or involuntary liquidation,
dissolution or winding-up, or upon any distribution of
the assets, of the Corporation;
"(6) whether the shares of such series shall be
subject to the operation of a retirement or sinking fund
and, if so, the extent to and manner in which any such
retirement or sinking fund shall be applied to the
purchase or redemption of the shares of such series for
retirement or other corporate purposes and the terms and
provisions relative to the operation thereof;
"(7) whether the shares of such series shall be
convertible into, or exchangeable for, shares of stock of
any other class or any other series of this class or any
other securities and, if so, the price or prices or the
rate or rates of conversion or exchange and the method,
if any, of adjusting the same, and any other terms and
conditions of conversion or exchange;
"(8) the limitations and restrictions, if any, to be
effective while any shares of such series are outstanding
upon the payment of dividends or the making of other
distributions on, and upon the purchase, redemption or
other acquisition by the Corporation of, the Common Stock
or shares of stock of any other class or any other series
of this class;
"(9) the conditions or restrictions, if any, upon
the creation of indebtedness of the Corporation or upon
the issue of any additional stock, including additional
shares of such series or of any other series of this
class or of any other class; and
"(10) any other powers, preferences and
relative, participating, optional and other special
rights, and any qualifications, limitations and
restrictions thereof.
"The powers, preferences and relative,
participating, optional and other special rights of each
series of Preferred Stock, and the qualifications,
3
limitations or restrictions thereof, if ny, may differ
from those of any and all other series at any time
outstanding. All shares of any one series of Preferred
Stock shall be identical in all respects with all other
shares of such series, except that shares of any one
series issued at different times may differ as to the
dates from which dividends thereon shall be cumulative."
SECOND:That the amendment set forth above was duly
adopted in accordance with the provisions of Section 242 of the
General Corporation Law of the State of Delaware, by approval of
the Board of Directors of the Corporation and by written consent of
the sole stockholder of the Corporation pursuant to Section 228 of
the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, I, James R. Birle, have executed this
Certificate of Amendment on this 10th day of April, 1989, and DO
HEREBY CERTIFY under the penalties of perjury that the facts stated
in this Certificate of Amendment are true.
WCI HOLDINGS CORPORATION,
by
/ S / JAMES R. BIRLE
James R. Birle
Co-Chairman of the
Board of Directors
Attest:
/ S / THOMAS J. CAMPBELL
Thomas J. Campbell
Secretary
[Seal]
1
CERTIFICATE OF THE POWERS, DESIGNATION, PREFERENCES
AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER RIGHTS,
AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF THE
15-1/2% CUMULATIVE EXCHANGEABLE
REDEEMABLE PREFERRED STOCK
(Par Value $0.01 Per Share)
OF
WCI HOLDINGS CORPORATION
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
The undersigned DOES HEREBY CERTIFY that the following
resolution was duly adopted by the Board of Directors of WCI
Holdings Corporation, a Delaware corporation (hereinafter called
the "Company"), by action by unanimous written consent dated as of
April 10, 1989, pursuant to Section 141(f) of the General
Corporation Law of the State of Delaware:
"RESOLVED that, pursuant to authority conferred upon the Board
of Directors by the Certificate of Incorporation of the Company, as
amended (hereinafter called the 'Certificate of Incorporation'),
the Board of Directors hereby provides for the issuance of a series
of Preferred Stock (as such term is defined in the Certificate of
Incorporation) of the Company to consist of 16,000,000 shares, and
fixes the powers, designation, preferences and relative,
participating, optional or other rights, and the qualifications,
limitations or restrictions of the shares of such series of
Preferred Stock, in addition to those set forth in the Certificate
of Incorporation, as follows:
"1. Designation. There is hereby designated a series of
Preferred Stock known as the 15-1/2% Cumulative Exchangeable
Redeemable Preferred Stock, par value $0.01 per share, (the
'Preferred Stock'), consisting of 16,000,000 shares, issuable
by the Company pursuant to authority granted to the Board of
Directors in Article FOURTH of the Certificate of
Incorporation, which authorizes the issuance of preferred
stock having such rights and other terms as may be determined
by the Board of Directors.
"2. Rank. The Preferred Stock shall, with respect to
dividend rights and rights on liquidation, winding-up and
dissolution of the Company, rank senior to the Company's
common stock, par value $1.00 per share (the 'Common Stock'),
and to all other classes and series of stock of the Company
now or hereafter authorized, issued or outstanding, other than
any stock of the Company ranking senior to or pari passu with
the Preferred Stock as to dividend rights or rights upon
1
liquidation, winding-up or dissolution of the Company either
authorized after the date hereof in compliance with paragraph
10(c)(i) or issued after the date hereof in compliance with
paragraph 10(c)(i) (the Common Stock and such other classes
and series of stock collectively referred to herein as the
'Junior Securities'). The Preferred Stock shall be subject to
the creation of such senior stock, such pari passu stock and
Junior Securities to the extent not expressly prohibited by
this Certificate.
"3. Dividends. (a) The holders of shares of the
Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors of the Company and out of
the assets of the Company available for the payment of
dividends under the provisions of the General Corporation Law
of the State of Delaware, dividends payable at the rate of
$3.875 per share per annum (subject to increase as provided
below). Such dividends shall be payable quarterly on the
first day of February, May, August, and November in each year
(each of such dates a 'Dividend Payment Date') commencing with
the later of (i) August 1, 1989 and (ii) the first such date
after the time the merger of WCI Acquisition Corporation, a
Delaware corporation, into Wickes Companies, Inc., a Delaware
corporation ('Wickes'), shall become effective (the 'Merger
Effective Time'); except that if such first day is not a
business day then such dividends shall be payable on the next
succeeding business day. (As used herein, the term "business
day" shall mean any day except a Saturday, a Sunday or a day
on which banking institutions are authorized or required by
law to close in the City of New York.) Dividends on each
share of Preferred Stock shall begin to accrue and be
cumulative on outstanding shares of the Preferred Stock
(whether or not in any quarterly period there shall be assets
of the Company legally available for the payment of such
dividends) from and including the date of initial issuance of
such share. The amount of any dividends 'accrued' on any
share of Preferred Stock at any Dividend Payment Date shall be
deemed to be the amount of any unpaid dividends accumulated
thereon to and excluding such Dividend Payment Date, whether
or not earned or declared, and the amount of dividends
'accrued' on any share of Preferred Stock at any date other
than a Dividend Payment Date shall be calculated as the amount
of any unpaid dividends accumulated to and excluding the last
preceding Dividend Payment Date, whether or not earned or
declared, plus an amount calculated on the basis of the annual
dividend rate for the period from and including such last
preceding Dividend Payment Date to and excluding the date as
of which the calculation is made.
"All dividends on the Preferred Stock shall be computed
on the basis of the number of days elapsed in a 360-day year
consisting of 12 months of 30 days each. Such dividends shall
2
be paid to the holders of record of shares of the Preferred
Stock as they appear on the stock register of the Company on
such date as shall be fixed by the Board of Directors of the
Company; provided, however, such date shall not be less than
10 days nor more than 60 days prior to the applicable Dividend
Payment Date.
"Dividend arrearages for any past dividend periods may be
declared and paid at any time to holders of record on such
date as may be fixed by the Board of Directors of the Company;
provided, however, such date shall not be less than 10 days
nor more than 60 days prior to the date of payment.
"(b) All dividends on the Preferred Stock shall be
payable in cash, except that dividend payments with respect to
quarterly dividends accruing on or prior to February 1, 1995
(whenever such dividends are actually paid), may be paid in
whole or in part in additional shares of the Preferred Stock
if the Board of Directors of the Company so directs. All such
dividends paid in additional shares of Preferred Stock shall
be paid at a rate of 0.04 shares of Preferred Stock for each
$1 of such dividends not paid in cash. The issuance of
Preferred Stock at the prescribed rate shall constitute full
payment of the portion of such dividends payable in kind.
Except as described below with respect to fractional shares of
Merger Preferred Stock, all dividends paid with respect to
shares of the Preferred Stock, whether and to the extent in
cash or in kind, shall be paid pro rata to the holders
entitled thereto. No interest or sum of money in lieu of
interest or additional shares of Preferred Stock shall be
payable in respect of any accumulated unpaid dividends on the
Preferred Stock (whether such unpaid dividends are
subsequently paid in kind or in cash).
"(c) Only whole shares of Preferred Stock will be issued
upon the payment of dividends in kind on the Preferred Stock.
In lieu of the fractional portion of the aggregate number of
shares of Preferred Stock otherwise payable to a record holder
of Preferred Stock at any time as dividends in kind
('Fractional Shares'), such record holder will receive a
payment in cash equal to such record holder's proportionate
interest in the net proceeds from the sale or sales in the
open market of the aggregate of all Fractional Shares
otherwise payable as a dividend. Such sale or sales shall be
effected promptly after the record date fixed for determining
the holders entitled to payment of the dividend.
"(d) (i) Holders of shares of the Preferred Stock shall
be entitled to receive the dividends provided for in paragraph
3(a) in preference to and in priority over any dividends upon
any of the Junior Securities.
3
"(ii) The Company shall not (x) declare, pay or set
apart funds for payment of any cash dividends on shares of
Common Stock or any other shares of Junior Securities, (y)
purchase, redeem or otherwise retire any Junior Securities or
warrants, rights or options exercisable for shares of Junior
Securities (and shall not set apart funds for such payment
with respect thereto), or (z) make any distributions with
respect to Junior Securities or any warrants, rights or
options exercisable for any Junior Securities (except
dividends or distributions on shares of Junior Securities in
shares of any Junior Securities), unless (I) full cumulative
dividends on the Preferred Stock shall have been paid prior
to, or shall be paid concurrently with, the time of such
declaration, payment, setting apart, purchase, redemption,
retirement or distribution for each Dividend Payment Date on
or prior to such time and (II) any redemption required to have
been made on or prior to such time pursuant to paragraph 4(b)
and, if such time is on or prior to the 10th anniversary of
the Merger Effective Time, the redemption of Preferred Stock
set forth in paragraph 4(a) shall have been made prior to, or
shall be made concurrently with, such time (it being
understood that the failure of the Company to effect such a
redemption as a result of the absence of assets legally
available therefor shall not constitute compliance with this
clause (II)).
"(iii) Notwithstanding anything contained in this
Certificate to the contrary, no dividends on shares of the
Preferred Stock shall be declared by the Board of Directors of
the Company or paid or set apart for payment by the Company at
such time as the terms and provisions of any contract or other
agreement of the Company or any or its subsidiaries entered
into or assumed at or prior to the Merger Effective Time, or
any refinancings (including multiple refinancings) of such
contracts or agreements, prohibit such declaration, payment or
setting apart for payment or Provide that such declaration,
payment or setting apart for payment would constitute a breach
thereof or a default thereunder; provided, however, that
nothing contained in this Certificate shall in any way or
under any circumstances be construed or deemed to require the
Board of Directors of the Company to declare or the Company to
set apart for prepayment any dividends on shares of the
Preferred Stock, whether or not permitted by any of such
agreements. The failure of the Board of Directors of the
Company to declare a dividend in reliance upon the immediately
preceding sentence shall not be construed or deemed to prevent
the accrual of such undeclared dividend.
"(e) Subject to the foregoing provisions of this
paragraph 3 and to the provisions of paragraph 9, the Board of
Directors may declare, and the Company may pay, make or set
apart for payment, dividends and other distributions on, and
4
the Company may purchase, redeem or otherwise retire, any
Junior Securities or any warrants, rights or options
exercisable for shares of Junior Securities, and the holders
of shares of Preferred Stock shall not be entitled to share
therein.
"(f) If, at any time on or after the second anniversary
of the Merger Effective Time, the Affiliated Common Equity
Interest shall be less than $75,000,000, from and after such
time the dividend rate for all outstanding Preferred Stock
shall be increased to $3.9375 per share per annum.
'Affiliated Common Equity Interest' means from time to time
the amount of the aggregate of all equity contributions to WCI
Holdings II Corporation, a Delaware corporation ('Parent'), on
or before such time by Blackstone Capital Partners L.P., a
Delaware limited partnership, or any successor thereto
('Blackstone Partners'), Wasserstein, Perella Partners, L.P.,
a Delaware limited partnership, or any successor thereto ('WP
Partners'), and all owners of a limited partnership interest
in, or employees of, Blackstone Partners or WP Partners who
had co-investment rights or a similar opportunity to invest in
investments made by Blackstone Partners or WP Partners at the
time of their equity contribution to Parent (Blackstone
Partners, WP Partners and all such persons who on or before
such time shall have made such equity contributions, or any
successor thereto, collectively, the 'Affiliated Investors')
minus any amounts received by Affiliated Investors as
dividends on, redemptions of or sales of equity interest in
Parent (other than sales by an Affiliated Investor to another
Affiliated Investor), it being understood that payments to an
Affiliated Investor of amounts characterized for this purpose
by Parent (in its sole discretion and notwithstanding the
characterization of such payments for any other purpose) as
fees or expenses shall not constitute dividends. As used in
this Certificate, a 'Person' shall include any individual,
corporation, partnership, joint venture, association, joint-
stock company, trust, unincorporated organization or
government or political subdivision thereof. The Company will
by first-class mail send to each record holder a written
notice of any such change in the dividend rate on the
Preferred Stock within 15 days of such change.
"4. Scheduled Redemption. (a) Subject to the Company
having funds legally available therefor, the Company shall be
obligated to redeem all outstanding shares of Preferred Stock
on the 10th anniversary of the Merger Effective Time. Such
redemption of shares of Preferred Stock pursuant to this
paragraph 4(a) shall be at a redemption price equal to the
Liquidation Preference (as defined below) per share together
with accrued but unpaid dividends (whether or not declared)
through the date fixed for redemption.
5
"(b)To the extent the Company shall have funds legally
available therefor, if at any time prior to the second
anniversary of the Merger Effective Time, the Affiliated
Common Equity Interest is less than $75,000,000, the Company
will be obligated within 45 days (or the next following
business day if the 45th following day is not a business day)
to set apart out of funds legally available therefor, funds
sufficient to redeem all shares of Preferred Stock then
outstanding. Such a redemption shall be at the Optional
Redemption Price (as defined below) plus all accrued and
unpaid dividends (whether or not declared) to the date fixed
for redemption.
"(c) If the funds of the Company legally available for
any redemption pursuant to this paragraph 4 at the redemption
date are insufficient to redeem such Preferred Stock, funds to
the extent legally available for the purpose will be used to
redeem the number of shares of Preferred Stock that legally
may be redeemed. If the Company at any time shall fail to
discharge any obligation to redeem shares of Preferred Stock
pursuant to this paragraph 4, such obligation shall be
discharged as soon as the Company is able to do so.
"5. Optional Redemption. All or any part of the
Preferred Stock may be redeemed by the Company at its election
at any time and from time to time in whole or in part, by
resolution of the Board of Directors, at a cash price per
share equal to the sum of (i) the Optional Redemption Price
plus (ii) any accrued and unpaid dividends thereon, whether or
not declared, to the date fixed for the redemption:
provided, however, that, if and when any quarterly dividend
shall have accrued on the Preferred stock and shall not have
been paid or declared and a sufficient sum set apart for
payment for any Dividend Payment Date on or prior to the date
fixed for redemption, the Company may not redeem any shares of
the Preferred Stock unless all shares of the Preferred Stock
when outstanding are redeemed. The Optional Redemption Price
shall equal for redemptions with a date fixed for redemption
(a) that is on or prior to the first anniversary of the Merger
Effective Time, 101% of the Liquidation Preference per share,
(b) after the first anniversary of the Merger Effective Time
to and including the second anniversary of the Merger
Effective Time. 101.5% of the Liquidation Preference per
share, and (c) thereafter, 102% of the Liquidation Preference
per share.
"6. Selection of the Preferred Stock To Be Redeemed.
If fewer than all the outstanding shares of the Preferred
Stock not previously called for redemption or exchange are to
be redeemed pursuant to paragraph 5, the Board of Directors of
the Company shall select the shares of the Preferred Stock to
be redeemed from outstanding shares not previously called for
6
redemption by lot or pro rata as determined by the Board of
Directors of the Company, in its sole discretion; provided,
however, that the Board of Directors of the Company may in
selecting shares for redemption choose to redeem all shares of
Preferred Stock held by holders of a number of such shares not
to exceed 99 as may be specified by the Board of Directors
(with all other shares to be redeemed, if any, so selected by
lot or pro rata).
"7. Notice of Redemption. At least 30 days but not
more than 60 days prior to the date fixed for any redemption
of shares of the Preferred Stock, written notice of such
redemption shall be mailed to each holder of record of shares
of Preferred Stock to be redeemed at the address shown on the
stock transfer books of the Company or, if no such address
appears or is given, at the place where the principal
executive office of the Company is located; provided, however,
that no failure to give such notice or any defect therein or
in the mailing thereof shall affect the validity of the
proceedings for such redemption. Each such notice shall
specify (i) the number of shares to be redeemed from such
holder, (ii) the numbers of the certificates of the shares
being redeemed, (iii) the date fixed for redemption, (iv) the
redemption price, (v) the place or places at which payment may
be obtained, (vi) the provision of this Certificate pursuant
to which the shares are to be redeemed, and (vii) that
dividends on the shares to be redeemed shall cease to accrue
on the date fixed for such redemption.
"8. Status of Shares of Preferred Stock upon Redemption.
(a) Upon due surrender of the certificates for any shares of
Preferred Stock to be redeemed, such shares of Preferred Stock
shall be redeemed by the Company at the applicable redemption
price. In case fewer than all the shares of Preferred Stock
represented by any such certificate are redeemed, a new
certificate or certificates shall be issued representing the
unredeemed shares of Preferred Stock without cost to the
holder thereof. Unless there shall have been a default in
payment of the redemption price, from and after any date fixed
for redemption, dividends on the shares of Preferred Stock so
called for redemption shall cease to accrue, such shares of
Preferred Stock shall no longer be deemed to be outstanding
and shall not have the status of shares of Preferred Stock and
all rights of the holders thereof as stockholders of the
Company (except the right to receive from the Company the
redemption price without interest) shall cease with respect to
such shares. From and after any date fixed for redemption,
shares of the Preferred Stock redeemed by the Company shall be
restored to the status of authorized but unissued shares of
preferred stock, without designation as to series until such
shares are once more designated as part of a particular series
by the Board of Directors of the Company.
7
"(b) If at any time the Company shall have irrevocably
deposited in trust with a trustee for the benefit of the
holders of all shares of Preferred Stock money or direct
noncallable obligations of the United States maturing as to
principal and interest in such amounts and at such times as
are sufficient to pay all future dividends on all shares of
Preferred Stock at the scheduled Dividend Payment Dates
through the 10th anniversary of the Merger Effective Time (or
any earlier date duly fixed for an optional redemption
thereof), and the redemption price thereof, then, from and
after the date on which such provision has been made, such
Preferred Stock shall no longer be deemed to be outstanding
except for purposes of accruals of quarterly dividends and
shall not have the status of shares of Preferred Stock, and
all rights of the holders thereof as stockholders of the
Company (except the right to receive from the Company
quarterly dividends and the applicable redemption price
without interest) shall cease with respect to such shares.
Without limiting the foregoing, any shares deemed not to be
outstanding pursuant to this paragraph 8(b) shall not be
subject to the provisions of paragraphs 3(f) and 4(b).
"(c) All moneys so deposited with or held by such trustee
which remain unclaimed by the holders of shares of Preferred
Stock 730 days after the date such moneys are payable to
holders of shares of Preferred Stock shall be paid by such
trustee to the Company, and thereafter the holders of such
shares of Preferred Stock shall look only to the Company for
payment.
"9. Liquidation, Dissolution or Winding-Up. In the
event of any voluntary or involuntary liquidation, dissolution
or winding-up of the Company, holders of the Preferred Stock
shall be entitled to be paid out of the assets of the Company
available for distribution to its stockholders, whether from
capital, surplus or earnings, an amount in cash equal to
$25.00 per share (the 'Liquidation Preference') plus any
accrued and unpaid dividends to the date fixed for
liquidation, dissolution or winding-up, whether or not
declared, before any distribution is made on any Junior
Securities, including the Common Stock. If upon any voluntary
or involuntary liquidation, dissolution or winding-up of the
Company, the assets of the Company available for distribution
to holders of the Preferred Stock shall be insufficient to pay
the holders of outstanding Preferred Stock the full amounts to
which they shall be entitled under this paragraph 9, the
holders of the Preferred Stock shall share equally and ratably
in any distribution of assets of the Company in proportion to
the full amount to which they would otherwise be respectively
entitled. After payment of the full amount of Liquidation
Preference to which they are entitled plus all accrued and
unpaid dividends, whether or not declared, the holders of the
8
Preferred Stock shall not be entitled to any further
participation in any distribution of assets of the Company.
However, neither the voluntary sale, conveyance, exchange or
transfer (for cash, shares of stock, securities or other
consideration) of all or any part of the property or assets of
the Company, nor the consolidation or merger or other business
combination of the Company with or into any other corporation
or corporations, shall be deemed to be a voluntary or
involuntary liquidation, dissolution or winding-up of the
Company, unless such voluntary sale, conveyance, exchange or
transfer shall be in connection with a plan of liquidation,
dissolution or winding-up of the Company.
"10. Voting Rights. (a) The holders of shares of
Preferred Stock shall not be entitled to any voting rights
except as expressly provided in this paragraph 10 or as
otherwise provided by law.
"(b) (i) If at any time or times dividends payable on
the then outstanding Preferred Stock shall be in arrears and
unpaid in an aggregate amount equal to the amount of five
consecutive quarterly dividends on the then outstanding
Preferred Stock, then the number of directors constituting the
Board of Directors of the Company, without further action,
shall be increased by two and the holders of Preferred Stock
shall have the exclusive right, voting separately as a class,
to elect the directors of the Company to fill such newly
created directorships, the remaining directors to be elected
by the other class or classes of stock entitled to vote
therefor, at each meeting of stockholders held for the purpose
of electing directors.
"(ii) Whenever such voting right shall have vested, such
right may be initially exercised at a special meeting of the
holders of Preferred Stock called as hereinafter provided, at
any annual meeting of stockholders held for the purpose of
electing directors or by the written consent of the holders of
Preferred Stock pursuant to Section 228 of the General
Corporation Law of the State of Delaware. Such voting right
shall continue until such time as all cumulative dividends on
Preferred Stock accrued through the latest Dividend Payment
Date on or before such time shall have been paid in full, at
which time such voting right of the holders of Preferred Stock
shall terminate, but such voting right shall again vest in the
event of each and every subsequent arrearage in dividends in
the requisite amount as described above.
"(iii) At any time when such voting right shall have
vested in the holders of Preferred Stock and if such right
shall not already have been initially exercised, a proper
officer of the Company shall, upon the written request of any
holder of record of Preferred Stock then outstanding, call a
9
special meeting of holders of Preferred Stock; provided,
however, no such special meeting shall be called during a
period within 90 days immediately preceding the date fixed for
the next annual meeting of stockholders. Such meeting shall
be held at the earliest practicable date upon the notice
required for annual meetings of stockholders. Any holder of
Preferred Stock which would be entitled to vote at such
meeting shall have access to the stock books of the Company
for the purpose of causing a meeting of stockholders to be
called pursuant to the provisions of this paragraph
10(b)(iii).
"(iv) At any meeting at which the holders of Preferred
Stock shall have the right to elect directors as provided in
this paragraph 10(b), the presence in person or by proxy of
the holders of at least a majority of the then outstanding
shares of Preferred Stock shall be required and be sufficient
to constitute a quorum. At any such meeting or adjournment
thereof, the absence of a quorum of the holders of Preferred
Stock shall not prevent the election of directors other than
those to be elected by the holders of Preferred Stock and the
absence of a quorum or quorums of the holders of capital stock
entitled to elect such other directors shall not prevent the
election of directors to be elected by the holders of
Preferred Stock.
"(v) For so long as the aforesaid voting rights are
vested in the holders of Preferred Stock, the term of office
of all directors elected by the holders of Preferred Stock
shall terminate upon the election of their successors by the
holders of Preferred Stock; provided, however, that any
director who shall have been elected by holders of the
Preferred Stock may be removed at any time, either with or
without cause, only by the affirmative vote of the holders of
record of a majority of the outstanding shares of the
Preferred Stock at a duly called stockholders meeting. Upon
any termination of such voting rights in accordance with
paragraph 10(b)(ii), the term of office of all directors
elected by the holders of Preferred Stock shall thereupon
terminate and upon such termination the number of directors
constituting the Board of Directors shall, without further
action, be reduced by two.
"(vi) In case of any vacancy occurring among the
directors so elected by holders of Preferred Stock, the
remaining director who shall have been so elected may appoint
a successor to hold office for the unexpired term of the
director whose place shall be vacant. If both directors so
elected by the holders of Preferred Stock shall cease to serve
as directors before their terms shall expire, the holders of
Preferred Stock then outstanding may, in the manner provided
in paragraph 10(b)(ii), elect successors to hold office for
10
the unexpired terms of the directors whose places shall be
vacant.
"(c)(i) Subject to paragraph 10(c)(ii), so long as any
shares of Preferred Stock are outstanding, the Company will
not, without the affirmative vote, or the written consent
pursuant to Section 228 of the General Corporation Law of the
State of Delaware, of the holders of at least the Required
Majority of the outstanding shares of Preferred Stock (or such
greater number as may be required by law), voting separately
as a class:
(I) increase the authorized number of shares of
Preferred Stock or create, authorize or issue any class
or series of stock of the Company (other than shares of
the Preferred Stock) ranking pari passu with the
Preferred Stock as to dividend rights or rights upon
liquidation, winding-up or dissolution of the Company;
(II) make any amendment, alteration or repeal of any
of the provisions of the Certificate of Incorporation or
of any certificate amendatory thereof or supplemental
thereto so as to change the terms of the Preferred Stock
to affect adversely the rights, powers, preferences or
privileges of the Preferred Stock; or
(III) create, authorize or issue any class or
series of stock of the Company ranking senior to the
Preferred Stock as to dividend rights or rights upon
liquidation, winding-up or dissolution of the Company.
The 'Required Majority' for any action referred to in clause
(II) and (III) shall be two-thirds, and for any other action
referred to in this paragraph 10(c)(i) shall be a simple
majority.
"(ii) Notwithstanding paragraph 10(a) or paragraph
10(c)(i), holders of the Preferred Stock will have no voting
rights in connection with a merger or consolidation of the
Company with or into Wickes, as the surviving corporation in
the merger referred to above, in which the Preferred Stock is
converted into stock of Wickes with substantially the same
terms as those set forth in this Certificate (as determined in
good faith by the Board of Directors of the Company).
"(d) In connection with any matter on which holders of
the Preferred Stock are entitled to vote including, without
limitation, the election of directors as set forth in this
paragraph 10 or any matter on which the holders of the
Preferred Stock are entitled to vote as a class or otherwise
pursuant to the General Corporation Law of the State of
Delaware or the provisions of the Certificate of Incorporation
11
of the Company, each holder of the Preferred Stock shall be
entitled to one vote for each share of Preferred Stock held by
such holder.
"11. Exchange Provisions. (a) On any Dividend
Payment Date, the Company, at its sole option, may require the
exchange of all or any part of the shares of the Preferred
Stock then outstanding for the Company's 15-1/2% Junior
Subordinated Exchange Debentures (the 'Exchange Debentures')
on the notice set forth below. Holders of record of
outstanding shares of the Preferred Stock as they appear on
the stock register of the Company at the close of business on
the record date for such exchange shall be entitled to receive
Exchange Debentures having a principal amount equal to the sum
of the Liquidation Preference plus any accrued and unpaid
dividends, whether or not declared, on the Preferred Stock to
the date of such exchange in exchange for each share of
Preferred Stock held by them. At the time of such exchange
(an 'Exchange Date'), the rights of the holders of the
Preferred Stock then outstanding as stockholders of the
Company shall cease (except for the right to receive the
Exchange Debentures) and the persons entitled to receive the
Exchange Debentures issuable upon Exchange shall be treated
for all purposes as the holders of record of such Exchange
Debentures. In the event such exchange would result in the
issuance of any Exchange Debentures in a principal amount
which is less than $1,000 or which is not an integral multiple
of $1,000 (such principal amount less than $1,000 or the
difference between such principal amount and the highest
integral multiple of $1,000 that is less than such principal
amount, as the case may be, being hereinafter referred to as
a 'Fractional Principal Amount'), each holder of Preferred
Stock otherwise entitled to a Fractional Principal Amount
shall be entitled to receive a cash payment in lieu thereof
equal to such holder's proportionate interest in the net
proceeds by the Company or any agent appointed for the purpose
from the sale or sales on the open market of the aggregate
amount of such Exchange Debentures. The person or persons
entitled to receive the Exchange Debentures issuable upon
exchange shall be treated for all purposes as the registered
holder or holders of such Exchange Debentures as of the
related Exchange Date. The Exchange Debentures will be issued
under an Indenture (the 'Indenture') between the Company and
United States Trust Company of New York, as trustee,
substantially in the form filed as an Exhibit to the Company's
and Wickes' Registration Statement on Form S-4 as filed with
the Securities and Exchange Commission (File No. 33-27143), as
amended pursuant to the terms of the Indenture. When no
Exchange Debentures are outstanding, the Indenture may be
changed as may be required by law, stock exchange rules or
usage, or as may otherwise be agreed to by the Company and
holders of a majority of the then outstanding shares of
12
Preferred Stock. The Exchange Debentures shall have the terms
and benefits provided in the Indenture.
"(b) If fewer than all the outstanding shares of the
Preferred Stock are to be exchanged, the Board of Directors of
the Company shall select the shares of the Preferred Stock to
be exchanged from the outstanding shares by lot or pro rata as
determined by the Board of Directors of the Company, in their
sole discretion; provided, however, that the Board of
Directors of the Company may in selecting shares to be
exchanged choose to exchange all shares of the Preferred Stock
held by holders of a number of such shares not to exceed 100
as may be specified by the Board of Directors.
"(c) At least 30 days but not more than 60 days prior to
the Exchange Date, written notice of such exchange shall be
mailed to each holder of record of shares of the Preferred
Stock to be exchanged at the address shown on the stock
transfer books of the Company or, if no such address appears
or is given, at the place where the principal executive office
of the Company is located; provided, however, that no failure
to give such notice or any defect therein or in the mailing
thereof shall affect the validity of the proceedings for such
exchange. Each such notice shall specify (i) the number of
shares of the Preferred Stock to be received in the exchange
from such holder, (ii) the numbers of the certificates of the
shares of Preferred Stock being exchanged, (iii) the principal
amount of Exchange Debentures to be issued in exchange for
such shares, (iv) the Exchange Date, (v) the place or places
at which the shares of the Preferred Stock shall be exchanged
for Exchange Debentures, and (vi) that dividends on the shares
to be exchanged shall cease to accrue on the Exchange Date.
"(d) Upon surrender of the certificates for any of the
Preferred Stock so exchanged, such shares of Preferred Stock
shall be exchanged by the Company at the required exchange
rate. In case fewer than all the shares of Preferred Stock
represented by any such certificate are exchanged, a new
certificate or certificates shall be issued representing the
unexchanged shares of Preferred Stock without cost to the
holder thereof. From and after the Exchange Date, dividends
on the shares of the Preferred Stock so called for exchange
shall cease to accrue, such sharers of Preferred Stock shall
no longer be deemed to be outstanding and shall not have the
status of shares of Preferred Stock, and all rights of the
holders thereof as stockholders of the Company (except the
right to receive from the Company the Exchange Debentures upon
exchange and the right to receive cash payments in lieu of
Fractional Principal Amounts) shall cease with respect to such
shares. From and after the related Exchange Date, shares of
Preferred Stock exchanged for the Exchange Debentures shall be
restored to the status of authorized but unissued shares of
13
preferred stock, without designation as to series until such
shares are once more designated as part of a particular series
by the Board of Directors of the Company."
IN WITNESS WHEREOF, WCI Holdings Corporation has caused its
corporate seal to be hereunto affixed and this certificate to be
signed by a Co-Chairman of its Board of Directors and attested by
its Secretary, this 12th day of April, 1989.
WCI HOLDINGS CORPORATION
by / S / James R. Birle
Co-Chairman of the Board of Directors
[Seal]
Attest:
/ S /
Secretary
14
CERTIFICATE OF CHANGE OF LOCATION OF REGISTERED OFFICE
AND OF REGISTERED AGENT
It is hereby certified that:
1. The name of the corporation (hereinafter called the
"corporation") is
WCI HOLDINGS CORPORATION
2. The registered office of the corporation within the State of
Delaware is hereby changed to 32 Loockerman Square, Suite L-
100, City of Dover 19901, County of Kent.
3. The registered agent of the corporation within the State of
Delaware is hereby changed to The Prentice-Hall Corporation
System, Inc., the business office of which is identical with
the registered office of the corporation as hereby changed.
4. The corporation has authorized the changes hereinbefore set
forth by resolution of its Board of Directors.
Signed on September 12, 1990.
/ S / DONALD W. VAGSTAD
Assistant Vice President
Attest:
/ S / PATRICIA A. WEST
Assistant Secretary
DE DCOFA 10/27/89
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
WCI HOLDINGS CORPORATION
Pursuant to Section 242 of the General Corporation
Law of the State of Delaware
WCI Holdings Corporation, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of
Delaware (the "Corporation"), DOES HEREBY CERTIFY as follows:
FIRST: The Certificate of Incorporation of WCI Holdings
Corporation shall be known after the date hereof as the Certificate
of Incorporation of Collins & Aikman Holdings Corporation.
SECOND: ARTICLE FIRST of the Certificate of Incorporation of
the Corporation as heretofore amended is hereby deleted in its
entirety and a new ARTICLE FIRST is substituted therefor to read in
its entirety as follows:
"ARTICLE FIRST
The name of the Corporation is Collins & Aikman
Holdings Corporation (the "Corporation")."
THIRD: The amendment set forth above was duly adopted in
accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware, by approval of the Board
of Directors of the Corporation and by the written consent pursuant
to Section 228 of the General Corporation Law of the State of
Delaware of the holder of the outstanding capital stock of the
Corporation entitled to vote.
IN WITNESS WHEREOF, the Corporation has caused this
Certificate of Amendment to be executed this 15th day of July,
1992.
WCI HOLDINGS CORPORATION
By: / S / ROBERT S. FENTON
Robert S. Fenton, Vice President
Attest:
By: / S / PATRICIA A. WEST
Patricia A. West, Ass't Secretary
CERTAMD.WHC
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
COLLINS & AIKMAN HOLDINGS CORPORATION
Collins & Aikman Holdings Corporation, a corporation organized
and existing under the General Corporation Law of the State of
Delaware (the "Corporation"), hereby certifies that the amendment
set forth below to the Corporation's Certificate of Incorporation
was duly adopted in accordance with Sections 228 and 242 of the
General Corporation Law of the State of Delaware:
Article FOURTH of the Certificate of Incorporation of the
Corporation is hereby amended to read in its entirety as follows
(provided that such amendment shall not alter, amend or repeal in
any way the certificate of designation previously filed
thereunder):
"The total number of shares of stock which the
Corporation shall have authority to issue is 166,000,000,
consisting of:
"(a) 150,000,000 shares of Common Stock, par value
$.01 per share, which shall be designated "Common Stock".
Each share of Common Stock shall be entitled to one vote
per share; and
"(b) 16,000,000 shares of Preferred Stock, par value
$0.01 per share ('Preferred Stock'). The Board of
Directors of the Corporation is hereby expressly
authorized to provide for the issuance of shares of
Preferred Stock in one or more series, by resolution or
resolutions and by filing a certificate pursuant to the
applicable laws of the State of Delaware, 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 series and
the qualifications, limitations or restrictions thereof.
Before any shares of any such series are issued, the
Board of Directors shall fix, and hereby is expressly
empowered to fix, the provisions of the shares thereof
including, but not limited to, the following:
1
"(1) the distinctive designation of such series, the
number of shares to constitute such series and the stated
value thereof if different from the par value thereof;
"(2) whether the shares of such series shall have
voting rights, in addition to any voting rights provided
by law, and, if so, the terms of such voting rights,
which may be general or limited;
"(3) the dividends, if any, payable on such series,
whether any such dividends shall be cumulative, and, if so,
from what dates, the conditions and dates upon which such
dividends shall be payable, the preference or relation which
such dividends shall bear to the dividends payable on any
shares of stock of any other class or any other series of this
class;
"(4) whether the shares of such series shall be
subject to redemption by the Corporation and, if so, the
times, prices and other conditions of such redemption;
"(5) the amount or amounts payable upon shares of
such series upon, and the rights of the holders of such
series in, the voluntary or involuntary liquidation,
dissolution or winding-up, or upon any distribution of
the assets, of the Corporation;
"(6) whether the shares of such series shall be
subject to the operation of a retirement or sinking fund
and, if so, the extent to and manner in which any such
retirement or sinking fund shall be applied to the
purchase or redemption of the shares of such series for
retirement or other corporate purposes and the terms and
provisions relative to the operation thereof;
"(7) whether the shares of such series shall be
convertible into, or exchangeable for, shares of stock of
any other class or any other series of this class or any
other securities and, if so, the price or prices or the
rate or rates of conversion or exchange and the method,
if any, of adjusting the same, and any other terms and
conditions of conversion or exchange;
"(8) the limitations and restrictions, if any, to be
effective while any shares of such series are outstanding
upon the payment of dividends or the making of other
distributions on, and upon the purchase, redemption or
other acquisition by the Corporation of, the Common Stock
or shares of stock of any other class or any other series
of this class;
2
"(9) the conditions or restrictions, if any, upon
the creation of indebtedness of the Corporation or upon
the issue of any additional stock, including additional
shares of such series or of any other series of this
class or of any other class; and
"(10) any other powers, preferences and relative,
participating, optional and other special rights, and any
qualifications, limitations and restrictions thereof.
"The powers, preferences and relative,
participating, optional and other special rights of each
series of Preferred Stock, and the qualifications,
limitations or restrictions thereof, if any, may differ
from those of any and all other series at any time
outstanding. All shares of any one series of Preferred
Stock shall be identical in all respects with all other
shares of such series, except that shares of any one
series issued at different times may differ as to the
dates from which dividends thereon shall be cumulative.
"Simultaneously with the effectiveness of the
Certificate of Amendment to the Certificate of
Incorporation of the Corporation first containing this
paragraph each share of Common Stock, par value $1.00 per
share, of the Corporation which is issued and outstanding
("Prior Common Stock"), shall, without further action on
the part of the Corporation or the holder thereof, be
automatically reclassified as and change into 35,035
shares of Common Stock, and all such shares of Common
Stock shall be fully paid and nonassessable. Effective
at such date and time, each certificate representing
shares of Prior Common Stock shall be deemed to represent
the total number of shares of Common Stock into which the
shares of Prior Common Stock so represented on the face
of such certificate shall have been reclassified and
changed pursuant to this Article FOURTH. As promptly as
practicable thereafter, the Corporation, upon delivery
and surrender of existing certificates representing
shares of Prior Common Stock by the holder thereof duly
endorsed for transfer, shall issue and deliver or cause
to be delivered to such holder a certificate or
certificates representing the number of shares of Common
Stock into which the shares of Prior Common Stock so
represented on the face of such certificate so delivered
and surrendered shall have been reclassified and changed
pursuant to this Article FOURTH."
3
IN WITNESS WHEREOF, Collins & Aikman Holdings Corporation has
caused this Certificate to be signed and attested by its duly
authorized officers this 27TH day of April, 1994.
COLLINS & AIKMAN HOLDINGS CORPORATION
/ S / PAUL W. MEEKS
By:
Paul W. Meeks
Title: Vice President and Treasurer
Attest:
/ S / JOHN F. GROSSBAUER
John F. Grossbauer
Assistant Secretary
4
EXHIBIT 5.1
[LETTERHEAD OF COLLINS & AIKMAN HOLDINGS CORPORATION]
Collins & Aikman Holdings Corporation
8320 University Executive Park, Suite 102
Charlotte, North Carolina 28262
SUBJECT: COLLINS & AIKMAN HOLDINGS CORPORATION
1993 EMPLOYEE STOCK OPTION PLAN (THE "PLAN")
Ladies and Gentlemen:
This opinion is rendered in connection with the filing by
Collins & Aikman Holdings Corporation, a Delaware corporation (the
"Corporation"), of a Registration Statement on Form S-8 (the
"Registration Statement") with respect to 3,119,466 shares (the
"Shares") of the Common Stock, par value $0.01 per share (the
"Common Stock"), of the Corporation issuable under the Plan.
Capitalized terms used but not otherwise defined herein shall have
the meanings given them in the Plan.
I have examined the originals, or copies authenticated or
otherwise identified to my satisfaction, of all such corporate
records of the Corporation, agreements and other instruments, and
certificates of public officials and representatives of the
Corporation, and have made such other investigations, as I have
deemed necessary in connection with the opinions hereinafter
expressed. For purposes of this opinion, I have assumed that the
Compensation Committee of the Board of Directors of the
Corporation, which was appointed by the Board to act as the
"Committee" under the Plan (the "Committee"), has taken or will
take all action necessary to authorize the grant of Options under
the Plan and the issuance of Shares pursuant thereto.
Based upon and subject to the foregoing, I am of the
opinion that the issuance of the Shares pursuant to the Plan has
been duly authorized and that, when the Shares are issued upon the
exercise by the holders thereof of Options granted or to be granted
under the Plan in accordance with the terms of any Option Agreement
approved by the Committee, including the payment of the exercise
price for the Shares covered by such Options in the manner provided
in the Plan, and upon the due execution and delivery following
such exercise of certificates representing the Shares in due and
proper form, the Shares will be validly issued and outstanding,
fully paid and non-assessable.
I am admitted to practice only in the State of Delaware
and express no opinion as to matters governed by any laws other
than the laws of the State of Delaware.
I understand that you wish to file this opinion as an
exhibit to the Registration Statement, and I consent to such
filing.
Very truly yours,
/ S / JOHN F. GROSSBAUER
John F. Grossbauer
Corporate Counsel
/caw
2
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our
reports dated March 31, 1993 included in Collins & Aikman Holdings
Corporation's Form 10-K for the year ended January 30, 1993.
/ S / Arthur Andersen & Co.
Arthur Andersen & Co.
Charlotte, North Carolina
April 27, 1994
