EXHIBIT 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
WESTERN EXPRESS HOLDINGS, INC.,
A NEVADA CORPORATION
ARTICLE I
NAME
The name of the corporation is Western Express Holdings, Inc. (the
"Company").
ARTICLE II
RESIDENT AGENT
The name and street address of the Company's initial resident agent is:
The Corporation Trust Company of Nevada, 6100 Neil Road, Suite 500, Reno, Nevada
89511.
ARTICLE III
PURPOSE
The purpose of the Company is to transact, engage in, promote, conduct,
and carry on any lawful act, activity, or business, and to exercise any powers
permitted to corporations organized under the Nevada Revised Statutes (the
"Revised Statutes").
ARTICLE IV
AUTHORIZED SHARES
The total number of shares of stock that the Company shall have the
authority to issue is: one hundred ten million (110,000,000), consisting of the
following: ten million (10,000,000) shares of Preferred Stock, par value of
$0.001 per share (the "Preferred Stock"), and one hundred million (100,000,000)
shares of Common Stock, par value of $0.001 per share (the "Common Stock").
No holder of shares of the Company of any class, now or hereafter
authorized, shall have any preferential or preemptive right to subscribe for,
purchase, or receive any shares of stock of the Company of any class, now or
hereafter authorized, or any options or warrants for such shares, or any rights
to subscribe to or purchase such shares, or any securities convertible into or
exchangeable for such shares, which may at any time or from time to time be
issued, sold, or offered for sale by the Company.
Subject to the rights of the holders of any one or more series of
Preferred Stock then outstanding, the number of authorized shares of any class
or classes of stock may be increased or decreased (but not below the number of
shares thereof then outstanding) by the affirmative vote of the holders of a
majority of the stock of the Company entitled to vote.
The voting powers, designations, preferences, limitations,
restrictions, and special or relative rights of the shares of each class are as
follows:
A. Preferred Stock. The shares of Preferred Stock may be issued from
time to time in one or more series of any number of shares, provided that the
aggregate number of shares issued and not retired of any and all such series
shall not exceed the total number of shares of Preferred Stock hereinabove
authorized, and with such powers, including voting powers, if any, and the
designations, preferences, and relative, participating, optional, or other
special rights, if any, and any qualifications, limitations, or restrictions
thereof, all as shall hereafter be stated and expressed in the resolution or
resolutions providing for the designation and issuance of such shares of
Preferred Stock from time to time adopted by the Board of Directors of the
Company (the "Board") pursuant to authority so to do which is hereby expressly
vested in the Board. The powers, including voting powers, if any, preferences
and relative, participating, optional, and other special rights of each series
of Preferred Stock, and the qualifications, limitations, or restrictions
thereof, if any, may differ from those of any and all other series at any time
outstanding.
B. Common Stock. Except as otherwise provided by law or by these
Articles of Incorporation, and subject to the express terms of any series of
shares of Preferred Stock, the holders of outstanding shares of Common Stock
shall exclusively possess voting power for the election of Directors and for all
other purposes, each holder of record of shares of Common Stock being entitled
to one vote for each share of Common Stock standing in his or her name on the
books of the Company. Except as otherwise provided by law or by these Articles
of Incorporation, and subject to the express terms of any series of shares of
Preferred Stock, the holders of shares of Common Stock shall be entitled, to the
exclusion of the holders of shares of Preferred Stock of any and all series, to
receive such dividends as from time to time may be declared by the Board. In the
event of any liquidation, dissolution, or winding up of the Company, whether
voluntary or involuntary, subject to the rights, if any, of the holders of any
outstanding series of Preferred Stock, the holders of shares of Common Stock
shall be entitled to share ratably according to the number of shares of Common
Stock held by them in all remaining assets of the Company available for
distribution to its stockholders.
ARTICLE V
DIRECTORS
A. Number of Directors. The business and affairs of the Company shall
be managed by, or under the direction of, the Board. Unless and except to the
extent that the Bylaws of the Company (the "Bylaws") shall so require, the
election of the Directors of the Company need not be by written ballot.
Initially, the number of directors of the Company constituting the Board (the
"Directors") shall be one (1); however, the number of Directors may from time to
time be increased or decreased in such manner as shall be provided by the
Bylaws.
B. Initial Director. The name and address of the initial Director is:
Wayne Wise, 7135 Centennial Place, Nashville, Tennessee 37209.
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C. Vacancies and Newly Created Directorships. Subject to the rights of
the holders of any one or more series of Preferred Stock then outstanding, newly
created directorships resulting from any increase in the authorized number of
Directors or any vacancies on the Board resulting from death, resignation,
retirement, disqualification, removal from office, or other cause shall be
filled solely by the affirmative vote of a majority of the remaining Directors
then in office, even if less than a quorum of the Board. Any Director so chosen
shall hold office until the next election of Directors or until his or her
successor shall be elected and qualified. No decrease in the number of Directors
shall shorten the term of any incumbent Director.
D. Removal of Directors. Except for such Directors, if any, as are
elected by the holders of any series of Preferred Stock, as provided for or
fixed pursuant to the provisions of Article IV(A) hereof, any Director, or the
entire Board, may be removed from office at any time, but only for cause and
only by the affirmative vote of at least two-thirds (2/3) of the total voting
power of the outstanding shares of capital stock of the Company entitled to vote
generally in the election of Directors, voting together as a single class.
ARTICLE VI
LIMITATION OF LIABILITY
To the fullest extent permitted under the Revised Statutes, as amended
from time to time, no Director or officer of the Company shall be personally
liable to the Company or its stockholders for monetary damages for any act or
omission as a Director or officer, provided that this provision shall not
eliminate or limit the liability of a Director or officer for any breach of such
person's fiduciary duty to the Company or its stockholders, which breach
involves intentional misconduct, fraud, or a knowing violation of law. If the
Revised Statutes are hereafter amended to authorize corporate action further
eliminating or limiting the personal liability of Directors or officers, then
the liability of a Director or officer of the Company shall be eliminated or
limited to the fullest extent permitted by the Revised Statutes as so amended.
Any amendment, repeal, or modification of the foregoing provision shall not
adversely affect any right or protection of a Director or officer of the Company
hereunder in respect of any act or omission occurring prior to the time of such
amendment, repeal, or modification.
ARTICLE VII
INDEMNIFICATION
A. Right to Indemnification. The Company shall indemnify and hold
harmless, to the fullest extent permitted by, and in accordance with procedures
set forth in, applicable law as it presently exists or may hereafter be amended,
any person (a "Covered Person") who was or is made or is threatened to be made a
party to, or is otherwise involved in, any action, suit, or proceeding, whether
civil, criminal, administrative, or investigative (a "Proceeding"), by reason of
the fact that he or she, or a person for whom he or she is the legal
representative, is or was a Director or officer of the Company or, while a
Director or officer of the Company, is or was serving at the request of the
Company as a director, officer, employee, or agent of another corporation or of
a partnership, joint venture, trust, enterprise, or nonprofit entity (an "Other
Entity"), including service with respect to employee benefit plans, against all
liability and loss suffered and expenses (including attorneys' fees) actually
and reasonably incurred by such Covered Person. Notwithstanding the preceding
sentence, except as otherwise provided in
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Article VII(C), the Company shall be required to indemnify a Covered Person in
connection with a Proceeding (or part thereof) commenced by such Covered Person
only if the commencement of such Proceeding (or part thereof) by the Covered
Person was authorized by the Board.
B. Prepayment of Expenses. The Company shall pay the expenses
(including attorneys' fees) actually and reasonably incurred by a Covered Person
in defending any Proceeding in advance of its final disposition; provided,
however, that, to the extent required by applicable law, such payment of
expenses in advance of the final disposition of the Proceeding shall be made
only upon receipt of an undertaking by the Covered Person to repay all amounts
advanced if it ultimately should be determined that the Covered Person is not
entitled to be indemnified under this Article VII or otherwise.
C. Claims. If a claim for indemnification or advancement of expenses
under this Article VII is not paid in full within thirty (30) days after a
written claim therefor by the Covered Person has been received by the Company,
the Covered Person may file suit to recover the unpaid amount of such claim and,
if successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim.
D. Nonexclusivity of Rights. The rights conferred on any Covered Person
by this Article VII shall not be exclusive of any other rights that such Covered
Person may have or hereafter acquire under any statute, provision of these
Articles of Incorporation, the Bylaws, agreement, vote of stockholders or
disinterested Directors, or otherwise.
E. Other Sources. The Company's obligation, if any, to indemnify or to
advance expenses to any Covered Person who was or is serving at its request as a
Director, officer, employee, or agent of an Other Entity shall be reduced by any
amount such Covered Person may collect as indemnification or advancement of
expenses from such Other Entity.
F. Insurance. The Company may purchase and maintain insurance on behalf
of any person who is or was a Director, officer, employee, or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee, or agent of another corporation, partnership, joint venture,
trust, or other enterprise, including but not limited to an employee benefit
plan, against any liability asserted against him or her and incurred by him or
her in any such capacity, or arising out of his or her status as such, whether
or not the Company would have the power to indemnify him or her against such
liability under the provisions of this Article VII.
G. Amendment or Repeal. Any repeal or modification of the foregoing
provisions of this Article VII shall not adversely affect any right or
protection hereunder of any Covered Person in respect of any act or omission
occurring prior to the time of such repeal or modification.
H. Other Indemnification and Prepayment of Expenses. This Article VII
shall not limit the right of the Company, to the extent and in the manner
permitted by applicable law, to indemnify and to advance expenses to persons
other than Covered Persons when and as authorized by appropriate corporate
action.
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ARTICLE VIII
ADOPTION, AMENDMENT, AND/OR REPEAL OF BYLAWS
In furtherance and not in limitation of the powers conferred by the
laws of the State of Nevada, the Board is expressly authorized to make, alter,
and repeal the Bylaws, subject to the power of the Stockholders of the Company
to alter or repeal any Bylaws whether adopted by them or otherwise.
ARTICLE IX
AMENDMENT OF ARTICLES OF INCORPORATION
The Company reserves the right at any time, and from time to time, to
amend, alter, change, or repeal any provision contained in these Articles of
Incorporation, and other provisions authorized by the laws of the State of
Nevada at the time in force may be added or inserted, in the manner now or
hereafter prescribed by applicable law; and all rights, preferences, and
privileges of whatsoever nature conferred upon stockholders, Directors, or any
other persons whomsoever by and pursuant to these Articles of Incorporation, in
their present form or as hereafter amended, are granted subject to the rights
reserved in this Article IX. Notwithstanding any other provisions of these
Articles of Incorporation or the Bylaws, but in addition to any affirmative vote
of the holders of any particular class of stock of the Company required by
applicable law or these Articles of Incorporation, the affirmative vote of the
holders of at least two-thirds (2/3) of the voting power of the shares of the
then outstanding voting stock of the Company, voting together as a single class,
shall be required to amend or repeal, or adopt any provisions inconsistent with,
Article V(D) or this Article IX of these Articles of Incorporation.
ARTICLE X
WRITTEN CONSENT PROHIBITION
Except as otherwise provided for or fixed pursuant to the provisions of
Article IV of these Articles of Incorporation relating to the rights of holders
of any series of Preferred Stock, no action that is required or permitted to be
taken by the stockholders of the Company at any annual or special meeting of
stockholders may be effected by written consent of stockholders in lieu of a
meeting of stockholders, unless the action to be effected by written consent of
stockholders and the taking of such action by such written consent have been
approved in advance by the Board.
ARTICLE XI
SPECIAL MEETING OF THE CORPORATION'S STOCKHOLDERS
Unless otherwise provided by applicable law, a special meeting of the
Company's stockholders may be called only by (a) the Company's Chairman of the
Board, or (b) a majority of the members of the Board, and may not be called by
any other person or persons.
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ARTICLE XII
INCORPORATOR
The name and address of the sole incorporator is David J. Routh, 411
South 13th Street, Suite 200, Lincoln, Nebraska 68508.
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