EXHIBIT (3a)
RESTATED ARTICLES OF INCORPORATION
RESTATED
ARTICLES OF INCORPORATION
OF
RUSSELL CORPORATION
Composite Restated Articles of Incorporation as
adopted on April 28, 1982 and as amended through
March 25, 2003.
RESTATED
ARTICLES OF INCORPORATION
OF
RUSSELL CORPORATION
1. The name of the corporation is Russell Corporation.
2. The period of its duration is perpetual.
3. The purpose or purposes for which the corporation is organized
are the transaction of any or all lawful business for which corporations may be
incorporated under the Alabama Business Corporation Act, including, but not
limited to, the manufacture and sale of textile products.
4. (a) The aggregate number of shares of capital stock which
the corporation shall have authority to issue is one hundred sixty million
(160,000,000) shares, of which ten million (10,000,000) shares, par value $.01
per share, are to be preferred stock (hereinafter called "Preferred Stock"), and
one hundred fifty million (150,000,000) shares, par value $.01 share, are to be
common stock (hereinafter called "Common Stock").
(b) The Preferred Stock may be issued in such one or more
series as shall from time to time be created and authorized to be issued by the
board of directors of the corporation as hereinafter provided.
The board of directors is hereby expressly authorized, by resolution or
resolutions from time to time adopted providing for the issuance of Preferred
Stock, to fix and determine, to the extent not fixed by the provisions
hereinafter set forth, the relative rights and preferences of the shares of each
series of Preferred Stock, including (but without limiting the generality of the
foregoing) any of the following with respect to which the board of directors may
make specific provisions:
(i) the distinctive name and any serial
designations;
(ii) the annual dividend rate or rates and the
dividend payment dates;
(iii) with respect to the declaration and payment
of dividends upon each series of the Preferred Stock, whether
such dividends are to be cumulative or noncumulative,
preferred, subordinate or equal to dividends declared and paid
upon other series of the Preferred Stock or upon any other
shares of stock of the corporation, and the participating or
other special rights, if any, of such dividends;
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(iv) the redemption provisions, if any, with
respect to any series, and, if any series is subject to
redemption, the manner and time of redemption and the
redemption price or prices;
(v) the amount or amounts of preferential or
other payment to which any series of Preferred Stock is
entitled over any other series of Preferred Stock or over the
Common Stock on voluntary or involuntary liquidation,
dissolution or winding-up, subject to the provisions set forth
in paragraph (d)(ii) of this Article 4;
(vi) any sinking fund or other retirement
provisions and the extent to which the charges therefor are to
have priority over the payment of dividends on or the making
of sinking fund or other like retirement provisions for shares
of any other series of Preferred Stock or for shares of the
Common Stock;
(vii) any conversion, exchange, purchase or other
privileges to acquire shares of any other series of Preferred
Stock or of the Common Stock;
(viii) the number of shares of such series; and
(ix) the voting rights, if any, of such series,
subject to the provisions set forth in paragraph (d)(i) of
this Article 4.
Each share of each series of Preferred Stock shall have the same
relative rights and be identical in all respects with all the other shares of
the same series.
Before the corporation shall issue any shares of Preferred Stock of any
series authorized as hereinbefore provided, a statement setting forth a copy of
the resolution or resolutions with respect to such series adopted by the board
of directors of the corporation pursuant to the foregoing authority vested in
the board of directors shall be made, filed and recorded in accordance with the
then applicable requirements, if any, of the laws of the State of Alabama, or,
if no statement is then so required, a certificate shall be signed and
acknowledged on behalf of the corporation by its Chairman of the Board,
President or a Vice-President and its corporate seal shall be affixed thereto
and attested by its Secretary or any Assistant Secretary and such certificate
shall be filed and kept on file at the principal office of the corporation in
the State of Alabama and in such other place or places as the board of directors
shall designate.
(c) The authority of the board of directors to provide
for the issuance of any shares of the corporation's stock shall include, but
shall not be limited to, authority to issue shares of stock of the corporation
for any purpose and in any manner (including issuance pursuant to rights,
warrants, or other options) permitted by law, for delivery as all or part of the
consideration for or in connection with the acquisition of all or part of the
stock of another corporation or of all or part of the assets of another
corporation or enterprise, irrespective of the amount by which the issuance of
such stock shall increase the number of shares outstanding (but not in excess of
the number of shares authorized).
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(d) The following relative rights and preferences of the
capital stock of the corporation are fixed as follows:
(i) Voting Rights.
(A) Common Stock. At all elections of directors
of the corporation, and in respect of all other matters as to
which the vote or consent of shareholders of the corporation
shall be required to be taken, the holders of the Common Stock
shall be entitled to one (1) vote for each share held by them.
(B) Preferred Stock. The holders of each series
of the Preferred Stock shall have such voting rights as may be
fixed by resolution or resolutions of the board of directors
providing for the issuance of each such series.
(ii) Liquidation, Dissolution, etc. In the event
of any voluntary or involuntary liquidation, dissolution or
winding-up of the corporation, the assets of the corporation
available for distribution to the shareholders (whether from
capital or surplus) shall be distributed among those of the
respective series of the outstanding Preferred Stock, if any,
as may be entitled to any preferential amounts and among the
respective holders thereof in accordance with the relative
rights and preferences, if any, fixed and determined for each
such series and the holders thereof by resolution or
resolutions of the board of directors providing for the issue
of each such series of the Preferred Stock; and after payment
in full of the amounts payable in respect of the Preferred
Stock, if any, the holders of any series of the outstanding
Preferred Stock who are not entitled to preferential treatment
pursuant to resolutions of the board of directors providing
for the issue thereof and the holders of the outstanding
Common Stock shall be entitled (to the exclusion of the
holders of any series of the outstanding Preferred Stock
entitled to preferential treatment pursuant to resolutions of
the board of directors providing for the issue thereof) to
share ratably in all the remaining assets of the corporation
available for distribution to its shareholders.
A merger, consolidation or reorganization of the
corporation with or into one or more corporations, or a sale,
lease or other transfer of all or substantially all the assets
of the corporation, that does not result in the termination of
the enterprise and distribution of the assets to shareholders,
shall not be deemed to constitute a liquidation, dissolution
or winding-up of the corporation within the meaning of this
paragraph (d)(ii), notwithstanding the fact that the
corporation may cease to exist or may surrender its Restated
Articles of Incorporation.
(iii) Dividends and Other Distributions. Dividends
on any stock of the corporation shall be payable only out of
earnings, surplus or assets of the corporation legally
available for the payment of such dividends and only as and
when declared by the board of directors. The board of
directors of the corporation may, from time to time,
distribute to the shareholders of the corporation out of the
capital surplus of the corporation a portion of the assets of
the corporation to the extent and in the manner provided by
law.
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(e) The corporation shall have the right to
purchase, take, receive or otherwise acquire, hold, own,
pledge and transfer or otherwise dispose of its own shares.
Purchases by the corporation of its own shares, whether direct
or indirect, may be made to the extent of unreserved and
unrestricted earned surplus and capital surplus of the
corporation available therefor.
(f) No holder of any share or shares of any
class of stock of the corporation shall have any preemptive
right to subscribe for any shares of stock of any class of the
corporation now or hereafter authorized or for any securities
convertible into or carrying any optional rights to purchase
or subscribe for any shares of stock of any class of the
corporation now or hereafter authorized.
5. The mailing address of the registered office of the
corporation is Russell Corporation, P. 0. Box 272, Alexander City, Alabama
35010, and the name of its registered agent at such address is James D. Nabors.
6. The number of directors constituting the present board of
directors of the corporation is 11, and the names and addresses of the persons
who are serving as directors until the next annual meeting of shareholders or
until their successors are elected and qualify are as follows:
NAME ADDRESS
E. C. Gwaltney Russell Corporation
P. 0. Box 272
Alexander City, Alabama 35010
Dwight L. Carlisle, Jr. Russell Corporation
P. 0. Box 272
Alexander City, Alabama 35010
Frank K. Hall Russell Corporation
P. 0. Box 272
Alexander City, Alabama 35010
George W. Hardy Russell Corporation
P. 0. Box 272
Alexander City, Alabama 35010
Emil Hess Russell Corporation
P. 0. Box 272
Alexander City, Alabama 35010
H. Scott Howell Russell Corporation
P. 0. Box 272
Alexander City, Alabama 35010
Glenn Ireland, II Russell Corporation
P. 0. Box 272
Alexander City, Alabama 35010
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NAME ADDRESS
Crawford T. Johnson, III Russell Corporation
P. 0. Box 272
Alexander City, Alabama 35010
Finis Morgan Russell Corporation
P. 0. Box 272
Alexander City, Alabama 35010
Benjamin Russell Russell Corporation
P. 0. Box 272
Alexander City, Alabama 35010
John R. Thomas Russell Corporation
P. 0. Box 272
Alexander City, Alabama 35010
7. The names and addresses of the original incorporators are as
follows:
NAME ADDRESS
B. Russell Russell Corporation
P. 0. Box 272
Alexander City, Alabama 35010
T. C. Russell Russell Corporation
P. 0. Box 272
Alexander City, Alabama 35010
O. C. Thomas Russell Corporation
P. 0. Box 272
Alexander City, Alabama 35010
J. H. Henderson Russell Corporation
P. 0. Box 272
Alexander City, Alabama 35010
A. L. Harlan Russell Corporation
P. 0. Box 272
Alexander City, Alabama 35010
8. (a) Number, Election and Terms. All corporate powers
shall be exercised by or under the authority of, and the business and affairs of
the corporation shall be managed under the direction of, a board of directors
which, except as otherwise fixed by or pursuant to the provisions of Article 4
hereof relating to the rights of the holders of any series of Preferred Stock to
elect additional directors under specified circumstances, shall consist of not
less than nine nor more than fifteen persons. The exact number of directors
within the minimum and maximum limitations specified in the preceding sentence
shall be fixed from time to time by the board of directors pursuant to a
resolution adopted by a majority of the entire board of directors. At the annual
meeting of shareholders of the corporation held in 1988, the directors shall be
divided into three classes, as nearly equal in number as possible, with the term
of office of the first
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class of directors to expire at the annual meeting of shareholders of the
corporation to be held in 1989, the term of office of the second class of
directors to expire at the annual meeting of shareholders of the corporation to
be held in 1990 and the term of office of the third class of directors to expire
at the annual meeting of shareholders of the corporation to be held in 1991. At
each annual meeting of shareholders of the corporation following such initial
classification and election, and except as otherwise so fixed by or pursuant to
the provisions of Article 4 hereof relating to the rights of the holders of any
series of Preferred Stock to elect additional directors under specified
circumstances and except as provided below in this Article 8 in the case of
electing a successor to a director elected by the board of directors to fill a
vacancy occurring in the membership of the board of directors, directors elected
to succeed those directors whose terms expire at such annual meeting shall be
elected for a term of office to expire at the third succeeding annual meeting of
shareholders of the corporation after their election.
(b) Vacancies and Newly Created Directorships. Subject to
the rights of the holders of any series of Preferred Stock then outstanding, any
vacancy occurring in the board of directors may be filled by the affirmative
vote of a majority of the remaining directors though less than a quorum of the
board of directors. A director so elected to fill a vacancy shall be elected to
serve until the next annual meeting of shareholders, at which time a director
shall be elected to fill the unexpired portion of the term of office of the
director whose successor was elected by the remaining directors. Any
directorship to be filled by reason of an increase in the number of directors
shall be filled by election at an annual meeting or at a special meeting of
shareholders called for that purpose, unless applicable law then permits such
directorship to be filled by the affirmative vote of a majority of the remaining
directors (even though less than a quorum of the board of directors). No
decrease in the number of directors constituting the board of directors shall
shorten the term of any incumbent director.
(c) Continuance in Office. Notwithstanding the foregoing
provisions of this Article 8, any director whose term of office has expired
shall continue to hold office until his successor shall be elected and qualify.
(d) Removal. Subject to the rights of the holders of any
series of Preferred Stock then outstanding, any director, or the entire board of
directors, may be removed from office at any time, without cause, but only by
the affirmative vote of at least seventy-five percent (75%) of the total number
of votes entitled to be cast by the holders of all of the shares of capital
stock of the corporation then entitled to vote generally in the election of
directors. The holder of each share of capital stock entitled to vote thereon
shall be entitled to cast the same number of votes as the holder of such shares
is entitled to cast generally in the election of each director. Subject to the
rights of the holders of any series of Preferred Stock then outstanding, a
director, or the entire board of directors, may be removed from office at any
time, with cause in the manner provided by law.
(e) Amendment, Repeal, etc. Notwithstanding any other
provisions of these Restated Articles of Incorporation or the Bylaws of the
corporation (and notwithstanding the fact that some lesser percentage may be
specified by law, these Restated Articles of Incorporation or the Bylaws of the
corporation), the affirmative vote of at least seventy-five percent (75%) of the
total number of votes entitled to be cast by the holders of all of the shares of
capital stock of the corporation then entitled to vote generally in the election
of directors shall be required to amend, alter, change or repeal, or to adopt
any provision as part of these Restated Articles of Incorporation inconsistent
with, this Article 8. The holder of each share of capital stock entitled to vote
thereon shall be entitled to cast the same number of votes as the holder of such
shares is entitled to cast generally in the election of each director.
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9. Certain Provisions Respecting Business Combinations:
Section 9.01. Definitions. For the purposes of this Article 9:
(a) An "Affiliate" of, or a person "Affiliated" with, a
specified person, is a person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the person specified.
(b) "Announcement Date" means, with respect to any
Business Combination, the date of the first public announcement of such Business
Combination.
(c) "Associate," when used to indicate a relationship
with any person, means (i) any corporation or organization (other than the
corporation or a Subsidiary) of which such person is an officer or partner or
is, directly or indirectly, the beneficial owner of 10 percent or more of any
class of equity securities, (ii) any trust or other estate in which such person
has a substantial beneficial interest or as to which such person serves as
trustee or in a similar fiduciary capacity, and (iii) any relative or spouse of
such person, or any relative of such spouse, who has the same home as such
person or who is a director or officer of the corporation or any of its parents
or subsidiaries.
(d) A person shall be a "beneficial owner" of any Voting
Stock:
(i) which such person or any of its Affiliates
or Associates beneficially owns, directly or indirectly; or
(ii) which such person or any of its Affiliates
or Associates has (A) the right to acquire (whether such right
is exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding or
upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (B) the right to vote or
direct the vote pursuant to any agreement, arrangement or
understanding; or
(iii) which is beneficially owned, directly or
indirectly, by any other person with which such person or any
of its Affiliates or Associates has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting
or disposing of any shares of capital stock of the
corporation;
provided, however, that no director or officer of the corporation (nor any
Affiliate or Associate of such director or officer) shall, solely by reason of
any or all of such directors or officers acting in their capacities as such, be
deemed the "beneficial owner" of any shares of Voting Stock that are
beneficially owned by any other such director or officer.
(e) For the purposes of determining whether a person is
an Interested Shareholder pursuant to paragraph (l) of this Section 9.01, the
number of shares of Voting Stock deemed to be outstanding shall include shares
deemed owned by the Interested Shareholder through
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application of paragraph (d) of this Section 9.01, but shall not include any
other shares of Voting Stock which may be issuable pursuant to any agreement, or
upon exercise of conversion rights, warrants or options, or otherwise.
(f) "Board" means the board of directors of the
corporation.
(g) A "Business Combination" shall mean any one or more
of the following:
(i) any merger or consolidation of the
corporation or any Subsidiary with or into (A) any Interested
Shareholder or (B) any other corporation (whether or not
itself an Interested Shareholder) which is, or after such
merger or consolidation would be, an Affiliate of an
Interested Shareholder; or
(ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a series
of transactions) to or with any Interested Shareholder or any
Affiliate of any Interested Shareholder of any assets of the
corporation or any Subsidiary having an aggregate Fair Market
Value of $1,000,000 or more; or
(iii) the issuance, pledge, transfer or other
disposition by the corporation or any Subsidiary (in one
transaction or a series of transactions) of any securities of
the corporation or any Subsidiary to any Interested
Shareholder or any Affiliate of any Interested Shareholder in
exchange for cash, securities or other property (or a
combination thereof) having an aggregate Fair Market Value of
$1,000,000 or more; or
(iv) the adoption of any plan or proposal for the
liquidation or dissolution of the corporation proposed by or
on behalf of an Interested Shareholder or an Affiliate of any
Interested Shareholder; or
(v) any reclassification of securities
(including any reverse stock split), or recapitalization of
the corporation, or any merger or consolidation of the
corporation with any of its Subsidiaries or any similar
transaction (whether or not with or into or otherwise
involving an Interested Shareholder) which has the effect,
directly or indirectly, of increasing the proportionate share
of the outstanding shares of any class of equity securities,
or securities convertible into equity securities, of the
corporation or any Subsidiary, including, without limitation,
any class or series of Protected Stock, which is directly or
indirectly owned by any Interested Shareholder or any
Affiliate of any Interested Shareholder; or
(vi) any agreement, contract or other arrangement
providing for any one or more of the actions specified in the
foregoing clauses (i) through (v).
(h) "Consummation Date" means, with respect to any
Business Combination, the date on which such Business Combination is effected.
(i) "Determination Date" means, with respect to any
Interested Shareholder, the date on which such Interested Shareholder first
became an Interested Shareholder.
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(j) "Consummation Date" means any member of the Board who
is not an Affiliate, nominee or representative of the Interested Shareholder and
was a member of the Board prior to the time that the Interested Shareholder
became an Interested Shareholder, and any successor of a Disinterested Director
who is a member of the Board and who is not an Affiliate, nominee or
representative of the Interested Shareholder and was recommended or elected to
succeed a Disinterested Director by a majority of Disinterested Directors on the
Board at the time of such recommendation or election.
(k) "Fair Market Value" means (i) in the case of stock,
the highest closing sale price during the thirty-day period immediately
preceding the date in question of a share of such stock on the Composite Tape
for New York Stock Exchange, Inc. Listed Stocks, or, if such stock is not quoted
on the Composite Tape, on the New York Stock Exchange, Inc., or, if such stock
is not listed on the New York Stock Exchange, Inc., on the principal United
States securities exchange registered under the Securities Exchange Act of 1934
on which such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to a share of such
stock during the thirty-day period preceding the date in question as reported by
the National Association of Securities Dealers, Inc. Automated Quotations system
or any system then in use, or if no such quotation is available, the fair market
value on the date in question of a share of such stock as determined in good
faith by a majority of the Disinterested Directors; and (ii) in the case of
property other than cash or stock, the fair market value of such property on the
date in question as determined in good faith by a majority of the Disinterested
Directors.
(l) "Interested Shareholder" shall mean, in respect of
any Business Combination, any person (other than the corporation or any
wholly-owned Subsidiary and other than any profit-sharing, employee stock
ownership or other employee benefit plan of the corporation or any wholly-owned
Subsidiary or any person organized, appointed or established by the corporation
or any wholly-owned Subsidiary for or pursuant to the terms of any such plan)
who or which, as of the date of the first public announcement of such Business
Combination, or on the day immediately prior to the consummation of any such
Business Combination:
(i) is the beneficial owner, directly or
indirectly, of Voting Stock entitled to cast ten percent or
more of the total number of votes entitled to be cast in
respect of all the outstanding shares of Voting Stock in any
vote of shareholders which may be taken pursuant to this
Article 9; or
(ii) is an Affiliate of the corporation and at
any time within two years prior thereto was the beneficial
owner, directly or indirectly, of Voting Stock then entitled
to cast ten percent or more of the total number of votes
entitled to be cast in respect of all the outstanding shares
of Voting Stock in any vote of shareholders which may be taken
pursuant to this Article 9; or
(iii) is an assignee of or has otherwise succeeded
to any shares of Voting Stock of the corporation which were at
any time within the two-year period immediately prior to the
date in question beneficially owned by any Interested
Shareholder, if such assignment or succession shall have
occurred in the course of a transaction or series of
transactions not involving a public offering within the
meaning of the Securities Act of 1933;
provided, however, there shall be disregarded in determining whether a person is
an
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Interested Shareholder in respect of any Business Combination the beneficial
ownership, both direct and indirect, of the voting power of the Voting Stock
owned beneficially by such person or an ancestor of such person on March 9,
1988, which for purposes of this paragraph (l) shall include any beneficial
ownership of Voting Stock resulting from stock splits (including reverse stock
splits), stock dividends or recapitalizations of such Voting Stock occurring
subsequent to March 9, 1988, unless such person has acquired subsequent to
March 9, 1988, other than by gift, devise, bequest or intestate succession,
beneficial ownership, either direct or indirect, of one percent (1%) or more of
the voting power of the outstanding Voting Stock in addition to the Voting Stock
beneficially owned by such person or such person's ancestor on March 9,1988.
(m) A "person" shall mean any individual, firm,
corporation or other entity.
(n) "Protected Stock" means all Voting Stock and all
other shares of capital stock of the corporation having, or which may have upon
the happening of some contingency, the right to vote for the election of some or
all of the directors of the corporation, regardless of whether at the time in
question such shares then have a present right to so vote.
(o) "Subsidiary" means any corporation of which a
majority of any class of equity security is owned, directly or indirectly, by
the corporation.
(p) "Voting Stock" means, at any time, all shares of
capital stock of the corporation entitled to vote generally in the election of
directors, which shares shall be considered for the purpose of any vote required
by this Article 9 as, and shall vote together in any such vote as, one class. In
any vote required by this Article 9, the holder of each share of Voting Stock
shall be entitled to cast with respect to such share the same number of votes as
such holder could cast generally in the election of each director with respect
to such share.
(q) In the event of any Business Combination in which the
corporation survives, the phrase "consideration other than cash to be received"
as used in clauses (i) and (ii) of paragraph (b) of Section 9.03 of this Article
9 shall include the shares of Common Stock and/or the shares of any other class
of outstanding Protected Stock retained by the holders of such shares.
Section 9.02. Higher Vote for Certain Business Combinations. In
addition to any affirmative vote required by law or these Restated Articles of
Incorporation, and except as otherwise expressly provided in Section 9.03 of
this Article 9, any Business Combination shall require the affirmative vote of
at least seventy-five percent (75%) of the total number of votes entitled to be
cast in respect of all the outstanding shares of Voting Stock. Such affirmative
vote shall be required notwithstanding the fact that no vote may be required, or
that some lesser percentage or separate class vote may be specified, by law or
under the rules of, or in any agreement with, any United States securities
exchange registered under the Securities Exchange Act of 1934, or any successor
act thereto, on which any of the Voting Stock is listed, or otherwise.
Section 9.03. When Higher Vote Is Not Required. The provisions of
Section 9.02 of this Article 9 shall not be applicable to any particular
Business Combination, and such Business Combination shall require only such
affirmative vote, if any, as is required by law and any
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other Article of these Restated Articles of Incorporation, if all of the
conditions specified in either of the following paragraphs (a) and (b) are met:
(a) Approval by the Disinterested Director. The Business
Combination shall have been approved, either specifically or as a transaction
which is within an approved category of transactions, by a majority of the
Disinterested Directors (whether such approval is made prior to or subsequent to
the acquisition of, or announcement or public disclosure of the intention to
acquire, beneficial ownership of the Voting Stock that caused or will cause the
Interested Shareholder to become an Interested Shareholder).
(b) Price and Procedure Requirements. All of the
following conditions shall have been met:
(i) Common Stock. The aggregate amount of the
cash and the Fair Market Value as of the Consummation Date of
consideration other than cash to be received by holders of the
Common Stock of the corporation in such Business Combination,
computed on a per share basis, shall be at least equal to the
higher of the following:
(A) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes
and soliciting dealers' fees) paid by the Interested
Shareholder for any shares of Common Stock acquired
by the Interested Shareholder (I) within the two-year
period immediately prior to the Announcement Date or
(II) in the transaction or transactions by which the
Interested Shareholder became an Interested
Shareholder, as adjusted for any subsequent stock
split, stock dividend; subdivision or
reclassification with respect to the Common Stock,
whichever is higher; or
(B) the Fair Market Value per share of the Common Stock
on the Announcement Date or the Determination Date,
as adjusted for any subsequent stock split, stock
dividend, subdivision or reclassification with
respect to the Common Stock, whichever is higher.
(ii) Protected Stock. The aggregate amount of the
cash and the Fair Market Value as of the Consummation Date of
consideration other than cash to be received per share by
holders of shares of any other class of outstanding Protected
Stock regardless of whether the Interested Shareholder has
previously acquired any shares of a particular class of such
Protected Stock shall be at least equal to the highest of the
following:
(A) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes
and soliciting dealers' fees) paid by the Interested
Shareholder for any shares of such class of Protected
Stock acquired by the Interested Shareholders (I)
within the two-year period immediately prior to the
Announcement Date or (II) in the transaction or
transactions by which the Interested Shareholder
became an Interested Shareholder, as adjusted for any
subsequent stock split, stock dividend, subdivision
or reclassification with respect to such Protected
Stock, whichever is higher;
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(B) the highest preferential amount per share to which
the holders of shares of such class of Protected
Stock are entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of
the corporation, regardless of whether the Business
Combination to be consummated constitutes such an
event; or
(C) the Fair Market Value per share of such class of
Protected Stock on the Announcement Date or the
Determination Date, as adjusted for any subsequent
stock split, stock dividend, subdivision or
reclassification with respect to such Protected
Stock, whichever is higher.
(iii) Form of Consideration. The consideration to
be received by holders of a particular class or series of
outstanding Protected Stock (including Common Stock) shall be
in cash or in the same form paid by or on behalf of the
Interested Shareholder for shares of such class of Protected
Stock prior to the Consummation Date. If there have been
varying forms of the consideration so paid for shares of any
class of Protected Stock, the form of consideration to be
received by the holders of such class of Protected Stock shall
be either cash or the form used to acquire the largest number
of shares of such class of Protected Stock previously so
acquired.
(iv) Maintain Dividends. After such Interested
Shareholder has become an Interested Shareholder and prior to
the consummation of such Business Combination: (A) except as
approved by a majority of the Disinterested Directors, there
shall have been no failure to declare and pay at the regular
date therefor any full quarterly dividends (whether or not
cumulative) on any outstanding Preferred Stock of the
corporation; and (B) there shall have been (I) no reduction in
the annual rate of dividends paid on the Common Stock except
as necessary to reflect any subdivision of the Common Stock,
except as approved by a majority of the Disinterested
Directors, and (II) an increase in such annual rate of
dividends as necessary to reflect any reclassification
(including any reverse stock split), recapitalization,
reorganization or any similar transaction which has the effect
of reducing the number of outstanding shares of the Common
Stock unless the failure so to increase such annual rate is
approved by a majority of the Disinterested Directors.
(v) Acquisition of Additional Shares. After such
Interested Shareholder has become an Interested Shareholder
and prior to the consummation of such Business Combination,
such Interested Shareholder shall not have become the
beneficial owner of any additional shares of Voting Stock
except (A) as part of the transaction which results in such
Interested Shareholder becoming an Interested Shareholder or
(B) in a transaction which would not result in any increase in
the percentage of beneficial ownership by the Interested
Shareholder of any class or series of Voting Stock.
(vi) No Disproportionate Benefits. After such
Interested Shareholder has become an Interested Shareholder,
such Interested Shareholder shall not have received the
benefit, directly or indirectly (except proportionately as a
shareholder), of any loans, advances, guarantees, pledges or
other financial assistance or any tax credits or other tax
advantages provided by the corporation, whether in
anticipation of or in connection with such Business
Combination or otherwise.
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(vii) Furnish Information. A proxy or information
statement describing the proposed Business Combination' and
complying with the requirements of the Securities Exchange Act
of 1934 and the rules and regulations thereunder (or any
subsequent provisions replacing such Act, rules or
regulations) shall be mailed to all shareholders of the
corporation at least thirty days prior to the consummation of
such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to
such Act or any such subsequent provisions). Such proxy or
information statement shall contain on the first page thereof,
in a prominent place, any statement as to the advisability (or
inadvisability) of the Business Combination that the
Disinterested Directors, or any of them, may choose to make.
(viii) Absence of Certain Changes. Such Interested
Shareholder shall not have made any substantial change in the
business or equity capital structure of the corporation
without the approval of a majority of the Disinterested
Directors.
Section 9.04. Powers of Board of Directors. A majority of the
Disinterested Directors of the corporation shall have the power and duty to
determine for the purposes of this Article 9 on the basis of the information
known to them after reasonable inquiry, (1) the number of shares of Voting Stock
beneficially owned by any person, (2) whether a person is an Interested
Shareholder or is an Affiliate or Associate of another person, (3) whether a
person has an agreement, arrangement or understanding with another as to the
matters referred to in paragraph (d) of Section 9.01 of this Article 9, (4)
whether the assets which are the subject of any Business Combination have, or
the consideration to be received for the issuance or transfer of securities by
the corporation or any Subsidiary in any Business Combination has, an aggregate
Fair Market Value of $1,000,000 or more, or (5) whether the requirements of
paragraph (a) or (b) of Section 9.03 of this Article 9 have been met with
respect to any Business Combination.
Section 9.05. No Effect on Fiduciary Obligations of Interested
Shareholders. Nothing contained in this Article 9 shall be construed to relieve
any Interested Shareholder from any fiduciary obligation imposed by law.
Section 9.06. No Fiduciary Duty Imposed on Board. The fact that any
Business Combination complies with the foregoing sections of this Article 9
shall not be construed to impose any fiduciary duty, obligation or
responsibility on the Board, or any member thereof, to approve such Business
Combination or recommend its adoption or approval to the shareholders of the
corporation nor shall such compliance limit, prohibit or otherwise restrict in
any manner the Board, or any member thereof, with respect to evaluations of or
actions and responses taken with respect to such Business Combination.
Section 9.07. Amendment, Repeal, Etc. Notwithstanding any other
provisions of these Restated Articles of Incorporation or the Bylaws of the
corporation (and notwithstanding the fact that some lesser percentage may be
specified by law, these Restated Articles of Incorporation or the Bylaws of the
corporation), the affirmative vote of at least seventy-five percent (75%) of the
total number of votes entitled to be cast in respect of all of the outstanding
shares of Voting Stock shall be required to amend, alter, change or repeal, or
to adopt any provision as part of these Restated Articles of Incorporation
inconsistent with, this Article 9.
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Each article set forth above amends the corresponding provision of the
original Articles of Incorporation as theretofore amended, and the Restated
Articles of Incorporation, which amend in its entirety the original Articles of
Incorporation of the corporation and all amendments thereto, supercede the
original Articles of Incorporation and all amendments thereto.
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APPENDIX I
In accordance with the provisions of Articles 2 and 12 of Chapter 2A of
Title 10 of the Code of Alabama of 1975 and the provisions of Article 4 of the
Restated Articles of Incorporation, as amended, of Russell Corporation, an
Alabama corporation, the Corporation hereby certifies that the following
resolutions were duly adopted by the Board of Directors of the Corporation by
action by written consent of said Board of Directors dated October 15, 1988:
"RESOLVED, that pursuant to the authority conferred upon the
Board of Directors of Russell Corporation (the "Corporation") by
Article 4 of the Restated Articles of Incorporation, as amended, of the
Corporation (the "Restated Articles"), said Board of Directors hereby
fixes and determines the voting rights and designations, preferences,
qualifications, privileges, limitations, restrictions, options, and
other special and relative rights of 1,150,000 shares out of the class
of 10,000,000 shares of authorized preferred stock, par value $.01 per
share (such class being the "Preferred Stock"), by establishing and
designating an initial series of such Preferred Stock as follows:
SECTION 1. Designation. The distinctive serial
designation of this series of Preferred Stock shall be "1988
10% Cumulative Preferred Stock" (hereinafter the "1988
Preferred Stock"). Each share of 1988 Preferred Stock shall
rank on a parity with or senior to any other series of
Preferred Stock and senior to any "junior stock" (herein
defined) as herein provided, in the payment of dividends and
in the dissolution or winding up of the Corporation.
SECTION 2. Number of Shares. The 1988 Preferred Stock
shall consist of 1,150,000 shares, which number shall not be
increased but may be decreased from time to time by a
resolution or resolutions of the Board of Directors. Shares of
1988 Preferred Stock redeemed or purchased by the Corporation
shall be cancelled and shall revert to authorized but unissued
shares of Preferred Stock, undesignated as to series, subject
to reissuance by the Corporation as shares of Preferred Stock
of any one or more series other than the 1988 Preferred Stock.
SECTION 3. Dividends. (a) Up to and through June 30,
1992, the annual dividends payable on shares of 1988 Preferred
Stock shall be $1.00 per share, payable in equal quarterly
amounts on March 31, June 30, September 30 and December 31 in
each year (each a "Dividend Payment Date") commencing December
31, 1988. The Corporation shall pay dividends on the 1988
Preferred Stock to the registered holders at the close of
business on the 15th day of March, June, September and
December next preceding the Dividend Payment Date. The amount
of dividends payable for each dividend period and for any
period shorter than a full dividend period shall be computed
on the basis of a 360-day year of twelve 30-day months;
provided, the quarterly dividend that is first paid on the
1988 Preferred Stock after the date of its issuance shall be
equal to the amount, per share, of $0.25 less the amount, if
any, not to exceed $0.25, that was paid or is payable with
respect to the shares of the 1987 Preferred Stock of Quality
Mills, Inc., a North Carolina corporation, that are, pursuant
to the Plan and Agreement of Merger between the Corporation, a
subsidiary thereof, and Quality Mills, Inc., converted into
shares of the 1988 Preferred Stock, for the quarterly dividend
period that commenced on the April 1, July 1, October 1 or
January 1 that next preceded the date of the issuance of the
1988 Preferred Stock.
(b) On or before May 15, 1992 and on or before
each May 15 thereafter, the Corporation (i) shall by action of
the Board of Directors, establish the dividend rate for the
1988 Preferred Stock for the one-year period commencing July 1
(the "One-Year Period") of the year in which such dividend
rate is established (the "Adjusted Dividend
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Rate") and (ii) shall cause Written notice of the Adjusted
Dividend Rate to be mailed to each person who was a registered
holder of the 1988 Preferred Stock at the close of business on
a date not more than five business days prior to the date of
said notice. The dividend rate may be adjusted by the
Corporation annually pursuant to this Section 3(b), but the
Corporation may, in its sole discretion, elect not to make a
change in the dividend rate in any year. In the event that the
Corporation shall not make a change in the dividend rate, the
dividend rate for the immediately preceding One-Year Period
shall continue as the Adjusted Dividend Rate. The dividend
rate in any year commencing on or after July 1, 1992, whether
or not adjusted, need not reflect the current market
conditions or interest rates prevailing at such times;
provided, however, that the amount of the annual dividend
established for the One-Year Periods commencing July 1, 1992
and July 1, 1993 shall not be lower than the amount that would
be obtained by multiplying (i) the percentage interest rate
being paid on one year certificates of deposit having no
minimum denomination as generally announced by AmSouth Bank,
N.A., Birmingham, Alabama, or any successor to the banking
business of said bank, on the May 1 immediately preceding the
beginning of each such One-Year Period, or if such May 1 is
not a business day, on the next business day thereafter, by
(ii) $10.00.
(c) Dividends on the shares of the 1988
Preferred Stock shall accrue and be cumulative from the first
date of original issuance of any shares thereof. Such
dividends shall be deemed to accrue from day to day regardless
of whether or not the Corporation shall have funds or assets
available for the payment of such dividends, but accumulation
of dividends on shares of 1988 Preferred Stock shall not bear
interest. The holders of 1988 Preferred Stock, in preference
to the holders of any junior stock, shall be entitled to
receive, as and when declared by the Board of Directors out of
any funds legally available therefor, cumulative preferential
cash dividends at the rate fixed or established in Section
3(a) or 3(b) hereof. No dividends shall be declared or paid or
set apart for payment on any junior stock for any period
unless full cumulative dividends have been or
contemporaneously are declared and paid (or declared and a sum
sufficient for the payment thereof set apart for such payment)
on the 1988 Preferred Stock for all dividend payment periods
terminating on or prior to the date of payment of such
dividends. When dividends are not paid in full upon the 1988
Preferred Stock and upon any other stock ranking on a parity
as to dividends with the 1988 Preferred Stock, all dividends
declared upon shares of the 1988 Preferred Stock and any other
stock ranking on a parity as to dividends shall be declared
pro rata so that in all cases the amount of dividends declared
per share on the 1988 Preferred Stock and such other stock
shall bear to each other the same ratio that accumulated
dividends per share on the shares of the 1988 Preferred Stock
and such other stock bear to each other.
Except as provided in the preceding sentence, unless
full cumulative dividends on the 1988 Preferred Stock have
been paid or sufficient funds for such payment set aside, no
dividends (other than in Common Stock or another stock ranking
junior to the 1988 Preferred Stock as to dividends and
liquidation rights) may be declared or paid or set aside for
payment or other distribution made upon the Common Stock or on
any other stock of the Corporation ranking junior to or on
parity with the 1988 Preferred Stock as to dividends or
liquidation rights, nor may any Common Stock or any other
stock of the Corporation ranking junior to or on a parity with
the 1988 Preferred Stock as to dividends be redeemed or
purchased (nor any payment made to or available for a sinking
fund for the redemption of any shares of such stock) by the
Corporation (except by conversion into or exchange for stock
of the Corporation ranking junior to the 1988 Preferred Stock
as to dividends and liquidation rights).
Any dividend on the 1988 Preferred Stock may be paid
by the Corporation's check mailed to the holders entitled
thereto at their respective last addresses appearing on the
Corporation's stock books.
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SECTION 4. No Preemptive Rights. No holder of shares
of 1988 Preferred Stock shall be entitled as of right to
subscribe for or purchase any additional or increased stock of
the Corporation of any class, whether now or hereafter
authorized, including treasury stock, or obligations
convertible into any class of stock, or stock of any class
convertible into stock of any other class, or obligations,
stock or other securities carrying warrants or rights to
subscribe to stock of the Corporation of any class, whether
now or hereafter authorized, but any and all shares of stock,
bonds, debentures or other securities or obligations, whether
or not convertible into stock or carrying warrants entitling
the holders thereof to subscribe to stock, may be issued, sold
or disposed of from time to time by authority of the Board of
Directors of the Corporation to such persons, firms or
corporations and for such consideration, as far as it may be
permitted by law, as the Board of Directors shall from time to
time determine.
SECTION 5. Liquidation Preference. In the event of
any voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, then, before any distribution
or payment shall be made to the holders of any junior stock,
the holders of 1988 Preferred Stock shall be entitled to be
paid in full in an amount equal to $10.00 per share plus
accrued and unpaid dividends to such distribution or payment
date, whether or not earned or declared.
If, upon any liquidation, dissolution or winding up
of the Corporation, such payment shall have been made in full
to holders of 1988 Preferred Stock, the remaining assets and
funds of the Corporation shall be distributed among the
holders of the junior stock, according to their respective
rights and preferences and in each case according to their
respective shares, and the holders of 1988 Preferred Stock
shall not be entitled to any further participation in any
distribution of assets by the Corporation. If, upon any
liquidation, dissolution or winding up of the Corporation,
such payment shall not have been made in full to the holders
of all outstanding shares of the 1988 Preferred Stock, the
holders of the 1988 Preferred Stock and all other classes or
series of stock of the Corporation ranking on a parity
therewith in the distribution of assets shall share ratably in
any distribution of assets in proportion to the full
respective preferential amounts to which they would otherwise
be entitled. Nothing herein contained shall be deemed to
prevent redemption of 1988 Preferred Stock by the Corporation
in the manner provided in Sections 6 and 7 below. Neither the
consolidation nor the merger of the Corporation with or into
any other corporation or corporations, nor a reorganization of
the Corporation alone, nor the sale or transfer of all or any
part of its assets, shall be deemed a liquidation, dissolution
or winding up of the Corporation within the meaning of the
foregoing provisions of this Section 5.
Written notice of any voluntary or involuntary
dissolution, liquidation or winding up of the affairs of the
Corporation, stating a payment date and the place where the
distributable amounts shall be payable shall be given in
accordance with the procedures set forth in Section 6 below.
SECTION 6. Redemption at Option of Corporation. On or
after December 31, 1993, the Corporation may, at the option of
the Board of Directors, redeem the then outstanding 1988
Preferred Stock, in whole or from time to time in part, upon
not less than 30 nor more than 60 days' written notice to the
persons who were registered holders of the 1988 Preferred
Stock at the close of business on a date not more than five
business days prior to the date of said notice at a price of
$10.00 per share plus accrued and unpaid dividends to the date
of redemption, whether or not earned or declared.
If less than all the outstanding shares of 1988
Preferred Stock are to be redeemed, the shares to be redeemed
shall be determined by lot or pro rata in such manner as the
Board of Directors shall deem fair and appropriate. Notice of
every redemption of
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shares of the 1988 Preferred Stock, specifying the date fixed
for said redemption and the place where the amount to be paid
upon redemption is payable, shall be mailed by first class
mail, postage prepaid, addressed to the holders of record of
the shares to be redeemed at their respective last addresses
as they shall appear on the stock books of the Corporation.
Such mailing shall be at least 30 days and not more than 60
days prior to the date fixed for redemption. Any notice which
is mailed in the manner therein provided shall be conclusively
presumed to have been given, whether or not the shareholder
receives such notice, and failure to give such notice by mail,
or any defect in such notice, to any holder of shares of 1988
Preferred Stock designated for redemption shall not affect the
validity of the redemption of any other shares of 1988
Preferred Stock.
If notice of redemption shall have been duly mailed
and if, on or before the redemption date specified in the
notice, the redemption price, together with accrued dividends
to the date fixed for redemption, shall have been set aside by
the Corporation, separate and apart from its other funds, in
trust for the pro rata benefit of the holders of the shares so
called for redemption, so as to be and continue to be
available therefor, and then, from and after the date of
redemption so designated, notwithstanding that any certificate
for shares of 1988 Preferred Stock so called for redemption
shall not have been surrendered for cancellation, the shares
represented thereby shall no longer be deemed outstanding, the
dividends thereon shall cease to accrue and accumulate, and
all rights with respect to the shares of 1988 Preferred Stock
so called for redemption shall forthwith on the redemption
date cease and terminate, except only the right of the holders
thereof to receive the redemption price of the shares so
redeemed, plus accrued dividends to the redemption date but
without interest, upon surrender of their certificates for the
1988 Preferred Stock.
SECTION 7. Redemption at Option of Shareholders. The
1988 Preferred Stock shall be redeemable at the option of the
holders thereof, in whole or in part, commencing on June 30,
1992 and on each June 30 thereafter at a price of $10.00 per
share plus accrued and unpaid dividends to the date of the
redemption payment, whether or not earned or declared. In
order for the 1988 Preferred Stock to be redeemed pursuant to
this Section 7, the redemption agent designated by the Board
of Directors of the Corporation ("Redemption Agent") must
receive at its office designated for such purpose on or before
the June 15 (or, if such June 15 is not a business day, the
next succeeding business day), but not earlier than the May 15
prior to the redemption date, b(i) such 1988 Preferred Stock
certificate(s) with the form entitled "Notice of Election to
Redeem" on the reverse of the certificate(s) duly completed,
or (ii) a telegram, telex, facsimile transmission or letter
from a member of a national securities exchange or the
National Association of Securities Dealers, Inc., or a
commercial bank or a trust company in the United States of
America setting forth the name and address and telephone
number of the shareholder of such 1988 Preferred Stock, the
total number of shares represented by such certificate and the
number of such shares to be redeemed, a statement that the
option to elect redemption is being exercised thereby and a
guarantee that the certificates representing the shares of
1988 Preferred Stock to be redeemed with the form entitled
"Notice of Election to Redeem" on the reverse of such
certificates duly completed will be received by Redemption
Agent not later than five business days after the date of such
telegram, telex, facsimile transmission or letter, (and such
certificates and form duly completed are received by
Redemption Agent by such fifth business day). Any such notice
received by Redemption Agent on or after the May 16 preceding
such June 15 shall be irrevocable.
This redemption option may be exercised by the
holders of the 1988 Preferred Stock for less than the entire
number of shares owned, provided that a minimum of 100 shares
or any whole multiple thereof are tendered for redemption,
unless the
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shareholder owns fewer than 100 shares, in which case all
shares owned by shareholder must be tendered for redemption.
All questions as to the validity, eligibility (including time
of receipt) and acceptance of any certificates for 1988
Preferred Stock for redemption and any notice of revocation
will be determined by Redemption Agent, whose determination
shall be final and binding.
So long as any shares of the 1988 Preferred Stock
shall be outstanding, the Corporation shall have appointed and
shall maintain a Redemption Agent and shall advise any holder
of the 1988 Preferred Stock, upon request, of the name and
designated office of such Redemption Agent. The Board of
Directors may remove any Redemption Agent so appointed at any
time, but in such event, or in the event of any resignation of
the appointed Redemption Agent or its failure or inability for
any reason to act as such, the Board of Directors shall
appoint a successor Redemption Agent. If at any time no
Redemption Agent shall have been appointed and be acting as
such, the Corporation itself shall be deemed the Redemption
Agent and the Corporation's principal office shall be deemed
the designated office of the Redemption Agent.
SECTION 8. Limitation on Redemption. Notwithstanding
Sections 6 and 7, the Corporation shall not be obligated to
redeem the 1988 Preferred Stock at any time at which, and to
the extent that, the Corporation is prohibited by applicable
law from effecting such redemption; provided, that in such
case, the Corporation shall redeem all shares of the 1988
Preferred Stock duly tendered for redemption as soon
thereafter as such redemption is permitted by applicable law,
and to the extent that redemption of less than all of the
shares of 1988 Preferred Stock duly tendered for redemption is
permitted by applicable law to be redeemed, the Corporation
shall redeem such shares pro rata by holder.
SECTION 9. No Sinking Fund. The shares of 1988
Preferred Stock shall not be subject to the operation of a
purchase or sinking fund.
SECTION 10. Voting Rights. Except as provided herein
and as otherwise provided by law, the holders of the 1988
Preferred Stock shall have no voting rights. If the equivalent
of six quarterly dividends payable on the 1988 Preferred
Stock, or on any other series of outstanding preferred stock
of the Corporation ranking on a parity with the 1988 Preferred
Stock as to dividends or liquidation rights, are in arrears,
the number of directors holding office of the Corporation
shall be increased by two and the holders of outstanding 1988
Preferred Stock, together with the holders of any other
outstanding series of preferred stock having substantially
identical voting rights (hereinafter "Other Preferred Stock"),
voting as a single class without regard to series, shall be
entitled to elect the additional two directors until all
dividends in arrears have been paid in full to the end of the
last preceding quarterly dividend period. When the voting
rights of this Section 10 shall have vested in the holders of
the 1988 Preferred Stock, a special meeting to elect the
additional directors may be called by the Chairman of the
Board or the President of the Corporation or by the holders of
25% or more of the classes of preferred stock affected. Such
additional directors shall be nominated by the holders of the
1988 Preferred Stock and the holders of Other Preferred Stock,
if any, and shall be elected by a plurality of the votes cast.
Such limited voting rights shall not limit or restrict the
right of the Corporation from time to time to increase or
decrease the number of directors which the Corporation shall
have.
Any director who shall have been elected pursuant to
this Section 10 shall hold office for a term expiring (subject
to the earlier termination of the default in dividends) at the
next annual meeting of shareholders, and during such term may
be removed at any time, either with or without cause, unless
otherwise provided by law, by, and only by, the affirmative
votes of the holders of record of a majority of the
outstanding
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shares of the 1988 Preferred Stock and Other Preferred Stock
given at a special meeting of such shareholders called for
that purpose, and any vacancy created by such removal may also
be filled at such meeting. A meeting for the removal of a
director elected pursuant to this Section 10 and the filling
of the vacancy created thereby shall be held upon notice given
by the Secretary of the Corporation within 10 days after
receipt of a request therefor, signed by the holders of not
less than 25% of the outstanding shares of the 1988 Preferred
Stock and Other Preferred Stock. Such meeting shall be held at
the earliest practicable date thereafter upon the notice
required for annual meetings of shareholders.
Any vacancy caused by the death or resignation of a
director who shall have been elected pursuant to this Section
10 may be filled only at a meeting called for such purpose.
Such meeting shall be held upon notice given by the Secretary
of the Corporation at the earliest practicable date after any
such death or resignation and in any event within 10 days
after receipt of a written request signed by the holders of
record of at least 10% of the outstanding shares of 1988
Preferred Stock and Other Preferred Stock upon the notice
required for annual meetings of shareholders.
If any meeting required by this Section 10 to be
called shall not have been called within 10 days after
personal service of a written request therefor upon the
Secretary of the Corporation or within 15 days after mailing
the same within the United States of America by registered
mail addressed to the Secretary of the Corporation at its
principal office, then the holders of record of at least 10%
of the outstanding shares of 1988 Preferred Stock and Other
Preferred Stock may designate in writing one of their number
to call such meeting at the expense of the Corporation and
such meeting may be called by such person so designated upon
the notice required for annual meetings of shareholders. Any
person so designated shall have access to the stock books of
the Corporation for the purpose of causing meetings of
shareholders to be called pursuant to these provisions.
Any meeting held pursuant to this Section 10 shall be
held at the place at which the last annual meeting of
shareholders was held. At such meeting, the presence in person
or by proxy of the holders of a majority of the outstanding
shares of all outstanding 1988 Preferred Stock and Other
Preferred Stock shall be required to constitute a quorum; in
the absence of a quorum a majority of the holders present in
person or by proxy shall have the power to adjourn the meeting
from time to time without notice, other than announcement at
the meeting, until a quorum shall be present.
So long as any shares of the 1988 Preferred Stock are
outstanding (a) the Corporation shall not, either directly or
indirectly, or through merger or consolidation with any other
corporation, without the consent of the holders of at least
two-thirds of the then outstanding shares of the 1988
Preferred Stock given in person or by proxy, either in writing
or by vote at an annual meeting or a special meeting called
for the purpose, amend, alter or repeal any of the provisions
of the Charter of the Corporation or of this resolution so as
to affect adversely the rights, powers or preferences of the
1988 Preferred Stock; and (b) the Corporation shall not,
without the consent of the holders of at least two-thirds of
the then outstanding shares of 1988 Preferred Stock given in
person or by proxy, either in writing or by vote at an annual
meeting or a special meeting called for that purpose, (i)
create or authorize any additional class of stock ranking on a
parity with or prior to the Preferred Stock in respect of
dividends or distribution of assets on liquidation, (ii)
increase the authorized amount of the Preferred Stock, (iii)
create or authorize any series of the Preferred Stock ranking
prior to the 1988 Preferred Stock in respect of dividends or
distribution of assets on liquidation, or (iv) create or
authorize any obligation or security convertible into or
evidencing the right to purchase shares of stock of any
additional class of stock ranking on a parity with or prior to
the 1988 Preferred Stock in respect of dividends or
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distribution of assets on liquidation, or any series of the
Preferred Stock ranking prior to the 1988 Preferred Stock in
respect of dividends or distribution of assets on liquidation.
SECTION 11. Certain Definitions. As used herein with
respect to 1988 Preferred Stock, the following terms shall
have the following meanings:
(a) The term "junior stock" shall mean (1) as
used in Section 3 above, the Common Stock and any other class
or series of stock of the Corporation over which 1988
Preferred Stock has preference or priority in the payment of
dividends, and (2) as used in Section 5 above, the Common
Stock and any other class or series of stock of the
Corporation over which 1988 Preferred Stock has preference or
priority in the distribution of assets on any liquidation,
dissolution or winding up of the Corporation.
(b) The term "accrued dividends", with respect
to any share of any class or series, shall mean an amount
computed at the annual dividend rate for the class or series
of which the particular share is a part, from the date on
which dividends on such share became cumulative to and
including the date to which such dividends are to be accrued,
less the aggregate amount of all dividends theretofore paid
thereon.
(c) The term "Common Stock" shall mean the class
of stock designated as the common stock of the Corporation at
the date of the adoption of this resolution or any other class
of stock resulting from successive changes or reclassification
of the common stock.
(d) The term "business day" shall mean any day
other than a Saturday, Sunday, legal holiday in the State of
Alabama or day on which banks in the State of Alabama are
generally closed for commercial banking business, and any
payment of any dividend on the 1988 Preferred Stock or any
redemption price thereof becoming due on any day which is not
a business day may be made on the next following business day
with the same effect as though made on such due date."
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Article 10 was added to the Restated Articles of Incorporation by the
Shareholders on April 26, 1995:
10. A director of the corporation shall not be liable to the
corporation or its shareholders for money damages for any action taken,
or failure to take action, as a director, except for (i) the amount of
a financial benefit received by such director to which such director is
not entitled; (ii) an intentional infliction of harm by such director
on the corporation or its shareholders; (iii) a violation of Section
10-2B-8.33 of the Code of Alabama of 1975 or any successor provision to
such section; (iv) an intentional violation by such director of
criminal law; or (v) a breach of such director's duty of loyalty to the
corporation or its shareholders. If the Alabama Business Corporation
Act, or any successor statute thereto, is hereafter amended to
authorize the further elimination or limitation of the liability of a
director of a corporation, then the liability of a director of the
corporation, in addition to the limitations on liability provided
herein, shall be limited to the fullest extent permitted by the Alabama
Business Corporation Act, as amended, or any successor statute thereto.
The limitation on liability of directors of the corporation contained
herein shall apply to liabilities arising out of acts or omissions
occurring subsequent to the adoption of this Article 10 and, except to
the extent prohibited by law, to liabilities arising out of acts or
omissions occurring prior to the adoption of this Article 10. Any
repeal or modification of this Article 10 by the shareholders of the
corporation shall be prospective only and shall not adversely affect
any limitation of the liability of a director of the corporation
existing at the time of such repeal or modification.
RUSSELL CORPORATION
RESTATED ARTICLES OF INCORPORATION
HISTORY
The Restated Articles of Incorporation were adopted by the Shareholders
on April 28, 1982.
Article 4 of the Restated Articles of Incorporation was amended by the
Shareholders at a Special Meeting on October 1, 1986.
Article 4 of the Restated Articles of Incorporation was further amended
by the Shareholders at the Annual Meeting on April 27, 1988.
Article 8 of the Restated Articles of Incorporation was amended by the
Shareholders at the Annual Meeting on April 27, 1988.
Article 9 of the Restated Articles of Incorporation was added by the
Shareholders at the Annual Meeting on April 27, 1988.
Appendix I to the Restated Articles of Incorporation was adopted by the
Directors on October 15, 1988 and amplifies Articles 4, as amended by
the action on April 27, 1988.
Article 10 of the Restated Articles of Incorporation was added by the
Shareholders on April 26, 1995.