EXHIBIT 3(i)
Note: The Certificate of Incorporation of Cannon Express, Inc. is restated
in electronic format herein pursuant to Rule 102(c) of Regulation S-T. The
Certificate of Incorporation, however, has not been filed in restated form
with the Delaware Secretary of State.
CERTIFICATE OF INCORPORATION
OF
CANNON EXPRESS, INC.
FIRST: The name of the Company is Cannon Express, Inc.
SECOND: The address of the registered office of the Company in the
State of Delaware is 229 South State Street in the City of Dover, County of
Kent. The name of the registered agent of the Company at such address is
the United States Corporation Company.
THIRD: The purpose of the Company is to engage in any lawful act or
activity for which corporations may now or hereafter be organized under the
General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of capital stock of which the
Company shall have authority to issue is Ten Million (10,000,000) shares of
Common Stock having a par value of $0.01 per share.
FIFTH: The business and affairs of the Company shall be managed by
the Board of Directors consisting of not less than two (2) nor more than
ten (10) persons. The exact number of directors within the 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.
The Board of Directors shall be natural persons of full age. The
initial term of office of each director shall expire at the Annual Meeting
of Stockholders in 1987. At each annual election commencing at the Annual
Meeting of Stockholders of 1987, the successors to the directors shall be
elected to hold office for a term of one year. Each director shall hold
office until the next annual meeting of stockholders and until his
successor shall be elected and qualified or until his death, or until he
shall resign.
Newly created directorships resulting from any increase in the
authorized number of directors or any vacancies in the Board of Directors
resulting from the death, resignation, retirement, disqualification,
removal from office or other cause shall be filled by a majority vote of
the directors then in office, and directors so chosen shall hold office for
a term expiring at the annual meeting of stockholders. No decrease in the
number of directors constituting the Board of Directors shall shorten the
term of any incumbent director.
During his term of office any director may be removed from his office
as a director for cause or otherwise by the vote of 66 2/3% of the
stockholders.
SIXTH: In furtherance and not in limitation of the powers conferred
by the laws of the State of Delaware, the Board of Directors is expressly
authorized to adopt, amend or repeal the bylaws.
SEVENTH:
A.1. In addition to any affirmative vote required by law or under
any other provision of this Certificate of Incorporation, and except as
otherwise expressly provided in subparagraph B:
a. any merger or consolidation of the Company or any
subsidiary (as hereinafter defined) with or into (i) any Substantial
Stockholder (as hereinafter defined), or (ii) any other corporation
(whether or not itself a Substantial Stockholder) which, after such merger
or consolidation, would be an Affiliate (as hereinafter defined) of a
Substantial Stockholder, or
b. any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related transactions)
to or with (i) any Substantial Stockholder, or (ii) an Affiliate of a
Substantial Stockholder of any assets of the Company or any subsidiary
having an aggregate fair market value of $4,000,000 or more, or
c. the issuance or transfer of the Company or any Subsidiary
(in one transaction or a series of related transaction) of any securities
of the Company or any Subsidiary to (i) any Substantial Stockholder or (ii)
any other Company (whether or not itself a Substantial Stockholder) which,
after such issuance or transfer, would be an Affiliate of a Substantial
Stockholder in exchange for cash, securities or other property (or a
combination thereof) having an aggregate fair market value of $4,000,000 or
more, or
d. the adoption of any plan or proposal for the liquidation
or dissolution of the Company proposed by or on behalf of a Substantial
Stockholder or an Affiliate of a Substantial Stockholder, or
e. any reclassification of securities (including any reverse
stock split), recapitalization, reorganization, merger or consolidation of
the Company with any of its Subsidiaries or any similar transaction
(whether or not with or into or otherwise involving a Substantial
Stockholder or an Affiliate of a Substantial Stockholder) which has the
effect, directly or indirectly, of increasing the proportionate share of
the outstanding shares of any class of equity or convertible securities of
the Company or any Subsidiary which is directly or indirectly owned by any
Substantial Stockholder or by an Affiliate of a Substantial Stockholder,
shall require the affirmative vote of the holders of at least 66 2/3% of
the voting power of the then outstanding shares of capital stock of the
Company entitled to vote generally in the election of directors, considered
for the purpose of this Article Seventh as one class ("Voting Shares").
Such affirmative vote shall be required notwithstanding the fact that no
vote may be required, or that some lesser percentage may be specified, by
law or in any agreement with any national securities exchange or otherwise.
2. The term "business combination" as used in this Article
Seventh shall mean any transaction which is referred to in any one or more
clauses (a) through (e) of Section 1 of this subparagraph A.
B. The provisions of subparagraph A of this Article Seventh shall
not be applicable to any particular business combination, and such business
combination shall require only such affirmative vote as is required by law
and any other provision of this Certificate of Incorporation, if all of the
conditions specified in either of the following paragraphs 1 and 2 are met:
1. The business combination shall have been approved by a
majority of the "Continuing Directors" (as hereinafter defined).
2. All of the following conditions shall have been met:
a. The ratio of:
(1) the aggregate amount of the cash and the fair
market value of other consideration to be received per share of holders of
common stock of the Company ("Common Stock") in such business combination,
to
(2) the market price of the Common Stock
immediately prior to the public announcement of the proposal of such
business combination, is at least as great as the ratio of
(i) the highest per share price (including
brokerage commissions, transfer taxes and soliciting dealers' fees) which
such Substantial Stockholder has paid for any shares of Common Stock
acquired by it within the five year period prior to the business
combination.
to
(ii) the market price of the Common Stock
immediately prior to the initial acquisition by such Substantial
Stockholder of any Common Stock;
b. The aggregate amount of cash and fair market value of
other consideration to be received per share by holders of Common Stock in
such business combination:
(1) is not less than the highest per share price
(including brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by Substantial Stockholder in acquiring any of its holdings of
Common Stock, and
(2) is not less than the earnings per share of Common
Stock for the four full consecutive fiscal quarters immediately preceding
the record date for solicitation of votes on such business combination
multiplied by the then price/earnings multiple (if any) of such Substantial
Stockholder as customarily computed and reported in the financial
community;
c. The aggregate amount of the cash and the fair market value
as of the date of the consummation of the business combination of
consideration other than cash to be received per share by holders of shares
of any other class of outstanding capital stock of the Company shall be at
least equal to the highest of the following (it being intended that the
requirements of this paragraph B.2.c. shall be required to be met with
respect to every class of outstanding capital stock of the Company whether
or to the Substantial Stockholder has previously acquired any shares of a
particular class of capital stock):
(1) (if applicable) the highest per share (including any
brokerage commission, transfer taxes and soliciting dealers' fees) paid by
the Substantial Stockholder for any shares of such class of capital stock
acquired by it (1) within the five year period immediately prior to the
first public announcement of the proposal of the business combination (the
"Announcement Date") or (2) in the transaction in which it became a
Substantial Stockholder, whichever is higher;
(2) (if applicable) the highest preferential amount per
share to which the holders of shares of such class of capital stock are
entitled in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company;
(3) the fair market value per share of such class of
capital stock (which may be determined by a majority of the Continuing
Directors) on the Announcement Date or on the date on which the Substantial
Stockholder became a Substantial Shareholder (the "Determination Date"),
whichever is higher; and
(4) (if applicable) the price per share equal to the
fair market value per share of such class of capital stock determined
pursuant to paragraph B.2.c. (3) above, multiplied by the ratio of (1) the
highest per share price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by the Substantial Stockholder for
any shares of such class of capital stock acquired by it within the five-
year period immediately prior to the Announcement Date to (2) the fair
market value per share of such class of capital stock on the first day in
such five-year period upon which the Substantial Stockholder acquired any
shares of such class of Voting Shares.
d. The consideration to be received by holders of the capital
stock of the Company in such business combination shall be in cash or in
the same form and of the same kind as the consideration paid by the
Substantial Stockholder in acquiring the shares of Stock already owned by
it;
e. After such Substantial Stockholder has acquired ownership
of not less than 10% of the then outstanding Voting Shares (a "10%
Interest") and prior to the consummation of such business combination;
(1) the Substantial Stockholder shall have taken steps
to ensure that the Company's Board of Directors included at all times
representation by Continuing Director(s) (as hereinafter defined)
proportionate to the ratio that the Voting Shares which from time to time
are owned by persons other than the Substantial Stockholder ("Public
Holders") bear to all Voting Shares outstanding at such respective times
(with a Continuing Director to occupy any resulting fractional Board
position);
(2) there shall have been no reduction in the rate of
dividends payable on the Common Stock except as may have been approved by a
majority vote of the Continuing Directors;
(3) such Substantial Stockholder shall not have acquired
any newly issued shares of capital stock of the Company, directly or
indirectly, from the Company (except upon conversion of convertible
securities acquired by it prior to obtaining a 10% Interest or as a result
of a pro rata stock dividend or stock split; and
(4) such Substantial Stockholder shall not have acquired
any additional shares of the Company's outstanding Common Stock or
securities convertible into or exchangeable for Common Stock except as part
of the transaction which results in such Substantial Stockholder acquiring
its 10% Interest.
f. Prior to the consummation of such business combination,
such Substantial Stockholder shall not have (i) received the benefit,
directly or indirectly (except proportionately as a stockholder), of any
loss, advances, guarantees, pledges or other financial assistance or tax
credits provided by the Company, or (ii) made any major change in the
Company's business or equity capital structure without the approval of a
majority of the Continuing Directors; and
g. A proxy statement responsive to the requirements of the
Securities Exchange Act of 1934 shall have been mailed to all holders of
Voting Shares for the purpose of soliciting stockholder approval of such
business combination. Such proxy statement shall contain at the front
thereof, in a prominent place, any recommendations as to the advisability
(or inadvisability) of the business combination which the Continuing
Directors, or any of them, may have furnished in writing and, if deemed
advisable by a majority of the Continuing Directors, an opinion of a
reputable investment banking firm as to the fairness (or lack of fairness)
of the terms of such business combination, from the point of view of the
holders of Voting Shares other than the Substantial Stockholder (such
investment banking firm to be selected by a majority of the Continuing
Directors, to be furnished with all information it reasonably requests and
to be paid a reasonable fee for its services upon receipt by the Company of
such opinion.)
C. For the purposes of this Article Seventh:
1. A "person" shall mean any individual, firm, corporation or
other entity.
2. "Substantial Stockholder" shall mean, in respect of any
business combination, any person (other than the Company or any subsidiary)
who or which as of the record date for the determination of stockholders
entitled to notice of and to vote on such business combination, or as of
the time of the vote on such business combination, or immediately prior to
the consummation of any such transaction,
(a) is the beneficial owner, directly or indirectly, of
not less than 10% of the Voting Shares, or,
(b) is an Affiliate of the Company and at any time
within five years prior thereto was the beneficial owner, directly or
indirectly, of not less than 10% of the then outstanding Voting Shares, or
(c) is an assignee of or has otherwise succeeded to any
shares of capital stock of the company which were at any time within five
years prior thereto beneficially owned by any Substantial Stockholder, and
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.
3. A person shall be the "beneficial owner" of any Voting
Shares:
(a) which such person or any of its Affiliates and
Associates (as hereinafter defined) beneficially own, directly or
indirectly, or
(b) which such person or any of its Affiliates or
Associates has (i) 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 (ii) the right to
vote pursuant to any agreement, arrangement or understanding or
(c) which are beneficially owned, directly or
indirectly, by any other person with which such first mentioned 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 Company.
4. The outstanding Voting Shares shall include shares deemed
owned through application of section 3 above but shall not include any
other Voting Shares which may be issuable pursuant to any agreement, or
upon exercise of conversion rights, warrants or options, or otherwise.
5. "Continuing Director" shall mean a person who was a
director prior to October 1, 1986 or who was a member of the Board of
Directors of the Company elected by the Public Holders prior to the date as
of which the Substantial Stockholder acquired 10% of the then outstanding
Voting Shares, or a person designated (before his initial election as a
director) as a Continuing Director by a majority of the then Continuing
Directors.
6. "Other consideration to be received" shall mean Common
Stock of the Company retained by its Public Holders in the event of a
business combination in which the Company is the surviving corporation.
7. "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on
January 1, 1982.
8. "Subsidiary" means any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the General
Rules and Regulations under the Securities Exchange Act of 1934; as in
effect on January 1, 1984) which is owned, directly or indirectly, by the
Company; provided, however, that for the purposes of the definition of
Substantial Stockholders set forth in section 2 of this subparagraph C, the
term "Subsidiary" shall mean only a corporation of which a majority of each
class of equity security is owned, directly or indirectly, by the Company.
D. A majority of the Continuing Directors shall have the power and
duty to determine for the purposes of this Article Seventh, on the basis of
information known to them, (a) the number of Voting Shares beneficially
owned by any person, (b) whether a person is an Affiliate or Associate of
another, (c) whether a person has an agreement, arrangement or
understanding with another as to the matters referred to in section 3 of
subparagraph C, or (d) whether the assets subject to any business
combination have an aggregate fair market value of $4,000,000 or more.
E. Nothing contained in Article Seventh shall be construed to
relieve any Substantial Stockholder from any fiduciary obligation imposed
by law.
EIGHTH: The Company 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.
Notwithstanding anything to the contrary contained in this Certificate of
Incorporation or the bylaws of the Corporation (and notwithstanding the
fact that a lesser percentage may be specified by law, this Certificate of
Incorporation or the bylaws of the Corporation), the affirmative vote of
the holders of at least 66 2/3% of the voting power of the then outstanding
Voting Shares shall be required to amend, alter, change or appeal, or to
adopt any provision inconsistent with, Articles Fifth, Seventh, Tenth,
Twelfth and this Article Eighth of this Certificate of Incorporation,
provided that such 66 2/3 vote shall not be required for, any amendment,
alteration, change or repeal recommended to the stockholders by a majority
of the Continuing Directors, as defined in Article Seventh.
NINTH: The holders of a majority of the Common Stock issued,
outstanding, and entitled to vote at the time a determination is made,
present in person, or represented by proxy, shall be requisite and shall
constitute a quorum at all meetings of the stockholders for the transaction
of business.
TENTH: Any action required or permitted to be taken by the
stockholders of the Company must be effected at a duly called annual or
special meeting of stockholders of the Company and may not be effected by
any consent in writing by such stockholders. Special meetings of
stockholders of the Company may be called only by the Board of Directors
pursuant to a resolution approved by a majority of the entire Board of
Directors or by the Chairman of the Board or President, upon not less than
10 nor more than 60 days' written notice.
ELEVENTH: Whenever a compromise or arrangement is proposed between
this Company and its creditors or any class of them and/or between this
Company and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a
summary way of this Company or of any creditor or stockholder thereof or on
the application of any receiver or receivers appointed for the Company
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 this Company 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 this
Company, as the case may be, to be summoned in such manner as the said
court directs. If a majority in number representing two-thirds in value of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Company, as the case may be, agree to any compromise
or arrangement and to any reorganization of this Company as a consequence
of such compromise or arrangement, the said compromise or arrangement and
the said reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all creditors or class of
creditors, and/or on all the stockholders or class of stockholders, of this
Company, as the case may be, and also on this Company.
TWELFTH: The bylaws of the Company may be amended or repealed, or
new bylaws may be adopted (a) by the affirmative vote of seventy-five
percent of the voting power of the then outstanding Voting Shares; provided
that the notice of such meeting of stockholders, whether regular or
special, shall specify as one of the purposes thereof the making of such
amendment or repeal; or (b) by the affirmative vote of the majority of the
Board of Directors at any regular or special meeting.
THIRTEENTH: Any person who, by reason of the fact he is or was a
director, officer, employee or agent of the Company, or is or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
is or was a party, or is threatened to be made a party, to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, or investigative, shall be indemnified by the Company;
provided, such person acted in good faith and in a manner reasonably
believed to be in or not opposed to the best interests of the Company, and,
with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. Such indemnification shall be
provided against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding; provided, however, that
with respect to an action or suit by or in the right of the Company, such
indemnification shall be only against expenses (including attorneys' fees)
and in such cases no indemnification shall be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be
liable, unless, and only to the extent that, the court in which the action
or suit was brought determines, upon application, that despite the
adjudication of liability and in view of all the circumstances of the case,
the person is fairly and reasonably entitled to indemnity for such expenses
as the court shall deem proper.
To the extent that a director, officer, employee or agent of the
Company has been successful on the merits or otherwise in defense of any
action, suit, or proceeding or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in
connection with the action, suit or proceeding.
Any other indemnification hereunder, unless ordered by a court, shall
be made by the Company only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because such person has met the
applicable standard of conduct set forth herein. The determination shall
be made, (i) by the board of directors who were not parties to the action,
suit, or proceeding, or (ii) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (iii) by the
stockholders. The termination, of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea or nolo contendere
or its equivalent, shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Company, and
with respect to any criminal action or proceeding, that had reasonable
cause to believe that his conduct was unlawful.
Expenses (including attorneys' fees), incurred in defending a civil or
criminal action, suit or proceeding may be paid by the Company in advance
of the final disposition of the action, suit, or proceeding upon receipt of
an undertaking by or on behalf of the director, officer, employee or agent
to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Company as authorized herein.
The indemnification and advancement of expenses provided hereunder, or
granted pursuant to this Article, shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of
expenses may be entitled under any applicable statute as amended from time
to time, any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in their official capacity and as
to action in another capacity while holding such office.
The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
The Company may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the Company,
or is or was serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such, whether
or not the Company would have the power to indemnify him against such
liability under the provisions herein.
For purposes of this Article, references to "the Company" shall
include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
the provisions of this Article with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation
if its separate existence had continued.
For purposes of this Article, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan;
and references to "serving at the request of the Company" shall include any
service as a director, officer, employee or agent of the Company which
imposes duties on, or involves services by, such director, officer,
employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in
a manner he reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted
in a manner "not opposed to the best interests of the Company" as referred
to in this Article.
FOURTEENTH: No director shall have any personal liability to the
Company or its stockholders for monetary damages for breach of fiduciary
duty as a director, provided such breach does not (i) constitute a breach
of such director's duty of loyalty to the Company or its stockholders, (ii)
consist of acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of the law, (iii) give rise to liability
under Section 174 of the General Corporation Law of the State of Delaware,
or (iv) involve any transaction from which such director derived an
improper personal benefit.
FIFTEENTH: The incorporator is Robert B. Thomson, whose mailing
address is 2700 City Center Square, 12th & Baltimore, P.O. Box 26010,
Kansas City, Missouri 64196.