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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
DISPATCH MANAGEMENT SERVICES CORP.
I, the undersigned, in order to form a corporation for the purposes
hereinafter stated, under and pursuant to the provisions of the General
Corporation Law of the State of Delaware, do hereby certify as follows:
FIRST: The name of the corporation is Dispatch Management Services Corp.
(the "Corporation").
SECOND: The address of the Corporation's registered office in the State of
Delaware is 1013 Centre Road, Wilmington, County of New Castle, Delaware 19805.
The name of its registered agent at such address is The Corporation Service
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 Delaware.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 110,000,000 shares of stock, of
which 10,000,000 shares, designated as preferred stock, shall have a par value
of One Cent ($.01) per share (the "Preferred Stock"), and 100,000,000 shares,
designated as common stock, shall have a par value of One Cent ($.01) per share
(the "Common Stock").
A statement of the powers, preferences and rights, and the qualifications,
limitations or restrictions thereof, in respect of each class of stock of the
Corporation is as follows:
Preferred Stock. The Preferred Stock may be issued from time to time by the
Board of Directors as shares of one or more classes or series. Subject to the
provisions of this Certificate of Incorporation and the limitations prescribed
by law, the Board of Directors is expressly authorized by adopting resolutions
to issue the shares, fix the number of shares and change the number of shares
constituting any series, and to provide for or change the voting powers,
designations, preferences and relative, participating, optional or other special
rights, qualifications, limitations or restrictions thereof, including dividend
rights (and whether dividends are cumulative), dividend rates, terms of
redemption (including sinking fund provisions), a redemption price or prices,
conversion rights and liquidation preferences of the shares constituting any
class or series of the Preferred Stock, without any further action or vote by
the stockholders.
Common Stock. 1. Dividends. Subject to the preferred rights of the holders of
shares of any class or series of Preferred Stock as provided by the Board of
Directors with respect to any such class
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or series of Preferred Stock, the holders of the Common Stock shall be entitled
to receive, as and when declared by the Board of Directors out of the funds of
the Corporation legally available therefor, such dividends (payable in cash,
stock or otherwise) as the Board of Directors may from time to time determine,
payable to stockholders of record on such dates, not exceeding 60 days preceding
the dividend payment dates, as shall be fixed for such purpose by the Board of
Directors in advance of payment of each particular dividend.
2. Liquidation. In the event of any liquidation, dissolution or winding up
of the Corporation, whether voluntary or involuntary, after the distribution or
payment to the holders of shares of any class or series of Preferred Stock as
provided by the Board of Directors with respect to any such class or series of
Preferred Stock, the remaining assets of the Corporation available for
distribution to stockholders shall be distributed among and paid to the holders
of Common Stock ratably in proportion to the number of shares of Common Stock
held by them.
3. Voting Rights. Except as otherwise required by law, each holder of
shares of Common Stock shall be entitled to one vote for each share of Common
Stock standing in such holder's name on the books of the Corporation.
FIFTH: The name and mailing address of the incorporator is as follows:
J. Steven Patterson
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1333 New Hampshire Avenue, N.W.
Suite 400
Washington, D.C. 20036
SIXTH: 1. Board of Directors. The Directors shall be classified with
respect to the time for which they shall severally hold office into three
classes as nearly equal in number as possible. The Class I Directors shall be
elected to hold office for an initial term expiring at the 1998 annual meeting
of stockholders, the Class II Directors shall be elected to hold office for an
initial term expiring at the 1999 annual meeting of stockholders and the Class
III Directors shall be elected to hold office for an initial term expiring at
the 2000 annual meeting of stockholders, with the members of each class of
directors to hold office until their successors have been duly elected and
qualified. At each annual meeting of stockholders, the successors to the class
of directors whose term expires at that meeting shall be elected to hold office
for a term expiring at the annual meeting of stockholders held in the third year
following the year of their election and until their successors have been duly
elected and qualified. At each annual meeting of stockholders at which a quorum
is present, the persons receiving a plurality of the votes
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cast shall be directors. No director or class of directors may be removed from
office by a vote of the stockholders at any time except for cause. Election of
directors need not be by written ballot unless the Bylaws of the Corporation so
provide.
2. Vacancies. Any vacancy on the Board of Directors resulting from death,
retirement, resignation, disqualification or removal from office or other cause,
as well as any vacancy resulting from an increase in the number of directors
which occurs between annual meetings of the stockholders at which directors are
elected, shall be filled only by a majority vote of the remaining directors then
in office, though less than a quorum, except that those vacancies resulting from
removal from office by a vote of the stockholders may be filled by a vote of the
stockholders at the same meeting at which such removal occurs. The directors
chosen to fill vacancies shall hold office for a term expiring at the end of the
next annual meeting of stockholders at which the term of the class to which they
have been elected expires. No decrease in the number of directors constituting
the Board of Directors shall shorten the term of any incumbent director.
Notwithstanding the foregoing, whenever the holders of one or more classes
or series of Preferred Stock shall have the right, voting separately as a class
or series, to elect directors, the election, term of office, filling of
vacancies, removal and other features of such directorships shall be governed by
the terms of the resolution or resolutions adopted by the Board of Directors
pursuant to this ARTICLE SIXTH applicable thereto, and each director so elected
shall not be subject to the provisions of this ARTICLE SIXTH unless otherwise
provided therein.
3. Power to Make, Alter and Repeal Bylaws. In furtherance and not in
limitation of the powers conferred by statute, the Board of Directors is
expressly authorized to make, alter and repeal the Bylaws of the Corporation.
4. Amendment and Repeal of Article Six. Notwithstanding any provision of
this Certificate of Incorporation and of the Bylaws, and notwithstanding the
fact that a lesser percentage may be specified by Delaware law, unless such
action has been approved by a majority vote of the full Board of Directors, the
affirmative vote of 66 2/3 percent of the Corporation's shareholders entitled to
vote thereon, voting together as a single class, shall be required to amend or
repeal any provisions of this ARTICLE SIXTH or to adopt any provision
inconsistent with this ARTICLE SIXTH. In the event such action has been
previously approved by a majority vote of the full Board of Directors, the
affirmative vote of a majority of the outstanding stock entitled to vote thereon
shall be sufficient to amend or repeal any provision of this ARTICLE SIXTH or
adopt any provision inconsistent with this ARTICLE SIXTH.
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SEVENTH: The Corporation reserves the right to amend, alter, change or
repeal any provision in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute.
EIGHTH: No director of the Corporation shall be 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 or (iv) for
any transaction from which the director derived an improper personal benefit.
NINTH: The Corporation shall, to the fullest extent permitted by Section
145 of the General Corporation Law of the State of Delaware, as amended from
time to time, indemnify the Directors and officers of the Corporation and
advance expenses incurred by such Directors and Officers in proceedings to which
they may be party as a result of their status as Directors and Officers. The
Corporation may, in its discretion, indemnify other persons from time in time on
terms and conditions deemed appropriate by the Corporation's Board of Directors.
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IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Incorporation on behalf of the Corporation and does verify and affirm, under
penalty of perjury, that this Certificate of Incorporation is the act and deed
of the Corporation and that the facts stated herein are true as of this 5th day
of September, 1997.
Dispatch Management Services Corp.
By: /s/ J. Steven Patterson
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J. Steven Patterson, Incorporator
FOR CERTIFICATE OF AMENDMENT:
IN WITNESS WHEREOF, I hereunto sign my name and affirm that the
statements made herein are true under the penalties of perjury, this 26th day
of November, 1997.
/s/ Linda M. Jenkinson
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Linda M. Jenkinson
Chief Executive Officer