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 May 19, 2009
CERTIFICATE OF INCORPORATION
of
CON-WAY INC.
As Amended May 19, 2009
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 of any 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 seven nor greater than eleven. A director need not be a
stockholder. The Board of Directors shall not be classified. From and after
the 2009 annual meeting of Stockholders, the directors shall be elected at
each annual meeting of stockholders for a one-year term expiring at the next
annual meeting of stockholders; provided that the term of any director
elected prior to the 2009 annual meeting of stockholders shall be unaffected.
A director shall hold office until the next annual meeting of stockholders
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 hold office until the next annual meeting of stockholders.
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.
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