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 1994 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>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Aggregate Amount of
to be Registered Registered (1) Price Per Share (2) Offering Price (2) Registration Fee
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 per 2,980,534 $8.26 $24,619,211 $8,489.38
share.
</TABLE>
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 1994 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.
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 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 1994 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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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 1994 Employee Stock Option
Plan is hereby incorporated by reference to Exhibit 10.13 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 April 28, 1994
David J. McKittrick Accounting Officer
/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
One Chase Manhattan Plaza
New York, N.Y. 10005
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
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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
3
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
4
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]
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]
April 28, 1994
Collins & Aikman Holdings Corporation
8320 University Executive Park, Suite 102
Charlotte, North Carolina 28262
SUBJECT: COLLINS & AIKMAN HOLDINGS CORPORATION
1994 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 2,980,534 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
