AMENDED AND
RESTATED
CERTIFICATE OF
INCORPORATION
OF
THE WARNACO GROUP,
INC.
The undersigned officer of The Warnaco Group, Inc., a corporation
organized and existing under the laws of the State of Delaware (the
“Corporation”), does hereby certify as follows:
(1) The name of the
corporation is The Warnaco Group, Inc.
(2) The Certificate of Incorporation of the Corporation was originally
filed with the Secretary of State of the State of Delaware on March 14, 1986
under the name W Acquisition Corp.
(3) The Certificate of Incorporation of the Corporation has now been
amended and restated pursuant to the authority of Section 303 of the General
Corporation Law of the State of Delaware ("General Corporation Law") and Section
5.5 of the First Amended Joint Plan of Reorganization of The Warnaco Group, Inc.
and its Affiliated Debtors and Debtors in Possession under Chapter 11 of the
Bankruptcy Code, dated November 8, 2002 (the "Plan") and shall be effective on
the "Effective Date" as defined in the Plan.
(4) This Amended and Restated Certificate of Incorporation supersedes the
original Certificate of Incorporation as heretofore amended.
(5) The text of the Amended and Restated Certificate of Incorporation of
the Corporation, as further amended hereby, is restated to read in its entirety
as follows:
ARTICLE I
Name
The name of the corporation is The Warnaco Group, Inc. (the
“Corporation”).
ARTICLE II
Registered Office and
Registered Agent
The address of the registered office of the Corporation in the State of
Delaware is 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The
name of its registered agent at such address is United States Corporation
Company.
ARTICLE III
Corporate Purpose
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.
ARTICLE IV
Capital Stock
(1) Authorized Capital
(a) The total number of shares of capital stock that the Corporation
shall have authority to issue is: (i) 112,500,000 shares of Common Stock, $0.01
par value (“Common Stock”) and (ii) 20,000,000 shares of Preferred Stock, $0.01
par value, of which 112,500 shares shall be Series A Preferred Stock (“Series A
Preferred Stock”).
(b) The number of authorized shares of Common Stock or Preferred Stock may be increased or decreased (but not then below the number of shares thereof then outstanding) from time to time by the affirmative vote of the holders of a majority of the stock of the Corporation then entitled to vote.
(2) Common Stock
(a) Identical Rights and Privileges. Except as otherwise expressly
provided in this Amended and Restated Certificate of Incorporation, all
outstanding shares of Common Stock shall be identical and shall entitle the
holders thereof to the same rights and privileges.
(b) Dividends and Distributions. As, if and when dividends or
distributions are declared on outstanding shares of Common Stock, whether
payable in cash, in property or in securities of the Corporation, the holders of
outstanding shares of Common Stock shall be entitled to share equally, share for
share, in such dividends and distributions.
(c) Liquidation. Upon any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, the holders of outstanding shares
of Common Stock shall be entitled to share equally, share for share, in the
assets of the Corporation to be distributed among the holders of shares of the
Common Stock.
(d) Voting Rights
i. In General. The holders of outstanding shares of Common Stock shall
have the right to vote on the election and removal of the directors
of the Corporation and on all other matters to
be voted on by the stockholders of the Corporation.
ii. Procedures at Meetings. At every meeting with respect to matters on
which the holders of outstanding shares of Common Stock are
entitled to vote, the holders of outstanding
shares of Common Stock shall be entitled to one vote per share.
(3) Preferred Stock.
(a) Authority to Issue. The Board of Directors of the Corporation is
hereby expressly granted authority, subject to the provisions of this Amended
and Restated Certificate of Incorporation, to authorize in accordance with the
laws of the State of Delaware from time to time the issue of one or more series
of Preferred Stock and with respect to any such series to fix the numbers,
designations, rights (other than voting rights), preferences and limitations of
such series.
(b) Voting Rights. Each share of Preferred Stock of any series shall have
voting rights equal to 1/1000th of the vote of one share of Common Stock and all
holders of shares of Preferred Stock shall vote together with the holders of
Common Stock.
(c) Changes. The Board of Directors may, subject to the provisions of
this Amended and Restated Certificate of Incorporation and the laws of the State
of Delaware, change the designation, rights, preferences, limitations,
description and terms of, and number of shares in, any series as to which no
shares have theretofore been issued.
(d) Series. All shares of any one series shall be identical in all
respects with all the 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.
(e) Status of Redeemed Preferred Stock. Shares of any series of Preferred Stock which have been redeemed (whether through the operation of a sinking fund or otherwise) or purchased by the Corporation, or which, if convertible, have been converted into shares of the Corporation of any other class or classes, shall have the status of authorized and unissued shares of Preferred Stock which are not classified into any series.
(4) Series A Preferred Stock
The Series A Preferred Stock shall have the voting power, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, as set forth in the
Certificate of Designation attached hereto as Annex A.
ARTICLE V
Directors
(1) The number of directors shall be not less than 5 or more than 12,
which number may be fixed or changed from time to time, within such minimum and
maximum.
(2) Elections of directors of the Corporation need not be by written
ballot, except and to the extent provided in the By-laws of the
Corporation.
(3) To the fullest extent permitted by the General Corporation Law as it
now exists and as it may hereafter be amended, no director of the Corporation
shall be personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director.
ARTICLE VI
Stockholders
(1) Special meetings of stockholders may be called in accordance with and
by the persons set forth in the By-laws of the Corporation; provided, however
that the recordholders of at least 15% of the Common Stock of the Corporation
shall always have the power to call such meetings.
(2)
Any action required by the General Corporation Law to be taken at any
annual or special meeting of stockholders, and any action which may be taken at
any annual or special meeting of stockholders, may be taken without a meeting,
without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the recordholders of Common Stock having
not less than the minimum number of votes necessary to authorize or take such
action at a meeting at which the recordholders of all Common Stock entitled to
vote thereon were present and voted.
ARTICLE VII
Indemnification of
Directors, Officers and Others
(1)
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
(other than an action by or in the right of the Corporation) by reason of the
fact that the person is or was a director, officer of the Corporation, or is or
was serving at the request of the Corporation as a director, officer 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 the person in connection with
such action, suit or proceeding if the person acted in good faith and in a
manner the person 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 the person’s 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 the person 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 the person's
conduct was unlawful.
(2) 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
or suit by or in the right of the Corporation to procure a judgment in its favor
by reason of the fact that the person is or was a director, officer of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person 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 of the State of Delaware 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.
(3) To the extent that a present or former director or officer of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections (1) and (2) of this Article
VII, or in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys’ fees) actually and reasonably
incurred by such person in connection therewith.
(4)
Any indemnification under Sections (1) and (2) of this Article VII (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 present or former
director, officer is proper in the circumstances because the person has met the
applicable standard of conduct set forth in such Sections (1) and (2). Such
determination shall be made, with respect to a person who is a director or
officer at the time of such determination, (a) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (b) by a committee of such directors designated by
majority vote of such directors, even though less than a quorum, or (c) if there
are no such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (d) by the stockholders of the Corporation.
(5) 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 such person is not entitled to be
indemnified by the Corporation authorized in this Article VII. Such expenses
(including attorneys’ fees) incurred by former directors and officers may be so
paid upon such terms and conditions, if any, as the Corporation deems
appropriate.
(6) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other sections of this Article VII shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any law, by-law, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in
such person's official capacity and as to action in another capacity while
holding such office.
(7) The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer of the Corporation, or is or was
serving at the request of the Corporation as a director, officer 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 the provisions of Section
145 of the General Corporation Law.
(8) For purposes of this Article VII, 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 authority to indemnify its directors, officers, so that any
person who is or was a director, officer of such constituent corporation, or is
or was serving at the request of such constituent corporation as a director,
officer of another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under the provisions of this
Article VII with respect to the resulting or surviving corporation as such
person would have with respect to such constituent corporation if its separate
existence had continued.
(9) For purposes of this Article VII, references to “other enterprises”
shall include employee benefit plans; references to “fines” shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer of the Corporation which imposes duties on, or
involves service by, such director, officer with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good faith
and in a manner such person 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 Article VII.
(10) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VII shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
ARTICLE VIII
By-Laws
The Board shall have the power to adopt, amend or repeal by-laws.
ARTICLE IX
Reorganization
Whenever a compromise or arrangement is proposed between this Corporation
and its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this Corporation under the provisions
of
Section 291 of Title 8 of the Delaware Code or
on the application of trustees in dissolution or of any receiver or receivers
appointed for this Corporation under the provisions of Section 279 of Title 8 of
the Delaware Code order a meeting of the creditors or class of creditors, and/or
of the stockholders or class of stockholders of this Corporation, as the case
may be, to be summoned in such manner as the said court directs. If a majority
in number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of this Corporation, as the case may be,
and also on this Corporation.
ARTICLE X
Amendment
The Corporation reserves the right to amend, alter, change or repeal any
provision of this Certificate of Incorporation, in the manner now or hereafter
prescribed by law, and all rights conferred on stockholders in this Amended and
Restated Certificate of Incorporation are subject to this reservation.
ARTICLE XI
Section 1123 of the United
States Bankruptcy Code
The Corporation shall not issue any class of non-voting equity securities
unless and solely to the extent permitted by Section 1123(a)(6) of the United
States Bankruptcy Code (the “Bankruptcy Code”) as in effect on the effective
date of the Plan of Reorganization; provided, however, that this Article XI of
this Amended and Restated Certificate of Incorporation: (a) will have no further
force and effect beyond that required under Section 1123(a)(6) of the Bankruptcy
Code; (b) will have such force and effect, if any, only for so long as Section
1123(a)(6) of the Bankruptcy Code is in effect and applicable to the
Corporation; and (c) in all events may be amended or eliminated in accordance
with applicable law as from time to time in effect.
IN WITNESS WHEREOF, The Warnaco Group, Inc. has caused this Amended and
Restated Certificate of Incorporation to be executed this 4th day of February,
2003.
THE WARNACO GROUP, INC.
By: /s/
Stanley P. Silverstein
---------------------------------------
Name: Stanley P. Silverstein
Title: Vice President - Administration,
Chief Administrative Officer
and Secretary
ANNEX A
CERTIFICATE OF
DESIGNATION
OF THE VOTING POWERS,
DESIGNATION,
PREFERENCES AND RELATIVE,
PARTICIPATING,
OPTIONAL OR OTHER SPECIAL
RIGHTS AND QUALIFICATIONS,
LIMITATIONS AND
RESTRICTIONS OF THE
SERIES A PREFERRED
STOCK
----------
Pursuant to Section 303 of
the
General Corporation Law
of
the State of Delaware
----------
I, Stanley P. Silverstein, Vice President -
Administration, Chief Administrative Officer and Secretary of The Warnaco Group,
Inc., a corporation organized and existing under the General Corporation Law of
the State of Delaware (the "Corporation"), DO HEREBY CERTIFY:
that, pursuant to authority conferred upon the Board of Directors of the
Corporation by its Amended and Restated Certificate of Incorporation (the
"Certificate"), and, pursuant to the provisions of Section 303 of the General
Corporation Law of the State of Delaware and Section 5.5 of the First Amended
Joint Plan of Reorganization of the Warnaco Group, Inc. and its Affiliated
Debtors and Debtors in Possession under Chapter 11 of the Bankruptcy Code, dated
November 8, 2002 (the "Plan"), effective as of the "Effective Date" as defined
in the Plan, the following Series A Preferred Stock, par value $0.01 per share,
is hereby created and authorized, having the voting powers, designation,
relative, participating, optional and other special rights, preferences, and
qualifications, limitations and restrictions as set forth below:
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series A Preferred Stock" and the number of shares constituting
such series shall be 112,500.
Section 2. Dividends and Distributions. (A) Subject to the prior and
superior rights of the holders of any shares of preferred stock of the
Corporation ranking prior and superior to the shares of Series A Preferred Stock
with respect to dividends, each holder of one one-thousandth (1/1,000) of a
share (a "Unit") of Series A Preferred Stock shall be entitled to receive, when,
as and if declared by the Board of Directors out of funds legally available for
that purpose, (i) quarterly dividends payable in cash on the last day of March,
June, September and December in each year (each such date being a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend Payment Date
after the first issuance of such Unit of Series A Preferred Stock, in an amount
per Unit (rounded to the nearest cent) equal to the greater of (a) $0.01 or (b)
subject to the provision for adjustment hereinafter set forth, the aggregate per
share amount of all cash dividends declared on shares of the Common Stock since
the immediately preceding Quarterly Dividend Payment Date, or, with respect to
the first Quarterly Dividend Payment Date, since the first issuance of a Unit of
Series A Preferred Stock, and (ii) subject to the provision for adjustment
hereinafter set forth, quarterly distributions (payable in kind) on each
Quarterly Dividend Payment Date in an amount per Unit equal to the aggregate per
share amount of all non-cash dividends or other distributions (other than a
dividend payable in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock, by reclassification or otherwise) declared on shares of
Common Stock since the immediately preceding Quarterly Dividend Payment Date, or
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of a Unit of Series A Preferred Stock. In the event that the
Corporation shall at any time after February 4, 2003 (the "Rights Declaration
Date") (i) declare any dividend on outstanding shares of Common Stock payable in
shares of Common Stock, (ii) subdivide outstanding shares of Common Stock or
(iii) combine outstanding shares of Common Stock into a smaller number of
shares, then in each such case the amount to which the holder of a Unit of
Series A Preferred Stock was entitled immediately prior to such event pursuant
to the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which shall be the number of shares of Common Stock
that are outstanding immediately after such event and the denominator of which
shall be the number of shares of Common Stock that were outstanding immediately
prior to such event.
(B) The Corporation shall declare a dividend or distribution on Units of
Series A Preferred Stock as provided in paragraph (A) above immediately after it
declares a dividend or distribution on the shares of Common Stock (other than a
dividend payable in shares of Common Stock); provided, however, that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $0.01 per Unit on the
Series A Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and shall be cumulative on each
outstanding Unit of Series A Preferred Stock from the Quarterly Dividend Payment
Date next preceding the date of issuance of such Unit of Series A Preferred
Stock, unless the date of issuance of such Unit is prior to the record date for
the first Quarterly Dividend Payment Date, in which case, dividends on such Unit
shall begin to accrue from the date of issuance of such Unit, or unless the date
of issuance is a Quarterly Dividend Payment Date or is a date after the record
date for the determination of holders of Units of Series A Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends shall begin to accrue and
be cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on Units of Series A Preferred
Stock in an amount less than the aggregate amount of all such dividends at the
time accrued and payable on such Units shall be allocated pro rata on a
Unit-by-Unit basis among all Units of Series A Preferred Stock at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of Units of Series A Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be no more
than 30 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of Units of Series A Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
Unit of Series A Preferred Stock shall entitle the holder thereof to one vote on
all matters submitted to a vote of the stockholders of the Corporation. In the
event the Corporation shall at any time after the Rights Declaration Date (i)
declare any dividend on outstanding shares of Common Stock payable in shares of
Common Stock, (ii) subdivide outstanding shares of Common Stock or (iii) combine
the outstanding shares of Common Stock into a smaller number of shares, then in
each such case the number of votes per Unit to which holders of Units of Series
A Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction the numerator of which shall
be the number of shares of Common Stock outstanding immediately after such event
and the denominator of which shall be the number of shares of Common Stock that
were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of Units
of Series A Preferred Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of stockholders of the
Corporation.
(C) (i) If, at any time, dividends on any Units of Series A Preferred
Stock shall be in arrears in an amount equal to six quarterly dividends thereon,
then during the period (a "default period") from the occurrence of such event
until such time as all accrued and unpaid dividends for all previous quarterly
dividend periods and for the current quarterly dividend period on all Units of
Series A Preferred Stock then outstanding shall have been declared and paid or
set apart for payment, all holders of Units of Series A Preferred Stock, voting
separately as a class, shall have the right to elect two Directors.
(ii) During any default period, such voting rights of the holders of
Units of Series A Preferred Stock may be exercised initially at a special
meeting called pursuant to subparagraph (iii) of this Section 3(C) or at any
annual meeting of stockholders, and thereafter at annual meetings of
stockholders, provided that neither such voting rights nor any right of the
holders of Units of Series A Preferred Stock to increase, in certain cases, the
authorized number of Directors may be exercised at any meeting unless one-third
of the outstanding Units of Preferred Stock shall be present at such meeting in
person or by proxy. The absence of a quorum of the holders of Common Stock shall
not affect the exercise by the holders of Units of Series A Preferred Stock of
such rights. At any meeting at which the holders of Units of Series A Preferred
Stock shall exercise such voting rights initially during an existing default
period, they shall have the right, voting separately as a class, to elect
Directors to fill up to two vacancies in the Board of Directors, if any such
vacancies may then exist, or, if such right is exercised at an annual meeting,
to elect two Directors. If the number which may be so elected at any special
meeting does not amount to the required number, the holders of the Series A
Preferred Stock shall have the right to make such increase in the number of
Directors as shall be necessary to permit the election by them of the required
number. After the holders of Units of Series A Preferred Stock shall have
exercised their right to elect Directors during any default period, the number
of Directors shall not be increased or decreased except as approved by a vote of
the holders of Units of Series A Preferred Stock as herein provided or pursuant
to the rights of any equity securities ranking senior to the Series A Preferred
Stock.
(iii) Unless the holders of Series A Preferred Stock shall, during an
existing default period, have previously exercised their right to elect
Directors, the Board of Directors may order, or any stockholder or stockholders
owning in the aggregate not less than 25% of the total number of the Units of
Series A Preferred Stock outstanding may request, the calling of a special
meeting of the holders of Units of Series A Preferred Stock, which meeting shall
thereupon be called by the Secretary of the Corporation. Notice of such meeting
and of any annual meeting at which holders of Units of Series A Preferred Stock
are entitled to vote pursuant to this paragraph (C)(iii) shall be given to each
holder of record of Units of Series A Preferred Stock by mailing a copy of such
notice to him at his last address as the same appears on the books of the
Corporation. Such meeting shall be called for a time not earlier than 20 days
and not later than 60 days after such order or request, or, in default of the
calling of such meeting within 60 days after such order or request, such meeting
may be called on similar notice by any stockholder or stockholders owning in the
aggregate not less than 25% of the total number of outstanding Units of Series A
Preferred Stock. Notwithstanding the provisions of this paragraph (C)(iii), no
such special meeting shall be called during the 60 days immediately preceding
the date fixed for the next annual meeting of the stockholders.
(iv) During any default period, the holders of shares of Common Stock and
Units of Series A Preferred Stock, and other classes or series of stock of the
Corporation, if applicable, shall continue to be entitled to elect all the
Directors until holders of the Units of Series A Preferred Stock shall have
exercised their right to elect two Directors voting as a separate class, after
the exercise of which right (x) the Directors so elected by the holders of Units
of Series A Preferred Stock shall continue in office until their successors
shall have been elected by such holders or until the expiration of the default
period, and (y) any vacancy in the Board of Directors may (except as provided in
paragraph (C)(ii) of this Section 3) be filled by vote of a majority of the
remaining Directors theretofore elected by the holders of the class of capital
stock that elected the Director whose office shall have become vacant.
References in this paragraph (C) to Directors elected by the holders of a
particular class of capital stock shall include Directors elected by such
Directors to fill vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a default period, (x) the right of
the holders of Units of Series A Preferred Stock as a separate class to elect
Directors shall cease, (y) the term of any Directors elected by the holders of
Units of Series A Preferred Stock as a separate class shall terminate, and (z)
the number of Directors shall be such number as may be provided for in the
Certificate or by-laws irrespective of any increase made pursuant to the
provisions of paragraph (C)(ii) of this Section 3 (such number being subject,
however, to change thereafter in any manner provided by law or in the
Certificate or by-laws). Any vacancies in the Board of Directors effected by the
provisions of clauses (y) and (z) in the preceding sentence may be filled by a
majority of the remaining Directors.
(vi) The provisions of this paragraph (C) shall govern the election of
Directors by holders of Units of Preferred Stock during any default period
notwithstanding any provisions of the Certificate to the contrary, including,
without limitation, the provisions of Article V of the Certificate.
(D) Except as set forth herein, holders of Units of Series A Preferred
Stock shall have no special voting rights and their consents shall not be
required (except to the extent they are entitled to vote with holders of shares
of Common Stock as set forth herein) for taking any corporate action.
Section 4. Certain
Restrictions. (A) Whenever
quarterly dividends or other dividends or distributions payable on Units of
Series A Preferred Stock as provided in Section 2 are in arrears, thereafter and
until all accrued and unpaid dividends and distributions, whether or not
declared, on outstanding Units of Series A Preferred Stock 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 shares of junior
stock;
(ii) declare or pay dividends on or make any other distributions on any
shares of parity stock, except dividends paid ratably on Units of Series A
Preferred Stock and shares of all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the holders of
such Units and all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of
any parity stock; provided, however, that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such parity stock in
exchange for shares of any junior stock; or
(iv) purchase or otherwise acquire for consideration any Units of Series
A 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 such
Units.
(B) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any Units of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof.
Section 6. Liquidation, Dissolution or Winding Up. (A) Upon any voluntary
or involuntary liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (i) to the holders of shares of junior stock unless
the holders of Units of Series A Preferred Stock shall have received, subject to
adjustment as hereinafter provided in paragraph (B), the greater of either (a)
$0.01 per Unit plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not earned or declared, to the date of such
payment, or (b) the amount equal to the aggregate per share amount to be
distributed to holders of shares of Common Stock, or (ii) to the holders of
shares of parity stock, unless simultaneously therewith distributions are made
ratably on Units of Series A Preferred Stock and all other shares of such parity
stock in proportion to the total amounts to which the holders of Units of Series
A Preferred Stock are entitled under clause (i)(a) of this sentence and to which
the holders of shares of such parity stock are entitled, in each case upon such
liquidation, dissolution or winding up.
(B) In the event the Corporation shall, at any time after the Rights
Declaration Date, (i) declare any dividend on outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide outstanding shares of Common
Stock, or (iii) combine outstanding shares of Common Stock into a smaller number
of shares, then in each such case the aggregate amount to which holders of Units
of Series A Preferred Stock were entitled immediately prior to such event
pursuant to clause (i)(b) of paragraph (A) of this Section 6 shall be adjusted
by multiplying such amount by a fraction the numerator of which shall be the
number of shares of Common Stock that are outstanding immediately after such
event and the denominator of which shall be the number of shares of Common Stock
that were outstanding immediately prior to such event.
Section 7.
Consolidation, Merger, etc. In
case the Corporation shall enter into any consolidation, merger, combination or
other transaction in which the shares of common stock are exchanged for or
converted into other stock or securities, cash and/or any other property, then
in any such case Units of Series A Preferred Stock shall at the same time be
similarly exchanged for or converted into an amount per Unit (subject to the
provision for adjustment hereinafter set forth) equal to 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 converted or
exchanged. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide outstanding shares of Common
Stock, or (iii) combine outstanding Common Stock into a smaller number of
shares, then in each such case the amount set forth in the immediately preceding
sentence with respect to the exchange or conversion of Units of Series A
Preferred Stock shall be adjusted by multiplying such amount by a fraction the
numerator of which shall be the number of shares of Common Stock that are
outstanding immediately after such event and the denominator of which shall be
the number of shares of Common Stock that were outstanding immediately prior to
such event.
Section
8. Redemption. The Units of Series A Preferred Stock shall not be
redeemable.
Section 9. Ranking. The Units of Series A Preferred Stock shall rank
junior to any other class of preferred stock that hereafter may be issued by the
Corporation as to the payment of dividends and the distribution of assets,
unless the terms of any such class shall provide otherwise.
Section 10. Amendment. The Certificate, including, without limitation,
this resolution, shall not hereafter be amended, either directly or indirectly,
or through merger or consolidation with any other corporation or corporations in
any manner that would alter or change the powers, preferences or special rights
of the Series A Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of a majority or more of the outstanding Units
of Series A Preferred Stock, voting separately as a class.
Section 11. Fractional Shares. The Series A Preferred Stock may be issued
in Units or other fractions of a share, which Units or fractions shall entitle
the holder, in proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to have the benefit
of all other rights of holders of Series A Preferred Stock.
Section 12. Certain Definitions. As used
herein with respect to the Series A Preferred Stock, the following terms shall
have the following meanings:
(A) The term “Common Stock” shall mean the class of stock designated as
the common stock, par value $0.01 per share, of the Corporation at the date
hereof or any other class of stock resulting from successive changes or
reclassification of such common stock.
(B) The term “junior stock” (i) as used in Section 4, shall mean the
Common Stock and any other class or series of capital stock of the Corporation
hereafter authorized or issued over which the Series A Preferred Stock has
preference or priority as to the payment of dividends and (ii) as used in
Section 6, shall mean the Common Stock and any other class of capital stock of
the Corporation over which the Series A Preferred Stock has preference or
priority in the distribution of assets upon any liquidation, dissolution or
winding up of the Corporation.
(C) The term “parity stock” (i) as used in Section 4, shall mean any
class of stock of the Corporation hereafter authorized or issued ranking pari
passu with the Series A Preferred Stock as to the payment of dividends and (ii)
as used in Section 6, shall mean any class of capital stock ranking pari passu
with the Series A Preferred Stock in the distribution of assets on any
liquidation, dissolution or winding up of the Corporation.
IN WITNESS WHEREOF, The Warnaco Group, Inc. has caused this Certificate to be signed by its Vice President - Administration, Chief Administrative Officer and Secretary and attested by its Executive Vice President - Finance and Chief Financial Officer this 4th day of February, 2003.
THE WARNACO GROUP, INC.
By: /s/ Stanley P.
Silverstein
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Name:
Stanley P. Silverstein
Title: Vice President - Administration,
Chief Administrative Officer
and Secretary
Attest:
/s/ James P. Fogarty
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James P. Fogarty
Senior Vice President - Finance
and Chief Financial Officer