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SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
AMERICAN FREIGHTWAYS CORPORATION
The undersigned President and Secretary of American
Freightways Corporation (the "Corporation"), hereby certify that
the Corporation has duly adopted these Second Amended and Restated
Articles of Incorporation as set forth below.
1. The name of this Corporation is American Freightways
Corporation (the "Corporation").
2. The street address of the Corporation's registered office
is 2200 Forward Drive, Harrison, Arkansas 72601, and the name of
the registered agent of the Corporation at that address shall be
Tom Garrison.
3. The nature of the business of the Corporation and the
primary object or purposes proposed to be transacted, promoted or
carried on by it, are as follows:
(a) To acquire and own property, both real and personal,
including common stock or other beneficial interests in
corporations, associations, trusts and other forms of business,
whether incorporated or unincorporated, and to provide services to
or for such businesses, and to engage in businesses related to any
such businesses, and to do any and all lawful acts necessary,
convenient, and advisable or desirable that may be incidental or
pertinent to such businesses.
(b) To conduct any other business enterprise not
contrary to law.
(c) To buy, sell, lease, use, develop, mortgage, improve
and otherwise deal in and dispose of all types of real or personal
property in connection with the conduct of business carried on by
the Corporation.
(d) To exercise all of the powers enumerated in the
Arkansas Business Corporation Act of 1987 (the "Act"), the
Corporation elects to be governed by the Act.
4. The total amount of the authorized capital stock of this
Corporation is two hundred fifty million (250,000,000) shares of
common stock with one cent ($.01) par value each.
5. The name and post office address of the incorporator was:
NAME POST OFFICE ADDRESS
Gene C. Campbell P.O. Box 729
Harrison, AR 72602
6. (a) The number of directors constituting the entire
Board shall be not less than nine nor more than fifteen as fixed
from time to time by vote of a majority of the entire Board,
provided, however, that the number of directors constituting the
entire Board shall be nine until otherwise fixed by a majority of
the entire Board.
(b) The Board of Directors shall be divided into three
classes, as nearly equal in numbers as the then total number of
directors constituting the entire Board permits with the term of
office of one class expiring each year. At the 1995 annual meeting
of stockholders, directors of the first class shall be elected to
hold office for a term expiring at the next succeeding annual
meeting, directors of the second class shall be elected to hold
office for a term expiring at the second succeeding annual meeting
and directors of the third class shall be elected to hold office
for a term expiring at the third succeeding annual meeting. Any
vacancies in the Board of Directors for any reason, and any
directorship resulting from any increase in the number of
directors, shall be filled exclusively by the Board of Directors,
acting by a majority of the directors then in office, although less
than a quorum, and any director so chosen shall hold office until
the next election of the class for which such director shall have
been chosen or until the expiration of the term of the director(s)
whom such director(s) replaced, as applicable, and until his
successor shall be elected and qualified. Subject to the
foregoing, at each annual meeting of stockholders the successors to
the class of directors whose term shall then expire shall be
elected to hold office for a term expiring at the third succeeding
annual meeting.
(c) Notwithstanding any other provisions of these
Articles of Incorporation or the By-Laws of the Corporation (and
notwithstanding the fact that some lesser percentage may be
specified by law, these Articles of Incorporation or the By-Laws of
the Corporation), any director or the entire Board of Directors of
the Corporation may be removed at any time, but only for cause and
only by the affirmative vote of the holders of 66 2/3% or more of
the outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors (considered for this
purpose as one class) cast at a meeting of the stockholders called
for that purpose. "Cause" shall mean that a court of competent
jurisdiction shall have definitely concluded that a director has
engaged in fraudulent or dishonest conduct or gross abuse of
authority or discretion with respect to the Corporation.
(d) Notwithstanding any other provision of these
Articles of Incorporation or the By-Laws of the Corporation (and in
addition to any other vote that may be required by law, these
Articles of Incorporation or By-Laws), the affirmative vote of the
holders of at least 66 2/3% of the outstanding shares of each
voting group of the Corporation entitled to vote with respect to
such matter shall be required to amend, alter, repeal or adopt any
provision inconsistent with any provision of Article 6 of these
Articles of Incorporation.
7. (a) The Corporation shall indemnify any person who was
or is 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 (other
than an action by or in the right of the Corporation) by reason of
the fact that he 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 or agent of another
Corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of 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 be the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
(b) The Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of
the fact that he 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 or agent of another
Corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation and except that 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 to the
Corporation unless and only to the extent that the court in which
such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem
proper.
(c) To the extent that a director, officer, employee or
agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to
in paragraph (a) or (b), or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in
connection therewith.
(d) Any indemnification under paragraph (a) or (b)
(unless ordered by a court) shall be made by the Corporation 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 he has met the applicable
standards of conduct set forth in paragraphs (a) or (b). Such
determination shall be made (1) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (2) if such a quorum
is not obtainable, or, even if obtainable, if a quorum of
disinterested directors so directs, by independent legal counsel in
a written opinion, or (3) by the shareholders.
(e) Expenses (including attorneys' fees) incurred in
defending a civil or criminal action, suit or proceeding may be
paid by the Corporation in advance of the final disposition of such
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 Corporation as authorized in this Article
7.
(f) The indemnification provided by this Article 7 shall
not be deemed exclusive of any other rights to which those
indemnified may be entitled under any bylaw, agreement, vote of
shareholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another
capacity while holding such office, and shall 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.
(g) The Corporation shall have power to purchase and
maintain insurance on behalf of any 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, 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 Corporation would have
the power to indemnify him against such liability under the
provisions of this Article 7.
(h) The powers and duties of the Corporation to
indemnify any person under this Article 7 shall apply with equal
force whether an action, suit, or proceeding is threatened or
commenced in this State or outside this State.
8. No member of the Board of Directors shall be liable to
the Corporation or the shareholders of the Corporation for any
monetary damages for breach of his duty as a director, provided
that this provision shall not eliminate or limit the liability of a
director:
(a) for any breach of the director's duty of loyalty to
the Corporation or its shareholders;
(b) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law;
(c) for liability under Ark. Code Ann. 4-27-833;
(d) for any transaction from which the director derived
an improper personal benefit;
(e) for any action, omission, transaction, or breach of
a director's duty creating any third-party liability to any person
or entity other than the Corporation or shareholder; or
(f) for any act or omission occurring prior to the date
of filing these Amended and Restated Articles of Incorporation with
the Secretary of State.
9. Shareholders of the Corporation shall not have preemptive
rights.
10. Unless the Act provides otherwise, a quorum at any
meeting of the shareholders of the Corporation shall consist of a
majority of the votes entitled to be cast on the matter,
represented in person or by duly authorized proxy at such meeting.
11. In any election of directors, the shareholders of the
Corporation shall not be entitled to cumulative voting rights.
EXECUTED this ___ day of April, 1995.
/s/F.S. Garrison________________
F. S. Garrison, Chairman,
President and Chief Executive
Officer
/s/Tom Garrison_________________
Tom Garrison, Secretary-
Treasurer, Vice President