Exhibit 99.4
FORM
OF
CERTIFICATE OF DESIGNATIONS
OF
SERIES B PREFERRED STOCK
OF
FOAMEX INTERNATIONAL INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
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Foamex International Inc., a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
hereby certifies that the following resolution was adopted by the Board of
Directors of the Corporation (the "Board of Directors") as required by Section
151 of the General Corporation Law at a meeting duly called and held on June 30,
2000:
RESOLVED, that pursuant to the authority granted to and vested in
the Board of Directors in accordance with the provisions of the Restated
Certificate of Incorporation of the Corporation (the "Charter"), the Board of
Directors hereby creates a series of Preferred Stock, par value $1.00 per share,
of the Corporation, and hereby states the designation and number of shares, and
fixes the relative rights, preferences, and limitations thereof (in addition to
the provisions set forth in the Charter which are applicable to the Preferred
Stock of all classes and series) as follows:
SECTION 1. DESIGNATION AND AMOUNT. The shares of such series shall
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be designated as "Series B Preferred Stock" (the "Series B Preferred Stock") and
the number of shares constituting the Series B Preferred Stock shall be 15,000.
SECTION 2. RANK. The shares of Series B Preferred Stock shall rank,
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with respect to the payment of dividends and the distribution of assets, (i)
senior to (x) the Series A Preferred Stock, par value $1.00 per share, hereafter
created in connection with a Shareholders Rights Plan providing for the issuance
of such Series A Preferred Stock under certain circumstances and (y) any other
class of Preferred Stock hereafter created, and (ii) senior to the Common Stock,
par value $.0l per share, of the Corporation (the "Common Stock"). The
securities described in clauses (i) and (ii) are referred to herein as "Junior
Stock".
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SECTION 3. DIVIDENDS AND DISTRIBUTIONS.
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(a) The holders of shares of Series B Preferred Stock, in
preference to the holders of Common Stock, and of any other Junior Stock, shall
be entitled to receive, when and as declared by the Board of Directors, out of
any funds legally available for the purpose, cash dividends in an amount per
share (rounded to the nearest cent), subject to the provisions for adjustment
set forth in Section 7, equal to 100 times the aggregate per share amount of all
cash dividends, and 100 times the aggregate per share amount (payable in kind)
of all non-cash dividends or other distributions, other than a dividend or
distribution payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise), declared
on the Common Stock.
(b) The Corporation shall declare a dividend or distribution on
the shares of Series B Preferred Stock as provided in paragraph (a) of this
Section 3 immediately after it declares such dividend or distribution on the
Common Stock (other than a dividend or distribution payable in shares of Common
Stock) and shall pay such dividend or distribution on the shares of Series B
Preferred Stock immediately before paying any dividend or distribution on the
Common Stock (other than a dividend or distribution payable in shares of Common
Stock).
(c) The Board of Directors may fix a record date for the
determination of holders of shares of Series B Preferred Stock entitled to
receive payment of a dividend or distribution declared thereon, which record
date shall be not more than 60 days prior to the date fixed for the payment
thereof and in the case of dividends and distributions declared pursuant to
paragraph (b) of this Section 3, shall be the same date as the record date for
the determination of holders of Common Stock entitled to receive payment of a
dividend or distribution triggering declaration of the dividend or distribution
declared pursuant to paragraph (b) of this Section 3.
(d) Dividends paid on the shares of Series B Preferred Stock in
an amount less than the total amount of such dividends at the time payable on
such shares shall be allocated pro rata on a share by share basis among all such
shares at the time outstanding.
SECTION 4. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
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liquidation, dissolution or winding up of the Corporation (which shall not
include any transaction covered by Section 5), no distribution shall be made to
the holders of any Junior Stock (either as to dividends or upon liquidation,
dissolution or winding up) unless, prior thereto, the holders of shares of
Series B Preferred Stock shall have received an amount per share, subject to the
provisions for adjustment set forth in Section 7, equal to $100, plus an amount
equal to accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment; provided, that the holders of shares of
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Series B Preferred Stock shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth, equal to
100 times the aggregate amount to be distributed per share to holders of shares
of Common Stock.
SECTION 5. CONSOLIDATION, MERGER, ETC. In case the
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Corporation shall enter into any consolidation, merger, combination, exchange or
other transaction in which the Common Stock is exchanged for or changed into
other stock or securities, cash and/or any other property, then in any such case
the shares of Series B Preferred Stock shall at the same time be
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similarly exchanged or changed in an amount per share, subject to the provisions
for adjustment set forth in Section 7, equal to 100 times the aggregate amount
of stock, securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each share of Common Stock is changed or
exchanged.
SECTION 6. CONVERSION.
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(a) Any holder of shares of Series B Preferred Stock shall have
the right, at its option, at any time, to convert, for no further consideration,
subject to the provisions for adjustment set forth in Section 7 and the proviso
set forth below, any or all of such holder's shares of Series B Preferred Stock
into such number of fully paid and non-assessable shares of Common Stock as is
equal to the product of (x) the number of shares of Series B Preferred Stock
being so converted multiplied by (y) 100; provided that, until the termination
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of (a) the Credit Agreement, dated as of June 12, 1997, as amended and restated
as of February 27, 1998, as further amended and restated as of June 29, 1999, as
amended or as may be amended, among Foamex L.P., FMXI, Inc., the lenders named
therein, the issuing banks named therein, and Citicorp USA, Inc. and The Bank of
Nova Scotia, as administrative agents (the "Foamex L.P. Credit Agreement"), (b)
the Credit Agreement, dated as of February 27, 1998, as amended or as may be
amended, among Foamex Carpet Cushion, Inc., the lenders named therein, the
issuing banks named therein, and Citicorp USA, Inc. and The Bank of Nova Scotia,
as administrative agents (the "Foamex Carpet Credit Agreement"), (c) the
Indenture, dated as of June 12, 1997, as supplemented from time to time, by and
among Foamex L.P., Foamex Capital Corporation, General Felt Industries, Inc.,
Foamex Fibers, Inc. and The Bank of New York, as trustee (the "June 1997
Indenture") and (d) the Indenture, dated as of December 23, 1997, as
supplemented from time to time, by and among Foamex L.P., Foamex Capital
Corporation, General Felt Industries, Inc., Foamex Fibers, Inc., Foamex LLC,
Crain Holdings Corp. and the Bank of New York, as trustee (the "December 1997
Indenture" and, together with the Foamex L.P. Credit Agreement, the Foamex
Carpet Credit Agreement and the June 1997 Indenture, the "Credit Agreements and
Indentures") or until amendments to the Credit Agreements and Indentures,
including amendments to Section 11.01(m) of the Foamex L.P. Credit Agreement,
Section 11.01(l) of the Foamex Carpet Credit Agreement, Section 4.15 of the June
1997 Indenture, and Section 4.15 of the December 1997 Indenture, eliminate the
consequences on a "change in control", such conversion would not result in any
holder of shares of Series B Preferred Stock becoming, after giving effect to
such conversion, the Beneficial Owner (as defined below) of 25% or more of the
Voting Stock (as defined below) of the Corporation. For purposes of this
Certificate of Designations, "Voting Stock" and "Beneficial Owner" each have the
meaning set forth in the Foamex L.P. Credit Agreement and the Foamex Carpet
Credit Agreement.
(b) Notwithstanding any limitation contained in paragraph (a)
of this Section 6, in the event of any offer or series of related offers to
purchase or exchange any shares of Common Stock, the consummation of which would
result in an aggregate of 25% or more of the then outstanding Common Shares
being purchased or exchanged, which offer or series of related offers do not
include an offer for the Series B Preferred Stock that is at least, per share,
equal to 100 times the consideration per share offered for the Common Stock, any
holder of the Series B Preferred Stock shall have the right, at its option,
beginning not less than five business days prior to the publicly announced
expiration of such offer, to convert, for no further consideration, subject to
the provisions for adjustment set forth in Section 7, any or all of such
holder's shares
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of Series B Preferred Stock into such number of fully paid and non-assessable
shares of Common Stock as is equal to the product of (X) the number of shares of
Series B Preferred Stock being so converted multiplied by (Y) 100.
(c) The issuance by the Corporation of shares of Common Stock
upon a conversion of Series B Preferred Stock into shares of Common Stock shall
be effective as of the surrender of the certificate or certificates for the
Series B Preferred Stock (or depositary receipts issued pursuant to Section 11
hereof) to be converted, duly assigned or endorsed for transfer to the
Corporation (or accompanied by duly executed stock powers relating thereto). On
and after the effectiveness of conversion, the person or persons entitled to
receive the Common Stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such shares of Common Stock whether
or not the Corporation has complied with the provisions hereof.
SECTION 7. EFFECT OF COMMON STOCK SPLITS, ETC. In the event
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the Corporation shall at any time declare or pay any dividend on the Common
Stock payable in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise than by payment of it dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
amount to which holders of shares of Series B Preferred Stock were entitled
immediately prior to such event under Sections 3, 4, 5 or 6 shall be adjusted by
multiplying each such amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
SECTION 8. REDEMPTION. The shares of Series B Preferred
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Stock shall not be redeemable.
SECTION 9. VOTING RIGHTS. Holders of shares of Series B
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Preferred Stock shall not be entitled or permitted to vote on any matter
required or permitted to be voted upon by the stockholders of the Corporation,
except as otherwise required under Delaware law. Except as set forth herein, or
as otherwise provided by Delaware law, holders of shares of Series B Preferred
Stock shall have no special voting rights and their consent shall not be
required for taking any corporate action.
SECTION 10. CERTAIN RESTRICTIONS. Whenever dividends or
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distributions payable on the shares of Series B Preferred Stock as provided in
Section 3 are in arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on shares of Series B Preferred
Stock outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any Junior Stock; or
(ii) redeem, purchase or otherwise acquire for
consideration any shares of Series B Preferred Stock, except in
accordance with a purchase offer made in writing or by publication
(as determined by the Board of Directors) to all holders of
shares of the Corporation upon such terms as the Board of
Directors, after con-
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sideration of the respective annual dividend rates and the relative
rights and preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable treatment
among the respective series or classes.
SECTION 11. FRACTIONAL SHARES. The Corporation may issue
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fractions and certificates representing fractions of shares of Series B
Preferred Stock in integral multiples of 1/100th of a share of Series B
Preferred Stock, or in lieu thereof, at the election of the Board of Directors
at the time of the first issue of any shares of Series B Preferred Stock,
evidence such fractions by depositary receipts, pursuant to an appropriate
agreement between the Corporation and a depository selected by it; provided that
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such agreement shall provide that the holders of such depositary receipts shall
have all rights, privileges and preferences to which they would be entitled as
beneficial owners of shares of Series B Preferred Stock. In the event that
fractional shares of Series B Preferred Stock are issued, the holders thereof
shall have all the rights provided herein of holders of full shares of Series B
Preferred Stock in the proportion which such fraction bears to a full share.
SECTION 12. REACQUIRED SHARES. Any shares of Series B
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Preferred Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock subject to the conditions and restrictions on issuance
set forth herein, in the Certificate of Incorporation, or in any other
Certificate of Designations creating a series of Preferred Stock or any similar
stock or as otherwise required by law.
SECTION 13. RESERVATION. The Corporation shall at all times
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reserve and keep available out of its authorized and unissued shares of Common
Stock, solely for issuance upon the conversion of the Series B Preferred Stock,
free from any preemptive rights or other obligations such number of shares of
Common Stock as shall from time to time be issuable upon the conversion of all
of the Series B Preferred Stock outstanding.
SECTION 14. AMENDMENT. The Certificate of Incorporation of the
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Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series B Preferred Stock
so as to affect them adversely without the affirmative vote of the holders of at
least two-thirds of the outstanding shares of Series B Preferred Stock, voting
together as a single class.
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IN WITNESS WHEREOF, this Certificate of Designations is executed on
behalf of the Corporation by its [Title] and attested by its Secretary this
31st day of October, 2000.
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FOAMEX INTERNATIONAL INC.
By: /s/ G. L. Karpinski
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Name: G. L. Karpinski
Title: Sr. Vice President
ATTEST:
/s/ Gregory J. Christian
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Name: Gregory J. Christian
Title: Secretary
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