Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) 77 408K
2: EX-2.2 Modificaton of Plan of Reorganization 2 10K
3: EX-2.3 2nd Modification of Plan of Reorganization 3 13K
4: EX-3.1 Certificate 8 36K
5: EX-5 Opinion of PWRW&G Regarding Legality 3 11K
6: EX-10.1 Credit Agreement 239 827K
7: EX-10.3 Management Agreement 6 21K
8: EX-10.4 Employment Agreement of Jim D. Waller 11 41K
9: EX-21 List of Subsidiaries of the Company 1 5K
10: EX-23.2 Consent of Kpmg Peat Marwick LLP 1 8K
11: EX-27 FDS for 42 Wks Ended 11/22/96 and FY Ended 2/2/96 1 7K
EX-3.1 — Certificate
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AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
of
ITHACA INDUSTRIES, INC.
Ithaca Industries, Inc., originally incorporated under Delaware
General Corporation Law on September 22, 1983 under the name of New Ithaca
Corporation, hereby amends and restates its certificate of incorporation as
follows:
1. NAME. The name of the corporation is Ithaca Industries, Inc.
(the "Corporation").
2. ADDRESS; REGISTERED OFFICE AND AGENT. The address of the
Corporation's registered office is 1209 Orange Street, City of Wilmington,
County of New Castle, State of Delaware 19801; and its registered agent at such
address is The Corporation Trust Company.
3. PURPOSE. The purpose of the Corporation is to engage in, carry
on and conduct any lawful act or activity for which corporations may be
organized under the Delaware General Corporation Law (as amended from time to
time, the "DGCL").
4. NUMBER OF SHARES. The total number of shares of stock that the
Corporation shall have authority to issue is 30,000,000, divided as follows:
2,500,000 shares of Preferred Stock, of the par value of $.01 per share (the
"Preferred Stock"), and 27,500,000 shares of Common Stock, of the par value of
$.01 per share (the "Common Stock").
5. DESIGNATION OF CLASSES; RELATIVE RIGHTS, ETC. The designation,
relative rights, preferences and limitations of the shares of each class are as
follows:
5.1 PREFERRED STOCK. The shares of Preferred Stock may be
issued from time to time in one or more series of any number of shares, provided
that the aggregate number of shares issued and not canceled of any and all such
series shall not exceed the total number of shares of Preferred Stock
hereinabove authorized, and with such powers, preferences, rights and
qualifications, limitations or restrictions thereof, and such distinctive serial
designations, all as shall hereafter be stated and expressed in the resolution
or resolutions adopted by the Board of Directors of the Corporation (the "Board
of Directors") providing for the issue of such shares of Preferred Stock from
time to time pursuant to authority to do so which is hereby vested in the Board
of Directors. Each series of shares of Preferred Stock (a) may have such voting
rights or powers, full or limited, or, subject to Section 5.3, may be
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without voting rights or powers; (b) may be subject to redemption at such time
or times and at such prices; (c) may be entitled to receive dividends (which may
be cumulative or non-cumulative) at such rate or rates, on such conditions and
at such times, and payable in preference to, or in such relation to, the
dividends payable on any other class or classes or series of stock; (d) may have
such rights upon the voluntary or involuntary liquidation, winding up or
dissolution of, or upon any distribution of the assets of, the Corporation; (e)
may be made convertible into or exchangeable for, shares of any other class or
classes or of any other series of the same or any other class or classes of
stock of the Corporation at such price or prices or at such rates of exchange
and with such adjustments; (f) may be entitled to the benefit of a sinking fund
to be applied to the purchase or redemption of shares of such series in such
amount or amounts; (g) may be entitled to the benefit of conditions and
restrictions upon the creation of indebtedness of the Corporation or any
subsidiary, upon the issue of any additional shares (including additional shares
of such series or of any other series) and upon the payment of dividends or the
making of other distributions on, and the purchase, redemption or other
acquisition by the Corporation or any subsidiary of, any outstanding shares of
the Corporation and (h) may have such other relative, participating, optional or
other special rights, qualifications, limitations or restrictions thereof; all
as shall be stated in said resolution or resolutions providing for the issue of
such shares of Preferred Stock. Any of the voting powers, designations,
preferences, rights and qualifications, limitations or restrictions of any such
series of Preferred Stock may be made dependent upon facts ascertainable outside
of the resolution or resolutions adopted by the Board of Directors providing for
the issue of such Preferred Stock pursuant to the authority vested in the Board
by this Section 5.1, provided that the manner in which such facts shall operate
upon the voting powers, designations, preferences, rights and qualifica tions,
limitations or restrictions of such series of Preferred Stock is clearly and
expressly set forth in the resolution or resolutions providing for the issue of
such Preferred Stock. The term "facts" as used in the preceding sentence shall
have the meaning given to it in section 151(a) of the DGCL. Shares of Preferred
Stock of any series that have been redeemed (whether through the operation of a
sinking fund or otherwise) or that if convertible or exchangeable have been
converted into or exchanged for shares of any other class or classes, shall have
the status of authorized and unissued shares of Preferred Stock undesignated as
to series and may be reissued as a part of the series of which they were
originally a part or as part of a new series of shares of Preferred Stock to be
created by resolution or resolutions of the Board of Directors or as part of any
other series of shares of Preferred Stock, all subject to any conditions or
restrictions on issuance set forth in the resolution or resolutions adopted by
the Board of Directors providing for the issue of any series of shares of
Preferred Stock.
5.2 COMMON STOCK. All shares of Common Stock shall be
identical and shall entitle the holders thereof to the following rights and
privileges:
5.2.1 VOTING RIGHTS. Subject to the provisions of any
applicable law or of the By-laws of the Corporation (the "By-laws"), as from
time to
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time amended, with respect to the closing of the transfer books or the fixing of
a record date for the determination of stockholders entitled to vote and except
for voting rights granted to holders of Preferred Stock as otherwise provided by
law or by the resolution or resolutions providing for the issue of any series of
shares of Preferred Stock, the holders of outstanding shares of Common Stock
shall exclusively possess voting power for the election of directors and for all
other purposes. Each holder of record of shares of Common Stock shall be
entitled to one vote for each share of Common Stock standing in such holder's
name on the books of the Corporation and the Common Stock shall vote as a single
class on all matters on which the Common Stock is entitled to vote.
5.2.2 DIVIDENDS. When and as dividends are declared
thereon, whether payable in cash, property or securities of the Corporation,
subject to the prior rights of the holders of Preferred Stock, if any, the
holders of Common Stock shall be entitled to share in such dividend ratably
according to the number of shares of Common Stock so held.
5.2.3 LIQUIDATION RIGHTS. In the event of any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, subject to the prior rights of creditors and of the holders of
Preferred Stock, if any, the holders of Common Stock shall be entitled to share,
ratably according to the number of shares of Common Stock held by them, as a
single class, in the remaining assets of the Corporation available for
distribution to its stockholders.
5.3 RESTRICTION ON ISSUANCES OF NON-VOTING EQUITY SECURITIES.
The Corporation shall not issue any nonvoting equity securities; PROVIDED, that
this provision, which is included in this Certificate of Incorporation in
compliance with section 1123(a)(6) of the United States Bankruptcy Code of 1978,
as amended, shall have no force or effect beyond that required by such section
1123(a)(6) and shall be effective only for so long as such section 1123(a)(6) is
in effect and applicable to the Corporation.
5.4 CONSIDERATION. Subject to the provisions of this
Certificate of Incorporation and except as otherwise provided by law, the stock
of the Corporation, regardless of class, may be issued for such consideration
and for such corporate purposes as the Board of Directors may from time to time
determine.
5.5 NO PRE-EMPTIVE RIGHTS. The holders of shares of Common
Stock are not entitled to any preemptive right to subscribe for, purchase or
receive any part of any new or additional issue of stock of any class, whether
now or hereafter authorized or of bonds, debentures or other securities
convertible into or exchangeable for stock.
6. COMPROMISE, ARRANGEMENT OR REORGANIZATION. Whenever a
compromise or arrangement is proposed between this Corporation and its creditors
or
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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 the DGCL
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 the DGCL,
order a meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corpora tion, 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, agrees to any compromise or arrangement and to any reorganization
of this Corporation as a 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 stockholders or class of
stockholders of this Corporation, as the case may be, and also on this
Corporation.
7. LIMITATION OF LIABILITY. 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, including breaches resulting from
such director's grossly negligent behavior, except for liability (a) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(b) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (c) under section 174 of the DGCL or
(d) for any transaction from which the director derived any improper personal
benefits. If the DGCL is hereafter amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the DGCL, as so amended.
Any repeal or modification of the foregoing paragraph 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.
8. INDEMNIFICATION.
8.1 To the extent not prohibited by law, the Corporation shall
indemnify any person who is or was made, or threatened to be made, a party to
any threatened, pending or completed action, suit or proceeding (a
"Proceeding"), whether civil, criminal, administrative or investigative,
including, without limitation, an action by or in the right of the Corporation
to procure a judgment in its favor, by reason of the fact that such person, or a
person of whom such person is the legal representative, is or was a director or
officer of the Corporation, or is or was serving as a director, officer,
manager, member, employee or agent or in any other capacity at the request of
the Corporation, for any other corporation, company, partnership, joint venture,
trust, employee benefit plan or other enterprise (an "Other Entity") while
serving as a
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director or officer of the Corporation, against judgments, fines, penalties,
excise taxes, amounts paid in settlement and costs, charges and expenses
(including attorneys' fees and disbursements) actually and reasonably incurred
by such person in connection with such Proceeding, if such person acted in good
faith and in a manner such person 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 or her conduct was unlawful.
To the extent specified by the Board of Directors of the Corporation at any time
and to the extent not prohibited by law, the Corporation may indemnify any
person who is or was made, or threatened to be made, a party to any threatened,
pending or completed Proceeding, whether civil, criminal, administrative or
investigative, including, without limitation, an action by or in the right of
the Corporation to procure a judgment in its favor, by reason of the fact that
such person is or was an employee or agent of the Corporation, or is or was
serving as a director, officer, manager, member, employee or agent or in any
other capacity at the request of the Corporation, for any Other Entity, against
judgment, fines, penalties, excise taxes, amounts paid in settlement and costs,
charges and expenses (including attorneys' fees and disbursements) actually and
reasonably incurred by such person in connection with such Proceeding, if such
person acted in good faith and in a manner such person 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 or her
conduct was unlawful.
8.2 The Corporation shall, from time to time, reimburse or
advance to any director or officer or other person entitled to indemnification
hereunder the funds necessary for payment of expenses, including attorneys' fees
and disbursements, incurred in connection with any Proceeding, in advance of the
final disposition of such Proceeding; PROVIDED, HOWEVER, that, if required by
the DGCL, such expenses incurred by or on behalf of any director or officer or
other person may be paid in advance of the final disposition of a Proceeding
only upon receipt by the Corporation of an undertaking, by or on behalf of such
director or officer (or other person indemnified hereunder), to repay any such
amount so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right of appeal that such director,
officer or other person is not entitled to be indemnified for such expenses.
8.3 The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 8
shall not be deemed exclusive of any other rights to which a person seeking
indemnification or reimbursement or advancement of expenses may have or
hereafter be entitled under any statute, this Amended and Restated Certificate
of Incorporation, the By-laws, any agreement (including any policy of insurance
purchased or provided by the Corporation under which directors, officers,
employees and other agents of the Corporation are covered), any vote of
stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding such
office.
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8.4 The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 8
shall continue as to a person who has ceased to be a director or officer (or
other person indemnified hereunder) and shall inure to the benefit of the
executors, administrators, legatees and distributees of such person.
8.5 The Corporation shall have the 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, member, manager, employee or agent of an
Other Entity, against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such person's status as
such, whether or not the Corporation would have the power to indemnify such
person against such liability under the provisions of this Section 8, the
By-laws or under section 145 of the DGCL or any other provision of law.
8.6 The provisions of this Section 8 shall be a contract
between the Corporation, on the one hand, and each director and officer who
serves in such capacity at any time while this Section 8 is in effect and any
other person indemnified hereunder, on the other hand, pursuant to which the
Corporation and each such director, officer, or other person intend to be
legally bound. No repeal or modification of this Section 8 shall affect any
rights or obligations with respect to any state of facts then or theretofore
existing or thereafter arising or any proceeding theretofore or thereafter
brought or threatened based in whole or in part upon any such state of facts.
8.7 The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 8
shall be enforceable by any person entitled to such indemnification or
reimbursement or advancement of expenses in any court of competent jurisdiction.
Neither the failure of the Corporation (including its Board of Directors, its
independent legal counsel and its stockholders) to have made a determination
prior to the commencement of such action that such indemnification or
reimbursement or advancement of expenses is proper in the circumstances nor an
actual determination by the Corporation (including its Board of Directors, its
independent legal counsel and its stockholders) that such person is not entitled
to such indemnification or reimbursement or advancement of expenses shall
constitute a defense to the action or create a presumption that such per son is
not so entitled. Such a person shall also be indemnified for any expenses
incurred in connection with successfully establishing his or her right to such
indemnification or reimbursement or advancement of expenses, in whole or in
part, in any such proceeding.
8.8 Any director or officer of the Corporation serving in any
capacity in (i) another corporation of which a majority of the shares entitled
to vote in the election of its directors is held, directly or indirectly, by the
Corporation or
7
(ii) any employee benefit plan of the Corporation or any corporation referred to
in clause (i) shall be deemed to be doing so at the request of the Corporation.
8.9 Any person entitled to be indemnified or to reimbursement
or advancement of expenses as a matter of right pursuant to this Section 8 may
elect to have the right to indemnification or reimbursement or advancement of
expenses interpreted on the basis of the applicable law in effect at the time of
the occurrence of the event or events giving rise to the applicable Proceeding,
to the extent permitted by law, or on the basis of the applicable law in effect
at the time such indemnification or reimbursement or advancement of expenses is
sought. Such election shall be made, by a notice in writing to the Corporation,
at the time indemnification or reimbursement or advancement of expenses is
sought; PROVIDED, HOWEVER, that if no such notice is given, the right to
indemnification or reimbursement or advancement of expenses shall be determined
by the law in effect at the time indemnification or reimbursement or advancement
of expenses is sought.
9. DIRECTORS. This Section is inserted for the management of the
business and for the conduct of the affairs of the Corporation and it is
expressly provided that it is intended to be in furtherance of and not in
limitation or exclusion of the powers conferred by applicable law.
9.1 NUMBER, ELECTION, AND TERMS OF OFFICE OF BOARD OF
DIRECTORS. The business of the Corporation shall be managed by a Board of
Directors consisting of not less than 3 or more than 10 members. The exact
number of directors within the minimum and maximum limitations specified in the
preceding sentence shall be fixed from time to time by resolution adopted by a
majority of the entire Board of Directors then in office, whether or not present
at a meeting. Directors may be elected by written ballot or by voice vote.
9.2 TENURE. Except as set forth in the immediately succeeding
sentence, the term of office of each director shall expire at the first annual
meeting of stockholders of the Corporation next following the Corporation's
fiscal year ending January 31, 1998. The director designated by the Butler
Noteholders (as defined in the Corporation's plan of reorganization dated August
29, 1996, as the same may be amended (the "Plan"), under Chapter 11 of Title 11
of the United States Code) pursuant to the Plan shall have an initial term of
office expiring at the annual meeting of stockholders of the Corporation next
following the Corporation's fiscal year ending January 30, 1999. Notwithstanding
any provisions to the contrary contained herein, each director shall hold office
until his successor is elected and qualified, or until his earlier death,
resignation or removal.
9.3 NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Subject to the
rights of the holders of any series of Preferred Stock then outstanding, newly
created directorships resulting from any increase in the authorized number of
directors or any vacancies in the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or other cause
shall be filled by a
8
majority vote of the remaining directors then in office although less than a
quorum, or by a sole remaining director, and directors so chosen shall hold
office until their respective successors are duly elected and qualified. When
any director shall give notice of resignation effective at a future date, the
Board of Directors may fill such vacancy to take effect when such resignation
shall become effective.
10. ACTION BY STOCKHOLDERS. Notwithstanding the provisions of
section 228 of the DGCL (or any successor statute), any action required or
permitted by the DGCL to be taken at any annual or special meeting of
stockholders of the Corporation may be taken only at such an annual or special
meeting of stockholders and cannot be taken by written consent without a
meeting. At any annual meeting or special meeting of stockholders of the
Corporation, only such business shall be conducted as shall have been brought
before such meeting in the manner provided by the By-laws.
11. SPECIAL MEETINGS OF STOCKHOLDERS. Special meetings of
stockholders for any purpose may be called at any time by the Board of
Directors, the Chairman of the Board of Directors or by the President of the
Corporation. Special meetings shall be held at such place or places within or
without the State of Delaware as shall from time to time be designated by the
Board of Directors and stated in the notice of such meeting or in the waiver of
notice thereof.
12. ADOPTION, AMENDMENT AND/OR REPEAL OF BY-LAWS. The Board of
Directors may from time to time adopt, amend or repeal the By-laws; PROVIDED,
HOWEVER, that any By-laws adopted or amended by the Board of Directors may be
amended or repealed, and any By-laws may be adopted, by a vote of the
stockholders having at least a majority in voting power of the then issued and
outstanding shares of capital stock of the Corporation.
IN WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation, which restates and amends the
Corporation's Certificate of Incorporation, to be made, executed and
acknowledged by its duly authorized officer this 16th day of December, 1996, as
directed by and provided for in the Order of the United States Bankruptcy Court
for the District of Delaware, dated November 22, 1996, Confirming Debtor's
Prepackaged Plan of Reorganization under Chapter 11 of the Bankruptcy Code,
which court has jurisdiction of a proceeding under Chapter 11 of the United
States Bankruptcy Code for the reorganization of the Company pursuant to Section
303 of the Delaware General Corporation Law.
/s/ Eric N. Hoyle
--------------------------------------
Name: Eric N. Hoyle
Title: Senior Vice President,
Finance and Administration
Dates Referenced Herein and Documents Incorporated by Reference
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