Exhibit 3.(I)
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "TNT FREIGHTWAYS CORPORATION", CHANGING ITS NAME FROM "TNT FREIGHTWAYS
CORPORATION" TO "USFREIGHTWAYS CORPORATION", FILED IN THIS OFFICE ON THE THIRD
DAY OF MAY, A.D. 1996, AT 3:01 O'CLOCK P.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS FOR RECORDING.
/s/ Edward J. Freel
- ----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 7933223
DATE: 05-06-96
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
TNT Freightways Corporation, a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of TNT
Freightways Corporation resolutions were duly adopted setting forth a proposed
amendment to the Restated Certificate of Incorporation of said corporation,
declaring said amendment to be advisable and calling a meeting of the
stockholders of said corporation for consideration thereof. The resolution
setting forth the proposed amendment is as follows:
RESOLVED, that the Restated Certificate of Incorporation of TNT
Freightways Corporation be amended by changing the First Article
thereof so that, as amended, said Article shall be and read as
follows:
The name of the corporation is USFreightways Corporation (the
"Corporation").
SECOND: That thereafter, pursuant to resolution of its Board of
Directors, a special meeting of the stockholders of said corporation was duly
called and held, upon written waiver of notice signed by all stockholders at
which meeting the necessary number of shares as required by statute were voted
in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, said TNT Freightways Corporation has caused
this certificate to be signed by J.C. Carruth, its President & CEO, this Third
day of May, 1996.
TNT Freightways Corporation
By: /s/ J.C. Carruth
------------------------
President & CEO
State of Delaware
Office of the Secretary of State
I, WILLIAM T. QUILLEN, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO
HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "TNT FREIGHTWAYS CORPORATION", FILED IN THIS OFFICE ON THE
TWENTY-SECOND DAY OF FEBRUARY, A.D. 1994, AT 10 O'CLOCK A.M.
A CERTIFIED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE KENT COUNTY
RECORDER OF DEEDS FOR RECORDING.
/s/ William T. Quillen
- ---------------------------------------
William T. Quilleen Secretary of State
AUTHENTICATION: 7034873
DATE: 02-22-94
CERTIFICATE OF DESIGNATIONS FOR
SERIES A JUNIOR
PARTICIPATING CUMULATIVE PREFERRED STOCK
Par Value $0.01 Per Share
of
TNT Freightways Corporation
Pursuant to Section 151 of the General Corporation
Law of the State of Delaware
We, J.C. Carruth, President and Chief Executive Officer, and B. Carlton Bailey,
Jr., Secretary, of TNT Freightways Corporation (the "Corporation"), a
corporation organized and existing under the General Corporation Law of the
State of Delaware, in accordance with the provisions of Section 103 thereof, DO
HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by the
Restated Certificate of Incorporation (the "Restated Certificate") of the
Corporation, the Board of Directors on February 4, 1994, by unanimous vote
adopted the following resolution creating a series of Three Hundred Fifty
Thousand (350,000) shares of the Corporation's authorized Preferred Stock, par
value $0.01 per share, having the powers, designations, preferences and relative
participating, optional and other rights and the qualifications, limitations and
restrictions thereof set forth therein:
RESOLVED, that a series of the authorized Preferred Stock of the Corporation be,
and it hereby is, created, and that the designation and amount thereof and the
voting powers, preferences and relative participating, optional and other rights
of the shares of such series, and the qualifications, limitations and
restrictions thereof are as follows:
Section 1. Designation and Amount.
The shares of such series shall be designated as Series A Junior Participating
Cumulative Preferred Stock, par value $0.01 per share (the "Series A Preferred")
and the number of shares constituting such series shall be Three Hundred Fifty
Thousand (350,000). Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, that no decrease shall reduce
the number of shares of Series A Preferred to a number less than the number of
shares reserved for issuance upon the exercise of outstanding options, rights or
warrants or upon the conversion of any outstanding securities issued by the
Corporation convertible into Series A Preferred.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series of the
Corporation's Preferred Stock (or any similar stock) ranking prior and superior
to the Series A Preferred with respect to dividends, the holders of shares of
Series A Preferred, in preference to the holders of
Common Stock, and of any other capital stock ranking junior to the Series A
Preferred which may then be outstanding, shall be entitled to receive, when, as
and if declared by the Board of Directors out of funds legally available
therefor, quarterly dividends payable in cash on the last day of March, June,
September and December in each year (each such date being referred to herein as
a "Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series A Preferred, in an amount per share (rounded to the nearest cent) equal
to the greater of (a) $2.50 per share ($10.00 per annum), or (b) subject to the
provision for adjustment hereinafter set forth an amount equal to 100 times the
aggregate per share amount of all cash dividends, and 100 times the aggregate
per share amount (payable in kind) of all non-cash dividends or other
distributions, (other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise)), declared on the Corporation's Common Stock during the quarterly
period ended on the Quarterly Dividend Payment Date, or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Preferred. In the event the Corporation shall at
any time declare or pay any dividend on Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then thereafter in each such case the amounts to
which holders of shares of Series A Preferred would otherwise be entitled under
clause (b) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
(B) The Corporation shall declare a dividend or distribution on the Series A
Preferred as provided in paragraph (A) of this Section 2 immediately after it
declares each dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the Common Stock during the
quarterly period ending on any Quarterly Dividend Payment Date, a dividend of
$2.50 per share ($10.00 per annum) on the Series A Preferred shall nevertheless
be declared and payable on such Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding shares of
Series A Preferred from the Quarterly Dividend Payment Date next preceding the
date of issue of such shares of Series A Preferred, unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Series A Preferred entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall accumulate but shall not bear
interest. Dividends paid on the shares of Series A Preferred in an amount less
than the total amount of accrued and unpaid dividends at such time with respect
to such shares shall be allocated pro rata on a share-by-share basis among all
such shares of Series A Preferred at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
Series A Preferred entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be not more than 60 days prior to the
date fixed for the payment thereof.
Section 3. Voting Rights.
The holders of shares of Series A Preferred shall have the following voting
rights.
(A) Subject to the provisions for adjustment as hereinafter set forth, each
share of Series A Preferred shall entitle the holder thereof to 100 votes (and
each one-hundredth of a share of Series A Preferred shall entitle the holder
thereof to one vote) on all matters submitted to a vote of the stockholders of
the Corporation. In the event the Corporation shall at any time declare or pay
any dividend on Common Stock payable in shares of Common Stock or effect a
combination or consolidation or subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common Stock, then
in each such case the number of votes per share to which holders of shares of
Series A Preferred were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in the Restated Certificate, in any
other certificate of designations creating another series of the Corporation's
Preferred Stock or any similar stock, or by law, the holders of shares of Series
A Preferred and the holders of shares of Common Stock and any other capital
stock of the Corporation having general voting rights shall vote together as one
class on all matters submitted to a vote of stockholders of the Corporation.
(C) If at any time the Corporation shall not have declared and paid all accrued
and unpaid dividends on the Series A Preferred as provided in Section 2 hereof
for four consecutive quarterly Dividend Payment Dates, then, in addition to any
voting rights provided for in paragraphs (A) and (B) of this Section 3, the
holders of the Series A Preferred shall have the exclusive right, voting
separately as class, to elect two directors on the Board of Directors of the
Corporation (such directors being referred to hereinafter as the "Preferred
Directors"). The right of the holders of the Series A Preferred to elect the
Preferred Directors shall continue until all such accrued and unpaid dividends
shall have been paid in full. At such time, the terms of any of the Preferred
Directors shall terminate. At any time when the holders of the Series A
Preferred shall have thus become entitled to elect Preferred Directors, a
special meeting of stockholders shall be called for the purpose of electing such
Preferred Directors, which special meeting shall be held within 30 days after
the right of the holders of the Series A Preferred to elect such Preferred
Directors shall arise, upon notice given in the manner provided by law or by the
by-laws of the Corporation for giving notice of a special meeting of
stockholders (provided, however, that such a special meeting shall not be called
if the annual meeting of stockholders is to convene within said 30 days). At any
such special meeting or at any annual meeting at which the holders of the Series
A Preferred shall be entitled to elect Preferred Directors, the holders of a
majority of the then outstanding shares of Series A Preferred present in person
or by proxy shall be sufficient to constitute a quorum for the election of such
directors. The persons elected by the holders of the Series A Preferred at any
meeting in accordance with the terms of the preceding sentence shall become
directors on the date of such election.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions payable on
the Series A Preferred as provided in Section 2 are in arrears, thereafter and
until all accrued and unpaid dividends and distributions, whether or not
declared, on shares of Series A Preferred outstanding shall have been paid in
full, the Corporation shall not:
(i) declare or pay any dividends or, make any other distributions on any shares
or stock ranking junior (either as to dividends or upon liquidation, dissolution
or winding-up) to the Series A Preferred;
(ii) declare or pay any dividends, or make any other distributions, on any
shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding-np) with the Series A Preferred, except dividends paid
ratably on the Series A Preferred, and all such other parity stock on which
dividends are payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any
capital stock ranking (either as to dividends or upon liquidation, dissolution
or winding-up) junior to or in parity with the Series A Preferred, provided that
the Corporation may at any time redeem, purchase or otherwise acquire shares of
any parity stock in exchange for shares of any stock of the Corporation ranking
junior (either as to dividends or upon dissolution, liquidation or winding-up)
to the Series A Preferred; or
(iv) purchase or otherwise acquire for consideration any shares of Series A
Preferred, or any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding-up) with the Series A Preferred, except
in accordance with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the respective
series or classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares.
Any shares of Series A Preferred purchased or otherwise acquired by the
Corporation in any manner whatsoever, shall be retired and canceled promptly
after the acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of the Corporation's Preferred Stock,
without designation as to series, and may be reissued as part of a new series of
Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein, in the Restated Certificate, in any other certificate of designations
creating another series of the Corporation's Preferred Stock or any similar
stock or as otherwise required by law.
Section 6. Liquidation. Dissolution or Winding-Up.
Upon any voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation, no distribution shall be made (A) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding-up) to the Series A Preferred unless prior thereto, the holders of
shares of Series A Preferred shall have received the higher of (i) $10.00 per
share, plus an amount equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such payment, or (ii) an
aggregate amount per share, subject to the provision for adjustment hereinafter
set forth, equal to 100 times the aggregate per share amount to be distributed
to holders of Common Stock; nor shall any distribution be made (B) to the
holders of stock ranking (either as to dividends or upon liquidation,
dissolution or winding-up) in parity with the Series A Preferred, (except
distributions made ratably on the Series A Preferred and all other such parity
stock in proportion to the total amounts to which the holders of all such shares
are entitled upon such liquidation, dissolution or winding-up). In the event the
Corporation shall at any time declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a combination or consolidation or
subdivision of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
aggregate amount to which, under the provision in clause (A) of the preceding
sentence, holders of shares of Series A Preferred would otherwise be entitled
shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc.
In case the Corporation shall enter into any consolidation, merger, combination
or other transaction in which the shares of Common Stock are exchanged for or
converted or changed into other stock or securities, cash and/or any other
property, or otherwise changed, then in any such case each share of Series A
Preferred shall at the same time be similarly exchanged or converted or changed
into an amount per share (subject to the provision for adjustment hereinafter
set forth) equal to 100 times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is changed, converted or exchanged. In the
event the Corporation shall at any time declare or pay any dividend on Common
Stock payable in shares of Common Stock, or effect a subdivision or combination
or consolidation of the outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the exchange,
conversion or change of shares of Series A Preferred shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. No Redemption.
The shares of Series A Preferred shall not be redeemable.
Section 9. Rank.
Unless otherwise provided in the Restated Certificate or a certificate of
designations relating to a subsequent series of Preferred Stock of the
Corporation, the Series A Preferred shall rank junior to all other series of the
Corporation's Preferred Stock as to the payment of dividends and the
distribution of assets on liquidation, dissolution or winding-up, and senior to
the Common Stock of the Corporation.
Section 10. Amendment.
The Restated Certificate, as amended to the date hereof, shall not be amended in
any manner which would materially alter or change the powers, preferences or
special rights of the Series A Preferred so as to affect them adversely without
the affirmative vote of the holders of at least two-thirds of the outstanding
shares of Series A Preferred, voting together as a single series.
Section 11. Fractional Shares.
The Series A Preferred may be issued in fractions of a share (in one-hundredths
(1/100) of a share and integral multiples thereof) which shall entitle the
holder, in proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to have the benefit
of all other rights of holders of Series A Preferred.
IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf of
the Corporation by its President and Chief Executive Officer and attested by its
Secretary this 18th day of February, 1994.
/s/ J.C. Carruth
- ---------------------------------------
President and Chief Executive
Officer
Attest:
/s/ B. Carlton Bailey Jr.
- -------------------------------
Secretary
RESTATED CERTIFICATE OF INCORPORATION
OF
TNT FREIGHTWAYS CORPORATION
TNT FREIGHTWAYS CORPORATION, a corporation organized and existing under the laws
of the State of Delaware, Does Hereby Certify As Follows:
1. The name of the corporation is TNT FREIGHTWAYS CORPORATION. The original
Certificate of Incorporation was filed with the Secretary of State of the State
of Delaware on April 22, 1991, under the name of 235 Corporation, and a
Certificate of Amendment thereto was filed with the Secretary of State of the
State of Delaware on July 30, 1991.
2. The Certificate of Incorporation is hereby amended and restated as authorized
by Section 242 and Section 245 of the General Corporation Law of the State of
Delaware to read as herein set forth in full:
ARTICLE FIRST
The name of the corporation is TNT FREIGHTWAYS CORPORATION (the "Corporation").
ARTICLE SECOND
The address of the registered office of the Corporation in the State of Delaware
is 32 Loockerman Square (Suite L-100), in the City of Dover, County of Kent
19901. The name of the registered agent of the Corporation at such address is
The Prentice-Hall Corporation System, Inc.
ARTICLE THIRD
The purpose of the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of the
State of Delaware.
ARTICLE FOURTH
(a) The total number of shares of all classes of stock which the Corporation
shall have authority to issue is 100 million, of which 20 million shares shall
be Preferred Stock, par value $0.01 per share ("Preferred Stock"), and 80
million shares shall be Common Stock, par value $0.01 per share ("Common
Stock").
(b) The Board of Directors is authorized, subject to limitations prescribed by
law and the provisions of this Article FOURTH, to provide for the issuance of
the shares of Preferred Stock
in series, and by filing a certificate pursuant to the applicable law of the
State of Delaware, to establish from time to time the number of shares to be
included in each such series, and to fix the designation, powers, preferences
and rights of the shares of each such series and the qualifications, limitations
or restrictions thereof. Unless otherwise provided in the resolution or
resolutions of the Board of Directors providing for the issuance thereof, shares
of any series of Preferred Stock which shall be issued and thereafter acquired
by the Corporation through purchase, redemption, exchange, conversion or
otherwise shall return to the status of authorized but unissued Preferred Stock.
The authority of the Board of Directors with respect to each series shall
include, but not be limited to, determination of the following:
(i) the number of shares constituting that series and the distinctive
designation of that series;
(ii) the dividend rate on the shares of that series, whether dividends shall be
cumulative, and, if so, from which date or dates, and the relative rights of
priority, if any, of payment of dividends on shares of that series;
(iii) whether that series shall have voting rights, in addition to the voting
rights provided by law, and, if so, the terms of such voting rights (including
but not limited to the right of the holders of such shares to vote as a separate
class acting alone or with the holders of one or more other series of Preferred
Stock and the right to have more (or less) than one vote per share);
(iv) whether that series shall have conversion privileges and, if so, the terms
and conditions of such conversion, including provision for adjustment of the
conversion rate in such events as the Board of Directors shall determine;
(v) whether or not the shares of that series shall be redeemable, and, if so,
the terms and conditions of such redemption, including the date or dates upon or
after which they shall be redeemable, and the amount per share payable in case
of redemption, which amount may vary under different conditions and at different
redemption dates;
(vi) whether that series shall have a sinking fund for the redemption or
purchase of shares of that series, and, if so, the terms and amount of such
sinking fund;
(vii) the rights of the shares of that series in the event of voluntary or
involuntary liquidation, dissolution or winding up of the Corporation, and the
relative rights of priority, if any, of payment of shares of that series; and
(viii) any other relative rights, preferences or limitations of that series.
(c) Except for and subject to those rights expressly granted to the holders of
Preferred Stock, or any series thereof, by the Board of Directors, pursuant to
the authority hereby vested in the Board of Directors or as provided by the laws
of the State of Delaware, the holders of the Corporation's Common Stock shall
have exclusively all rights of stockholders and shall possess exclusively all
voting power. Each holder of Common Stock of the Corporation shall be entitled,
on each matter submitted for a vote to holders of Common Stock, to one vote for
each share of such stock standing in such holder's name on the books of the
Corporation.
(d) Shares of Common Stock or Preferred Stock may be issued by the Corporation
from time to time for such consideration, having a value of not less than the
par value, if any, thereof, as is determined from time to time by the Board of
Directors. Any and all shares issued and for which full consideration has been
paid or delivered shall be deemed fully paid stock and the holder thereof shall
not be liable for any further payment thereon.
(e) The holders of the Common Stock shall have no preemptive rights to subscribe
for any shares of any class of stock of the Corporation whether now or hereafter
authorized.
ARTICLE FIFTH
For the management of the business and for the conduct of the affairs of the
Corporation, and in further definition, limitation and regulation of the powers
of the Corporation and its directors and stockholders, it is further provided
that:
(a) The business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors.
(b) The Board of Directors shall consist of not less than three nor more than
twenty-one directors. The exact number of directors shall be determined from
time to time by a resolution or resolutions adopted by the affirmative vote of a
majority of the entire Board of Directors. The directors shall be divided into
three classes. Each class shall consist, as nearly as may be possible, of
one-third of the total number of directors constituting the entire Board of
Directors. If the classes of directors are not equal in number, the Board of
Directors shall determine which class shall contain an unequal number of
directors.
(c) Upon, or as soon as practicable following, the filing of this Restated
Certificate of Incorporation, the first class of directors shall be elected for
a term to expire at the annual meeting next ensuing, the second class until the
second annual meeting thereafter, and the third class until the third annual
meeting thereafter. At each succeeding annual meeting of stockholders,
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 in
accordance with the terms of this Restated Certificate of Incorporation, 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 director 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 or her term expires
and until his or her successor shall be elected and shall qualify, subject,
however, to the director's prior death, resignation, disqualification or removal
from office. Any director or the entire Board of Directors may be removed for
cause by the affirmative vote of the holders of shares having at least a
majority of the voting power of the then outstanding shares of capital stock of
the Corporation entitled to vote generally on the election of directors and
other matters required to be submitted for stockholder approval, voting together
as a single class; provided, however, that for as long as TNT Limited, or any
affiliate of TNT Limited, owns a majority of such outstanding shares of capital
stock, any director or the entire Board of Directors may be removed in the
manner described above with or without cause. Subject to the rights of the
holders of any series of Preferred Stock, any newly created directorship and any
other vacancy occurring on the Board of Directors may be filled by a majority
of the directors then in office, although less than a quorum, or by a sole
remaining director, except that the stockholders shall fill any vacancy
resulting from the removal of a director by the stockholders. Any Director
elected to fill a vacancy not resulting from an increase in the number of
directors shall have the same remaining term as that of this predecessor.
(d) Unless and except to the extent that the By-Laws of the corporation shall so
require, the election of directors of the Corporation need not be by written
ballot.
(e) Advance notice of stockholder nominations for the election of directors and
of business to be brought by stockholders before any meeting of stockholders of
the Corporation shall be given if required by, and in the manner provided in,
the By-Laws. At any annual meeting or special meeting of stockholders of the
Corporation, only such business shall be conducted as shall have been brought
before such meeting in the manner provided in the By-Laws.
(f) 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 and
empowered to make, alter, amend or repeal from time to time the By-Laws of the
Corporation in any manner not inconsistent with the laws of the State of
Delaware or this Restated Certificate of Incorporation, subject to the right of
the stockholders of the Corporation entitled to vote with respect thereto to
alter, amend or repeal the By-Laws of the Corporation made by the Board of
Directors;
(g) In addition to the powers and authorities herein or by statute expressly
conferred upon it, the Board of Directors may exercise all such powers and do
all such acts and things as may be exercised or done by the Corporation,
subject, nevertheless, to the provisions of the laws of the State of Delaware,
of this Restated Certificate of Incorporation and of the By-Laws of the
Corporation.
ARTICLE SIXTH
(a) To the fullest extent permitted by the General Corporation Law of the State
of Delaware as it exists on the date hereof or as it may hereafter be amended, a
director of the Corporation shall not be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director. No
amendment to or repeal of this Article SIXTH shall apply to or have any effect
on the liability or alleged liability of any director of the Corporation for or
with respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
(b) In addition to any requirements of law and any other provisions herein or in
the terms of any class or series of capital stock having a preference over the
Common Stock of the Corporation as to dividends or upon liquidation (and
notwithstanding that a lesser percentage may be specified by law), the
affirmative vote of the holders of 75 percent or more of the voting power of the
then outstanding voting stock of the Corporation, voting together as a single
class, shall be required to amend, alter or repeal, or adopt any provision
inconsistent with, any provision of this Article SIXTH.
ARTICLE SEVENTH
The Corporation reserves the right at any time and from time to time to amend,
alter, change or repeal any provision contained in this Restated Certificate of
Incorporation, and other provisions authorized by the laws of the State of
Delaware at the time in force or as may hereafter be added or inserted, in the
manner now or hereafter prescribed by law and consistent with Article SIXTH as
now in force; and all rights, preferences and privileges of whatsoever nature
conferred upon stockholders, directors or any other persons whomsoever by and
pursuant to this Restated Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the right reserved in this Article
SEVENTH.
IN WITNESS WHEREOF, TNT FREIGHTWAYS CORPORATION, has caused this Restated
Certificate of Incorporation to be signed by Mr. John Campbell Carruth, its
President and Chief Executive Officer, and attested by its Secretary, and its
corporate seal to be affixed hereto as of the 6th day of January, 1992.
TNT FREIGHTWAYS CORPORATION
by: /s/ J C Carruth
-------------------------------------
Name: John Campbell Carruth
Title: President and Chief Executive Officer
ATTEST:
/s/ B. Carlton Bailey
-------------------------------------
Name: B. Carlton Bailey
Title: Secretary