EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SCS TRANSPORTATION, INC.
The original Certificate of Incorporation of the Corporation
was filed with the Secretary of State of the State of Delaware on February 4,
2000 under the name of ABC Trucking, Inc., and was amended to change the name of
the Corporation to SCS Transportation, Inc. by Certificate of Amendment filed on
October 1, 2001.
This Amended and Restated Certificate of Incorporation has
been duly proposed by resolutions adopted and declared advisable by the Board of
Directors of the Corporation, duly adopted by the sole stockholder of the
Corporation and duly executed and acknowledged by the officers of the
Corporation in accordance with Sections 103, 228, 242 and 245 of the General
Corporation Law of the State of Delaware.
This Amended and Restated Certificate of Incorporation shall
become effective at 5:00 p.m., Eastern time, on September 30, 2002 (the
"Effective Date").
The text of the Certificate of Incorporation is hereby amended
and restated to read in its entirety as follows:
Article I
NAME
Section 1.01 The name of the Corporation is "SCS
Transportation, Inc." (hereinafter referred to as the "Corporation").
Article II
REGISTERED AGENT
Section 2.01 The address of the registered office of the
Corporation in the State of Delaware is 1209 Orange Street, Wilmington, County
of New Castle, Delaware, 19801. The name of the registered agent of the
Corporation at such address is The Corporation Trust Company.
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Article III
PURPOSE
Section 3.01 The purpose of the Corporation is to engage in
any lawful act or activity for which corporations may now or hereafter be
organized and incorporated under the General Corporation Law of the State of
Delaware (the "DGCL").
Article IV
AUTHORIZED CAPITAL STOCK
The total number of shares of stock which the Corporation
shall have authority to issue is 50,050,000 shares. Such shares shall consist of
50,000 shares of preferred stock, par value $0.001 per share, amounting to $50
in the aggregate and 50,000,000 shares of common stock, par value $0.001 per
share, amounting to $50,000 in the aggregate.
Section 4.01 Preferred Stock.
(a) The preferred stock of the Corporation 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 canceled in any and all such series
shall not exceed the total number of shares of preferred stock authorized above.
(b) The Board of Directors is authorized, subject to any
limitations prescribed by law, to provide for the issuance of preferred stock
from time to time, in one or more series, by resolution or resolutions and the
filing of a certificate pursuant to the DGCL, to establish the designations,
preferences and rights of each such series and any qualifications, limitations
or restrictions thereof.
Section 4.02 Common Stock.
(a) The common stock of the Corporation 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 canceled in any and all such series
shall not exceed the total number of shares of common stock authorized above.
(b) The Board of Directors is authorized, subject to any
limitations prescribed by law, to provide for the issuance of common stock from
time to time, in one or more series, by resolution or resolutions and the filing
of a certificate pursuant to the DGCL, to establish the designations,
preferences and rights of each such series and any qualifications, limitations
or restrictions thereof.
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(c) Without limiting the generality of the foregoing, shares
of a series of common stock consisting of 20,000,000 shares, or such larger
number of shares as the Board of Directors shall from time to time fix by
resolution or resolutions, may be issued from time to time by the Board of
Directors. Shares of this series shall be designated, and are hereinafter called
"Common Stock." The holders of record of the Common Stock shall be entitled to
the following rights:
(i) to vote at all meetings of stockholders of the
Corporation, and such holders shall have one vote at all such meetings
in respect of each share of Common Stock held of record by them;
(ii) subject to the prior rights of the holders of all
classes or series of preferred stock or common stock other than Common
Stock, to receive when, if and as declared by the Board of Directors
out of the assets of the Corporation legally available therefor, such
dividends as may be declared by the Corporation from time to time to
holders of Common Stock; and
(iii) subject to the prior rights of the holders of all
classes or series of preferred stock or common stock other than Common
Stock, at the time outstanding having prior rights as to distribution
of assets upon liquidation, dissolution or winding-up, to receive the
remaining assets of the Corporation upon liquidation, dissolution or
winding-up.
Article V
STOCKHOLDER ACTION
Section 5.01 Except as otherwise fixed by or pursuant to the
provisions of Article IV hereof relating to the rights of the holders of any
class or series of preferred stock or common stock other than Common Stock, (a)
all action required or permitted to be taken by stockholders of the Corporation
shall be taken at a duly called annual or special meeting and no action may be
taken by written consent and (b) special meetings of stockholders of the
Corporation for any purpose or purposes may be called only by (i) the Board of
Directors pursuant to a resolution stating the purpose or purposes thereof
approved by a majority of the total number of Directors which the Corporation
would have if there were no vacancies (the "Whole Board"), (ii) the Chairman of
the Board of Directors, or (iii) the Chief Executive Officer of the Corporation.
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Article VI
BOARD OF DIRECTORS; ELECTION
Section 6.01 Number, Election and Terms. Except as otherwise
fixed by or pursuant to the provisions of Article IV hereof relating to the
rights of the holders of any class or series of preferred stock or common stock
other than Common Stock, the number of the Directors shall be fixed from time to
time exclusively pursuant to a resolution adopted by a majority of the Whole
Board (which shall in no event be less than three). The Directors, other than
those who may be elected by the holders of any class or series of preferred
stock or common stock other than Common Stock, shall be classified, with respect
to the time for which they severally hold office, into three classes, as nearly
equal in number as possible, one class to be originally elected for a term
expiring at the first annual meeting of stockholders after the Effective Date,
another class to be originally elected for a term expiring at the second annual
meeting of stockholders after the Effective Date, and another class to be
originally elected for a term expiring at the third annual meeting of
stockholders after the Effective Date, with each class to hold office until
their successors are duly elected and qualified. At each succeeding annual
meeting of the stockholders, successors to the class of Directors whose terms
expire at such annual meeting shall be elected for three-year terms, with
members of each class to hold office until their successors are duly elected and
qualified.
Section 6.02 Election of Directors. Unless and except to the
extent that the By-laws of the Corporation (the "By-laws") shall so require, the
election of Directors of the Corporation need not be by written ballot.
Article VII
AMENDMENT OF CERTIFICATE OF INCORPORATION
Section 7.01 The Corporation reserves the right at any time
from time to time to amend, alter, change or repeal any provision contained in
this Amended and Restated Certificate of Incorporation, and any other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted, in the manner now or hereafter prescribed by law; and, except
as set forth in Article VIII, all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, Directors or any other persons
whomsoever by and pursuant to this Amended and Restated Certificate of
Incorporation in its present form or as hereafter amended are granted subject to
the right reserved in this Article. Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least two-thirds of the voting power of all shares of the
Corporation entitled to vote generally in the election of Directors then
outstanding, voting together as a single class, shall be required to alter,
amend, adopt any provision inconsistent with or repeal Article V, Article VI,
Article VII, and Article VIII.
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Article VIII
EXCULPATION; INDEMNIFICATION
Section 8.01 Exculpation of Directors. A Director shall not be
personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a Director, except, if required by the DGCL, for
liability (a) for any breach of the Director's duty of loyalty to the
Corporation or its stockholders, (b) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (c) under
Section 174 of the DGCL, or (d) for any transaction from which the Director
derived an improper personal benefit. Neither the amendment nor repeal of this
Section 8.01 shall eliminate or reduce the effect of this Section 8.01 in
respect of any matter occurring, or any cause of action, suit or claim that, but
for this Section 8.01 would accrue or arise, prior to such amendment or repeal.
Section 8.02 Indemnification and Insurance.
(a) Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that such person, or a
person of whom such person is the legal representative, is or was a Director or
officer of the Corporation or, while a Director or officer of the Corporation,
is or was serving at the request of the Corporation as a Director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, whether the basis of such proceeding is alleged action in an official
capacity as a Director, officer, employee or agent or in any other capacity
while serving as a Director, officer, employee or agent, shall be indemnified
and held harmless by the Corporation to the fullest extent authorized by the
DGCL, as the same exists or may hereafter be amended, against all expense,
liability and loss (including attorneys' fees, judgments, fines, amounts paid or
to be paid in settlement and excise taxes or penalties arising under the
Employee Retirement Income Security Act of 1974, as in effect from time to time)
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a Director,
officer, employee or agent and shall inure to the benefit of such person's
heirs, executors and administrators; provided, however, that, except as provided
in paragraph (b) hereof, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) was authorized by the
Board of Directors. The Corporation shall pay the expenses incurred in defending
any such proceeding in advance of its final disposition; any advance payments
shall be paid by the Corporation within 20 calendar days after the receipt by
the Corporation of a statement or statements from the
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claimant requesting such advance or advances from time to time; provided,
however, that, if and to the extent the DGCL requires, the payment of such
expenses incurred by a Director or officer in such person's capacity as a
Director or officer (and not in any other capacity in which service was or is
rendered by such person while a Director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking, by or on behalf of such Director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such Director or
officer is not entitled to be indemnified under this Section 8.02 or otherwise.
The Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification, and rights to have the Corporation
pay the expenses incurred in defending any proceeding in advance of its final
disposition, to any employee or agent of the Corporation to the fullest extent
of the provisions of this Article with respect to the indemnification and
advancement of expenses of Directors and officers of the Corporation.
(b) Right of Claimant to Bring Suit. If a claim under
paragraph (a) of this Section 8.02 is not paid in full by the Corporation within
30 calendar 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 be entitled to be paid also the expense of prosecuting such
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in defending any proceeding in advance of
its final disposition where the required undertaking, if any is required, has
been tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the DGCL for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper under the circumstances
because the claimant has met the applicable standard of conduct set forth in the
DGCL, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
(c) Non-Exclusivity of Rights. The right to indemnification
and the payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section 8.02 shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
provision of this Amended and Restated Certificate of Incorporation, By-law,
agreement, vote of stockholders or disinterested Directors or otherwise. No
repeal or modification of this Article shall in any way diminish or adversely
affect the rights
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of any Director, officer, employee or agent of the Corporation hereunder in
respect of any occurrence or matter arising prior to any such repeal or
modification.
(d) Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any Director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the DGCL.
(e) Severability. If any provision or provisions of this
Article VIII shall be held to be invalid, illegal or unenforceable for any
reason whatsoever: (i) the validity, legality and enforceability of the
remaining provisions of this Article VIII (including, without limitation, each
portion of any paragraph of this Article VIII containing any such provision held
to be invalid, illegal or unenforceable, that is not itself held to be invalid,
illegal or unenforceable) shall not in any way be affected or impaired thereby;
and (ii) to the fullest extent possible, the provisions of this Article VIII
(including, without limitation, each such portion of any paragraph of this
Article VIII containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
IN WITNESS WHEREOF, the Corporation has caused this Amended
and Restated Certificate of Incorporation to be signed by its Chief Executive
Officer and attested by its Secretary this 26th day of September, 2002.
/s/ Herbert A. Trucksess
---------------------------------
Herbert A. Trucksess, III
Chief Executive Officer
/s/ James J. Bellinghausen
---------------------------------
James J. Bellinghausen
Secretary
this 26th day of September, 2002.
CERTIFICATE OF OWNERSHIP AND MERGER
MERGING
SAIA, INC.
INTO
SCS TRANSPORTATION, INC.
* * * * * * *
(Pursuant to Section 253 of the General Corporation Law of Delaware)
SCS Transportation, Inc., a corporation incorporated on the 4th day of February,
2000, pursuant to the provisions of the General Corporation Law of the State of
Delaware:
DOES HEREBY CERTIFY that this corporation owns all of the outstanding
shares of the stock of Saia, Inc., a corporation incorporated on the 14th day of
July, 2006, pursuant to the provisions of the General Corporation Law of the
State of Delaware and that this corporation, by resolution of its Board of
Directors, filed with the minutes of the Board dated July 20, 2006, determined
to and did merge into itself said Saia, Inc., which resolution is in the
following words to wit:
"WHEREAS, the Corporation desires to change its name from SCS
Transportation, Inc. to Saia, Inc.;
WHEREAS, to effect such name change, the Corporation formed a
wholly-owned subsidiary named Saia, Inc., a Delaware corporation ("Subsidiary");
WHEREAS, the Board of Directors of the Corporation (the "Board") has
determined it to be in the best interests of the Corporation and its
stockholders to effect a merger of Subsidiary with and into the Corporation
pursuant to Section 253 of the Delaware General Corporation Law, whereby the
Corporation shall be the surviving corporation of the merger;
WHEREAS, upon the filing of the Certificate of Ownership and Merger
with the Delaware Secretary of State, the Corporation's name will change to
Saia, Inc., and the same shall be reflected on the Corporation's Certificate of
Incorporation; and
WHEREAS, upon the filing of the Certificate of Ownership and Merger
with the Delaware Secretary of State, the Corporation's Certificate of
Incorporation and bylaws shall be the Certificate of Incorporation and the
bylaws for the surviving corporation.
NOW, THEREFORE, BE IT:
RESOLVED, that Subsidiary be merged with and into the Corporation and
the Corporation assume all of the rights and obligations of Subsidiary pursuant
to Section 253 of the Delaware General Corporation Law;
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FURTHER RESOLVED, that the merger shall be effective as of the filing
of Certificate of Ownership and Merger with the Delaware Secretary of State
merging Subsidiary into Corporation;
FURTHER RESOLVED, that the Corporation's name be, and the same hereby
is, changed from SCS Transportation, Inc. to Saia, Inc. as permitted by
Subsection (b) of Section 253 of the Delaware General Corporation Law, and the
Corporation's Certificate of Incorporation shall automatically be amended to
reflect the same;
FURTHER RESOLVED, that the Corporation's Certificate of Incorporation
(including the amendment to reflect the name change) and bylaws shall be the
Certificate of Incorporation and bylaws of the surviving corporation as of the
effective time of the merger; and
FURTHER RESOLVED, that the officers of the Corporation be, and they
hereby are, authorized and directed to take all necessary and appropriate
actions to carry out the intent of the foregoing resolutions, including, without
limitation, the execution of a Certificate of Ownership and Merger setting forth
a copy of the merger resolutions, and the filing of such Certificate of
Ownership and Merger with the Delaware Secretary of State."
Anything herein or elsewhere to the contrary notwithstanding, this merger
may be amended or terminated and abandoned by the Board of Directors of SCS
Transportation, Inc. at any time prior to the time that this merger filed with
the Delaware Secretary of State becomes effective.
IN WITNESS WHEREOF, said SCS Transportation, Inc. has caused this
Certificate to be signed by an authorized officer this 20th day of July, 2006.
SCS TRANSPORTATION, INC.
By: /s/ James J. Bellinghausen
-------------------------------------
Name: James J. Bellinghausen
Title: Vice President, CFO and Secretary
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