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EXHIBIT 4.1
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
EAGLE USA AIR FREIGHT, INC.
ARTICLE ONE
Eagle USA Air Freight, Inc., a Texas corporation (the "Company"),
pursuant to the provisions of Article 4.07 of the Texas Business Corporation
Act, hereby adopts these Second Amended and Restated Articles of Incorporation,
which accurately copy the Amended and Restated Articles of Incorporation of the
Company in effect on the date hereof, as further amended by these Second Amended
and Restated Articles of Incorporation as hereinafter set forth, and contain no
other change in any provisions thereof.
ARTICLE TWO
The Amended and Restated Articles of Incorporation of the Company are
amended by these Second Amended and Restated Articles of Incorporation as
follows:
The amendments made by these Second Amended and Restated Articles of
Incorporation (the "Amendments") alter or change Articles One through Ten of the
Amended and Restated Articles of Incorporation. The full text of each provision
altered or added is as set forth in Article Five hereof.
ARTICLE THREE
The Amendments have been effected in conformity with the provisions of
the Texas Business Corporation Act and the Second Amended and Restated Articles
of Incorporation were duly adopted by all of the shareholders of the Company on
September 29, 1995.
ARTICLE FOUR
On that date there were 6,000,000 shares of Common Stock, par value
$0.001 per share (the "Common Stock"), of the Company outstanding, all of which
were entitled to vote on the Amendments. All 6,000,000 shares of Common Stock
were voted in favor of the Amendments.
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ARTICLE FIVE
The Amended and Restated Articles of Incorporation of the Company filed
with the Secretary of State of the State of Texas on September 30, 1994 are
hereby superseded by the following Second Amended and Restated Articles of
Incorporation, which accurately copy the entire text thereof as amended hereby:
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
EAGLE USA AIRFREIGHT, INC.
ARTICLE ONE
The name of the corporation is Eagle USA Airfreight, Inc.
ARTICLE TWO
The period of its duration is perpetual.
ARTICLE THREE
The purpose or purposes for which the corporation is organized is the
transaction of all lawful business for which a corporation may be incorporated
under the corporation laws of the State of Texas.
ARTICLE FOUR
The aggregate number of shares that the corporation shall have the
authority to issue is 40,000,000 shares, consisting of 30,000,000 shares of
Common Stock, par value $0.001 per share, and 10,000,000 shares of Preferred
Stock, par value $0.001 per share.
The descriptions of the different classes of capital stock of the
corporation and the preferences, designations, relative rights, privileges and
powers, and the restrictions, limitations and qualifications thereof, of said
classes of stock are as follows:
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Division A
The shares of Preferred Stock may be divided into and issued in one or
more series, the relative rights and preferences of which series may vary in any
and all respects. The board of directors of the corporation is hereby vested
with the authority to establish series of Preferred Stock by fixing and
determining all the preferences, limitations and relative rights of the shares
of any series so established, to the extent not provided for in these articles
of incorporation or any amendment hereto, and with the authority to increase or
decrease the number of shares within each such series; provided, however, that
the board of directors may not decrease the number of shares within a series
below the number of shares within such series that is then issued. The authority
of the board of directors with respect to each such series shall include, but
not be limited to, determination of the following:
(1) the distinctive designation and number of shares of that
series;
(2) the rate of dividend (or the method of calculation
thereof) payable with respect to shares of that series, the dates,
terms and other conditions upon which such dividends shall be payable,
and the relative rights of priority of such dividends to dividends
payable on any other class or series of capital stock of the
corporation;
(3) the nature of the dividend payable with respect to shares
of that series as cumulative, noncumulative or partially cumulative,
and if cumulative or partially cumulative, from which date or dates and
under what circumstances.
(4) whether shares of that series shall be subject to
redemption, and, if made subject to redemption, the times, prices,
rates, adjustments and other terms and conditions of such redemption
(including the manner of selecting shares of that series for redemption
if fewer than all shares of such series are to be redeemed);
(5) the rights of the holders of shares of that series in the
event of voluntary or involuntary liquidation, dissolution or winding
up of the corporation (which rights may be different if such action is
voluntary than if it is involuntary), including the relative rights of
priority in such event as to the rights of the holders of any other
class or series of capital stock of the corporation;
(6) the terms, amounts and other conditions of any sinking or
similar purchase or other fund provided for the purchase or redemption
of shares of that series;
(7) whether shares of that series shall be convertible into or
exchangeable for shares of capital stock or other securities of the
corporation or of any other corporation or entity, and, if provision be
made for conversion or exchange, the times, prices, rates, adjustments
and other terms and conditions of such conversion or exchange;
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(8) the extent, if any, to which the holders of shares of that
series shall be entitled (in addition to any voting rights provided by
law) to vote as a class or otherwise with respect to the election of
directors or otherwise;
(9) the restrictions and conditions, if any, upon the issue or
reissue of any additional Preferred Stock ranking on a parity with or
prior to shares of that series as to dividends or upon liquidation,
dissolution or winding up;
(10) any other repurchase obligations of the corporation,
subject to any limitations of applicable law; and
(11) notwithstanding their failure to be included in (1)
through (10) above, any other designations, preferences, limitations or
relative rights of shares of that series.
Any of the designations, preferences, limitations or relative rights (including
the voting rights) of any series of Preferred Stock may be dependent on facts
ascertainable outside these articles of incorporation.
Shares of any series of Preferred Stock shall have no voting rights
except as required by law or as provided in the preferences, limitations and
relative rights of such series.
Division B
1. Dividends. Dividends may be paid on the Common Stock out of any
assets of the corporation available for such dividends subject to the rights of
all outstanding shares of capital stock ranking senior to the Common Stock in
respect of dividends.
2. Distribution of Assets. In the event of any liquidation, dissolution
or winding up of the corporation, after there shall have been paid to or set
aside for the holders of capital stock ranking senior to the Common Stock in
respect of rights upon liquidation, dissolution or winding up the full
preferential amounts to which they are respectively entitled, the holders of the
Common Stock shall be entitled to receive, pro rata, all of the remaining assets
of the corporation available for distribution to its shareholders.
3. Voting Rights. The holders of the Common Stock shall be entitled to
one vote per share for all purposes upon which such holders are entitled to
vote.
Division C
1. No Preemptive Rights. No shareholder of the corporation shall by
reason of his holding shares of any class have any preemptive or preferential
right to acquire or subscribe for any additional, unissued or treasury shares of
any class of the corporation now or hereafter to be
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authorized, or any notes, debentures, bonds or other securities convertible into
or carrying any right, option or warrant to subscribe to or acquire shares of
any class now or hereafter to be authorized, whether or not the issuance of any
such shares, or such notes, debentures, bonds or other securities, would
adversely affect the dividends or voting or other rights of such shareholder,
and the board of directors may issue or authorize the issuance of shares of any
class, or any notes, debentures, bonds or other securities convertible into or
carrying rights, options or warrants to subscribe to or acquire shares of any
class, without offering any such shares of any class, either in whole or in
part, to the existing shareholders of any class.
2. Share Dividends. Subject to any restrictions in favor of any series
of Preferred Stock provided in the relative rights and preferences of such
series, the corporation may pay a share dividend in shares of any class or
series of capital stock of the corporation to the holders of shares of any class
or series of capital stock of the corporation.
3. No Cumulative Voting. Cumulative voting for the election of
directors is expressly prohibited as to all shares of any class or series.
ARTICLE FIVE
The corporation will not commence business until it has received for
the issuance of its shares consideration of the value of One Thousand Dollars
($1,000.00).
ARTICLE SIX
The address of the corporation's registered office is 811 Dallas
Avenue, Houston, Texas 77002 and the name of its registered agent at such
address is CT Corporation System.
ARTICLE SEVEN
The number of directors of the corporation shall be fixed by, or in the
manner provided in, the bylaws. The number of directors constituting the current
board of directors is five, and the name and address of the person who is to
serve as director until such director's successor is elected and qualified is:
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Name Address
James R. Crane 3214 Lodestar Road
Houston, Texas 77032
Daniel S. Swannie 3214 Lodestar Road
Houston, Texas 77032
Donald P. Roberts 3214 Lodestar Road
Houston, Texas 77032
Douglas A. Seckel 3214 Lodestar Road
Houston, Texas 77032
William P. O'Connell 3214 Lodestar Road
Houston, Texas 77032
ARTICLE EIGHT
A director of the corporation shall not be liable to the corporation or
its shareholders for monetary damages for an act or omission in the director's
capacity as a director, except that this article does not eliminate or limit the
liability of a director for: (1) a breach of a director's duty of loyalty to the
corporation or its shareholders; (2) an act or omission not in good faith that
constitutes a breach of duty of that director to the corporation or an act or
omission that involves intentional misconduct or a knowing violation of the law;
(3) a transaction from which a director received an improper benefit, whether or
not the benefit resulted from an action taken within the scope of the director's
office; or (4) an act or omission for which the liability of a director is
expressly provided for by an applicable statute.
If the Texas Miscellaneous Corporation Laws Act or the Texas Business
Corporation Act ("TBCA") is amended to authorize 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 such statutes, as so amended. Any repeal or modification of this
article shall not adversely affect any right or protection of a director of the
corporation existing at the time of such repeal or modification.
ARTICLE NINE
The vote of shareholders required for approval of (1) any plan of
merger, consolidation, or exchange for which the TBCA requires a shareholder
vote, (2) any disposition of assets for which the TBCA requires a shareholder
vote, (3) any dissolution of the corporation for which the TBCA requires a
shareholder vote, and (4) any amendment of the articles of incorporation of the
corporation for which the TBCA requires a shareholder vote, shall be (in lieu of
any greater vote required by the TBCA) the affirmative vote of the holders of a
majority of the outstanding shares entitled to vote thereon, unless any class or
series of shares is entitled to vote as a class thereon, in which event the vote
required shall be the affirmative vote of the holders of a majority of the
outstanding shares within each class or series of shares entitled to vote
thereon as a class and at least a majority of the outstanding shares otherwise
entitled to vote thereon.
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ARTICLE TEN
Special meetings of shareholders may be called by the corporation's
chairman of the board, the president or the board of directors. Subject to the
provisions of the corporation's bylaws governing special meetings, holders of
not less than 50% of the outstanding shares of stock entitled to vote at the
proposed special meeting may also call a special meeting of shareholders by
furnishing the corporation a written request which states the purpose or
purposes of the proposed meeting in the manner set forth in the bylaws.
EXECUTED AND EFFECTIVE this 29th day of September, 1995.
EAGLE USA AIR FREIGHT, INC.
By: /s/ JAMES R. CRANE
------------------------
James R. Crane
President
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ARTICLES OF AMENDMENT
TO
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
EAGLE USA AIRFREIGHT, INC.
Pursuant to the provisions of Article 4.04 of the Texas Business
Corporation Act, the undersigned corporation adopts the following articles of
amendment to its Second Amended and Restated Articles of Incorporation:
1. The name of the corporation is Eagle USA Airfreight, Inc.
2. The following amendment to the Second Amended and Restated
Articles of Incorporation of the corporation increases the authorized
shares of the corporation. The amendment alters the first sentence of
Article Four of the Second Amended and Restated Articles of
Incorporation to read, in full:
"The aggregate number of shares that the corporation
shall have the authority to issue is 110,000,000 shares,
consisting of 100,000,000 shares of Common Stock, par value
$0.001 per share, and 10,000,000 shares of Preferred Stock,
par value $0.001 per share."
3. The amendment made by these articles of amendment was duly
adopted by the shareholders of the corporation at a meeting duly held
on February 23, 1998.
4. The number of shares outstanding as of the date hereof is
18,764,180 shares of Common Stock, par value $0.001 per share; the
number of shares outstanding as of the close of business on December
30, 1997, the record date for such meeting of shareholders, was
18,269,061 shares of Common Stock, par value $0.001 per share, and all
of such 18,269,061 shares were entitled to vote on the amendment; the
number of such shares voted for the amendment was 14,451,374; and the
number of such shares voted against the amendment was 685,124.
IN WITNESS WHEREOF, these articles of amendment have been executed on
March 5, 1998.
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EAGLE USA AIRFREIGHT, INC.
By: /s/ Douglas A. Seckel
----------------------
Douglas A. Seckel
Secretary
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ARTICLES OF AMENDMENT
TO
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
EAGLE USA AIRFREIGHT, INC.
Pursuant to the provisions of Article 4.04 of the Texas Business
Corporation Act, the undersigned corporation adopts the following articles of
amendment to its Second Amended and Restated Articles of Incorporation:
1. The name of the corporation is Eagle USA Airfreight, Inc.
2. The following amendment to the Second Amended and Restated
Articles of Incorporation of the corporation changes the name of the
corporation from Eagle USA Airfreight, Inc. to EGL, Inc. The amendment
alters Article One of the Second Amended and Restated Articles of
Incorporation to read in full as follows:
"The name of the corporation is EGL, Inc."
3. The amendment made by these articles of amendment was duly
adopted by the shareholders of the corporation at a meeting duly held
on February 21, 2000.
4. The number of shares outstanding as of the close of
business on December 30, 1999, the record date for such meeting of
shareholders, was 28,780,667 shares of Common Stock, par value $0.001
per share, and all of such 28,780,667 shares were entitled to vote on
the amendment; the number of such shares voted for the amendment was
26,450,960; and the number of such shares voted against the amendment
was 13,866.
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IN WITNESS WHEREOF, these articles of amendment have been executed on
February 21, 2000.
EAGLE USA AIRFREIGHT, INC.
By: /s/ James R. Crane
---------------------------
James R. Crane
Chief Executive Officer and
Chairman of the Board
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ARTICLES OF AMENDMENT
TO
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
EGL, INC.
Pursuant to the provisions of Article 4.04 of the Texas
Business Corporation Act, the undersigned corporation adopts the following
articles of amendment to its Second Amended and Restated Articles of
Incorporation:
1. The name of the corporation is EGL, Inc.
2. The following amendment to the Second Amended and Restated
Articles of Incorporation of the corporation increases the authorized
shares of the corporation. The amendment alters the first sentence of
Article Four of the Second Amended and Restated Articles of
Incorporation to read, in full:
"The aggregate number of shares that the corporation
shall have the authority to issue is 210,000,000 shares,
consisting of 200,000,000 shares of Common Stock, par value
$0.001 per share, and 10,000,000 shares of Preferred Stock,
par value $0.001 per share."
3. The amendment made by these articles of amendment was duly
adopted by the shareholders of the corporation at a meeting duly held
on September 18, 2000.
4. The number of shares outstanding as of the close of
business on August 2, 2000, the record date for such meeting of
shareholders, was 28,568,680 shares of Common Stock, par value $0.001
per share, and all of such 28,568,680 shares were entitled to vote on
the amendment.
5. The number of such shares voted for the amendment was
23,766,967, the number of such shares voted against the amendment was
989,132, and the number of shares that abstained from voting on the
amendment was 3,865.
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IN WITNESS WHEREOF, these articles of amendment have been
executed on September 18, 2000.
EGL, INC.
By: /s/ James R. Crane
---------------------------------------
James R. Crane
President, Chief Executive Officer and
Chairman of the Board
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