EX-3 1 h2-exhibit3a.htm EXHIBIT 3(A) RESTATED CERTIFICATE OF INCORPORATION

 

EXHIBIT 3(a)

 

 

              RESTATED CERTIFICATE OF INCORPORATION

                               OF

                         AIRBORNE, INC.

 

 

     FIRST.    1.1  The name of the corporation is

 

                         AIRBORNE, INC.

 

     SECOND.   2.1  The address of its registered office in the

State of Delaware is 1013 Centre Road, in the City of Wilmington,

County of New Castle. The name of its registered agent at such

address is The Prentice-Hall Corporation System, Inc.

 

     THIRD.    3.1  The nature of the business or purposes to be

conducted or promoted is:

 

                    3.1.1     To transport intrastate,

interstate, and/or foreign commerce by aircraft, motor, rail,

water vehicle and/or other means of transportation, passengers,

freight, securities and articles of merchandise of every nature

and description, either directly, indirectly or as agent or

principal; to engage in and carry on the business of receiving,

carrying, transporting, and delivering for compensation,

passengers, baggage, goods, wares, mail matter, packages,

freight, and merchandise of every kind and description, to, from

and between airports, air terminals, railroad stations,

terminals, or wharves, and to, from and between any other places

whatsoever, by fixed routes or otherwise either public, quasi-

public, or private; to engage in and carry on a general shipping

and forwarding business, a general transfer, express and baggage

business; to engage in and carry on a general taxi business; to

engage in and carry on a general trucking, contracting, cooperage

and stevedore business, to engage in and carry on a general

brokerage, factoring and import-export business; and to contract

with air carriers, railroads, warehouses, water carriers, motor

carriers and transportation lines or carriers of every kind, as

well as with corporation, copartnerships, business concerns of

every kind, individuals, and the public in general, covering,

relating, or incidental to any of the foregoing purposes.

 

                    3.1.2     It is the purpose of this

corporation to engage in any lawful act or activity for which

corporations may be organized under the General Corporation Law

of Delaware and none of the above-stated purposes shall be or be

deemed to be in limitation of such general purposes.

 

     FOURTH.   4.1  The total number of shares of all classes of

capital stock which the corporation shall have authority to issue

is one hundred twenty-six million (126,000,000), of which six

million (6,000,000) shares shall be Preferred Stock, without par

value, issuable in one or more series, and one hundred twenty

million (120,000,000) shares shall be Common Stock, par value One

Dollar ($1.00) per share, amounting in the aggregate to One

Hundred Twenty Million Dollars ($120,000,000).

 

               4.2  The Board of Directors is hereby expressly

authorized, at any time or from time to time, to divide any or

all of the shares of Preferred Stock into one or more series, and

in the resolution or resolutions establishing a particular

series, before issuance of any of the shares thereof, to fix and

determine the number of shares and the designation of such

series, so as to distinguish it from the shares of all other

series and classes, and to fix and determine the preferences,

voting rights, qualifications, privileges, limitations, options,

conversion rights, restrictions and other special or relative

rights of the Preferred Stock or of such series to the fullest

extent now or hereafter permitted by the laws of the State of

Delaware, including, but not limited to, the variations between

different series in the following respects:

 

                    4.2.1     The distinctive designation of such

series and the number of shares which shall constitute such

series, which number may be increased or decreased (but not below

the number of shares thereof then outstanding) from time to time

by the Board of Directors;

 

                    4.2.2     The annual dividend rate for such

series, and the date or dates from which dividends shall commence

to accrue;

 

                    4.2.3     The price or prices at which, and

the terms and conditions on which, the shares of such series may

be made redeemable;

 

                    4.2.4     The purchase or sinking fund

provisions, if any, for the purchase or redemption of shares of

such series;

 

                    4.2.5     The preferential amount or amounts

payable upon shares of such series in the event of the

liquidation, dissolution or winding up of the corporation;

 

                    4.2.6     The voting rights, if any, of

shares of such series;

 

                    4.2.7     The terms and conditions, if any,

upon which shares of such series may be converted and the class

or classes or series of shares of the corporation or other

securities into which such shares may be converted;

 

                    4.2.8     The relative seniority, parity or

junior rank of such series as to dividends or assets with respect

to any other classes or series of stock then or thereafter to be

issued; and

 

                    4.2.9     Such other terms, qualifications,

privileges, limitations, options, restrictions, and special or

relative rights and preferences, if any, of shares of such series

as the Board of Directors may, at the time of such resolution or

resolutions, lawfully fix and determine under the laws of the

State of Delaware.

 

               Unless otherwise provided in a resolution or

resolutions establishing any particular series, the aggregate

number of authorized shares of Preferred Stock may be increased

by an amendment of the Certificate of Incorporation approved

solely by a majority vote of the outstanding shares of Common

Stock (or solely with a lesser vote of the Common Stock, or

solely by action of the Board of Directors, if permitted by law

at the time).

 

               All shares of any one series shall be alike in

every particular, except with respect to the accrual of dividends

prior to the date of issuance.

 

        SERIES A PARTICIPATING CUMULATIVE PREFERRED STOCK

 

                         Section 1.  Designation and Number of

Shares. The shares of such series shall be designated as "Series

A Participating Cumulative Preferred Stock (without par value)"

(the "Series A Preferred Stock"). The number of shares initially

constituting the Series A Preferred Stock shall be 300,000;

provided, however, that, if more than a total of 300,000 shares

of Series A Preferred Stock shall be issuable by the corporation

upon the exercise of Rights (the "Rights") outstanding under the

Rights Agreement dated as of February 14, 1997 between Airborne

Freight Corporation, a Delaware corporation ("ABF"), and The Bank

of New York, a New York banking corporation, as Rights Agent (the

"Rights Agreement"), following the date (the "Effective Date") on

which the corporation succeeds to the rights and obligations of

ABF under the Rights Agreement in connection with the merger

pursuant to which ABF becomes a wholly-owned subsidiary of the

corporation, the Board of Directors of the corporation, pursuant

to Section 151(g) of the General Corporation Law of the State of

Delaware, shall direct by resolution or resolutions that a

certificate be properly executed, acknowledged, filed and

recorded, in accordance with the provisions of Section 103

thereof, providing for the total number of shares of Series A

Preferred Stock authorized to be issued to be increased (to the

extent that the Certificate of Incorporation then permits) to the

largest number of whole shares (rounded up to the nearest whole

number) issuable upon exercise of such Rights.

 

                         Section 2.  Dividends or Distributions.

(a) Subject to the prior and superior rights of the holders of

shares of any other series of Preferred Stock or other class of

capital stock of the corporation ranking prior and superior to

the shares of Series A Preferred Stock with respect to dividends,

the holders of shares of the Series A Preferred Stock shall be

entitled to receive, when, as and if declared by the Board of

Directors, out of the assets of the corporation legally available

therefor, (1) quarterly dividends payable in cash on the last day

of each fiscal quarter in each year, or such other dates as the

Board of Directors of the corporation shall approve (each such

date being referred to herein as a "Quarterly Dividend Payment

Date"), commencing on the first Quarterly Dividend Payment Date

after the first issuance of a share or a fraction of a share of

Series A Preferred Stock, in the amount of $30 per whole share

(rounded to the nearest cent) less the amount of all cash

dividends declared on the Series A Preferred Stock pursuant to

the following clause (2) since the immediately preceding

Quarterly Dividend Payment Date or, with respect to the first

Quarterly Dividend Payment Date, since the first issuance of any

share or fraction of a share of Series A Preferred Stock (the

total of which shall not, in any event, be less than zero) and

(2) dividends payable in cash on the payment date for each cash

dividend declared on the Common Stock in an amount per whole

share (rounded to the nearest cent) equal to the Formula Number

(as hereinafter defined) then in effect times the cash dividends

then to be paid on each share of Common Stock. In addition, if

the corporation shall pay any dividend or make any distribution

on the Common Stock payable in assets, securities or other forms

of noncash consideration (other than dividends or distributions

solely in shares of Common Stock), then, in each such case, the

corporation shall simultaneously pay or make on each outstanding

whole share of Series A Preferred Stock a dividend or

distribution in like kind equal to the Formula Number then in

effect times such dividend or distribution on each share of the

Common Stock. As used herein, the "Formula Number" shall be 200;

provided, however, that, if at any time after the Effective Date,

the corporation shall (i) declare or pay any dividend on the

Common Stock payable in shares of Common Stock or make any

distribution on the Common Stock in shares of Common Stock, (ii)

subdivide (by a stock split or otherwise) the outstanding shares

of Common Stock into a larger number of shares of Common Stock or

(iii) combine (by a reverse stock split or otherwise) the

outstanding shares of Common Stock into a smaller number of

shares of Common Stock, then in each such event the Formula

Number shall be adjusted to a number determined by multiplying

the Formula Number in effect immediately prior to such event by a

fraction, the numerator of which is the number of shares of

Common Stock that are outstanding immediately after such event

and the denominator of which is the number of shares of Common

Stock that are outstanding immediately prior to such event (and

rounding the result to the nearest whole number); and provided

further that, if at any time after the Effective Date, the

corporation shall issue any shares of its capital stock in a

merger, reclassification, or change of the outstanding shares of

Common Stock, then in each such event the Formula Number shall be

appropriately adjusted to reflect such merger, reclassification

or change so that each share of Preferred Stock continues to be

the economic equivalent of a Formula Number of shares of Common

Stock prior to such merger, reclassification or change.

 

                              (b)  The corporation shall declare

a dividend or distribution on the Series A Preferred Stock as

provided in Section 2(a) immediately prior to or at the same time

it declares a dividend or distribution on the Common Stock (other

than a dividend or distribution solely in shares of Common

Stock); provided, however, that, in the event no dividend or

distribution (other than a dividend or distribution in shares of

Common Stock) shall have been declared on the Common Stock during

the period between any Quarterly Dividend Payment Date and the

next subsequent Quarterly Dividend Payment Date, a dividend of

$30 per share on the Series A Preferred Stock shall nevertheless

be payable on such subsequent Quarterly Dividend Payment Date.

The Board of Directors may fix a record date for the

determination of holders of shares of Series A Preferred Stock

entitled to receive a dividend or distribution declared thereon,

which record date shall be the same as the record date for any

corresponding dividend or distribution on the Common Stock.

 

                              (c)  Dividends shall begin to

accrue and be cumulative on outstanding shares of Series A

Preferred Stock from and after the Quarterly Dividend Payment

Date next preceding the date of original issue of such shares of

Series A Preferred Stock; provided, however, that dividends on

such shares which are originally issued after the record date for

the determination of holders of shares of Series A Preferred

Stock entitled to receive a quarterly dividend and on or prior to

the next succeeding Quarterly Dividend Payment Date shall begin

to accrue and be cumulative from and after such Quarterly

Dividend Payment Date. Notwithstanding the foregoing, dividends

on shares of Series A Preferred Stock which are originally issued

prior to the record date for the determination of holders of

shares of Series A Preferred Stock entitled to receive a

quarterly dividend on the first Quarterly Dividend Payment Date

shall be calculated as if cumulative from and after the last day

of the fiscal quarter next preceding the date of original

issuance of such shares. Accrued but unpaid dividends shall not

bear interest. Dividends paid on the shares of Series A Preferred

Stock in an amount less than the total amount of such dividends

at the time accrued and payable on such shares shall be allocated

pro rata on a share-by-share basis among all such shares at the

time outstanding.

 

                              (d)  So long as any shares of the

Series A Preferred Stock are outstanding, no dividends or other

distributions shall be declared, paid or distributed, or set

aside for payment or distribution, on the Common Stock unless, in

each case, the dividend required by this Section 2 to be declared

on the Series A Preferred Stock shall have been declared.

 

                              (e)  The holders of the shares of

Series A Preferred Stock shall not be entitled to receive any

dividends or other distributions except as provided herein.

 

                         Section 3.  Voting Rights.  The holders

of shares of Series A Preferred Stock shall have the following

voting rights:

 

                              (a)  Each holder of Series A

Preferred Stock shall be entitled to a number of votes equal to

the Formula Number then in effect, for each share of Series A

Preferred Stock held of record on each matter on which holders of

the Common Stock or stockholders generally are entitled to vote,

multiplied by the maximum number of votes per share which any

holder of the Common Stock or stockholders generally then have

with respect to such matter (assuming any holding period or other

requirement to vote a greater number of shares is satisfied).

 

                              (b)  Except as otherwise provided

herein or by applicable law, the holders of shares of Series A

Preferred Stock and the holders of shares of Common Stock shall

vote together as one class for the election of directors of the

corporation and on all other matters submitted to a vote of

stockholders of the corporation.

 

                              (c)  If, at the time of any annual

meeting of stockholders for the election of directors, the

equivalent of six quarterly dividends (whether or not

consecutive) payable on any share or shares of Series A Preferred

Stock are in default, the number of directors constituting the

Board of Directors of the corporation shall be increased by two.

In addition to voting together with the holders of Common Stock

for the election of other directors of the corporation, the

holders of record of the Series A Preferred Stock, voting

separately as a class to the exclusion of the holders of Common

Stock, shall be entitled at said meeting of stockholders (and at

each subsequent annual meeting of stockholders), unless all

dividends in arrears have been paid or declared and set apart for

payment prior thereto, to vote for the election of two directors

of the corporation, the holders of any Series A Preferred Stock

being entitled to cast a number of votes per share of Series A

Preferred Stock equal to the Formula Number. Until the default in

payments of all dividends which permitted the election of said

directors shall cease to exist, any director who shall have been

so elected pursuant to the next preceding sentence may be removed

at any time, either with or without cause, only by the

affirmative vote of the holders of the shares of Series A

Preferred Stock at the time entitled to cast a majority of the

votes entitled to be cast for the election of any such director

at a special meeting of such holders called for that purpose, and

any vacancy thereby created may be filled by the vote of such

holders. If and when such default shall cease to exist, the

holders of the Series A Preferred Stock shall be divested of the

foregoing special voting rights, subject to revesting in the

event of each and every subsequent like default in payments of

dividends. Upon the termination of the foregoing special voting

rights, the terms of office of all persons who may have been

elected directors pursuant to said special voting rights shall

forthwith terminate, and the number of directors constituting the

Board of Directors shall be reduced by two. The voting rights

granted by this Section 3(c) shall be in addition to any other

voting rights granted to the holders of the Series A Preferred

Stock in this Section 3.

 

                              (d)  Except as provided herein, in

Section 11 or by applicable law, holders 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 Common Stock as set forth herein) for authorizing

or taking any corporate action.

 

                         Section 4.  Certain Restrictions. (a)

Whenever quarterly dividends or other dividends or distributions

payable on the Series A Preferred Stock as provided in Section 2

are in arrears, thereafter and until all accrued and unpaid

dividends and distributions, whether or not declared, on shares

of Series A Preferred Stock outstanding shall have been paid in

full, the corporation shall not

 

                                   (i)  declare or pay dividends

on, make any other distributions on, or redeem or purchase or

otherwise acquire for consideration any shares of stock ranking

junior (either as to dividends or upon liquidation, dissolution

or winding up) to the Series A Preferred Stock;

 

                                   (ii) declare or pay dividends

on or make any other distributions on any shares of stock ranking

on a parity (either as to dividends or upon liquidation,

dissolution or winding up) with the Series A Preferred Stock,

except dividends paid ratably on the Series A Preferred Stock and

all such parity stock on which dividends are payable or in

arrears in proportion to the total amounts to which the holders

of all such shares are then entitled;

 

                                   (iii)     redeem or purchase

or otherwise acquire for consideration shares of any stock

ranking on a parity (either as to dividends or upon liquidation,

dissolution or winding up) with the Series A Preferred Stock;

provided that the corporation may at any time redeem, purchase or

otherwise acquire shares of any such parity stock in exchange for

shares of any stock of the corporation ranking junior (either as

to dividends or upon dissolution, liquidation or winding up) to

the Series A Preferred Stock; or

 

                                   (iv) purchase or otherwise

acquire for consideration any shares of Series A Preferred Stock,

or any shares of stock ranking on a parity with the Series A

Preferred Stock, except in accordance with a purchase offer made

in writing or by publication (as determined by the Board of

Directors) to all holders of such shares upon such terms as the

Board of Directors, after consideration of the respective annual

dividend rates and other relative rights and preferences of the

respective series and classes, shall determine in good faith will

result in fair and equitable treatment among the respective

series or classes.

 

                              (b)  The corporation shall not

permit any subsidiary of the corporation to purchase or otherwise

acquire for consideration any shares of stock of the corporation

unless the corporation could, under paragraph (a) of this Section

4, purchase or otherwise acquire such shares at such time and in

such manner.

 

                         Section 5.  Liquidation Rights.  Upon

the liquidation, dissolution or winding up of the corporation,

whether voluntary or involuntary, no distribution shall be made

(1) to the holders of shares of stock ranking junior (either as

to dividends or upon liquidation, dissolution or winding up) to

the Series A Preferred Stock unless, prior thereto, the holders

of shares of Series A Preferred Stock shall have received an

amount equal to the accrued and unpaid dividends and

distributions thereon, whether or not declared, to the date of

such payment, plus an amount equal to the greater of (x) $100 per

whole share or (y) an aggregate amount per share equal to the

Formula Number then in effect times the aggregate amount to be

distributed per share to holders of Common Stock or (2) to the

holders of stock ranking on a parity (either as to dividends or

upon liquidation, dissolution or winding up) with the Series A

Preferred Stock, except distributions made ratably on the Series

A Preferred Stock and all other such parity stock in proportion

to the total amounts to which the holders of all such shares are

entitled upon such liquidation, dissolution or winding up.

 

                         Section 6.  Consolidation, Merger, etc.

In case the corporation shall enter into any consolidation,

merger, combination or other transaction in which the shares of

Common Stock are exchanged for or changed into other stock or

securities, cash or any other property, then in any such case the

then outstanding shares of Series A Preferred Stock shall at the

same time be similarly exchanged or changed into an amount per

share equal to the Formula Number then in effect times the

aggregate amount of stock, securities, cash or any other property

(payable in kind), as the case may be, into which or for which

each share of Common Stock is exchanged or changed. In the event

both this Section 6 and Section 2 appear to apply to a

transaction, this Section 6 will control.

 

                         Section 7.  No Redemption; No Sinking

Fund. (a) The shares of Series A Preferred Stock shall not be

subject to redemption by the corporation or at the option of any

holder of Series A Preferred Stock except as set forth in Section

5 of Article Fourth of the Restated Certificate of Incorporation

of the corporation; provided, however, that the corporation may

purchase or otherwise acquire outstanding shares of Series A

Preferred Stock in the open market or by offer to any holder or

holders of shares of Series A Preferred Stock.

 

                              (b)  The shares of Series A

Preferred Stock shall not be subject to or entitled to the

operation of a retirement or sinking fund.

 

                         Section 8.  Ranking.  The Series A

Preferred Stock shall rank junior to all other series of

Preferred Stock of the corporation unless the Board of Directors

shall specifically determine otherwise in fixing the powers,

preferences and relative, participating, optional and other

special rights of the shares of such series and the

qualifications, limitations and restrictions thereof.

 

                         Section 9.  Fractional Shares. The

Series A Preferred Stock shall be issuable upon exercise of the

Rights issued pursuant to the Rights Agreement in whole shares or

in any fraction of a share that is one one-hundredth of a share

or any integral multiple of such fraction which shall entitle the

holder, in proportion to such holder's fractional shares, to

receive dividends, exercise voting rights, participate in

distributions and to have the benefit of all other rights of

holders of Series A Preferred Stock. In lieu of fractional

shares, the corporation, prior to the first issuance of a share

or a fraction of a share of Series A Preferred Stock, may elect

(a) to make a cash payment as provided in the Rights Agreement

for fractions of a share other than one one-hundredths of a share

or any integral multiple thereof or (b) to issue depository

receipts evidencing such authorized fraction of a share of Series

A Preferred Stock pursuant to an appropriate agreement between

the corporation and a depository selected by the corporation;

provided that such agreement shall provide that the holders of

such depository receipts shall have all the rights, privileges

and preferences to which they are entitled as holders of the

Series A Preferred Stock.

 

                         Section 10.  Reacquired Shares.  Any

shares 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 shares shall upon their cancellation become authorized but

unissued shares of Preferred Stock, without designation as to

series until such shares are once more designated as part of a

particular series by the Board of Directors pursuant to the

provisions of Section 4.2 of this Article Fourth.

 

                         Section 11.  Amendment.  None of the

powers, preferences and relative, participating, optional and

other special rights of the Series A Preferred Stock as provided

herein or in the Certificate of Incorporation shall be amended in

any manner which would alter or change the powers, preferences,

rights or privileges of the holders of Series A Preferred Stock

so as to affect them adversely without the affirmative vote of

the holders of at least 66-2/3% of the outstanding shares of

Series A Preferred Stock, voting as a separate class; provided,

however, that no such amendment approved by the holders of at

least 66-2/3% of the outstanding shares of Series A Preferred

Stock shall be deemed to apply to the powers, preferences, rights

or privileges of any holder of shares of Series A Preferred Stock

originally issued upon exercise of the Rights after the time of

such approval without the approval of such holder.

 

                    4.3  Except for and subject to those rights

expressly granted to the holders of Preferred Stock or any series

thereof by resolution or resolutions adopted by the Board of

Directors pursuant to Section 4.2 of this Article Fourth and

except as may be provided by the laws of the State of Delaware,

the holders of Common Stock shall have exclusively all other

rights of shareholders.

 

                    4.4.1     The Bylaws shall divide the

directors into three classes and prescribe the tenure of office

of the several classes; but such Bylaws shall not provide for the

election of any class for a period shorter than from the time of

election following the division into classes until the next

annual meeting, and thereafter for a period shorter than the

interval between annual meetings or for a period longer than

three years and shall provide that the term of the office of at

least one class shall expire each year.  At all elections of

directors, voting shall be by class.

 

                    4.4.2     At all elections of directors of

the corporation, each holder of shares of Common Stock shall be

entitled to as many votes as shall equal the number of votes

which (except for such provision as to cumulative voting) he

would be entitled to cast for the election of directors with

respect to his shares of stock multiplied by the number of

directors to be elected, and he may cast all of such votes for a

single director or may distribute them among the number to be

voted for, or for any two or more of them as he may see fit.

 

     FIFTH.    The corporation is to have perpetual existence.

 

     SIXTH.    6.1  In furtherance and not in limitation of the

powers conferred by statute, the board of directors is expressly

authorized:

 

                    6.1.1     To make, alter or repeal the bylaws

of the corporation.

 

                    6.1.2     To authorize and cause to be

executed mortgages and liens upon the real and personal property

of the corporation.

 

                    6.1.3     To set apart out of any of the

funds of the corporation available for dividends a reserve or

reserves for any proper purpose and to abolish any such reserve

in the manner in which it was created.

 

                    6.1.4     By a majority of the whole board,

to designate one or more committees, each committee to consist of

two or more of the directors of the corporation. The board may

designate one or more directors as alternate members of any

committee, who may replace any absent or disqualified member at

any meeting of the committee. Any such committee, to the extent

provided in the resolution or in the bylaws of the corporation,

shall have and may exercise the powers of the board of directors

in the management of the business and affairs of the corporation,

and may authorize the seal of the corporation to be affixed to

all papers which may require it; provided, however, the by-laws

may provide that in the absence or disqualification of any member

of such committee or committees, the member or members thereof

present at any meeting and not disqualified from voting, whether

or not he or they constitute a quorum, may unanimously appoint

another member of the board of directors to act at the meeting in

the place of any such absent or disqualified member.

 

                    6.1.5     When and as authorized by the

affirmative vote of the holders of a majority of the stock issued

and outstanding having voting power given at a stockholders'

meeting duly called upon such notice as is required by statute,

or when authorized by the written consent of the holders of a

majority of the voting stock issued and outstanding, to sell,

lease or exchange all or substantially all of the property and

assets of the corporation, including its good will and its

corporate franchises, upon such terms and conditions and for such

consideration, which may consist in whole or in part of money or

property including shares of stock in, and/or other securities

of, any other corporation or corporations, as its board of

directors shall deem expedient and for the best interests of the

corporation.

 

     SEVENTH.  7.1  Whenever a compromise or arrangement is

proposed between this corporation and its creditors or any class

of them and/or between this corporation and its stockholders or

any class of them, any court of equitable jurisdiction within the

State of Delaware may, on the application in a summary way of

this corporation or of any creditor or stockholder thereof, or on

the application of any receiver or receivers appointed for this

corporation under the provisions of Section 291 of Title 8 of the

Delaware Code or on the application of trustees in dissolution or

of any receiver or receivers appointed for this corporation under

the provisions of Section 279 of Title 8 of the Delaware Code

order a meeting of the creditors or class of creditors, and/or

stockholders or class of stockholders of this corporation, as the

case may be, to be summoned in such manner as the said court

directs. If a majority in number representing three-fourths in

value of the creditors or class of creditors, and/or of the

stockholders or class of stockholders of this corporation, as the

case may be, agree to any compromise or arrangement and to any

reorganization of this corporation as a consequence of such

compromise or arrangement, the said compromise or arrangement and

the said reorganization shall, if sanctioned by the court to

which the said application has been made, be binding on all the

creditors or class of creditors, and/or on all the stockholders

or class of stockholders, of this corporation, as the case may

be, and also on this corporation.

 

     EIGHTH.   8.1  Meetings of shareholders may be held within

or without the State of Delaware as the Bylaws may provide.

Notwithstanding any provision of law, no action may be taken by

the shareholders, including without limitation amendment of this

Certificate or of the Bylaws, except at a meeting duly called in

accordance with the Bylaws.

 

               8.2  The books of this corporation may be kept

(subject to any provision contained in the statutes) outside the

State of Delaware at such place or places as may be designated

from time to time by the Board of Directors or in the Bylaws of

the corporation. Election of Directors need not be by written

ballot unless the Bylaws of the corporation shall so provide.

 

     NINTH.    9.1  The corporation shall at all times indemnify

its officers and directors from and against all expenses and

liabilities of whatsoever nature to the full extent permitted by

Delaware law, and without limiting the generality of the

foregoing, shall indemnify any director or officer or any former

director or former officer or any person who may have served at

its request as a director or officer of another corporation, and

the heirs, personal representatives and estates of each of them,

against all costs and expenses including attorneys' fees

reasonably incurred by him or imposed on him in connection with

any action, proceeding or investigation of whatsoever nature,

civil, administrative or criminal (including any shareholder's

action and any other action in which the corporation is a party,

plaintiff or defendant) in which he is or may be made a party or

is proceeded against or involved by reason of any action

whatsoever alleged to have been taken by him or omitted by him as

such director or officer, and against any liabilities, judgments,

fines, penalties or damages imposed against him in such action,

proceeding or investigation, or sums paid in settlement or

compromise thereof with the approval of the Board of Directors;

provided, that the provisions of this paragraph shall not apply

unless such person acted in a manner he reasonably believed to be

in or not opposed to the best interests of the corporation, and

shall not apply if such person shall be duly and finally adjudged

(1) to be guilty of willful misconduct, bad faith or gross

negligence in the performance of his duties to the corporation,

in a derivative action or one brought by the corporation, or (2)

to be guilty of willful misconduct or bad faith, if such action

or proceeding is brought by a third party.

 

               9.2  Expenses incurred in defending such action,

proceeding or investigation may be paid by the corporation in

advance of the final disposition thereof as authorized by the

Board of Directors in the specific case and upon receipt of an

undertaking by or on behalf of the director or officer to repay

such amount if it shall ultimately be determined that he is not

entitled to be indemnified by the corporation.

 

               9.3  The corporation shall have power to purchase

and maintain insurance on behalf of any person who is or was an

officer, director, employee or agent of the corporation, or is or

was serving at the request of the corporation as an officer,

director, employee and agent of another corporation, partnership,

joint venture, trust or other enterprise against any liability

whatsoever asserted against him and incurred by him in any such

capacity or arising out of his status as such, and against any

and all expenses in connection therewith, whether or not the

corporation would have the power to indemnify him against such

liability under the provisions of this certificate of

incorporation or under Delaware law.

 

          TENTH.    10.1  The corporation reserves the right to

amend, alter, change or repeal any provision contained in this

certificate of incorporation, in the manner now or hereafter

prescribed by statute, and all rights conferred upon stockholders

herein are granted subject to this reservation.

 

          ELEVENTH. 11.1  A higher than majority shareholder vote

for certain Business Combinations shall be required as follows

(all capitalized terms being used as subsequently defined

herein):

 

                    (a)  In addition to any affirmative vote

required by law or the Certificate of Incorporation, and except

as otherwise expressly provided in Section 11.2 of this Article

Eleventh:

 

                         (1)  any merger or consolidation of the

corporation or any Subsidiary with (A) any Interested Shareholder

or with (B) any other corporation (whether or not itself an

Interested Shareholder) which is, or after such merger or

consolidation would be, an Affiliate or Associate of an

Interested Shareholder;

 

                         (2)  any sale, lease, exchange,

mortgage, pledge, transfer or other disposition (in one

transaction or a series of transactions) to or with any

Interested Shareholder or any Affiliate or Associate of any

Interested Shareholder of any assets of the corporation or any

Subsidiary having an aggregate Fair Market Value of $10,000,000

or more;

 

                         (3)  the issuance or sale by the

corporation or any Subsidiary (in one transaction or a series of

transactions) of any securities of the corporation or any

Subsidiary to any Interested Shareholder or any Affiliate or

Associate of any Interested Shareholder in exchange for cash,

securities or other consideration (or a combination thereof)

having an aggregate Fair Market Value of $10,000,000 or more;

 

                         (4)  the adoption of any plan or

proposal for the liquidation or dissolution of the corporation

proposed by or on behalf of any Interested Shareholder or any

Affiliate or associate of any Interested Shareholder; or

 

                         (5)  any reclassification of securities

(including any reverse stock split), or recapitalization of the

corporation, or any merger or consolidation of the corporation

with any of it Subsidiaries or any transaction (whether or not

with or into or otherwise involving an Interested Shareholder)

which has the effect, directly or indirectly, of increasing the

proportionate share of the outstanding shares of any class of

equity securities or securities convertible into equity

securities of the corporation or any Subsidiary which is directly

or indirectly owned by any Interested Shareholder or any

Affiliate or Associate of any Interested Shareholder; shall

require the affirmative vote of the holders of at least 80% of

the voting power of the then outstanding shares of common stock

of the corporation entitled to vote in an annual election of

directors, and at least 80% of the voting power of all shares of

all classes of capital stock of the corporation entitled to vote

in an annual election of directors (all such stock of all classes

constituting the "Voting Stock"), voting together as a single

class. Such affirmative vote shall be required notwithstanding

the fact that no vote may be required, or that a lesser

percentage may be specified, by law or in any agreement with any

national securities exchange or otherwise.

 

                    (b)  The term "Business Combination" as used

in this Article Eleventh shall mean any transaction which is

referred to in any one or more of clauses (1) through (5) of

paragraph (a) of Section 11.1 of this Article Eleventh.

 

               11.2 The provisions of Section 11.1 of this

Article Eleventh shall not be applicable to any Business

Combination, and such Business Combination shall require only

such affirmative vote (if any) as is required by law, any other

provision of the Certificate of such corporation or any agreement

with any national securities exchange, if all of the conditions

specified in either of the following paragraphs (a) or (b) are

met:

 

                    (a)  The Business Combination shall have been

approved by a majority of the Continuing Directors; or

 

                    (b)  All of the following six conditions

shall have been met:

 

                         (1)  The transaction constituting the

Business Combination shall provide for a consideration to be

received by holders of Common Stock in exchange for their stock,

and the aggregate amount of the cash and the Fair Market Value as

of the date of the consummation of the Business Combination of

consideration other than cash to be received per share by holders

of Common Stock in such Business Combination shall be at least

equal to the highest of the following:

 

                              (A)  (if applicable) the highest

per share price (including any brokerage commissions, transfer

taxes and soliciting dealers' fees) paid in order to acquire any

shares of Common Stock beneficially owned by the Interested

Shareholder which were acquired (i) within the two-year period

immediately prior to the first public announcement of the

proposed Business Combination (the "Announcement Date") or (ii)

in the transaction in which it became an Interested Shareholder,

whichever is higher; and

 

                              (B)  the Fair Market Value per

share of Common Stock on the Announcement Date or on the date on

which the Interested Shareholder became an Interested Shareholder

(the "Determination Date"), whichever is higher.

 

                         (2)  If the transaction constituting the

Business Combination shall provide for a consideration to be

received by holders of any class of outstanding Voting Stock

other than Common Stock, the aggregate amount of the cash and the

Fair Market Value as of the date of the consummation of the

Business Combination of consideration other than cash to be

received per share by holders of shares of such Voting Stock

shall be at least equal to the highest of the following (it being

intended that the requirements of this clause (b)(2) shall be

required to be met with respect to every class of outstanding

Voting Stock, whether or not the Interested Shareholder

beneficially owns any shares of a particular class of Voting

Stock):

 

                              (A)  (if applicable) the highest

per share price (including any brokerage commissions, transfer

taxes and soliciting dealers' fees) paid in order to acquire any

shares of such class of Voting Stock beneficially owned by the

Interested Shareholder which were acquired (i) within the two-

year period immediately prior to the Announcement Date or (ii) in

the transaction in which it became an Interested Shareholder,

whichever is higher;

 

                              (B)  (if applicable) the highest

preferential amount per share to which the holders of shares of

such class of Voting Stock are entitled in the event of any

voluntary or involuntary liquidation, dissolution or winding up

of the corporation; and

 

                              (C)  the Fair Market Value per

share of such class of Voting Stock on the Announcement Date or

on the Determination Date, whichever is higher.

 

                         (3)  The consideration to be received by

holders of a particular class of outstanding Voting Stock

(including Common Stock) shall be in cash or in the same form as

was previously paid in order to acquire shares of such class of

Voting Stock which are beneficially owned by the Interested

Shareholder. If the Interested Shareholder beneficially owns

shares of any class of Voting Stock which were acquired with

varying forms of consideration, the form of consideration to be

received by holders of such class of Voting Stock shall be either

cash or the form used to acquire the largest number of shares of

such class of Voting Stock beneficially owned by it.

 

                         (4)  After such Interested Shareholder

has become an Interested Shareholder and prior to the

consummation of such Business Combination: (A) there shall have

been (i) no reduction in the annual rate of dividends paid on the

Common Stock (except as necessary to reflect any subdivision of

the Common Stock), except as approved by a majority of the

Continuing Directors, and (ii) an increase in such annual rate of

dividends (as necessary to prevent any such reduction) in the

event of any reclassification (including any reverse stock

split), recapitalization, reorganization or any similar

transaction which has the effect of reducing the number of

outstanding shares of the Common Stock, unless the failure so to

increase such annual rate is approved by a majority of the

Continuing Directors; and (B) such Interested Shareholder shall

not have become the beneficial owner of any additional shares of

Voting Stock except as part of the transaction in which it became

an Interested Shareholder.

 

                         (5)  After such Interested Shareholder

has become an Interested Shareholder, such Interested Shareholder

shall not have received the benefit, directly or indirectly

(except proportionately as a shareholder), of any loans,

advances, guarantees, pledges or other financial assistance or

any tax credits or other tax advantages provided by the

corporation, whether in anticipation of or in connection with

such Business Combination or otherwise.

 

                         (6)  A proxy or information statement

describing the proposed Business Combination and complying with

the requirements of the Securities Exchange Act of 1934 and the

rules and regulations thereunder (or any subsequent provisions

replacing such Act, rules or regulations) shall be mailed to

public shareholders of the corporation at least 30 days prior to

the consummation of such Business Combination (whether or not

such proxy or information statement is required to be mailed

pursuant to such Act or subsequent provisions).

 

               11.3 For the purposes of this Article Eleventh:

 

                    (a)  A "person" shall mean any individual,

firm, corporation or other entity.

 

                    (b)  "Interested Shareholder" at any

particular time shall mean any person (other than the corporation

or any Subsidiary) who or which:

 

                         (1)  is at such time the beneficial

owner, directly or indirectly, of more than 20% of the voting

power of the outstanding Voting Stock;

 

                         (2)  is at such time a director of the

corporation and at any time within the two-year period

immediately prior to such time was the beneficial owner, directly

or indirectly, of more than 20% of the voting power of the then

outstanding Voting Stock; or

 

                         (3)  is at such time an assignee of or

has otherwise succeeded to the beneficial ownership of any shares

of Voting Stock which were at any time within the two-year period

immediately prior to such time beneficially owned by any

Interested Shareholder, if such assignment or succession shall

have occurred in the course of a transaction or series of

transactions not involving a public offering within the meaning

of the Securities Act of 1933.

 

                    (c)  A person shall be a "beneficial owner"

of any shares of Voting Stock:

 

                         (1)  which such person or any of its

Affiliates or Associates beneficially owns, directly or

indirectly;

 

                         (2)  which such person or any of its

Affiliates or Associates has (A) the right to acquire (whether or

not such right is exercisable immediately) pursuant to any

agreement, arrangements or understanding or upon the exercise of

conversion rights, exchange rights, warrants or options, or

otherwise, or (B) the right to vote pursuant to any agreement,

arrangement or understanding; or

 

                         (3)  which are beneficially owned,

directly or indirectly, by any other person with which such

person or any of its Affiliates or Associates has any agreement,

arrangement or understanding for the purpose of acquiring,

holding, voting or disposing of any shares of Voting Stock.

 

                    (d)  For the purposes of determining whether

a person is an Interested Shareholder pursuant to paragraph (b)

of this Section 11.3, the number of shares of Voting Stock deemed

to be outstanding shall include shares deemed owned by an

Interested Shareholder through application of paragraph (c) of

this Section 11.3 but shall not include any other shares of

Voting Stock which may be issuable pursuant to any agreement,

arrangements or understanding, or upon the exercise of conversion

rights, exchange rights, warrants or options, or otherwise.

 

                    (e)  "Affiliate" or "Associate" shall have

the respective meanings ascribed to such terms in Rule 12b-2 of

the General Rules and Regulations under the Securities Exchange

Act of 1934, as in effect on March 1, 1984 (the term "registrant"

in said Rule 12b-2 meaning in this case the corporation).

 

                    (f)  "Subsidiary" means any corporation of

which a majority of any class of equity security is owned,

directly or indirectly, by the corporation; provided, however,

that for the purposes of the definition of Interested Shareholder

set forth in paragraph (b) of this Section 11.3, the term

"Subsidiary" shall mean only a corporation of which a majority of

each class of equity security is owned, directly or indirectly,

by the corporation.

 

                    (g)  "Continuing Director" means any member

of the Board of Directors of the corporation who is unaffiliated

with, and not a representative of, the Interested Shareholder and

was a member of the Board of Directors prior to the time that the

Interested Shareholder became an Interested Shareholder, and any

successor of a Continuing Director who is unaffiliated with and

not a representative of, the Interested Shareholder and is

recommended to succeed a Continuing Director by a majority of the

Continuing Directors then on the Board of Directors.

 

                    (h)  "Fair Market Value" means:  (1) in the

case stock of the corporation, the highest closing sale price

during a 30-day period immediately preceding the date in question

of a share of such stock on the Composite Tape for New York Stock

Exchange-Listed Stocks ("Composite Tape"), or, if such stock is

not quoted on the Composite Tape, on the New York Stock Exchange

(NYSE), or, if such stock is not listed on the NYSE, on the

principal United States securities exchange registered under the

Securities Exchange Act of 1934 on which such stock is listed,

or, if such stock is not listed on any such exchange, the highest

closing sale price or closing bid quotation (whichever is higher,

if both are reported) with respect to a share of such stock

during the 30-day period preceding the date in question on the

National Association of Securities Dealers, Inc. Automated

Quotations System ("NASDAQ") or any system then in use, or if no

such quotations are available, the fair market value on the date

in question of a share of such stock as determined by the Board

of Directors in good faith; (2) in the case of securities, other

than stock of the corporation, which are registered under Section

12 of the 1934 Act, the mean (average) of the closing sale prices

for the five business days prior to the date in question for such

securities on the Composite Tape, or if such securities are not

listed on the NYSE, on the principal United States securities

exchange registered under the 1934 Act on which such securities

are listed, or, if such securities are not listed on any such

exchange but are listed on the NASDAQ national list or national

market system, the average closing sale price or closing bid

quotation (whichever is higher, if both are reported) for the

five business days prior to the date in question, as quoted on

the NASDAQ system, or if such securities are not so listed or

such quotations are not available, then the Market Value of such

securities as determined by the Board of Directors in good faith;

and (3) in the case of property other than cash or securities of

the type described above, the fair market value of such property

on the date in question as determined by the Board of Directors

in good faith.

 

                    (i)  In the event of any Business Combination

in which the corporation survives, the phrase "consideration

other than cash to be received" as used in paragraph (b) of

Section 11.2 of this Article Eleventh shall include the shares of

Common Stock and/or the shares of any other class of outstanding

Voting Stock retained by the holders of such shares.

 

               11.4 The Board of Directors shall have the power

and duty to determine for the purpose of this Article Eleventh,

on the basis of information known to them after reasonable

inquiry (a) whether a person is an Interested Shareholder, (b)

the number of shares of Voting Stock beneficially owned by any

person, (c) whether a person is an Affiliate or Associate of

another, and (d) whether the assets which are the subject of any

business transaction which may be a Business Combination have, or

the consideration to be received for the issuance or transfer of

securities by the corporation or any Subsidiary in any

transaction which may be a Business Combination has, an aggregate

Fair Market Value of $10,000,000 or more. Any such determination

made in good faith shall be binding and conclusive on all

parties.

 

               11.5 Nothing contained in this Article Eleventh

shall be construed to relieve any Interested Shareholder from any

fiduciary obligation imposed by law.

 

               11.6 Notwithstanding any other provisions hereof

or of law, the Certificate of Incorporation or the Bylaws of the

corporation, the affirmative vote of the holders of at least 80%

of the voting power of the then outstanding shares of Common

Stock, and at least 80% of the voting power of all of the then

outstanding shares of Voting Stock, voting together as a single

class, shall be required to amend or repeal, or to adopt any

provision inconsistent with this Article Eleventh.

 

     TWELFTH.  12.1  No director of the corporation shall be

personally liable to the corporation or its stockholders for

monetary damages for breach of his or her fiduciary duty as a

director; provided, however, that this Article Twelfth shall not

eliminate or limit the liability of a director to the extent

provided by applicable law (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 General Corporation Law of the State of Delaware (or

successor provision), or (iv) for any transaction from which the

director derived an improper personal benefit. No amendment to or

repeal of this Article Twelfth shall apply to or have any effect

on the liability or alleged liability of any director of the

corporation for or with respect to any acts or omissions of such

director occurring prior to such amendment or repeal.

 

     DATED as of the 15th day of December, 2000.

 

                              AIRBORNE FREIGHT CORPORATION,

                              Incorporator

 

 

 

                              By  /s/   David C. Anderson

                                   David C. Anderson

                                   Corporate Secretary