EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
YELLOW CORPORATION
(As amended through April 25, 1996)
FIRST: The name of the corporation is Yellow Corporation.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street in the City of Wilmington, County of
New Castle. The name of the registered agent of the Corporation 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 now or hereafter be organized under the
General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of capital stock of all
classifications which the Corporation shall have authority to issue is One
Hundred Twenty Five Million (125,000,000) shares, consisting of One Hundred
Twenty Million (120,000,000) shares of Common Stock having a par value of $1
per share and Five Million (5,000,000) shares of Preferred Stock having a par
value of $1 per share.
(a) Shares of the Preferred Stock may be issued in one or more
series at such time or times and for such consideration or considerations
as the Board of Directors may determine. All shares of any one series
shall be of equal rank and identical in all respects.
(b) Authority is hereby expressly granted to the Board of Directors
to fix from time to time, by resolution or resolutions providing for the
issue of any series of Preferred stock, the designation of such series
and the powers,
CERT. OF INC. YELLOW CORPORATION PAGE 1
preferences and rights of the shares of such series, and the
qualification, limitations or restrictions thereof, including the
following:
(1) The number of shares constituting that series and the
distinctive designation of that series;
(2) The dividend rate on the shares of that series and the
time of payment thereof, whether dividends shall be cumulative, and
if so, the date or dates which any cumulative dividends shall
commence to accrue, and the relative rights of priority, if any, of
payment of dividends on shares of that series over shares of any
other series;
(3) 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;
(4) 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;
(5) 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;
(6) 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;
CERT. OF INC. YELLOW CORPORATION PAGE 2
(7) The rights of the shares of that series in the event of
merger, acquisition, voluntary or involuntary liquidation,
dissolution, distribution of assets or winding up of the
Corporation, and the relative rights of priority, if any, of
payment of shares of that series over shares of any other series;
(8) Whether the issuance of any additional shares of such
series, or of any shares of any other series, shall be subject to
restrictions as to issuance, or as to the powers, preferences or
rights of any such other series; and
(9) Any other preferences, privileges and powers and relative,
participating, optional or other special rights and qualifications,
limitations or restrictions of such series, as the Board of
Directors may deem advisable and as shall not be inconsistent with
the provisions of this Certificate of Incorporation and to the full
extent now or hereafter permitted by the laws of Delaware.
Dividends on outstanding share of Preferred Stock shall be paid or
declared and set apart for payment, before any dividends shall be paid or
declared and set apart for payment on the common shares with respect to
the same dividend period.
If upon any voluntary or involuntary liquidation, dissolution,
distribution of assets or winding up of the Corporation, the assets
available for distribution to holders of shares of Preferred Stock of all
series shall be insufficient to pay such holders the full preferential
amount to which they are entitled, then such assets shall be distributed
ratably among the shares of all series of Preferred Stock in accordance
with the respective preferential amounts (including unpaid cumulative
dividends, if any) payable with respect thereto.
CERT. OF INC. YELLOW CORPORATION PAGE 3
FIFTH: The business and affairs of the Corporation shall be managed
by the Board of directors consisting of not less than 5 nor more than 15
persons. The exact number of directors within the limitations specified
in the preceding sentence shall be fixed from time to time by the Board
of Directors pursuant to a resolution adopted by a majority of the entire
Board of Directors. The directors need not be elected by ballot unless
required by the Bylaws of the Corporation.
The Board of Directors shall be elected annually at the annual
meeting of stockholders and the members of the Board so elected shall
serve one-year terms to expire at the following annual meeting of
stockholders. Each director shall hold office for the term for which he
is elected or appointed and until his successor shall be elected and
qualified or until his death, or until he shall resign.
Subject to the rights of the holders of any series of Preferred Stock
then outstanding, newly created directorships resulting from any increase
in the authorized number of directors or any vacancies in the Board of
Directors resulting from death, resignation, retirement, disqualification,
removal from office or other cause shall be filled by a majority vote of
the directors then in office, and directors so chosen shall hold office
for a term expiring at the next annual meeting of stockholders. No
decrease in the number of directors constituting the Board of Directors
shall shorten the term of any incumbent director.
No director of the corporation shall be removed from his office as a
director by vote or other action of shareholders or otherwise unless the
director to be removed has been convicted of a felony by a court of
competent jurisdiction and such conviction is no longer subject to direct
appeal or unless the director to be removed has been adjudged by a court
of competent jurisdiction to be mentally incompetent or to be liable for
negligence or misconduct in the
CERT. OF INC. YELLOW CORPORATION PAGE 4
performance of his duty to the corporation and such adjudication is no
longer subject to direct appeal.
SIXTH: 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 to adopt, amend or repeal the bylaws.
SEVENTH:
A. 1. In addition to any affirmative vote required by law or under
any other provision of this Certificate of Incorporation, and except as
otherwise expressly provided in subparagraph B:
a. any merger or consolidation of the Corporation of any
subsidiary (as hereinafter defined) with or into (i) any
Substantial Stockholder (as hereinafter defined) or (ii) any
other corporation (whether or not itself a Substantial
Stockholder which, after such merger or consolidation, would be
an Affiliate (as hereinafter defined) of a Substantial
Stockholder, or
b. any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of related
transactions) to or with (i) any Substantial Stockholder or (ii)
an Affiliate of a Substantial Stockholder of any assets of the
Corporation or any Subsidiary having an aggregate fair market
value of $5,000,000 or more, or
c. the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of related
transactions) of any securities of the Corporation or any
Subsidiary to (i) any Substantial Stockholder or (ii) any other
corporation (whether or
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not itself a Substantial Stockholder) which, after such issuance
or transfer, would be an Affiliate of a Substantial Stockholder
in exchange for cash, securities or other property (or a
combination thereof) having an aggregate fair market value of
$5,000,000 or more, or
d. the adoption of any plan or proposal for the liquidation
of dissolution of the Corporation proposed by or on behalf of a
Substantial Stockholder or an Affiliate of a Substantial
Stockholder, or
e. any reclassification of securities (including any
reverse stock split), recapitalization, reorganization, merger or
consolidation of the Corporation with any of its Subsidiaries or
any similar transaction (whether or not with or into or otherwise
involving a Substantial Stockholder or an Affiliate of a
Substantial Stockholder) which has the effect, directly or
indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity or convertible
securities of the Corporation or any Subsidiary which is directly
or indirectly owned by any Substantial Stockholder or by an
Affiliate of a Substantial Stockholder, shall require the
affirmative vote of the holders of at least 80% of the voting
power of the then outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of
directors, considered for the purpose of this Article Seventh as
one class ("Voting Shares"). Such affirmative vote shall be
required notwithstanding the fact that no vote may be required,
or that some lesser percentage may be required, or that some
lesser percentage may be specified, by law or in any agreement
with any national securities exchange or otherwise.
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2. The term "business combination" as used in this Article
Seventh shall mean any transaction which is referred to in any
one or more clauses (a) through (e) of Section 1 of this
Subparagraph A.
B. The provisions of Subparagraph A of this Article Seventh
shall not be applicable to any particular business combination, and
such business combination shall require only such affirmative vote as
is required by law and any other provision of this Certificate of
Incorporation, if all of the conditions specified in either of the
following paragraphs 1 and 2 are met:
1. The business combination shall have been approved by a
majority of the "Continuing Directors" (as hereinafter defined).
2. All of the following conditions shall have been met:
a. The ratio of:
(1) the aggregate amount of the cash and the fair
market value of other consideration to be received per share
by holders of common stock of the Corporation ("Common
Stock") in such business combination,
to
(2) the market price of the Common Stock
immediately prior to the public announcement of the proposal
of such business combination, is at least as great as the
ratio of
(i) the highest per share price (including
brokerage commissions, transfer taxes and soliciting
dealers' fees) which such Substantial Stockholder has
paid for any shares of Common Stock acquired by it
within the five year period prior to the business
combination,
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to
(ii) the market price of the Common Stock
immediately prior to the initial acquisition by such
Substantial Stockholder of any Common Stock;
b. The aggregate amount of the cash and fair market value of
other consideration to be received per share by holders of Common
Stock in such business combination
(1) is not less that the highest per share price
(including brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by such Substantial Stockholder
in acquiring any of its holdings of Common Stock, and
(2) is not less than the earnings per share of Common
Stock for the four full consecutive fiscal quarters
immediately preceding the record date for solicitation of
votes on such business combination multiplied by the then
price/earnings multiple (if any) of such Substantial
Stockholder as customarily computed and reported in the
financial community;
c. The aggregate amount of the cash and the fair market
value as of the date of the consummation of the business combination
of consideration other than cash to be received per share by holders
of shares of any other class of outstanding capital stock of the
Corporation shall be at least equal to the highest of the following
(it being intended that the requirements of this paragraph B.2.c.
shall be required to be met with respect to every class of
outstanding capital stock of the Corporation whether or not the
Substantial Stockholder has previously acquired any shares of a
particular class of capital stock):
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(1) (if applicable) the highest per share (including
any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by the Substantial Stockholder for any
shares of such class of capital stock acquired by it (1)
within the five year period immediately prior to the first
public announcement of the proposal of the business
combination (the "Announcement Date") or (2) in the
transaction in which it became a Substantial Stockholder,
whichever is higher.
(2) (if applicable) the highest preferential amount per
share to which the holders of shares of such class of capital
stock are entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation;
(3) the fair market value per share of such class of
capital stock (which may be determined by a majority of the
Continuing Directors) on the Announcement Date or on the date
on which the Substantial Stockholder became a Substantial
Stockholder (the "Determination Date"), whichever is higher;
and
(4) (if applicable) the price per share equal to the
fair market value per share of such class of capital stock
determined pursuant to Paragraph B.2.c. (3) above, multiplied
by the ratio of (1) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by the Substantial Stockholder for any shares of
such class of capital stock acquired by it within the
five-year period immediately prior to the Announcement Date to
(2) the fair market value per share of such class of capital
stock on the first day in such five-year period upon
CERT. OF INC. YELLOW CORPORATION PAGE 9
which the Substantial Stockholder acquired any shares of such
class of Voting Shares.
d. The consideration to be received by holders of the
Corporation's capital stock of the Corporation in such business
combination shall be in cash or in the same form and of the same
kind as the consideration paid by the Substantial Stockholder in
acquiring the shares of Stock already owned by it;
e. After such Substantial Stockholder has acquired ownership
of not less than 10% of the then outstanding Voting Shares (a "10%
interest") and prior to the consummation of such business
combination;
(1) the Substantial Stockholder shall have taken steps
to ensure that the Corporation's Board of Directors included
at all times representation by Continuing Director(s) (as
hereinafter defined) proportionate to the ratio that the
Voting Shares which from time to time are owned by persons
other than the Substantial Stockholder ("Public Holders") bear
to all Voting Shares outstanding at such respective times
(with a continuing director to occupy any resulting fractional
board position);
(2) there shall have been no reduction in the rate of
dividends payable on the Common Stock except as may have been
approved by majority vote of the Continuing Directors;
(3) such Substantial Stockholder shall not have
acquired any newly issued shares of capital stock of the
Corporation, directly or indirectly, from the Corporation
(except upon conversion of convertible securities acquired by
it prior to
CERT. OF INC. YELLOW CORPORATION PAGE 10
obtaining a 10% Interest or as a result of a pro rata stock
dividend or stock split; and
(4) such Substantial Stockholder shall not have
acquired any additional shares of the Corporation's
outstanding Common Stock or securities convertible into or
exchangeable for Common Stock except as a part of the
transaction which resulted in such Substantial Stockholder
acquiring its 10% Interest:
f. Prior to the consummation of such business combination,
such Substantial Stockholder shall not have (i) received the
benefit, directly or indirectly (except proportionately as a
stockholder), of any loans, advances, guarantees, pledges or other
financial assistance or tax credits provided by the Corporation; or
(ii) made any major change in the Corporation's business or equity
capital structure without the approval of a majority of the
Continuing Directors; and
g. A proxy statement responsive to the requirements of the
Securities Exchange Act of 1934 shall have been mailed to all
holders of voting Shares for the purpose of soliciting stockholder
approval of such business combination. Such proxy statement shall
contain at the front thereof, in a prominent place, any
recommendations as to the advisability (or inadvisability) of the
business combination which the Continuing Directors, or any of them,
may have furnished in writing and, if deemed advisable by a
majority of the Continuing Directors, an opinion of reputable
investment banking firm as to the fairness (or lack of fairness) of
the terms of such business combination, from the point of view of
the holders of Voting Shares other than the Substantial Stockholder
(such investment banking firm to be selected by a majority of the
Continuing Directors, to be furnished with all information it
reasonably requests and
CERT. OF INC. YELLOW CORPORATION PAGE 11
to be paid a reasonable fee for its services upon receipt by the
Corporation of such opinion).
C. For the purposes of this Article Seventh:
1. A "person" shall mean any individual, firm, corporation or
other entity.
2. "Substantial Stockholder" shall mean, in respect of any
business combination, any person (other than the Corporation of any
Subsidiary) who or which, s of the record date for the determination of
stockholders entitled to notice of and to vote on such business
combination, or as of the time of the vote on such business combination,
or immediately prior to the consummation of any such transaction,
a. is the beneficial owner, directly or indirectly, of
not less than 10% of the Voting Shares, or
b. is an Affiliate of the Corporation and at any time
within five years prior thereto was the beneficial owner,
directly or indirectly, of not less than 10% of the then
outstanding Voting Shares, or
c. is an assignee of or has otherwise succeeded to any
shares of capital stock of the Corporation which were at any
time within five years prior thereto beneficially owned by any
Substantial Stockholder, and such assignment or succession
shall have occurred in the course of a transaction or series of
transactions not involving a public offering within the meaning
of the Securities Act of 1933.
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3. A person shall be the "beneficial owner" of any Voting
Shares:
a. which such person or any of its Affiliates or
Associates (as hereinafter defined) beneficially own, directly
or indirectly, or
b. which such person or any of its Affiliates or
Associates has (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time),
pursuant to any agreement, arrangement or understanding or upon
the exercise of conversion rights, exchange rights, warrants,
or options, or otherwise, or (ii) the right to vote pursuant to
any agreement, arrangement or understanding or
c. which are beneficially owned, directly or indirectly,
by any other person with which such first mentioned person or
any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of capital stock of
the Corporation.
4. The outstanding Voting Shares shall include shares deemed
owned through application of Section 3 above but shall not include
any other Voting Shares which may be issuable pursuant to any
agreement, or upon exercise of conversion rights, warrants or
options, or otherwise.
5. "Continuing Director" shall mean a person who was a
director prior to June 1, 1983 or who was a member of the Board of
Directors of the Corporation elected by the Public Holders prior to
the date as of which the Substantial Stockholder acquired 10% of the
then outstanding Voting Shares, or a person designated (before his
initial
CERT. OF INC. YELLOW CORPORATION PAGE 13
election as a director) as a continuing director by a majority of
the then continuing directors.
6. "Other consideration to be received" shall mean Common
Stock of the Corporation retained by its Public Holders in the event
of a business combination in which the Corporation is the surviving
corporation.
7. "Affiliate" and "Associate" shall have the respective
meanings given those terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect
on January 1, 1982.
8. "Subsidiary" means any corporation of which a majority of
any class of equity security (as defined in Rule 3a11-1 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as in effect on January 1, 1982) is owned, directly or
indirectly, by the Corporation; provided, however, that for the
purposes of the definition of Substantial Stockholders set forth in
Section 2 of this subparagraph c, the term "Subsidiary" shall mean
only a corporation of which a majority of each class of equity
security is owned, directly or indirectly, by the Corporation.
D. A majority of the Continuing Directors shall have the power and
duty to determine for the purposes of this Article Seventh, on the basis
of information known to them, (a) the number of Voting Shares beneficially
owned by any person, (b) whether a person is an Affiliate or Associate of
another, (c) whether a person has an agreement, arrangement or
understanding with another as to the matters referred to in section 3 of
subparagraph C, or (d) whether the assets subject to any business
combination have an aggregate fair market value of $5,000,000 or more.
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E. Nothing contained in Article Seventh shall be construed to relieve
any Substantial Stockholder from any fiduciary obligation imposed by law.
EIGHTH: The Corporation reserves the right to amend, alter, change or
repeal any provision consigned in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statue, and all rights conferred upon
stockholders herein are granted subject to this reservation. Notwithstanding
anything to the contrary contained in this Certificate of Incorporation or the
Bylaws of the Corporation ( and notwithstanding the fact that a lesser
percentage may be specified by law, this Certificate of Incorporation or the
Bylaws of the Corporation), the affirmative vote of the holders of at least 80%
of the voting power of the then outstanding Voting Shares shall be required to
amend, alter, change or repeal, or to adopt any provision inconsistent with,
Articles Fifth, Seventh, Tenth, Twelfth and this Article Eighth of this
Certificate of Incorporation, provided that such 80% vote shall not be required
for any amendment, alteration, change or repeal recommended to the stockholders
by majority of the Continuing Directors, as defined in Article Seventh.
NINTH: The holders of a majority of the Common Stock issued, outstanding,
and entitled to vote at the time a determination is made, present in person, or
represented by proxy, shall be requisite and shall constitute a quorum at all
meetings of the stockholders for the transaction of business.
TENTH: Any action required or permitted to be taken by the shareholders
of the Corporation must effected at a duly called annual or special meeting of
shareholders of the Corporation and may not be effected by any consent in
writing by such shareholders. Special meetings of shareholders of the
Corporation may be called only by the Board of Directors pursuant to a
resolution approved by a majority of the entire Board of Directors or by the
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Chairman of the Board or President, upon not less than 10 nor more than 60 days'
written notice.
ELEVENTH: 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 any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the 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 or the Delaware Code
order a meeting of the creditors or class or creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
to be summoned in such manner as 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 a 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.
TWELFTH: The Bylaws of the Corporation may be amended or repealed, or new
bylaws may be adopted (a) by the affirmative vote of seventy-five percent of the
voting power of the then outstanding Voting Shares; provided that the notice of
such meeting of stockholders whether regular or special, shall specify as one of
the purposes thereof the making of such amendment or repeal; or (b) by
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the affirmative vote of the majority of the Board of Directors at any regular or
special meeting.
THIRTEENTH: The incorporator is Stephen P. Murphy, whose mailing address
is P.O. Box 7270, Overland Park, KS 66207.
FOURTEENTH: 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 a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, as the same exists or hereafter may be amended, or (iv) for any
transaction from which the director derived an improper personal benefit. If
the Delaware General Corporation law hereafter is amended to authorize the
further elimination or limitation of the liability of directors, then the
liability of a director of the corporation, in addition to the limitation on
personal liability provided herein, shall be limited to the fullest extend
permitted by the amended Delaware General Corporation Law. Any repeal or
modification of this paragraph 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 existing at the time of such repeal
or modification.
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