EXHIBIT A
RESTATED ARTICLES OF INCORPORATION OF ROADRUNNER ENTERPRISES,
INC.
(FORMERLY KNOWN AS INTRENET, INC.)
ARTICLE I
Name
The name of the Corporation is Roadrunner Enterprises, Inc.
(the "Corporation").
ARTICLE II
Purposes and Powers
Section 2.1. Purpose of the Corporation. The purpose for
which the Corporation is formed is to engage in the transaction
of any or all lawful business for which corporations may now or
hereafter be incorporated under the Indiana Business
Corporation Law (the "Corporation Law").
Section 2.2. Powers of the Corporation. The Corporation
shall have (a) all powers now or hereafter authorized by or
vested in corporations pursuant to the provisions of the
Corporation Law, (b) all powers now or hereafter vested in
corporations by common law or any other statute or act, and
(c) all powers authorized by or vested in the Corporation by
the provisions of these Restated Articles of Incorporation or
by the provisions of its By-Laws as from time to time in
effect.
ARTICLE III
Term of Existence
The period during which the Corporation shall continue is
perpetual.
ARTICLE IV
Registered Office and Agent
The street address of the Corporation's registered office in
Indiana at the time of adoption of these Restated Articles of
Incorporation is Junction 231 & I-66, Rockport, Indiana 47635,
and the name of its Resident Agent at such office at the time
of adoption of these Restated Articles of Incorporation is
Phillip E. Weaver.
ARTICLE V
Shares
Section 5.1. Authorized Class and Number of Shares. The
total number of shares of all classes which the Corporation
shall have authority to issue is 35,000,000 shares, consisting
of 25,000,000 shares of Common Stock, without par value
("Common Stock"), and 10,000,000 shares of Preferred Stock,
without par value ("Preferred Stock").
Section 5.2. Dividends. Subject to the provisions of law
and the rights of the Preferred Stock and any other class or
series of stock then outstanding having a preference as to
dividends over the Common Stock, dividends may be paid on the
Common Stock at such times and in such amounts as the Board of
Directors shall determine.
Section 5.3. Relative Rights of Shareholders. Upon the
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, after any preferential
amounts to be distributed to the holders of the Preferred Stock
and any other class or series of stock then outstanding having
a preference over the Common Stock have been paid or declared
and set apart for payment, the holders of the Common Stock
shall be entitled to receive all of the remaining assets of the
Corporation available for distribution to its shareholders.
Section 5.4. Rights and Terms of Preferred Stock. The
Board of Directors is hereby authorized to provide, out of the
unissued shares of Preferred Stock, for one or more series of
Preferred Stock. Before any shares of any such series are
issued, the Board of Directors shall fix, and hereby is
expressly empowered to fix, by the adoption and filing in
accordance with the Corporation Law, of an amendment or
amendments to these Restated Articles of Incorporation, the
terms of such Preferred Stock or series of Preferred Stock,
including the following terms:
(a) the designation of such series, the number of shares
to constitute such series and the stated value thereof if
different from the par value thereof;
(b) whether the shares of such series shall have voting
rights, in addition to any voting rights provided by law,
and, if so, the terms of such voting rights, which may be
special, conditional or limited or no voting rights except
as required by law;
(c) the dividends, if any, payable on such series,
whether any such dividends shall be cumulative, and, if so,
from what dates, the conditions and dates upon which such
dividends shall be payable, the preference or relation which
such dividends shall bear to the dividends payable on any
shares of stock of any other class or any other series of
Preferred Stock;
(d) whether the shares of such series shall be subject to
redemption by the Corporation and, if so, the times, prices
and other conditions of such redemption;
(e) the amount or amounts payable upon shares of such
series upon, and the rights of the holders of such series
in, the voluntary or involuntary liquidation, dissolution or
winding up, or upon any distribution of the assets, of the
Corporation;
(f) whether the shares of such series shall be subject to
the operation of a retirement or sinking fund and, if so,
the extent to and manner in which any such retirement or
sinking fund shall be applied to the purchase or redemption
of the shares of such series for retirement or other
corporate purposes and the terms and provisions relative to
the operation thereof;
(g) whether the shares of such series shall be
convertible into, or exchangeable for, shares of stock of
any other class or any other series of Preferred Stock or
any other securities (whether or not issued by the
Corporation) or other property and, if so, the price or
prices or the rate or rates of conversion or exchange and
the method, if any, of adjusting the same, and any other
terms and conditions of conversion or exchange;
(h) the limitations and restrictions, if any, to be
effective while any shares of such series are outstanding
upon the payment of dividends or the making of other
distributions on, and upon the purchase, redemption or other
acquisition by the Corporation of, the Common Stock or
shares of stock of any other class or any other series of
Preferred Stock.
Section 5.5. Assessability. Upon receipt by the
Corporation of the consideration for which the Board of
Directors authorized the issuance of shares, the shares issued
therefor shall be fully paid and nonassessable.
ARTICLE VI
Directors
Section 6.1. Number. The number of Directors shall be
fixed by the By-Laws.
Section 6.2. Qualifications. Directors need not be
shareholders of the Corporation or residents of this or any
other state of the United States.
Section 6.3. Vacancies. Vacancies occurring on the Board
of Directors shall be filled in the manner provided in the By-
Laws or, if the By-Laws do not provide for the filling of
vacancies, in the manner provided by the Corporation Law. The
By-Laws may also provide that in certain circumstances
specified therein, vacancies occurring on the Board of
Directors may be filled by vote of the shareholders at a
special meeting called for that purpose or at the next annual
meeting of shareholders.
Section 6.4. Liability of Directors. A Director's
responsibility to the Corporation shall be limited to
discharging his duties as a Director, including his duties as a
member of any committee of the Board of Directors upon which he
may serve, in good faith, with the care an ordinarily prudent
person in a like position would exercise under similar
circumstances, and in a manner the Director reasonably believes
to be in the best interests of the Corporation, all based on
the facts then known to the Director.
In discharging his duties, a Director is entitled to rely on
information, opinions, reports, or statements, including
financial statements and other financial data, if prepared or
presented by:
(a) One (1) or more officers or employees of the Corporation
whom the Director reasonably believes to be reliable and competent
in the matters presented;
(b) Legal counsel, public accountants, or other persons as to
matters the Director reasonably believes are within such person's
professional or expert competence; or
(c) A committee of the Board of which the Director is not a
member if the Director reasonably believes the Committee merits
confidence;
but a Director is not acting in good faith if the Director has knowledge
concerning the matter in question that makes reliance otherwise permitted
by this Section 6.4 unwarranted. A Director may, in considering the best
interests of the Corporation, consider the effects of any action on
shareholders, employees, suppliers and customers of the Corporation, and
communities in which offices or other facilities of the corporation are
located, and any other factors the Director considers pertinent.
A Director shall not be liable for any action taken as a Director, or
any failure to take any action, unless (i) the Director has breached or
failed to perform the duties of the Director's office in compliance with
this Section 6.4, and (ii) the breach or failure to perform constitutes
willful misconduct or recklessness.
Section 6.5. Removal of Directors. Any or all of the members of the
Board of Directors may be removed, with or without cause, only at a
meeting of the shareholders called expressly for that purpose, by the
affirmative vote of the holders of outstanding shares representing at
least a majority of all the votes then entitled to be cast at an election
of Directors.
ARTICLE VII
Provisions for Regulation of Business
and Conduct of Affairs of Corporation
Section 7.1. Meetings of Shareholders. Meetings of the shareholders
of the Corporation shall be held at such times and at such places, either
within or without the State of Indiana, as may be stated in or fixed in
accordance with the By-Laws of the Corporation and specified in the
respective notices or waivers of notice of any such meetings.
Section 7.2. Special Meetings of Shareholders. Special meetings of
the shareholders, for any purpose or purposes, unless otherwise
prescribed by the Corporation Law, may be called at any time by the Board
of Directors or the person or persons specifically authorized to do so by
the By-Laws and shall be called by the Board of Directors if the
Secretary of the Corporation receives one (1) or more written, dated and
signed demands for a special meeting, describing in reasonable detail the
purpose or purposes for which it is to be held, from the holders of
shares representing at least fifty percent (50%) of all the votes
entitled to be cast on any issue proposed to be considered at the
proposed special meeting. If the Secretary receives one (1) or more
proper written demands for a special meeting of shareholders, the Board
of Directors may set a record date for determining shareholders entitled
to make such demand.
Section 7.3. Meetings of Directors. Meetings of the Board of
Directors of the Corporation shall be held at such times and at such
places, either within or without the State of Indiana, as may be
authorized by the By-Laws and specified in the respective notices or
waivers of notice of any such meetings or otherwise specified by the
Board of Directors. Unless the By-laws provide otherwise (a) regular
meetings of the Board of Directors may be held without notice of the
date, time, place, or purpose of the meeting and (b) the notice for a
special meeting need not describe the purpose or purposes of the special
meeting.
Section 7.4. Action Without Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors or
shareholders, or of any committee of such Board, may be taken without a
meeting, if the action is taken by all members of the Board or all
shareholders entitled to vote on the action, or by all members of such
committee, as the case may be. The action must be evidenced by one (1)
or more written consents describing the action taken, signed by each
Director, or all the shareholders entitled to vote on the action, or by
each member of such committee, as the case may be, and, in the case of
action by the Board of Directors or a committee thereof, included in the
minutes or filed with the corporate records reflecting the action taken
or, in the case of action by the shareholders, delivered to the
Corporation for inclusion in the minutes or filing with the corporate
records. Action taken under this Section 7.4 is effective when the last
director, shareholder or committee member, as the case may be, signs the
consent, unless the consent specifies a different prior or subsequent
effective date, in which case the action is effective on or as of the
specified date. Such consent shall have the same effect as a unanimous
vote of all members of the Board, or all shareholders, or all members of
the committee, as the case may be, and may be described as such in any
document.
Section 7.5. By-Laws. The Board of Directors shall have the
exclusive power to make, alter, amend or repeal, or to waive provisions
of, the By-Laws of the Corporation by the affirmative vote of a majority
of the entire number of Directors at the time, except as expressly
provided by the Corporation Law. All provisions for the regulation of
the business and management of the affairs of the Corporation not stated
in these Restated Articles of Incorporation shall be stated in the By-
Laws. The Board of Directors may adopt Emergency By-Laws of the
Corporation and shall have the exclusive power (except as may otherwise
be provided therein) to make, alter, amend or repeal, or to waive
provisions of, the Emergency By-Laws by the affirmative vote of a
majority of the entire number of Directors at the time.
Section 7.6. Interest of Directors. (a) A conflict of interest
transaction is a transaction with the Corporation in which a Director of
the Corporation has a direct or indirect interest. A conflict of
interest transaction is not voidable by the Corporation solely because of
the Director's interest in the transaction if any one (1) of the
following is true:
(i) The material facts of the transaction and the
Director's interest were disclosed or known to the Board of
Directors or a committee of the Board of Directors and the
Board of Directors or committee authorized, approved, or
ratified the transaction.
(ii) The material facts of the transaction and the
Director's interest were disclosed or known to the
shareholders entitled to vote and they authorized, approved
or ratified the transaction.
(iii) The transaction was fair to the Corporation.
(b) For purposes of this Section 7.6, a Director of the
Corporation has an indirect interest in a transaction if:
(i) another entity in which the Director has a material
financial interest or in which the Director is a general
partner is a party to the transaction; or
(ii) another entity of which the Director is a director,
officer, or trustee is a party to the transaction and the
transaction is, or is required to be, considered by the
Board of Directors of the Corporation.
(c) For purposes of Section 7.6(a)(i), a conflict of interest
transaction is authorized, approved, or ratified if it receives the
affirmative vote of a majority of the Directors on the Board of
Directors (or on the committee) who have no direct or indirect
interest in the transaction, but a transaction may not be
authorized, approved, or ratified under this Section 7.6 by a single
Director. If a majority of the Directors who have no direct or
indirect interest in the transaction vote to authorize, approve, or
ratify the transaction, a quorum shall be deemed present for the
purpose of taking action under this Section 7.6. The presence of,
or a vote cast by, a Director with a direct or indirect interest in
the transaction does not affect the validity of any action taken
under Section 7.6(a)(i), if the transaction is otherwise authorized,
approved, or ratified as provided in such Section.
(d) For purposes of Section 7.6(a)(ii), shares owned by or voted
under the control of a Director who has a direct or indirect
interest in the transaction, and shares owned by or voted under the
control of an entity described in Section 7.6(b), may be counted in
a vote of shareholders to determine whether to authorize, approve or
ratify a conflict of interest transaction.
Section 7.7. Nonliability of Shareholders. Shareholders of the
Corporation are not personally liable for the acts or debts of the
Corporation, nor is private property of shareholders subject to the
payment of corporate debts.
Section 7.8. Indemnification of Officers, Directors and Other
Eligible Persons.
(a) To the maximum extent permitted by the Corporation Law,
every Eligible Person shall be indemnified by the Corporation
against all Liability and reasonable Expense that may be incurred by
him in connection with or resulting from any Claim, (i) if such
Eligible Person is Wholly Successful with respect to the Claim, or
(ii) if not Wholly Successful, then if such Eligible Person is
determined, as provided in either Section 7.8(f) or 7.8(g), to have
acted in good faith, in what he reasonably believed to be the best
interests of the Corporation or at least not opposed to its best
interests and, in addition, with respect to any criminal Claim, is
determined to have had reasonable cause to believe that his conduct
was lawful or to have had no reasonable cause to believe that his
conduct was unlawful. The termination of any Claim, by judgment,
order, settlement (whether with or without court approval), or
conviction or upon a plea of guilty or of nolo contendere, or its
equivalent, shall not create a presumption that an Eligible Person
did not meet the standards of conduct set forth in clause (ii) of
this subsection (a). The actions of an Eligible Person with respect
to an employee benefit plan subject to the Employee Retirement
Income Security Act of 1974 shall be deemed to have been taken in
what the Eligible Person reasonably believed to be the best
interests of the Corporation or at least not opposed to its best
interests if the Eligible Person reasonably believed he was acting
in conformity with the requirements of such Act or he reasonably
believed his actions to be in the interests of the participants in
or beneficiaries of the plan.
(b) The term "Claim" as used in this Section 7.8 shall include
every pending, threatened or completed claim, action, suit or
proceeding and all appeals thereof (whether brought by or in the
right of this Corporation or any other corporation or otherwise),
civil, criminal, administrative or investigative, formal or
informal, in which an Eligible Person may become involved, as a
party or otherwise:
(i) by reason of his being or having been an Eligible
Person, or
(ii) by reason of any action taken or not taken by him in
his capacity as an Eligible Person, whether or not he
continued in such capacity at the time such Liability or
Expense shall have been incurred.
(c) The term "Eligible Person" as used in this Section 7.8 shall
mean every person (and the estate, heirs and personal
representatives of such person) who is or was a Director, officer,
employee or agent of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee, agent
or fiduciary of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan or other
organization or entity, whether for profit or not. An Eligible
Person shall also be considered to have been serving an employee
benefit plan at the request of the Corporation if his duties to the
Corporation also imposed duties on, or otherwise involved services
by, him to the plan or to participants in or beneficiaries of the
plan.
(d) The terms "Liability" and "Expense" as used in this
Section 7.8 shall include, but shall not be limited to, counsel fees
and disbursements and amounts of judgments, fines or penalties
against (including excise taxes assessed with respect to an employee
benefit plan), and amounts paid in settlement by or on behalf of, an
Eligible Person.
(e) The term "Wholly Successful" as used in this Section 7.8
shall mean (i) termination of any Claim against the Eligible Person
in question without any finding of liability or guilt against him,
(ii) approval by a court, with knowledge of the indemnity herein
provided, of a settlement of any Claim, or (iii) the expiration of a
reasonable period of time after the making or threatened making of
any Claim without the institution of the same, without any payment
or promise made to induce a settlement.
(f) Every Eligible Person claiming indemnification hereunder
(other than one who has been Wholly Successful with respect to any
Claim) shall be entitled to indemnification (i) if special
independent legal counsel, which may be regular counsel of the
Corporation or other disinterested person or persons, in either case
selected by the Board of Directors, whether or not a disinterested
quorum exists (such counsel or person or persons being hereinafter
called the "Referee"), shall deliver to the Corporation a written
finding that such Eligible Person has met the standards of conduct
set forth in Section 7.8(a)(ii), and (ii) if the Board of Directors,
acting upon such written finding, so determines. The Board of
Directors shall, if an Eligible Person is found to be entitled to
indemnification pursuant to the preceding sentence, also determine
the reasonableness of the Eligible Person's Expenses. The Eligible
Person claiming indemnification shall, if requested, appear before
the Referee, answer questions that the Referee deems relevant and
shall be given ample opportunity to present to the Referee evidence
upon which such Eligible Person relies for indemnification. The
Corporation shall, at the request of the Referee, make available
facts, opinions or other evidence in any way relevant to the
Referee's finding that are within the possession or control of the
Corporation.
(g) If an Eligible Person claiming indemnification pursuant to
Section 7.8(f) is found not to be entitled thereto, or if the Board
of Directors fails to select a Referee under Section 7.8(f) within a
reasonable amount of time following a written request of an Eligible
Person for the selection of a Referee, or if the Referee or the
Board of Directors fails to make a determination under
Section 7.8(f) within a reasonable amount of time following the
selection of a Referee, the Eligible Person may apply for
indemnification with respect to a Claim to a court of competent
jurisdiction, including a court in which the Claim is pending
against the Eligible Person. On receipt of an application, the
court, after giving notice to the Corporation and giving the
Corporation ample opportunity to present to the court any
information or evidence relating to the claim for indemnification
that the Corporation deems appropriate, may order indemnification if
it determines that the Eligible Person is entitled to
indemnification with respect to the Claim because such Eligible
Person met the standards of conduct set forth in Section 7.8(a)(ii).
If the court determines that the Eligible Person is entitled to
indemnification, the court shall also determine the reasonableness
of the Eligible Person's Expenses.
(h) The rights of indemnification provided in this Section 7.8
shall be in addition to any rights to which any Eligible Person may
otherwise be entitled. Irrespective of the provisions of this
Section 7.8, the Board of Directors may, at any time and from time
to time, (i) approve indemnification of any Eligible Person to the
maximum extent permitted by the provisions of applicable law at the
time in effect, whether on account of past or future transactions,
and (ii) authorize the Corporation to purchase and maintain
insurance on behalf of any Eligible Person 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 Corporation
would have the power to indemnify him against such liability.
(i) Expenses incurred by an Eligible Person with respect to any
Claim may be advanced by the Corporation (by action of the Board of
Directors, whether or not a disinterested quorum exists) prior to
the final disposition thereof upon receipt of an undertaking by or
on behalf of the Eligible Person to repay such amount unless he is
determined to be entitled to indemnification.
(j) The provisions of this Section 7.8 shall be deemed to be a
contract between the Corporation and each Eligible Person, and an
Eligible Person's rights hereunder shall not be diminished or
otherwise adversely affected by any repeal, amendment or
modification of this Section 7.8 that occurs subsequent to such
person becoming an Eligible Person.
(k) The provisions of this Section 7.8 shall be applicable to
Claims made or commenced after the adoption hereof, whether arising
from acts or omissions to act occurring before or after the adoption
hereof.
ARTICLE VIII
Miscellaneous Provisions
Section 8.1. Amendment or Repeal. Except as otherwise expressly
provided for in these Restated Articles of Incorporation, the Corporation
shall be deemed, for all purposes, to have reserved the right to amend,
alter, change or repeal any provision contained in these Restated
Articles of Incorporation to the extent and in the manner now or
hereafter permitted or prescribed by statute, and all rights herein
conferred upon shareholders are granted subject to such reservation.
Section 8.2. Captions. The captions of the Articles and Sections of
these Restated Articles of Incorporation have been inserted for
convenience of reference only and do not in any way define, limit,
construe or describe the scope or intent of any Article or Section
hereof.