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EXHIBIT 3
[Restated electronically for SEC
filing purposes only]
RESTATED CHARTER
OF
FORWARD AIR CORPORATION
Pursuant to the provisions of Section 48-20-107 of the Tennessee
Business Corporation Act (the "Act"), Forward Air Corporation (the
"Corporation") adopts the following Restated Charter:
1. The name of the Corporation is:
Forward Air Corporation
2. (a) The street address and zip code of the registered office of the
Corporation is:
430 Airport Road
Greeneville, Tennessee 37745
(b) The registered office of the Corporation is located in Greene
County, Tennessee.
(c) The registered agent in the registered office is:
Richard H. Roberts
3. The street address and zip code of the principal office of the
Corporation in the State of Tennessee is:
430 Airport Road
Greeneville, Tennessee 37745
4. The duration of the Corporation shall be perpetual.
5. The Corporation is for profit.
6. The purpose or purposes for which the Corporation is organized are:
(a) To engage in the business of moving, conveying, and delivering
merchandise and commodities of all kinds via either land transportation or air
transportation; to
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lease, own and/or operate equipment for the transportation of commodities and
portable goods of every description from one location to another; to qualify as
a common carrier and to act as a contractor or as a private carrier; and to act
as agent for other transportation companies;
(b) To hold and manage real estate under lease or by ownership in
fee or otherwise for use by itself or by other corporations or persons for
industrial purposes or otherwise; to lease, sublease, convey, transfer, sell and
buy such real estate;
(c) To generally, and without limitation of the foregoing, carry on,
conduct and engage in any and all businesses, occupations or operations that may
from time to time be deemed to be necessary, required or conducive to the
carrying out of any of the objects or purposes of the Corporation; and
(d) To engage in any other activity permitted by the laws of the
State of Tennessee and the United States.
7. The maximum number of shares of capital stock which the Corporation
shall have the authority to issue is fifty-five million (55,000,000) shares, of
which fifty million (50,000,000) shares are designated Common Stock with a par
value of one cent ($0.01) per share, and five million (5,000,000) shares are
designated Preferred Stock with a par value of one cent ($0.01) per share.
The designations, preferences, privileges and powers and relative,
participating, optional or other special rights and qualifications, limitations
or restrictions of the above classes of capital stock shall be as follows:
(a) Preferred Stock.
(1) Shares of Preferred Stock may be divided into and issued in one
or more series at such time or times and for such consideration as the Board of
Directors may determine. All shares of any one series shall be of equal rank and
identical in all respects.
(2) Authority is hereby expressly granted to the Board of Directors
to fix and determine from time to time, by resolution or resolutions providing
for the establishment and/or issuance of any series of Preferred Stock, the
designation of such series and the powers, preferences, and rights of the shares
of such series, and the qualifications, limitations or restrictions thereof, as
the Board of Directors may deem advisable and to the full extent now or
hereafter permitted by the laws of the State of Tennessee. The resolution or
resolutions providing for the establishment and/or issuance of such series of
Preferred Stock shall set forth: (i) the designation and number of shares
comprising each series; (ii) the rate of dividends, if any, and whether such
dividends shall be noncumulative, cumulative to the extent earned, or cumulative
and, if cumulative, from which date or dates; (iii) whether the shares shall be
redeemable and, if so, the terms and conditions of such redemption; (iv) whether
there shall be a sinking fund for the
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redemption; (v) the rights to which the holders of the shares shall be entitled
in the event of voluntary or involuntary liquidation, dissolution or winding-up
of the Corporation, and the priority of payment of shares in any such event;
(vi) whether the shares shall be convertible into or exchangeable for shares of
any other class or any other series and the terms thereof; and (vii) all other
preferences, privileges and powers and relative, participating, optional or
other special rights and qualifications, limitations or restrictions of such
series.
(3) The shares of Preferred Stock shall have no voting power or
voting rights with respect to any matter whatsoever, except as may be otherwise
required by law or may be provided in the resolution or resolutions of the Board
of Directors creating the series of which such shares are a part.
(4) Authority is hereby expressly granted to the Board of Directors
to make any change in the designations, terms, limitations or relative rights or
preferences of any series of Preferred Stock in the same manner as provided for
in the issuance of Preferred Stock, so long as no shares of such series are
outstanding at such time.
(b) Common Stock.
(1) After the requirements with respect to preferential dividends,
if any, on any series of Preferred Stock (fixed pursuant to resolutions as
provided in Article 7(a) above) shall have been met, and after the Corporation
shall have complied with all requirements, if any, with respect to the setting
aside of sums in a sinking fund for the purchase or redemption of shares of any
series of Preferred Stock (fixed pursuant to resolutions as provided in Article
7(a) above), then, and not otherwise, the holders of Common Stock shall receive,
to the extent permitted by law and to the extent the Board of Directors shall
determine, such dividends as may be declared from time to time by the Board of
Directors.
(2) After distribution in full of the preferential amount, if any
(fixed pursuant to resolutions as provided in Article 7(a) above), to be
distributed to the holders of any series of Preferred Stock in the event of the
voluntary or involuntary liquidation, dissolution or winding-up of the
Corporation, the holders of the Common Stock shall be entitled to receive such
of the remaining assets of the Corporation of whatever kind available for
distribution to the extent the Board of Directors shall determine.
(3) Except as may be otherwise required by law or by the Charter of
the Corporation, as amended, each holder of Common Stock shall have one vote in
respect of each share of such stock held by him on all matters voted upon by the
shareholders.
(c) Preemptive Rights. No holder of shares of the Corporation 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
Corporation 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
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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
Corporation.
(d) Series A Junior Preferred Stock. Pursuant to the authority
vested in the Board of Directors in accordance with the provisions of
this Article 7 of the Charter, the Board of Directors does hereby
create, authorize and provide for the issuance of the Series A Junior
Preferred Stock out of the class of 5,000,000 shares of preferred
stock, par value one cent ($.01) per share (the "Preferred Stock"),
having the voting powers, designation, relative, participating,
optional and other special rights, preferences, and qualifications,
limitations and restrictions thereof that are set forth as follows:
(1) Designation and Amount. The shares of such series shall be
designated as Series A Junior Preferred Stock ("Series A Preferred
Stock") and the number of shares constituting such series shall be
500,000. Such number of shares may be adjusted by appropriate action of
the Board of Directors.
(2) Dividends and Distributions. Subject to the prior and
superior rights of the holders of any shares of any other series of
Preferred Stock or any other shares of Preferred Stock of the
Corporation ranking prior and superior to the shares of Series A
Preferred Stock with respect to dividends, each holder of one
one-hundredth (1/100) of a share (a "Unit") of Series A Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for that purpose, dividends at
the same rate as dividends are paid with respect to the Common Stock.
In the event that the Corporation shall at any time after May 18, 1999
(the "Rights Dividend Declaration Date") (i) declare or pay any
dividend on outstanding shares of Common Stock payable in shares of
Common Stock; (ii) subdivide outstanding shares of Common Stock; or
(iii) combine outstanding shares of Common Stock into a smaller number
of shares, then in each such case the amount to which the holder of a
Unit of Series A Preferred Stock was entitled immediately prior to such
event pursuant to the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which shall be
the number of shares of Common Stock that are outstanding immediately
after such event and the denominator of which shall be the number of
shares of Common Stock that were outstanding immediately prior to such
event.
(3) Voting Rights. The holders of Units of Series A Preferred
Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each Unit of Series A Preferred Stock shall entitle the holder
thereof to one vote on all matters submitted to a vote of the
shareholders of the Corporation. In the event the Corporation shall at
any time after the Rights Dividend Declaration Date (i) declare any
dividend on outstanding shares of Common Stock payable in shares of
Common Stock; (ii) subdivide outstanding shares of Common Stock; or
(iii) combine the outstanding shares of Common
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Stock into a smaller number of shares, then in each such case the
number of votes per Unit to which holders of Units of Series A
Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction the numerator of
which shall be the number of shares of Common Stock that are
outstanding immediately after such event and the denominator of which
shall be the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders
of Units of Series A Preferred Stock and the holders of shares of
Common Stock shall vote together as one class on all matters submitted
to a vote of shareholders of the Corporation.
(C) Except as set forth herein or required by law, holders of
Units of Series A Preferred Stock shall have no special voting rights
and their consent shall not be required (except to the extent they are
entitled to vote with holders of shares of Common Stock as set forth
herein) for the taking of any corporate action.
(4) Reacquired Shares. Any Units of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition
thereof. All such Units shall, upon their cancellation, become
authorized but unissued Units of Preferred Stock to be created by
resolution or resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein.
(5) Liquidation. Upon any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, the holders of
Units of Series A Preferred Stock shall be entitled to share in any
assets remaining ratably with the holders of the Common Stock. In the
event the Corporation shall at any time after the Rights Dividend
Declaration Date (i) increase by way of stock split or similar
transaction the number of outstanding shares of Common Stock; (ii)
subdivide the outstanding shares of Common Stock; or (iii) combine the
outstanding shares of Common Stock into a smaller number of shares,
then in each such case the aggregate amount to which holders of Units
of Series A Preferred Stock were entitled prior to such event shall be
adjusted by multiplying such amount by a fraction, the numerator of
which shall be the number of shares of Common Stock that are
outstanding immediately after such event and the denominator of which
shall be the number of shares of Common Stock that were outstanding
immediately prior to such event.
(6) Share Exchange, Merger, Etc. In case the Corporation shall
enter into any share exchange, merger, combination or other transaction
in which the shares of Common Stock are exchanged for or converted into
other stock or securities, cash and/or any other property, then in any
such case Units of Series A Preferred Stock shall at the same time be
similarly exchanged for or converted into an amount per Unit (subject
to the provision for adjustment hereinafter set forth) equal to the
aggregate amount of stock, securities, cash
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and/or any other property (payable in kind), as the case may be, into
which or for which each share of Common Stock is converted or
exchanged. In the event the Corporation shall at any time after the
Rights Dividend Declaration Date (i) declare any dividend on
outstanding shares of Common Stock payable in shares of Common Stock;
(ii) subdivide outstanding shares of Common Stock; or (iii) combine
outstanding Common Stock into a smaller number of shares, then in each
such case the amount set forth in the immediately preceding sentence
with respect to the exchange or conversion of Units of Series A
Preferred Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which shall be the number of shares of Common
Stock that are outstanding immediately after such event and the
denominator of which shall be the number of shares of Common Stock that
were outstanding immediately prior to such event.
(7) Redemption. The Units of Series A Preferred Stock shall
not be redeemable at the option of the Corporation or any holder
thereof. Notwithstanding the foregoing sentence of this Section, the
Corporation may acquire Units of Series A Preferred Stock in any other
manner permitted by law and the Charter or Bylaws of the Corporation.
(8) Ranking. The Units of Series A Preferred Stock shall rank
junior to all other series of the Preferred Stock and to any other
class of preferred stock that hereafter may be issued by the
Corporation as to the payment of dividends and the distribution of
assets, unless the terms of any such series or class shall provide
otherwise.
(9) Amendment. The Charter, including without limitation the
provisions hereof, shall not hereafter be amended, either directly or
indirectly, or through merger or share exchange with another
corporation, in any manner that would alter or change the powers,
preferences or special rights of the Series A Preferred Stock so as to
affect the holders thereof adversely without the affirmative vote of
the holders of a majority or more of the outstanding Units of Series A
Preferred Stock, voting separately as a class.
(10) Fractional Shares. The Series A Preferred Stock may be
issued in Units or other fractions of a share, which Units or fractions
shall entitle the holder, in proportion to such holder's fractional
shares, to exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of holders of
Series A Preferred Stock.
8. The Corporation shall have and exercise all powers necessary or
convenient to effect any or all of the purposes for which the Corporation is
organized and shall likewise have the powers provided by the Act, or as the same
shall hereafter be amended.
9. (a) To the fullest extent permitted by the laws of the State of
Tennessee, including without limitation, the Act, as it exists on the date
hereof or as it may hereafter be amended, no director of the Corporation shall
be personally liable for monetary damages to the
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Corporation or its shareholders for any breach of fiduciary duty as a director.
If the laws of the State of Tennessee, including, without limitation, the Act,
are amended after approval of this Charter to authorize corporate action further
eliminating or limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited to the fullest
extent permitted by the Act, as so amended.
(b) The Corporation shall have the power to indemnify any director,
officer, employee, agent of the Corporation, or any other person who is serving
at the request of the Corporation in any such capacity with another corporation,
partnership, joint venture, trust, or other enterprise to the fullest extent
permitted by the law of the State of Tennessee as it exists on the date hereof
or as it may hereafter be amended, and any such indemnification may continue as
to any person who has ceased to be a director, officer, employee, or agent and
may inure to the benefit of the heirs, executors, and administrators of such
person.
10. The shareholders and directors of the Corporation shall have the
right to take any action required or permitted by vote without a meeting on
written consent to the fullest extent permitted by the Act, or as the same shall
hereafter be amended.
11. Any or all of the directors of the Corporation may be removed at
any time for cause by a vote of a majority of the entire Board of Directors and
at any time with or without cause by a proper vote of the shareholders of the
Corporation. "Cause" shall include, but not be limited to, a director willfully
or without reasonable cause being absent from any regular or special meeting for
the purpose of obstructing or hindering the business of the Corporation.
12. The Corporation shall enjoy and be subject to such benefits,
privileges and immunities and such restrictions, liabilities and obligations as
are provided with respect to corporations for profit generally by the laws of
the land and which are held applicable to corporations for profit organized
under the Act, or as the same shall hereafter be amended.
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