-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FFr7tmwzCXzRwX/UlRlPfsx7umFqGpqyY4aIOOvG0/7Q4ntaL++5QL2/ygXyp/WL +i8wLki8SzYuzSF/AydjRA== 0001341004-06-002075.txt : 20060802 0001341004-06-002075.hdr.sgml : 20060802 20060802094954 ACCESSION NUMBER: 0001341004-06-002075 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20060801 ITEM INFORMATION: Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing ITEM INFORMATION: Changes in Control of Registrant ITEM INFORMATION: Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year ITEM INFORMATION: Other Events FILED AS OF DATE: 20060802 DATE AS OF CHANGE: 20060802 FILER: COMPANY DATA: COMPANY CONFORMED NAME: RUSSELL CORP CENTRAL INDEX KEY: 0000085812 STANDARD INDUSTRIAL CLASSIFICATION: KNIT OUTERWEAR MILLS [2253] IRS NUMBER: 630180720 STATE OF INCORPORATION: AL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-05822 FILM NUMBER: 06996365 BUSINESS ADDRESS: STREET 1: 755 LEE STREET STREET 2: P.O. BOX 272 CITY: ALEXANDER CITY STATE: AL ZIP: 35011 BUSINESS PHONE: 2565004000 MAIL ADDRESS: STREET 1: 1 LEE ST STREET 2: P O BOX 272 CITY: ALEXANDER CITY STATE: AL ZIP: 35010 FORMER COMPANY: FORMER CONFORMED NAME: RUSSELL MILLS INC DATE OF NAME CHANGE: 19730809 8-K 1 ny1140494-2.htm FORM 8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

_______________

FORM 8-K

_______________

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): August 2, 2006 (August 1, 2006)

_______________

Russell Corporation

(Exact name of registrant as specified in its charter)

_______________

 

 

 

 

 

Delaware

 

1-5822

 

63-0180720

(State or other jurisdiction

of incorporation)

 

(Commission File Number)

 

(IRS Employer

Identification No.)

3330 Cumberland Blvd., Suite 800, Atlanta, Georgia 30339

(Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code: (678) 742-8000

N/A

(Former name or former address, if changed since last report)

_______________

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

o

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 

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Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

In connection with the closing of the Merger (as defined in Item 5.01), Russell Corporation (“Russell”) has notified the New York Stock Exchange that each share of Russell common stock, $0.01 par value per share (the “Russell Common Stock”), has been converted into the right to receive $18.00 in cash, without interest, as described in Item 5.01 hereto, and has requested that the New York Stock Exchange file with the Securities and Exchange Commission an application on Form 25 to strike the Russell Common Stock from listing and registration thereon. In addition, Russell filed with the Securities and Exchange Commission (the "SEC") on August 2, 2006 a Certification on Form 15 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), requesting that the Russell Common Stock be deregistered and that Russell's reporting obligations under Sections 13 and 15(d) of the Exchange Act be suspended.

 

Item 5.01. Changes in Control of Registrant.

On August 2, 2006, pursuant to a definitive merger agreement dated April 17, 2006 (the “Merger Agreement”) by and among Russell, Berkshire Hathaway Inc., a Delaware corporation (“Berkshire”) (who, prior to the effective time of the Merger, assigned its rights, interests and obligations under and in accordance with the Merger Agreement to its wholly-owned subsidiary, Fruit of the Loom, Inc., a Delaware corporation ("Fruit")) and F Subsidiary, Inc., an indirect wholly-owned subsidiary of Berkshire (“Merger Sub”), Merger Sub merged with and into Russell (the “Merger”). Russell survived the Merger and, as a result, became an indirect wholly-owned subsidiary of Berkshire and a wholly-owned subsidiary of Fruit. Pursuant to the terms of the Merger Agreement, the merger consideration consists of $18.00 per share in cash, without interest, for each outstanding share of Russell Common Stock.

The foregoing description of the Merger Agreement (including the description of the consideration paid in connection with the Merger) is qualified in its entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit 2.1 to this report and incorporated by reference herein.

 

Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

In connection with the Merger, effective as of August 2, 2006, the Restated Certificate of Incorporation of Russell was restated by the Certificate of Merger filed by Russell with the Secretary of State of the State of Delaware on August 2, 2006. The Restated Certificate of Incorporation of Russell (the “New Certificate”) restates the prior Restated Certificate of Incorporation (the “Old Certificate”) by, among other things, reducing the authorized capital shares of Russell from 150,000,000 shares, $0.01 par value per share, of common stock and 10,000,000 shares, $0.01 par value per share, of preferred stock to 150,000,000 shares of common stock, $0.01 par value per share, and no shares of preferred stock. In addition, the filing of the New Certificate eliminated the Preferences and Rights of Series A Junior Participating Preferred Stock and the provisions in the Old Certificate relating to the authorized number of directors and the classification of the Board of Directors of Russell (the “Board”). The New Certificate also restricts the transfer of shares of common stock of Russell and, except in certain limited circumstances, provides Berkshire and Russell with the first right to acquire any such shares.

The foregoing description of the New Certificate is qualified in its entirety by reference to the Restated Certificate of Incorporation of Russell which is attached as Exhibit 3.1 hereto and is incorporated by reference into this Item 5.03.

Also in connection with the Merger, the Amended and Restated By-Laws of Russell (the “Old By-Laws”) were amended and restated, effective as of August 2, 2006, to provide, among other things, that the number of directors serving on the Board shall be between one and fifteen and to eliminate classification of the Board. The new Amended and Restated By-Laws of Russell (the "New By-Laws") further provide for (i) the removal of directors upon the affirmative vote of a majority of the outstanding shares entitled to vote and (ii) the ability of the directors, by a majority vote, and the stockholders, by an affirmative vote of a majority in interest, to increase the number of directors serving on the Board. In addition, the New By-Laws remove the requirement for a record date for the payment of dividends to be set within 60 days of the taking of such action.

 

The foregoing description of the New By-Laws is qualified in its entirety by reference to the New By-Laws of Russell which are attached as Exhibit 3.1 hereto and are incorporated by reference into this Item 5.03.

 

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Item 8.01 Other Items

On August 2, 2006, Russell issued a press release announcing the completion of the Merger. A copy of the press release is attached hereto as Exhibit 99.1 and incorporated herein by reference.

 

Item 9.01 Financial Statements and Exhibits

Exhibit No.

Description

2.1

Agreement and Plan of Merger, dated as of April 17, 2006, by and among Russell Corporation, Berkshire Hathaway Inc. and F Subsidiary, Inc. (incorporated by reference to Exhibit 2.1 of Form 8-K (File No. 1-5822) filed April 18, 2006)

3.1

Restated Certificate of Incorporation of Russell Corporation

3.2

Amended and Restated By-laws of Russell Corporation

99.1

Russell Corporation Press Release

 

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

RUSSELL CORPORATION

By: /s/ Floyd G. Hoffman                                

 

Floyd G. Hoffman

 

 

August 2, 2006

Senior Vice President, Corporate Development,

 

General Counsel and Secretary

 

 

 

 

3

 

 

 

GRAPHIC 2 img1.gif GRAPHIC begin 644 img1.gif M1TE&.#EA=`(%`'<`,2'^&E-O9G1W87)E.B!-:6-R;W-O9G0@3V9F:6-E`"'Y M!`$`````+`(```!P`@0`@0```("`@-34U`$"`P)-C(^IR^T/HYRTVHNSWKS[ M#X;B2);FB:;JRK;N"\?R3->;@.?ZSO?^#PP*A\2B\8A,*I?,IO,)C4JGU*KU 3BLUJM]RN]PL.B\?DLOG<+```.S\_ ` end GRAPHIC 3 img2.gif GRAPHIC begin 644 img2.gif M1TE&.#EA=`(%`'<`,2'^&E-O9G1W87)E.B!-:6-R;W-O9G0@3V9F:6-E`"'Y M!`$`````+`(```!P`@0`@0```("`@-34U`$"`P)-C(^IR^T/HYRTVHNSWKS[ M#X;B2);FB:;JRK;N"\?R3->;@.?ZSO?^#PP*A\2B\8A,*I?,IO,)C4JGU*KU 3BLUJM]RN]PL.B\?DLOG<+```.S\_ ` end EX-3 4 nyc1144772.htm EXHIBIT 3.1 - RESTATED CERT OF INCORPORATION

RESTATED CERTIFICATE OF INCORPORATION

OF

RUSSELL CORPORATION

FIRST. The name of the corporation is Russell Corporation (the “Corporation”).

SECOND. The address of the registered office of the Corporation in the State of Delaware is 1209 Orange Street, Wilmington, New Castle County, Delaware 19801. The name of its registered agent at such address is The Corporation Trust Company.

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.

FOURTH. The total number of shares of stock which the Corporation shall have authority to issue is 150,000,000 shares. All such shares are to be Common Stock, having a par value of $.01 per share, and are to be of one class.

FIFTH. Unless and except to the extent that the by-laws of the Corporation so require, the election of directors of the Corporation need not be by written ballot.

SIXTH. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, alter and repeal the by-laws of the Corporation, subject to the power of the stockholders of the Corporation to alter or repeal any by-law whether adopted by them or otherwise.

SEVENTH. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

 

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EIGHTH. No stockholder (other than Berkshire Hathaway Inc. and its subsidiaries) may sell, transfer, assign, pledge or otherwise encumber any shares of the common stock of the Corporation (“Shares”), grant any right to purchase any Shares, or engage in any transaction to reduce the risk of ownership thereof, except that Shares may be (a) transferred to the estate or heirs of such stockholder upon his or her death, or (b) sold for cash to an unaffiliated third party who has delivered to such stockholder a bona fide offer to purchase such Shares, if the Corporation and Berkshire Hathaway Inc. (together with its subsidiaries) are first given a right to acquire such Shares. Such right to acquire shall operate as follows: A stockholder of the Corporation who has received a bona fide cash offer from an unaffiliated third party purchaser to acquire a specified number of Shares must notify the Corporation and Berkshire Hathaway Inc. of the offer and the number of Shares proposed to be acquired by the third party, and must provide the Corporation and Berkshire Hathaway Inc. (together with its subsidiaries) with the prior opportunity to acquire these Shares at the same cash price and otherwise on the same terms as he or she proposes to sell the Shares to the third party. If neither the Corporation nor Berkshire Hathaway Inc. (together with its subsidiaries) elects to acquire the Shares on these terms within 30 days following any such notice, the notifying stockholder will have 30 days (the “30-day Period”) in which to sell the number of Shares specified in his or her notice to the third party at the price specified in the notice, or at any higher price, and otherwise on the terms specified in the notice. Following the 30-day Period, no sales of Shares will be permitted unless a stockholder again complies with such requirements as they would apply to any new offer.

NINTH. 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, and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, 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 rights reserved in this article.

 

 

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EX-3 5 nyc1142238.htm EXHIBIT 3.2 - AMENDED & RESTATED BY-LAWS

AMENDED AND RESTATED

BY-LAWS

OF

RUSSELL CORPORATION

ARTICLE I - OFFICES

SECTION 1.    REGISTERED OFFICE. The registered office shall be established and maintained at 1209 Orange Street, Wilmington, Delaware 19805.

SECTION 2.     OTHER OFFICES. The corporation may have other offices, either within or without the State of Delaware, at such place or places as the Board of Directors may from time to time determine or the business of the corporation may require.

ARTICLE II - MEETING OF STOCKHOLDERS

SECTION 1.     ANNUAL MEETINGS. Annual meetings of stockholders for the election of directors and for such other business as may be stated in the notice of the meeting, shall be held at such place, either within or without the State of Delaware, and at such time and date as the Board of Directors, by resolution, shall determine and as set forth in the notice of the meeting.

If the date of the annual meeting shall fall upon a legal holiday, the meeting shall be held on the next succeeding business day. At each annual meeting, the stockholders entitled to vote shall elect a Board of Directors and may transact such other corporate business as shall be stated in the notice of the meeting.

SECTION 2.    OTHER MEETINGS. Meetings of stockholders for any purpose other than the election of directors may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting.

SECTION 3.     VOTING. Each stockholder entitled to vote in accordance with the terms and provisions of the Certificate of Incorporation and these By-Laws shall be entitled to one vote, in person or by proxy, for each share of stock entitled to vote held by such stockholder, but no proxy shall be voted after three years from its date unless such proxy provides for a longer period. Upon the demand of any stockholder, the vote for directors and upon any question before the meeting shall be by ballot. All elections for directors shall be decided by plurality vote; all other questions shall be decided by majority vote except as otherwise provided by the Certificate of Incorporation or the laws of the State of Delaware.

SECTION 4.     STOCKHOLDER LIST. The officer who has charge of the stock ledger of the corporation shall at least ten (10) days before each meeting of stockholders prepare a complete alphabetically addressed list of the stockholders entitled to vote at the ensuing meeting, with the number of shares held by each. Said list shall be open to the examination of any

 

 

 

 

 

 



 

stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall be available for inspection at the meeting.

SECTION 5.    QUORUM. Except as otherwise required by law, by the Certificate of Incorporation or by these By-Laws, the presence, in person or by proxy, of stockholders holding a majority of the stock of the corporation entitled to vote shall constitute a quorum. A majority in interest of the stockholders entitled to vote thereat, present in person or by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until the requisite amount of stock entitled to vote to constitute a quorum shall be present. At any such adjourned meeting at which the requisite amount of stock entitled to vote shall be represented, any business may be transacted which might have been transacted at the meeting as originally noticed; but only those stockholders entitled to vote at the meeting as originally noticed shall be entitled to vote at any adjournment or adjournments thereof, provided, however, that the directors of the corporation may set a new record date for such adjourned meeting in accordance with Article 5, Section 4 hereof.

SECTION 6.    SPECIAL MEETINGS. Special meetings of the stockholders, for any purpose, unless otherwise prescribed by statute or by the Certificate of Incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the directors or stockholders entitled to vote. Such request shall state the purpose of the proposed meeting.

SECTION 7.     NOTICE OF MEETINGS. Written notice, stating the place, date and time for the meeting, and the general nature of the business to be considered, shall be given to each stockholder entitled to vote thereat at his address as it appears on the records of the corporation, not less than ten (10) nor more than fifty (50) days before the date of the meeting.

SECTION 8.    BUSINESS TRANSACTED. No business other than that stated in the notice shall be transacted at any meeting without the unanimous consent of all the stockholders entitled to vote thereat.

SECTION 9.    ACTION WITHOUT MEETING. Except as otherwise provided by the Certificate of Incorporation, whenever the vote of stockholders at a meeting thereof is required or permitted to be taken in connection with any corporate action by any provision of statute or the Certificate of Incorporation or by these By-Laws, the meeting and vote of the stockholders may be dispensed with, if all the stockholders who would have been entitled to vote upon the action if such meeting were held, shall consent in writing to such corporate action being taken.

ARTICLE III - DIRECTORS

SECTION 1.     NUMBER AND TERM. The number of directors shall be a number not less than one (1) and not more than fifteen (15), the exact number of which shall be fixed by resolution of the Board. The directors shall be elected at the annual meeting of stockholders and each director shall be elected to serve until his successor shall be elected and shall qualify.

 

 

 

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SECTION 2.     RESIGNATIONS. Any director, member of a committee or other officer may resign at any time. Such resignation shall be made in writing, and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary to make it effective.

SECTION 3.    VACANCIES. If the office of any director, member of a committee or other officer becomes vacant, the remaining directors in office, though less than a quorum, may appoint, by a majority vote, any qualified person to fill such vacancy, who shall hold office for the unexpired term and until his successor shall be duly chosen.

SECTION 4.    REMOVAL. Any director or directors may be removed either for or without cause at any time by the affirmative vote of the holders of a majority of all the shares of stock outstanding and entitled to vote, at a special meeting of the stockholders called for that purpose, and the vacancies thus created may be filled, at the meeting held for the purpose of removal, by the affirmative vote of a majority in interest of the stockholders entitled to vote.

SECTION 5.     INCREASE OF NUMBER. The number of directors may be increased by amendment of these By-Laws by the affirmative vote of a majority of the directors, though less than a quorum, or by the affirmative vote of a majority in interest of the stockholders, at the annual meeting or at a special meeting called for that purpose, and by like vote the additional directors may be chosen at such meeting to hold office until the next annual election and until their successors are elected and qualify.

SECTION 6.     COMPENSATION. Directors shall not receive any stated salary for their services as directors or as members of committees, but by resolution of the board a fixed fee and expenses of attendance may be allowed for attendance at each meeting. Nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity as an officer, agent or otherwise, and receiving compensation therefor.

SECTION 7.     ACTION WITHOUT MEETING. Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting, if prior to such action a written consent thereto is signed by all members of the board, or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the board or committee.

ARTICLE IV - OFFICERS

SECTION 1.     OFFICERS. The officers of the corporation shall consist of a President, a Treasurer and a Secretary, and shall be elected by the Board of Directors and shall hold office until their successors are elected and qualified. In addition, the Board of Directors may elect a Chairman, one or more Vice-Presidents, and such Assistant Secretaries and Assistant Treasurers as it may deem proper. None of the officers of the Corporation need be directors. The officers shall be elected at the first meeting of the Board of Directors after each annual meeting. Any number of offices may be held by the same person.

SECTION 2.     OTHER OFFICERS AND AGENTS. The Board of Directors may appoint such officers and agents as it may deem advisable, who shall hold their offices for such

 

 

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terms and shall exercise such power and perform such duties as shall be determined from time to time by the Board of Directors.

SECTION 3.     CHAIRMAN. The Chairman of the Board of Directors, if one be elected, shall preside at all meetings of the Board of Directors and he or she shall have and perform such other duties as from time to time may be assigned to him by the Board of Directors.

SECTION 4.    PRESIDENT. The President shall be the chief executive officer of the corporation and shall have the general powers and duties of supervision and management usually vested in the office of President of a corporation. He or she shall preside at all meetings of the stockholders if present thereat, and in the absence or non-election of the Chairman of the Board of Directors, at all meetings of the Board of Directors, and shall have general supervision, direction and control of the business of the corporation. Except as the Board of Directors shall authorize the execution thereof in some other manner, he or she shall execute bonds, mortgages, and other contracts in behalf of the corporation, and shall cause the seal to be affixed to any instrument requiring it and when so affixed the seal shall be attested by the signature of the Secretary or the Treasurer or an Assistant Secretary or an Assistant Treasurer.

SECTION 5.    VICE-PRESIDENT. Each Vice-President shall have such powers and shall perform such duties as shall be assigned him or her by the directors.

SECTION 6.    TREASURER. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate account of receipts and disbursements in books belonging to the corporation. He or she shall deposit all moneys and other valuables in the name and to the credit of the corporation in such depositories as may be designated by the Board of Directors.

The Treasurer shall disburse the funds of the corporation as may be ordered by the Board of Directors, or the President, taking proper vouchers for such disbursements. He or she shall render to the President and Board of Directors at the regular meetings of the Board of Directors, or whenever they may request it, an account of all his or her transactions as Treasurer and of the financial condition of the corporation. If required by the Board of Directors, he or she shall give the corporation a bond for the faithful discharge of his or her duties in such amount and with such surety as the board shall prescribe.

SECTION 7.     SECRETARY. The Secretary shall give, or cause to be given, notice of all meetings of stockholders and directors, and all other notices required by law or by these By-Laws, and in case of his or her absence or refusal or neglect to do so, any such notice may be given by any person thereunto directed by the President, or by the directors, or stockholders, upon whose requisition the meeting is called as provided in these By-Laws. He or she shall record all the proceedings of the meetings of the corporation and of directors in a book to be kept for that purpose, and shall affix the same to all instruments requiring it, when authorized by the directors or the President, and attest the same.

SECTION 8.     ASSISTANT TREASURERS & ASSISTANT SECRETARIES. Assistant Treasurers and Assistant Secretaries, if any, shall be elected and shall have such powers and shall perform such duties as shall be assigned to them, respectively, by the directors.

 

 

 

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ARTICLE V

SECTION 1.    CERTIFICATES OF STOCK. Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president and the treasurer or an assistant treasurer, or the secretary of the corporation, certifying the number of shares owned by him in the corporation. If the corporation shall be authorized to issue more than one class of stock or more than one series of any class, the designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations, or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate which the corporation shall issue to represent such class or series of stock, provided that, except as otherwise provided in section 202 of the General Corporation Law of Delaware, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate which the corporation shall issue to represent such class or series of stock, a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Where a certificate is countersigned (1) by a transfer agent other than the corporation or its employee, or (2) by a registrar other than the corporation or its employee, the signatures of such officers may be facsimiles.

SECTION 2.    LOST CERTIFICATES. New certificates of stock may be issued in the place of any certificate therefore issued by the corporation, alleged to have been lost or destroyed, and the directors may, in their discretion, require the owner of the lost or destroyed certificate or his or her legal representatives, to give the corporation a bond, in such sum as they may direct, not exceeding double the value of the stock, to indemnify the corporation against it on account of the alleged loss of any such new certificate.

SECTION 3.     TRANSFER OF SHARES. The shares of stock of the corporation shall be transferable only upon its books by the holders thereof in person or by their duly authorized attorneys or legal representatives, and upon such transfer the old certificates shall be surrendered to the corporation by the delivery thereof to the person in charge of the stock and transfer books and ledgers, or to such other persons as the directors may designate, by whom they shall be cancelled, and new certificates shall thereupon be issued. A record shall be made of each transfer and whenever a transfer shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer.

SECTION 4.     STOCKHOLDERS RECORD DATE. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days before the day of such meeting, nor more than sixty (60) days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to

 

 

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any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

SECTION 5.     DIVIDENDS. Subject to the provisions of the Certificate of Incorporation the Board of Directors may, out of funds legally available therefor, at any regular or special meeting, declare dividends upon the capital stock of the corporation as and when they deem expedient. Before declaring any dividends there may be set apart out of any funds of the corporation available for dividends, such sum or sums as the directors from time to time in their discretion deem proper working capital or as a reserve fund to meet contingencies or for equalizing dividends or for such other purposes as the directors shall deem conducive to the interests of the corporation.

SECTION 6.     SEAL. The corporate seal shall be circular in form and shall contain the name of the corporation and the year of its creation. Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced.

SECTION 7.     FISCAL YEAR. The fiscal year of the corporation shall be determined by resolution of the Board of Directors.

SECTION 8.     CHECKS. All checks, drafts, or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner as shall be determined from time to time by resolution of the Board of Directors.

SECTION 9.     NOTICE AND WAIVER OF NOTICE. Whenever any notice is required by these By-Laws to be given, personal notice is not meant unless expressly stated, and any notice so required shall be deemed to be sufficient if given by depositing the same in the United States mail, postage prepaid, addressed to the person entitled thereto at his address as it appears on the records of the corporation, and such notice shall be deemed to have been given on the day of such mailing. Stockholders not entitled to vote shall not be entitled to receive notice of any meetings except as otherwise provided by statute.

Whenever any notice whatever is required to be given under the provisions of any law, or under the provisions of the Certificate of Incorporation of the corporation or these By-Laws, a waiver thereof in writing signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed proper notice.

ARTICLE VI - INDEMNIFICATION OF DIRECTORS,

OFFICERS AND OTHERS

SECTION 1. RIGHT TO INDEMNIFICATION. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that he, or a person for whom he is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to

 

 

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employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such person. The Corporation shall be required to indemnify a person in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors of the corporation.

SECTION 2. PAYMENT OF EXPENSES. The Corporation may, in its discretion, pay the expenses (including attorneys’ fees) incurred in defending any proceeding in advance of its final disposition, provided, however, that the payment of expenses incurred by a director or officer in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the director or officer to repay all amounts advanced if it should ultimately be determined that the director or officer is not entitled to be indemnified under this Article or otherwise.

SECTION 3. CLAIMS. If a claim for indemnification or payment of expenses under this Article is not paid in full within sixty days after a written claim therefor has been received by the Corporation, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving that the claimant was not entitled to the requested indemnification or payment of expenses under applicable law.

SECTION 4. NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any person by this Article VI shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these bylaws, agreement, vote of stockholders or disinterested directors or otherwise.

SECTION 5. OTHER INDEMNIFICATION. The Corporation’s obligation, if any, to indemnify any person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership, joint venture, trust, enterprise or nonprofit entity.

SECTION 6. AMENDMENT OR REPEAL. Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification.

SECTION 7.    DEFINITION OF CORPORATION. For purposes of this Article VI reference to “the corporation” includes all constituent entities absorbed in a consolidation or merger as well as the resulting or surviving entity so that any person who is or was a director or officer of such a constituent entity shall stand in the same position under the provisions of this Article with respect to the resulting or surviving entity in the same capacity.

ARTICLE VII - AMENDMENTS

These By-Laws may be altered and repealed and By-Laws may be made at any annual meeting of the stockholders or at any special meeting thereof if notice thereof is contained in the notice of such special meeting by the affirmative vote of a majority of the stock issued and outstanding or entitled to vote thereat, or by the action of the Board of Directors, at any regular

 

 

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meeting of the Board of Directors, or at any special meeting of the Board of Directors, if notice thereof is contained in the notice of such special meeting.

 

 

 

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EX-99 6 ny1144589-2.htm EXHIBIT 99.1 - PRESS RELEASE

 

 

FOR IMMEDIATE RELEASE

 

ACQUISITION OF RUSSELL CORPORATION COMPLETE

 

ATLANTA (AUGUST 2, 2006) – Russell Corporation (NYSE: RML), a leading branded athletic and sporting goods company, announced today the successful completion of its acquisition by Fruit of the Loom, Inc., a subsidiary of Berkshire Hathaway Inc. (NYSE: BRK.A and BRK.B). Russell stockholders approved the transaction at a special stockholder’s meeting on August 1, 2006.

In connection with the closing, Russell intends to notify the New York Stock Exchange that each share of Russell common stock has been converted into the right to receive $18.00 in cash, without interest, and will request that the New York Stock Exchange file with the Securities and Exchange Commission an application to strike Russell Common Stock from listing and registration on the NYSE. In addition, Russell will file with the Securities and Exchange Commission a request that Russell Common Stock be deregistered and that Russell's reporting obligations under Sections 13 and 15(d) of the Securities Exchange Act be suspended.

 

About Russell Corporation

Russell Corporation is a leading branded athletic and sporting goods company marketing athletic apparel, uniforms, footwear and equipment for a wide variety of sports, outdoor and fitness activities. The Company’s major brands include Russell Athletic®, JERZEES®, Spalding®, Brooks®, Huffy Sports®, Bike®, Moving Comfort®, AAI® and Mossy Oak®.

 

 

CONTACT:

For Russell Corporation:

 

Roger Holliday (Financial) 678-742-8181

Nancy Young (Media) 678-742-8118

 

 

                

 

 

 

 

 

 

 

 

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