EXHIBIT 3.20
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ROADWAY EXPRESS, INC.
(Pursuant to Sections 228, 242, and 245 of the General
Corporation Law of the State of Delaware)
Roadway Express, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware
DOES HEREBY CERTIFY:
1. That the name of this corporation is Roadway Express, Inc., and
that this corporation was originally incorporated on February 15, 1954, pursuant
to the General Corporation Law.
2. That the Board of Directors duly adopted resolutions proposing to
amend and restate the Certificate of Incorporation of this corporation,
declaring said amendment and restatement to be advisable and in the best
interests of this corporation and its stockholders, and authorizing the
appropriate officers of this corporation to solicit the consent of the
stockholders therefore, which resolution setting forth the proposed amendment
and restatement is as follows:
RESOLVED, that the Certificate of Incorporation of this corporation be
amended and restated in its entirety to read as follows:
FIRST: The name of the corporation (the "Corporation") is Roadway
Express, Inc.
SECOND: The address of the Corporation's registered office in the
state of Delaware is 1209 Orange Street, City of Wilmington, County of New
Castle, Delaware 19801.
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The name of the Corporation's registered agent at such address is The
Corporation Trust Company.
THIRD: The nature of the business and the objects and purposes
proposed to be transacted, promoted, and carried on, are to do any or all the
things herein mentioned, as fully and to the same extent as natural persons
might or could do, and in any part of the world, viz:
(a) Transport Traffic for hire by any means or methods;
(b) Contract or arrange for the provisions of the transportation of
Traffic by others as an independent contractor, agent, or broker;
(c) Deal in Transport Instrumentalities and in the Securities of a
Person who Deals therein, or who is engaged in the transportation of Traffic;
(d) Invest in, control, solely or jointly, or in common with other
Persons, any Person who is engaged in any one or more of the above-described
businesses; and
(e) Any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is one thousand (1,000) shares of Common Stock
each having a par value of $0.01 per share ("Common Stock").
Each share of Common Stock shall be equal to each other share of
Common Stock. The holders of Common Stock shall be entitled to one vote for each
such share upon all questions presented to the stockholders.
Except as otherwise provided in this Certificate of Incorporation, the
Common Stock shall have the exclusive right to vote for the election of
Directors and for all other purposes.
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This Corporation shall be entitled to treat the person in whose name
any share of its stock is registered as the owner thereof for all purposes and
shall not be bound to recognize any equitable or other claim to, or interest in,
such share on the part of any other person, whether or not this Corporation
shall have notice thereof, except as expressly provided by applicable laws.
FIFTH: The business and affairs of the Corporation shall be managed by
and under the direction of the Board of Directors. In furtherance of, and not in
limitation of, the powers conferred by statute, the Board of Directors is
expressly authorized and empowered:
(a) To adopt, amend or repeal the By-Laws of this Corporation;
provided, however, that the By-Laws adopted by the Board of Directors under the
powers hereby conferred may be amended or repealed by the Board of Directors or
by the stockholders having power with respect thereto, except that Section 2 of
Article I, Section 4 of Article I, all of Article II, Section 1 (first
paragraph) of Article III, Section 2 (second paragraph) of Article III, Section
3 (first paragraph) of Article III and Section 4 of Article VI of the By-Laws
shall not be amended or repealed, nor shall any provision inconsistent with such
By-Laws be adopted, without the affirmative vote of the holders of at least 80
percent of the combined voting power of all shares of this Corporation entitled
to vote generally in the election of Directors, voting together as a single
class. Notwithstanding anything contained in this Certificate of Incorporation
to the contrary, the affirmative vote of the holders of at least 80 percent of
the combined voting power of all shares of this Corporation entitled to vote
generally in the election of Directors, voting together as a single class, shall
be required to amend, repeal or adopt any provision inconsistent with this
Section (a) of Article FIFTH; and
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(b) From time to time to determine whether and to what extent, and at
what times and places, and under what conditions and regulations, the accounts
and books of this Corporation, or any of them, shall be open to inspection of
stockholders; and no stockholder shall have any right to inspect any account,
book or document of this Corporation except as conferred by applicable law.
SIXTH: Subject to the rights of the holders of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation to elect additional Directors under specific circumstances:
(a) Any action required or permitted to be taken by the stockholders
of this Corporation must be effected at a duly called annual or special meeting
of stockholders of this corporation and may not be effected by any consent in
writing of such stockholders.
(b) Special meetings of the stockholders of the Corporation may be
called only (i) by the Chairman of the Board of Directors, and (ii) shall be
called within 10 days after receipt of the written request of the Board of
Directors, pursuant to a resolution approved by a majority of the Whole Board;
and
(c) The business permitted to be conducted at any special meeting of
the stockholders is limited to the business brought before the meeting by the
Chairman or by the Secretary at the request of a majority of the Board of
Directors.
Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of at least 80 percent of
the combined voting power of all shares of the Corporation entitled to vote
generally in the election of Directors voting together as a single class, shall
be required to amend, repeal or adopt any provision consistent with this
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Article SIXTH. For purposes of this Certificate of Incorporation, the "Whole
Board" is defined as a total number of Directors which this Corporation would
have if there were no vacancies.
SEVENTH: Section 1. Number and Election of Directors.
Subject to the rights of the holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation to
elect additional Directors under specified circumstances, the number of
Directors of this Corporation shall be fixed by the By-Laws of the Corporation
and may be increased or decreased from time to time in such manner as may be
prescribed by the By-Laws, but in no case shall the number be less than three.
Election of Directors need not be by written ballot except and to the
extent provided for in the By-Laws of this Corporation.
Section 2. Stockholder Nomination of Director Candidates.
Advance notice of stockholder nominations for the election of
Directors and advance notice of business to be brought by stockholders before an
annual meeting shall be given in the manner provided in the By-Laws of this
Corporation.
Section 3. Newly Created Directorships and Vacancies.
Subject to the rights of the holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon liquidation to
elect additional Directors under specific circumstances, newly created
directorships resulting from any increase in the number of Directors and any
vacancy on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled solely by the
affirmative vote of a majority of the remaining Directors then in office, even
though less than a quorum of the Board of Directors, or by a sole remaining
Director. Any Director elected in accordance with the
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preceding sentence shall hold office for the remainder of the full term of the
class of Directors in which the new directorship was created or the vacancy
occurred and until such Director's successor shall have been elected and
qualified. No decrease in the number of Directors constituting the Board of
Directors shall shorten the term of an incumbent Director.
Section 4. Removal of Directors.
Subject to the rights of the holders of any class or series of stock
having preference over the Common Stock as to dividends or upon liquidation to
elect additional Directors under special circumstances, any Director may be
removed from office only by the affirmative vote of the holders of at least 80
percent of the combined voting power of the outstanding shares of Voting Stock
(as defined below), voting together as a single class.
For purposes of this Article SEVENTH, "Voting Stock" shall mean the
outstanding shares of capital stock of this Corporation entitled to vote
generally in the election of Directors. In any vote required by or provided for
in this Article EIGHTH, each share of Voting Stock shall have the number of
votes granted to it generally in the election of Directors.
Section 5. Amendment.
Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
80 percent of the combined voting power of the outstanding shares of the Voting
Stock, voting together as a single class, shall be required to amend, repeal or
adopt any provision inconsistent with this Article SEVENTH.
EIGHTH: Section 1. Elimination of Certain Liability of Directors.
To the full extent permitted by the General Corporation Law of the
State of Delaware or any other applicable laws presently or hereafter in effect,
no Director of this Corporation shall be personally liable to this Corporation
or its stockholders for or with respect
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to any acts or omissions in the performance of his duties as a Director of this
Corporation. Any amendment or repeal of this Article EIGHTH shall not adversely
affect any right or protection of a Director of this Corporation existing
immediately prior to such amendment or repeal.
Section 2. Indemnification.
Each person who is or was or had agreed to become a Director or
officer of this Corporation, or each person who is or was serving or who agreed
to serve at the request of the Board of Directors or an officer of this
Corporation as an employee or agent of this Corporation or as a Director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise (including the heirs, executors, administrators or
estate of such person), shall be indemnified by this Corporation to the full
extent permitted from time to time by the General Corporation Law of the State
of Delaware or any other applicable laws as presently or hereafter in effect.
Without limiting the generality or the effect of the foregoing, this corporation
may enter into one or more agreements with any person which provide for
indemnification greater or different than that provided in this Article EIGHTH.
Any amendment or repeal of this Article EIGHTH shall not adversely affect any
right or protection existing hereunder immediately prior to such amendment or
repeal.
NINTH: This Corporation reserves the right to amend or repeal any
provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and this Certificate of Incorporation, and all
rights conferred upon stockholders herein are created subject to this
reservation.
TENTH: Any act or transaction by or involving the Corporation that
requires for its adoption under the Delaware General Corporation Law or this
Certificate of Incorporation the approval of the stockholders of the Corporation
shall, pursuant to Subsection 251(g) of the
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Delaware General Corporation Law, require, in addition, the approval of the
stockholders of Roadway Corporation (or any successor by merger), by the same
vote as is required by the Delaware General Corporation Law and/or this
Certificate of Incorporation.
IN WITNESS WHEREOF, Roadway Express, Inc., has caused this Certificate
to be executed by John J. Gasparovic, its Executive Vice President, General
Counsel and Secretary, as of May 30, 2001.
ROADWAY EXPRESS, INC.
By: /s/ JOHN J. GASPAROVIC
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Name: John J. Gasparovic
Its: Vice President, General Counsel
and Secretary
ATTEST
By: /s/ JOSEPH R. BONI, III
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Name: Joseph R. Boni, III
Its: Treasurer
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