EXHIBIT 3.1
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
GREYHOUND LINES, INC.
The undersigned, being the President of Greyhound Lines, Inc., a
Delaware corporation, hereby certifies the following:
1. The name of the corporation is Greyhound
Lines, Inc. (the "Corporation").
2. The date of filing of the original
Certificate of Incorporation (the "Certificate of Incorporation") of the
Corporation was December 18, 1986 and the name under which the Corporation was
originally incorporated was GLI Operating Company. A Restated Certificate of
Incorporation of the Corporation was filed with the Delaware Secretary of State
on October 31, 1991. The Certificate of Incorporation was restated in its
entirety pursuant to that certain Restated Certificate of Incorporation (the
"Restated Certificate of Incorporation"), which was filed with the Delaware
Secretary of State on March 16, 1999. The Restated Certificate of Incorporation
was amended by that certain Certificate of Amendment to Restated Certificate of
Incorporation, which was filed with the Delaware Secretary of State on May 21,
2001.
3. This Second Amended and Restated Certificate
of Incorporation amends and restates the Restated Certificate, as amended to
date, in its entirety.
4. This Second Amended and Restated Certificate
of Incorporation has been duly adopted by the written consent of the sole member
of the Corporation's Board of Directors (the "Board of Directors") and by the
written consent of the sole stockholder of the Corporation, in accordance with
the provisions of Sections 141, 228, 242 and 245 of the General Corporation Law
of the State of Delaware ("DGCL"), as applicable.
5. The Restated Certificate of Incorporation of
the Corporation, as amended and restated hereby, shall upon its filing with the
Secretary of State of the State of Delaware, read in its entirety as follows:
FIRST. The name of the Corporation is Greyhound Lines, Inc.
SECOND. The address of the Corporation's registered office in the State
of Delaware is 1209 Orange Street, in the City of Wilmington, County of New
Castle, Delaware 19801. The name of its registered agent at such address is The
Corporation Trust Company.
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, as amended.
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FOURTH: The total number of shares of capital stock that the
Corporation shall have authority to issue is 1,000, classified as 1,000 shares
of common stock, par value $0.01 per share (the "Common Stock").
The designations and the powers, preferences, rights, qualifications,
limitations, and restrictions of the Common Stock are as follows:
I. Provisions Relating to the Common Stock
(a) General. Each share of Common Stock of the
Corporation shall have identical rights and privileges in every respect. The
holders of shares of Common Stock shall be entitled to vote upon all matters
submitted to a vote of the stockholders of the Corporation and shall be entitled
to one vote for each share held.
(b) Dividends and Distributions. The holders of shares of
Common Stock shall be entitled to receive such dividends or other distributions,
payable in cash, property, stock, or otherwise, as may be declared thereon by
the Board of Directors at any time and from time to time out of any funds of the
Corporation legally available therefor.
(c) Dissolution. In the event of any voluntary or
involuntary liquidation, dissolution, or winding-up of the affairs of the
Corporation, the holders of shares of Common Stock shall be entitled to receive
all of the assets of the Corporation available for distribution to its
stockholders, ratably in proportion to the number of shares of Common Stock held
by them. Neither the consolidation with nor the merger of the Corporation into
any other corporation or corporations or other entity or entities, nor the
merger of any other corporation or other entity into the Corporation, nor a
reorganization of the Corporation, nor the purchase or redemption of all or any
part of the outstanding shares of any class or classes of the capital stock of
the Corporation, nor a voluntary sale or transfer of the property and business
of the Corporation as, or substantially as, an entirety, shall be deemed a
liquidation, dissolution, or winding-up of the affairs of the Corporation within
the meaning of any of the provisions of this Section I.
II. General.
(a) Subject to the foregoing provisions of this
Certificate of Incorporation, the Corporation may issue shares of its Common
Stock from time to time for such consideration (not less than the par value
thereof) as may be fixed by the Board of Directors, which is expressly
authorized to fix the same in its absolute and uncontrolled discretion subject
to the foregoing conditions. Shares so issued for which the consideration shall
have been paid or delivered to the Corporation shall be deemed fully paid stock
and shall not be liable to any further call or assessment thereon, and the
holders of such shares shall not be liable for any further payments in respect
of such shares.
(b) The Corporation shall have authority to create and
issue rights and options entitling their holders to purchase shares of the
Corporation's capital stock of any class or series or other securities of the
Corporation, and such rights and options shall be evidenced by instrument(s)
approved by the Board of Directors. The Board of Directors shall be empowered to
set the exercise price, duration, times for exercise, and other terms of such
options or rights;
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provided, however, that the consideration to be received for any shares of
capital stock subject thereto shall not be less than the par value thereof.
FIFTH. In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
(1) To adopt, amend or repeal the by-laws of the
Corporation and
(2) To provide for the indemnification of directors,
officers, management, employees and agents of the
Corporation, and of persons who serve other
enterprises in such or similar capacities at the
request of the Corporation, to the full extent
permitted by the General Corporation Law of the State
of Delaware, as amended, or any other applicable
laws, as may from time to time be in effect.
SIXTH: The Corporation shall indemnify any person who was, is, or is
threatened to be made a party to a proceeding (as hereinafter defined) by reason
of the fact that he or she (i) is or was a director or officer of the
Corporation or (ii) while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent, or similar functionary of
another foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan, or other enterprise, to the
fullest extent permitted under the General Corporation Law of the State of
Delaware, as the same exists or may hereafter be amended. Such right shall be a
contract right and as such shall run to the benefit of any director or officer
who is elected and accepts the position of director or officer of the
Corporation or elects to continue to serve as a director or officer of the
Corporation while this Article Sixth is in effect. Any repeal or amendment of
this Article Sixth shall be prospective only and shall not limit the rights of
any such director or officer or the obligations of the Corporation with respect
to any claim arising from or related to the services of such director or officer
in any of the foregoing capacities prior to any such repeal or amendment to this
Article Sixth. Such right shall include the right to be paid by the Corporation
expenses incurred in defending any such proceeding in advance of its final
disposition to the maximum extent permitted under the General Corporation Law of
the State of Delaware, as the same exists or may hereafter be amended. If a
claim for indemnification or advancement of expenses hereunder is not paid in
full by the Corporation within sixty (60) days after a written claim has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim, and if
successful in whole or in part, the claimant shall also be entitled to be paid
the expenses of prosecuting such claim. It shall be a defense to any such action
that such indemnification or advancement of costs of defense is not permitted
under the General Corporation Law of the State of Delaware, but the burden of
proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors or any committee thereof,
independent legal counsel, or stockholders) to have made its determination prior
to the commencement of such action that indemnification of, or advancement of
costs of defense to, the claimant is permissible in the circumstances nor an
actual determination by the Corporation (including its Board of Directors or any
committee thereof, independent legal counsel, or stockholders) that such
indemnification or advancement is not permissible shall be a defense to the
action or create a presumption that such indemnification or advancement is not
permissible.
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In the event of the death of any person having a right of indemnification under
the foregoing provisions, such right shall inure to the benefit of his or her
heirs, executors, administrators, and personal representatives. The rights
conferred above shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, bylaw, resolution of stockholders
or directors, agreement, or otherwise.
The Corporation may additionally indemnify any employee or agent of the
Corporation to the fullest extent permitted by law.
As used herein, the term "proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that could lead to such an action,
suit, or proceeding.
SEVENTH. A director of the Corporation shall not be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or
knowing violation of law, (iii) under Section 174 of the General Corporation Law
of the State of Delaware, or (iv) for any transaction from which the director
derived an improper personal benefit. Any repeal or amendment of this Article
Seventh by the stockholders of the Corporation shall be prospective only, and
shall not adversely affect any limitation on the personal liability of a
director of the Corporation arising from an act or omission occurring prior to
the time of such repeal or amendment. In addition to the circumstances in which
a director of the Corporation is not personally liable as set forth in the
foregoing provisions of this Article Seventh, a director shall not be liable to
the Corporation or its stockholders to such further extent as permitted by any
law hereafter enacted, including without limitation any subsequent amendment to
the General Corporation Law of the State of Delaware.
EIGHTH. Elections of directors need not be by written ballot unless the
by-laws of the Corporation shall so provide.
NINTH. Action may be taken by the stockholders of the Corporation,
without a meeting, by written consent as and to the extent provided at the time
by the General Corporation Law of the State of Delaware, provided that the
matter to be acted upon by such written consent previously has been approved by
the Board of Directors of the Corporation and directed by such board to be
submitted to the stockholders for their action thereon by written consent.
TENTH. Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in
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such manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of this
Corporation as consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
ELEVENTH. The Corporation reserves the right to amend its certificate
of incorporation, and thereby to change or repeal any provision therein
contained, from time to time, in the manner prescribed at the time by statute,
and all rights conferred upon stockholders by such certificate of incorporation
are granted subject to this reservation.
IN WITNESS WHEREOF, the undersigned has executed, signed and
acknowledged this Second Amended and Restated Certificate of Incorporation on
the 21st day of May, 2001.
GREYHOUND LINES, INC.
By:______________________________________
Craig R. Lentzsch
President and Chief Executive Officer
ATTESTED BY:
____________________________
Mark E. Southerst
Secretary
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