Exhibit 3.1
AMENDED AND RESTATED CHARTER
OF
PACER INTERNATIONAL, INC.
Pursuant to the provisions of Section 48-20-101 of the Tennessee
Business Corporation Act (the "Act"), the undersigned corporation adopts the
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following amended and restated charter:
1. Name. The name of the corporation is Pacer International, Inc.
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(the "Corporation").
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2. Registered Office and Registered Agent. The address of the
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registered office of the Corporation in Tennessee is CT Corporation System, 530
Knoxville, TN 37902, County Knox. The Corporation's registered agent at the
registered office is CT Corporation System
3. Principal Office. The address of the principal office of the
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Corporation is 3746 Mt. Diablo Blvd., Suite 110, Lafayette, California 94549.
4. Corporation for Profit. The Corporation is for profit.
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5. Authorized Shares. The Corporation shall have authority, acting
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by its board of directors, to issue not more than twenty-one million
(21,000,000) shares divided into classes as follows:
(a) Twenty million (20,000,000) shares shall be shares of common
stock, each with a par value of one cent ($.01) ("Common Stock"). All shares of
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Common Stock shall be one and the same class and when issued shall have equal
rights of participation in dividends and assets of the Corporation and shall be
non-assessable. Each outstanding share of Common Stock shall be entitled to one
vote on each matter submitted to a vote at a meeting of shareholders. There
shall be no cumulative voting of the Common Stock of the Corporation.
(b) One million (1,000,000) shares shall be shares of preferred
stock, each with a par value of one cent ($.01) ("Preferred Stock").
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(i) The board of directors is hereby authorized to issue the
Preferred Stock from time to time in one or more series, which Preferred Stock
shall be preferred to the Common Stock as to dividends and distribution of
assets of the Corporation on dissolution, as hereinafter provided, and shall
have such distinctive designations as may be stated in the articles of amendment
providing for the issue of such stock adopted by the board of directors. In such
articles of amendment providing for the issuance of shares of each particular
series, the board of directors is hereby expressly authorized and empowered to
fix the number of shares constituting such series and to fix the relative rights
and preferences of the shares of the series so established to the full extent
allowable by law except insofar as such rights and preferences are fixed herein.
Such authorization in the board of directors shall expressly include the
authority to fix and determine the relative rights and preferences of such
shares in the following respects:
(A) The rate of dividend;
(B) Whether shares can be redeemed or called and, if so, the
redemption or call price and terms and conditions of redemption or call;
(C) The amount payable upon shares in the event of voluntary
and involuntary liquidation;
(D) The purchase, retirement or sinking fund provisions, if
any, for the call, redemption or purchase of shares;
(E) The terms and conditions, if any, on which shares may be
converted into Common Stock or any other securities;
(F) Whether or not shares have voting rights, and the extent of
such voting rights, if any, including the number of votes per share; and
(G) Whether or not shares shall be cumulative, non-cumulative
or partially cumulative as to dividends and the dates from which any cumulative
dividends are to accumulate.
All shares of the Preferred Stock shall be of equal rank and shall be
identical, except in respect to the particulars that may be fixed by the board
of directors as hereinabove provided in this paragraph and which may vary among
the series. Different series of the Preferred Stock shall not be construed to
constitute different classes of stock for the purpose of voting by classes,
except when such voting by classes is expressly required by law.
(ii) The holders of Preferred Stock are entitled to receive, when
and as declared by the board of directors, but only from funds legally available
for the payment of dividends, cash dividends at the annual rate for each
particular series as theretofore fixed and determined by the board of directors
as hereinbefore authorized, and no more; such dividends to be payable before any
dividend on Common Stock shall be paid or set apart for payment arrearages in
the payment of dividends shall not bear interest.
(iii) In the event of any dissolution, liquidation or winding up of
the affairs of the Corporation, after payment or provision for payment of the
debts and other liabilities of the Corporation, the holders of each series of
Preferred Stock shall be entitled to receive, out of the net assets of the
Corporation, an amount in cash for each share equal to the amount fixed and
determined by the board of directors in any articles of amendment providing for
the issue of any particular series of Preferred Stock, plus an amount equal to
any dividends payable to such holder which are then unpaid, either under the
provisions of the articles of amendment of the board of directors providing for
the issue of such series of Preferred Stock or by declaration of the board of
directors, on each such share up to the date fixed for distribution, and no
more, before any distribution shall be made to the holders of Common Stock.
Neither the merger or consolidation of the Corporation, nor the sale, lease or
conveyance of all or a part of its assets, shall be deemed to be a dissolution,
liquidation or winding up of the affairs of the Corporation.
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(c) 50,000 shares of Preferred Stock shall have the rights and
designations set forth below.
(i) Designation and Amount. The designation of the series of the
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preferred stock shall be "Series A Preferred Nonparticipating Pay-In-Kind
Stock", par value one cent ($.01) per share (the "Series A Preferred Stock").
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The number of authorized shares of Series A Preferred Stock shall be 50,000.
The Series A Preferred Stock shall be assigned a liquidation value of $1,000 per
share (the "Liquidation Value"). Capitalized terms used herein are defined in
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clause (xii) hereof.
(ii) Stock Dividends. (a) General Obligation. The holders of Series A
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Preferred Stock shall be entitled to receive when, as and if declared by the
board of directors and out of funds of the Corporation legally available
therefor, cumulative dividends for each share of Series A Preferred Stock
outstanding, from the Issue Date, at the annual rate of 7.5% of the Liquidation
Value per share and no more (the "Stock Dividend"). The Stock Dividend shall be
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payable annually in arrears in additional shares of Series A Preferred Stock and
the number of shares (which may include fractions thereof) so delivered shall be
equal to the quotient of (x) the Stock Dividend, divided by (y) the Liquidation
Value. Stock Dividends shall accrue, without interest, from day to day (whether
or not the Corporation has earnings, there are funds legally available therefor
or such dividends are declared) and shall be fully cumulative. Stock Dividends,
if declared, shall be payable annually on the last Business Day (as defined
below) of each fiscal year of the Corporation (each such date being hereinafter
referred to as a "Dividend Date") following the original date of issuance of any
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share of Series A Preferred Stock (the "Issue Date"). Each Dividend will be
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payable to holders of record of Series A Preferred Stock as they appear on the
stock records of the Corporation at the close of business on such record dates,
not more than 60 days prior to such Dividend Dates, as shall be fixed by the
board of directors.
(b) Distribution of Partial Dividend Payments. Except as
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otherwise provided herein, if at any time the Corporation pays less than the
total amount of dividends then accrued with respect to the Series A Preferred
Stock, such payment shall be distributed ratably among the holders thereof based
upon the aggregate accrued but unpaid dividends on the Series A Preferred Stock
held by each such holder.
(c) Priority of Dividends. The Stock Dividends on the Series A
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Preferred Stock pursuant to clause (ii)(a) shall be cumulative such that all
accrued and unpaid dividends thereon (through the most recent Dividend Date)
shall be fully paid or declared with funds irrevocably set apart for payment
thereof before any dividend, distribution or payment may be made with respect to
the Common Stock or any other equity securities of the Corporation ranking
junior to the Series A Preferred Stock with respect to the payment of dividends.
(iii) Liquidation. Upon any liquidation, dissolution or winding up
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of the Corporation, whether voluntary or involuntary, the holders of the Series
A Preferred Stock shall be entitled to be paid, before any distribution or
payment is made upon any Common Stock or any other equity securities of the
Corporation ranking junior to the Series A Preferred Stock with respect to
payment of amounts upon liquidation, dissolution or winding up, an amount per
share
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equal to the Liquidation Value thereof (plus an amount equal to all accrued and
unpaid dividends thereon to but excluding the date of distribution), and the
holders of Series A Preferred Stock shall not be entitled to any further
payment. If upon any such liquidation, dissolution or winding up of the
Corporation, the Corporation's assets (or proceeds thereof) to be distributed
among the holders of the Series A Preferred Stock are insufficient to permit
payment to such holders of the aggregate amount which they are entitled to be
paid hereunder, then the entire assets (or proceeds thereof) to be distributed
to the holders of Series A Preferred Stock shall be distributed ratably among
such holders of Series A Preferred Stock. Neither a consolidation or merger of
the Corporation with another entity, nor the consummation of a statutory binding
share exchange involving the Corporation, nor the sale or transfer by the
Corporation of all or any part of its assets, shall be deemed to be a
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, within the meaning of this clause (iii).
(iv) Redemption. (a) Mandatory Redemption. The Corporation shall
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redeem each of the shares of Series A Preferred Stock held by a holder of Series
A Preferred Stock on the tenth anniversary of the Issue Date (or, if such day is
not any day other than a Saturday, a Sunday or any day on which banks are
authorized or required to close in New York City ("Business Day"), on the next
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following Business Day) of such Share (the "Redemption Date"). Upon such
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redemption, each holder of such Share shall be entitled to a cash payment equal
to the current Liquidation Value of such Share plus any accrued dividends to the
date of redemption (the "Redemption Price").
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(b) Effect of Redemption. On or after the Redemption Date, all
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rights in respect of the Shares to be redeemed, except the right to receive the
Redemption Price, shall (unless default shall be made by the Corporation in the
payment of the Redemption Price, in which event such rights shall be exercisable
until such default is cured) cease and terminate, and such shares shall no
longer be deemed to be outstanding, notwithstanding that any certificates
representing such shares shall not have been surrendered to the Corporation.
(c) Redemption Price. For each share which is to be redeemed,
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the Corporation will be obligated on the Redemption Date to pay to the holder
thereof (upon surrender by such holder at the Corporation's principal office of
the certificate representing such share) an amount in immediately available
funds equal to the Redemption Price thereof. If for any reason the Corporation
defaults in its obligation to pay all or any portion of the Redemption Price, in
addition to any other rights or remedies of the redeeming holder of the Series A
Preferred Stock, the unpaid portion thereof will bear interest at a rate per
annum of 7.5%. If the Corporation's funds which are legally available for
redemption of shares are insufficient to redeem the total number of shares to be
redeemed on such date, those funds which are legally available will be used to
redeem the maximum possible number of shares ratably among the holders of the
shares to be redeemed based upon the aggregate Redemption Price of such shares
held be each such holder. At any time thereafter when additional funds of the
Corporation are legally available for the redemption of shares, such funds will
immediately be used to redeem the balance of the shares which the Corporation
has become obligated to redeem on any Redemption Date but which it has not
redeemed.
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(v) Voting Rights. The holders of the Series A Preferred Stock
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shall have no voting rights other than as required by law.
(vi) Transferability. A holder of shares of Series A Preferred Stock
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shall not make, nor suffer to be made, any transfer, sale, assignment, gift,
pledge, mortgage, or other disposition or encumbrance (all which are comprised
within the word "transfer" as used hereinafter) of all or any portion of the
Series A Preferred Stock held by such holder, except as expressly approved by
the Board of Directors or as otherwise contemplated in this designations. Any
transfers which are not in compliance with the terms of this designation, shall
be null and void and the Corporation shall not, and shall cause any transfer
agent not to, give any effect in the Corporation's records to such attempted
transfer.
(vii) Amendments. The rights, privileges and preferences of the
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Series A Preferred Stock shall not be amended without the consent of a majority
of the then outstanding shares of the Series A Preferred Stock, given in writing
or by vote at a meeting, if such amendment would have a material and adverse
effect on the rights of the holders of the Series A Preferred Stock.
(viii) Business Day. If any day specified as a Dividend Date is not a
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Business Day, such Dividend Date shall be the next following Business Day,
unless such Dividend Date falls in the following calendar month in which case
such Dividend Date shall be the immediately preceding Business Day.
(ix) No Preemptive Rights. The holders of shares of Series A
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Preferred Stock shall have no preemptive rights.
(x) Rank. The Series A Preferred Stock shall, with respect to
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dividend rights and rights on liquidation, winding up and dissolution (with
respect to the Liquidation Amount) (i) rank senior and prior to any class of
common stock, and to any other class or series of securities now or hereafter
issued by the Corporation not designated as senior to or on parity with the
Series A Preferred Stock (ii) rank on a parity with any other class or series of
preferred stock hereafter issued by the Corporation, designated as on a parity
as to dividend rights, rights on liquidation, winding up and dissolution (with
respect to the Liquidation Amount) with the Series A Preferred Stock and (iii)
rank junior to any preferred stock hereafter issued by the Corporation,
designated as senior as to dividend rights, rights on liquidation, winding up
and dissolution with the Series A Preferred Stock.
(xi) Reacquired Shares. Any shares of Series A Preferred Stock
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redeemed, 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 Preferred Stock of the Corporation and may be reissued as part of
another series of Preferred Stock of the Corporation.
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6. Limitation on Directors' Liability.
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(a) A director of the Corporation shall not be personally liable to
the Corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, except for liability for (i) any breach of the director's
duty of loyalty to the Corporation or its shareholders, (ii) acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, or (iii) unlawful distributions under Section 48-18-304 of the Act, as
amended from time to time.
(b) If the Act is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Act, as so amended. Any repeal or modification of the
foregoing by the shareholders shall not adversely affect any right or protection
of a director of the Corporation existing at the time of such repeal or
modification.
7. Indemnification.
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(a) The Corporation shall indemnify, and upon request shall advance
expenses to, in the manner and to the full extent permitted by law, any officer
or director (or the estate of any such person) who was or is a party to, or is
threatened to be made a party to, any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, investigative or
otherwise, by reason of the fact that such person is or was a director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, partner, trustee or employee of another
corporation, partnership, joint venture, trust or other enterprise (an
"indemnitee"). The Corporation may, to the full extent permitted by law,
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purchase and maintain insurance on behalf of any such person against any
liability which may be asserted against him or her. To the full extent
permitted by law, the indemnification and advances provided for herein shall
include expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement. The indemnification provided herein shall not be deemed to limit
the right of the Corporation to indemnify any other person for any such expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement to
the full extent permitted by law, both as to action in his official capacity and
as to action in another capacity while holding such office. Notwithstanding the
foregoing, the Corporation shall not indemnify any such indemnitee (1) in any
proceeding by the Corporation against such indemnitee; or (2) if a judgment or
other final adjudication adverse to the indemnitee establishes his liability for
(i) any breach of the duty of loyalty to the Corporation or its shareholders,
(ii) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, or (iii) unlawful distributions under Section 48-
18-304 of the Act.
(b) The rights to indemnification and advancement of expenses set
forth in paragraph 7(a) above are intended to be greater than those which are
otherwise provided for in the Act, are contractual between the Corporation and
the person being indemnified, his heirs, executors and administrators, and, with
respect to paragraph 7(a), are mandatory, notwithstanding a person's failure to
meet the standard of conduct required for permissive indemnification under the
Act, as amended from time to time. The rights to indemnification and
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advancement of expenses set forth in paragraph 7(a) above are nonexclusive of
other similar rights which may be granted by law, this Charter, the bylaws, a
resolution of the board of directors or shareholders of the Corporation, or an
agreement with the Corporation, which means of indemnification and advancement
of expenses are hereby specifically authorized.
(c) Any repeal or modification of the provisions of this paragraph
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Charter, shall not adversely affect any right or protection set forth herein
existing in favor of a particular individual at the time of such repeal or
modification. In addition, if an amendment to the Act limits or restricts in
any way the indemnification rights permitted by law as of the date hereof, such
amendment shall apply only to the extent mandated by law and only to activities
of persons subject to indemnification under this paragraph 7 which occur
subsequent to the effective date of such amendment.
8. Express Powers of Board of Directors. In furtherance of and not
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in limitation of the powers conferred by statute, the Corporation is expressly
authorized, acting upon the authority of the board of directors and without the
approval of the shareholders, to:
(a) Issue shares of any class or series as a share dividend in
respect of shares of the same class or series or any other class or series;
(b) Fix or change the number of directors, including an increase or
decrease in the number of directors;
(c) Determine, establish or modify, in whole or in part, the
preferences, limitations and relative rights of (i) any class of shares before
the issuance of any shares of that class, or (ii) one or more series within a
class before the issuance of any shares of that series. The board of directors
is further authorized to amend this Charter, without shareholder action, to set
forth such preferences, limitations and relative rights; and
(d) Determine, in accordance with law, the method by which vacancies
occurring on the board of directors are to be filled.
9. Removal of Directors. Directors may be removed from office either
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with or without cause at any time by the affirmative vote of the holders of a
majority of the outstanding shares of the Corporation entitled to vote, given at
a meeting of the shareholders called for that purpose, or by the consent of the
holders of a majority of the outstanding shares of the Corporation entitled to
vote, give in accordance with Section 48-17-104 of the Act.
This Charter was duly adopted on May 28, 1999 by the board of
directors and shareholders of the Corporation.
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IN WITNESS WHEREOF, PACER INTERNATIONAL, INC. has caused this Amended
and Restated Charter to be signed by Donald C. Orris, its Chief Executive
Officer, who hereby acknowledges under penalties of perjury that the facts
herein stated are true and that this Amended and Restated Charter is his act and
deed, this 28th day of May, 1999.
PACER INTERNATIONAL, INC.
/s/ Donald C. Orris
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Donald C. Orris
Chief Executive Officer
Dated: May 28, 1999
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