Exhibit 3.1
CON-WAY INC.
INCORPORATED IN DELAWARE AUGUST 13, 1958
UNDER THE CORPORATE NAME OF
CONSOLIDATED FREIGHTWAYS COMPANY
CERTIFICATE OF INCORPORATION
As Amended April 18, 2006
CERTIFICATE OF INCORPORATION
of
CON-WAY INC.
As Amended April 18, 2006
FIRST. The name of the corporation is CON-WAY INC.
SECOND. Its principal office in the State of Delaware is located
at 1209 Orange Street, in the City of Wilmington, County of New
Castle. The name and address of its resident agent is The
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware
19801.
THIRD. The nature of the business of the corporation and the
objects or purposes to be transacted, promoted or carried on by it
are hereinafter set forth in Section 3.2 of this ARTICLE THIRD:
3.1 The following definitions shall apply to the following terms
as used in this ARTICLE THIRD:
(a) Transport Instrumentality: Anything used or useful in or
for transportation, including, without limiting the generality
thereof,trucks, tractors, trailers, automobiles, vehicles,
vessels, ships, boats, aircraft and other conveyances and
equipment of any and all kinds;
(b) Evidence of Indebtedness: Bonds, debentures, notes,
coupons, mortgages, commercial paper and any other instrument
evidencing indebtedness, however created, issued or granted and
whether full paid or subject to further payment;
(c) Certificate of Interest: Certificates of stock, script,
interim receipts, participation certificates, voting trust
certificates, subscription warrants, option warrants and any other
instruments evidencing interest in shares, capital or other
property,however created, issued or granted and whether full paid
or subject to further payment;
(d) Entity: Corporations, public, quasi-public or private, of
any kind, wherever and however organized, as well as individuals,
partnerships and firms, joint stock companies, associations,
syndicates, trusts, trustees, governments, governmental
subdivisions and municipalities.
3.2 The nature of the business of the corporation and the
objects or purposes to be transacted, promoted or carried on
by it are:
(a) To buy, lease, hire, exchange, and otherwise acquire, own or
hold, deal in, sell, mortgage, or otherwise encumber and dispose
of real property and any and all interests therein; to improve
such real property and to engage in the business of owning,
erecting, constructing, maintaining and managing buildings and
other improvements of any kind and character.
(b) To manufacture, buy, lease, hire, exchange, and otherwise
acquire, own or hold, deal in, sell, mortgage or otherwise
encumber and dispose of personal property of every kind and
character and any and all interests therein.
(c) To manufacture, buy, lease, hire, exchange, and otherwise
acquire, own or hold, deal in, sell, mortgage or otherwise
encumber and dispose of any Transport Instrumentality.
(d) To manufacture, buy, exchange, barter and otherwise acquire,
own, handle, prepare for market, trade, deal in, sell, exchange
and otherwise dispose of goods, wares, merchandise, commodities,
materials, and supplies of every kind, class and description.
(e) To subscribe for or cause to be subscribed for, purchase,
receive, or otherwise acquire, own or hold, mortgage, pledge,
sell, assign, negotiate, deal in, exchange, transfer, or otherwise
dispose of Certificates of Interest and Evidences of Indebtedness
created, issued or granted by any Entity, and while the owner
thereof to possess and to exercise in respect thereof all rights,
powers and privileges of ownership, including the right to vote
thereon or in respect thereof, and to do any acts or things
designed to protect, preserve, or enhance the value of any
thereof; to guarantee the payment of dividends on any Certificate
of Interest of any Entity, and to become surety in respect to,
endorse, or otherwise guarantee the payment of the principal of or
interest on any Evidence of Indebtedness of any Entity; to become
surety for or to guarantee the carrying out or performance of any
and all contracts, leases and obligations of every kind of any
Entity, and in particular, of any Entity the Certificates of
Interest or Evidences of Indebtedness of which are at any time
held by or for the corporation; and to do any acts or things
designed to protect, preserve, improve, or enhance the value of
any such Certificate of Interest or Evidence of Indebtedness.
(f) To buy, lease, hire, exchange, and otherwise acquire, own or
hold, deal in, sell, mortgage, or otherwise encumber or dispose of
all or any part of the business, good will, rights to property and
assets of every kind of any Entity.
(g) To pay for any and all properties of the corporation in whole
or in part with cash or other property or with Certificates of
Interest or Evidences of Indebtedness of the corporation or
otherwise.
(h) To purchase, apply for, obtain, register, take on lease or
otherwise acquire, hold, own, use, mortgage, pledge, sell, assign,
lease, transfer, or otherwise dispose of, grant licenses in
respect of, or otherwise turn to account letters patent, trade
marks, trade names, copyrights, and similar rights and property
however created, issued, or granted, or any interest therein, or
rights thereunder, or any inventions, improvements, processes,
licenses, formulas, or devices which may seem capable of being
used for or in connection with any of the objects or purposes of
the corporation.
(i) To borrow or raise money for any of the objects or purposes of
the corporation without limit as to amount; to issue from time to
time Evidences of Indebtedness, secured or unsecured, of the
corporation for money so borrowed, or in payment for property
acquired, or for any of the other objects or purposes of the
corporation, or in connection with its business, and to secure
such Evidences of Indebtedness by mortgage, deed of trust, pledge
or other lien upon, or assignment or agreement in respect of any
or all the properties, assets, rights, licenses, privileges or
franchises of the corporation, acquired or to be acquired, and to
pledge, sell, or otherwise dispose of any or all such Evidences of
Indebtedness of the corporation for its corporate purposes.
(j) To participate in or in the formation of, or to organize any
group or syndicate which shall acquire by purchase, subscription,
or otherwise, or which shall underwrite the issue of or the offer
to any class of security holders of any Certificates of Interest
or Evidences of Indebtedness of any Entity.
(k) To enter into a partnership (as general or special partner) or
joint venture with any Entity.
(l) To lend money with or without security therefor to any Entity;
to promote, organize, incorporate, reorganize, finance, procure
capital or credit for or assist financially or otherwise any
Entity in any manner or by any method whatsoever, and to do any
and all things necessary or convenient to carry any such purposes
into effect.
(m) To issue, own and hold, sell, transfer, reissue or cancel
Evidences of Indebtedness or Certificates of Interest of the
corporation in the manner and to the extent now or hereafter
authorized or permitted by the laws of the State of Delaware.
(n) To carry out all or any part of the foregoing objects and
purposes as principal, agent, broker, factor, contractor, or
otherwise, either alone or in conjunction with any Entity, and in
any part of the world; and in carrying on its business, and for
the purpose of attaining or furthering any of its objects or
purposes, to make and perform such contracts of every kind and
description, to do such acts and things and to exercise any and
all such powers as a natural person could lawfully make, perform,
do or exercise.
(o) To carry on any or all of the operations or business of the
corporation in any and all states, territories, possessions,
colonies, and dependencies of the United States of America, in the
District of Columbia, and in any or all foreign countries; to have
one or more offices within and without the State of Delaware; to
do any and all things necessary, suitable, convenient or proper
for or in connection with or incidental to the accomplishment of
any of the purposes or the attainment of any one or more of the
objects herein enumerated or designed directly or indirectly to
promote the interests of the corporation or to enhance the value
of any of its properties; and in general, to do any and all things
and exercise any and all powers which it may now or hereafter be
lawful for the corporation to do or to exercise under the laws of
the State of Delaware now or hereafter applicable to the
corporation.
Provided, however, that anything in the foregoing clauses to the
contrary notwithstanding, the corporation shall not engage in the
business of transportation of passengers or property for
compensation in interstate or foreign commerce.
3.3 The objects and purposes specified in the foregoing clauses
of Section 3.2 shall, except where otherwise expressed, be
in no wise limited or restricted by reference to or
inference from the objects and purposes specified in any
other clause in the Certificate of Incorporation, but the
objects and purposes specified in each of the foregoing
clauses of Section 3.2 shall be regarded as independent
objects and purposes.
FOURTH. A. Number of Classes of Shares Authorized The total
number of shares of all classes of stock which the corporation
shall have authority to issue is 105,000,000 shares, of which
5,000,000 shares shall constitute Preferred Stock (the "Preferred
Stock"), without par value, and 100,000,000 shares shall
constitute Common Stock (the "Common Stock") having a par value of
$.625 per share.
B. Reclassification of Outstanding Common Stock Each share of
Common Stock (par value $1.25 per share) of the corporation issued
and outstanding (including treasury shares) is hereby
reclassified, changed into and shall be two (2) fully paid and
non-assessable shares of Common Stock (par value $.625 per share)
of the corporation.
C. Description of Classes of Stock The designations and the
powers, preferences and rights of the Preferred Stock and of the
Common Stock, and the qualifications, limitations or restrictions
thereof, are as follows:
1. Preferred Stock to be Issued in Series
Any of the shares of Preferred Stock may be issued from time to
time in one or more series. Subject to the limitations and
restrictions in this ARTICLE FOURTH set forth, the Board of
Directors, by resolution or resolutions, is authorized to create
or provide for any such series, and to fix the designations,
preferences and relative, participating, optional or other special
rights, and qualifications, limitations or restrictions thereof,
including, without limitation, the authority to fix or alter the
dividend rights, dividend rates, conversion rights, exchange
rights, voting rights, rights and terms of redemption (including
sinking and purchase fund provisions), the redemption price or
prices, the dissolution preferences and the rights in respect to
any distribution of assets of any wholly unissued series of
Preferred Stock and the number of shares constituting any such
series, and the designation thereof, or any of them and to
increase or decrease the number of shares of any series so
created, subsequent to the issue of that series but not below the
number of shares of such series then outstanding. In case the
number of shares of any series shall be so decreased, the shares
constituting such decrease shall resume the status which they had
prior to the adoption of the resolution originally fixing the
number of shares of such series.
2. Provisions Applicable to All Series of Preferred Stock and to
the Common Stock
(a) There shall be no limitation or restriction on any variation
between any of the different series of Preferred Stock as to the
designations, preferences and relative, participating, optional or
other special rights, and the qualifications, limitations or
restrictions thereof; and the several series of Preferred Stock
may, except as hereinafter in this ARTICLE FOURTH otherwise
expressly provided, vary in any and all respects as fixed and
determined by the resolution or resolutions of the Board of
Directors providing for the issuance of the various series;
provided, however, that all shares ofany one series of Preferred
Stock shall have the same designation, preferences and relative,
participating, optional or other special rights and
qualifications, limitations and restrictions.
(b) No holder of Preferred Stock or of Common Stock shall be
entitled as such, as a matter of right, to subscribe for or
purchase any shares of Preferred Stock or Common Stock of the
corporation, whether now or hereafter authorized, or securities
convertible into, exchangeable for, or carrying the right to
acquire, Preferred Stock or Common Stock of the corporation
whether now or hereafter authorized.
(c) The entire voting power and all voting rights, except as
otherwise required by law, or as otherwise fixed by resolution or
resolutions of the Board of Directors with respect to one or more
series of Preferred Stock, shall be vested exclusively in the
Common Stock. The amount of either the authorized Preferred Stock
or Common Stock, or the amount of both such classes of stock, may
be increased or decreased by the affirmative vote of the holders
of a majority of the stock of the corporation entitled to vote.
Each stockholder of the corporation who at the time possesses
voting power for any purpose shall be entitled to one vote for
each share of such stock standing in his name on the
books of the corporation.
FIFTH. The minimum amount of capital with which the corporation
will commence business is One Thousand Dollars ($1,000.00).
SIXTH. The names and places of residence of the incorporators
are as follows:
Names Residences
H.K. Webb..........................Wilmington, Delaware
S.E. Manuel........................Wilmington, Delaware
A.D. Atwell........................Wilmington, Delaware
SEVENTH. The corporation is to have perpetual existence.
EIGHTH. The private property of the stockholders shall not be
subject to the payment of corporate debts to any extent whatever.
NINTH. In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly
authorized:
(a) To make, alter or repeal the by-laws of the corporation.
(b) To authorize and cause to be executed mortgages and liens upon
the real and personal property of the corporation.
(c) To set apart out of any of the funds of the corporation
available for dividends a reserve or reserves for any proper
purpose and to abolish any such reserve in the manner in which it
was created.
(d) By resolution passed by a majority of the whole Board, to
designate one or more committees, each committee to consist of two
or more of the directors of the corporation, which, to the extent
provided in the resolution or in the by-laws of the corporation,
shall have and may exercise the powers of the Board of Directors
in the management of the business and affairs of the corporation,
and may authorize the seal of the corporation to be affixed to all
papers which may require it. Such committee or committees shall
have such name or names as may be stated in the by-laws of the
corporation or as may be determined from time to time by
resolution adopted by the Board of Directors.
(e) When and as authorized by the affirmative vote of the holders
of a majority of the stock issued and outstanding having voting
power given at a stockholders' meeting duly called for that
purpose, or when authorized by the written consent of the holders
of a majority of the voting stock issued and outstanding, to sell,
lease or exchange all of the property and assets of the
corporation, including its good will and its corporate franchises,
upon such terms and conditions and for such consideration, which
may be in whole or in part shares of stock, and/or other
securities of, any other corporation or corporations, as its Board
of Directors shall deem expedient and for the best interests of
the corporation.
TENTH. Whenever a compromise or arrangement is proposed between
the corporation and its creditors or any class of them and/or
between the corporation and its stockholders or any class of them,
any court of equitable jurisdiction within the State of Delaware
may, on the application in a summary way of the corporation or of
any creditor or stockholder thereof, or on the application of any
receiver or receivers appointed for the corporation under the
provisions of section 291 of Title 8 of the Delaware Code or on
the application of trustees in dissolution or of any receiver or
receivers appointed for the corporation under the provisions of
section 279 of Title 8 of the Delaware Code order a meeting of the
creditors or class of creditors, and/or of the stockholders or
class of stockholders of the corporation, as the case may be, to
be summoned in such manner as the said court directs. If a
majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or
class of stockholders of the corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization
of the corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or
class of creditors, and/or on all the stockholders or class of
stockholders, of the corporation, as the case may be, and also on
the corporation.
ELEVENTH. A. Meetings of stockholders may be held outside the
State of Delaware, if the by-laws so provide. The books of the
corporation may be kept (subject to any provision contained in the
statutes) outside the State of Delaware at such place or places as
may be designated from time to time by the Board of Directors or
in the by-laws of the corporation. Elections of directors need not
be by ballot unless the by-laws of the corporation shall so
provide.
B. The number of directors shall be determined by the Board of
Directors or the stockholders, provided, however, that the number
thereof shall never be less than twelve nor greater than fifteen.
A director need not be a stockholder. The directors shall be
divided into three classes, designated Class I, Class II, and
Class III, as nearly equal in number as the then total number of
directors permits. At the 1985 annual meeting of stockholders,
Class I directors shall be elected for a one-year term, Class II
directors for a two-year term and Class III directors for a
three-year term. At each succeeding annual meeting of stockholders
beginning in 1986, successors to the class of directors whose term
expires at that annual meeting shall be elected for a three-year
term. If the number of directors is changed, any increase or
decrease shall be apportioned among the classes so as to maintain
the number of directors in each class as nearly equal as possible,
and any additional directors of any class elected to fill a
vacancy resulting from an increase in such class shall hold office
for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of directors
shorten the term of any incumbent director. A director shall hold
office until the annual meeting for the year in which his term
expires and until his successor shall be elected and shall
qualify, subject, however, to prior death, resignation,
retirement, disqualification or removal from office. Any vacancy
on the Board of Directors, including any vacancy that results from
an increase in the number of directors may be filled by a majority
of the Board of Directors then in office, although less than a
quorum, or by a sole remaining director. Any director elected to
fill a vacancy shall have the same remaining term as that of his
predecessor.
Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of Preferred Stock issued by the
corporation shall have the right, voting separately by class or
series, to elect directors at an annual or special meeting of
stockholders, the election, term of office, filling of vacancies
and other features of such directorships shall be governed by the
terms of this Certificate of Incorporation applicable thereto, and
such directors so elected shall not be divided into classes
pursuant to this Article unless expressly provided by such terms.
Any amendment, change or repeal of this Article, or any other
amendment to this Certificate of Incorporation that will have the
effect of permitting circumvention of or modifying this paragraph
B of ARTICLE ELEVENTH, shall require the favorable vote, at a
stockholders' meeting, of the holders of at least 80 of the
then-outstanding shares of stock of the corporation entitled to
vote.
TWELFTH. Notwithstanding anything in this Certificate of
Incorporation to the contrary, any action required or permitted to
be taken at a meeting of stockholders may be taken without a
meeting only if 80 or more of the voting power of the stockholders
entitled to vote thereon consent thereto in writing.
Any amendment, change or repeal of this ARTICLE TWELFTH, or any
other amendment to this Certificate of Incorporation that will
have the effect of permitting circumvention or modifying this
ARTICLE TWELFTH, shall require the favorable vote, at a
stockholders' meeting, of the holders of at least 80 of the
then-outstanding shares of stock of the corporation entitled to
vote.
THIRTEENTH. The corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are
granted subject to this reservation.
FOURTEENTH. To the fullest extent permitted by Delaware
statutory or decisional law, as amended or interpreted, no
director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director. This Article Fourteenth does not
affect the availability of equitable remedies for breach of
fiduciary duties.
We, THE UNDERSIGNED, being each of the incorporators hereinbefore
named, for the purpose of forming a corporation pursuant to the
General Corporation law of the State of Delaware, do make this
certificate, hereby declaring and certifying that the facts herein
stated are true, and accordingly have hereunto set our hands and
seals this 12th day of August, A.D. 1958.
H.K. WEBB
(Seal)
S.E. MANUEL
(Seal)
A.D. ATWELL
(Seal)
STATE OF DELAWARE
COUNTY OF NEW CASTLE-ss:
BE IT REMEMBERED that on this 12th day of August, A.D. 1958,
personally came before me, a Notary Public for the State of
Delaware, H.K. Webb, S.E. Manuel and A.D. Atwell, all of the
parties to the foregoing Certificate of Incorporation, known to me
personally to be such and severally acknowledged the said
certificate to be the act and deed of the signers respectively and
that the facts therein stated are truly set forth.
GIVEN under my hand and seal of office the day and year aforesaid.
M. RUTH MANNERING
Notary Public
M. Ruth Mannering
Notary Public
Appointed Feb. 12, 1957
State of Delaware
Term Two Years