<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 26, 1996.
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
CONSOLIDATED FREIGHTWAYS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 77-0425334
(State or Other Jurisdiction of (IRS Employer Identification No.)
Incorporation or Organization)
175 LINFIELD DRIVE
MENLO PARK, CALIFORNIA 94025
(Address, Including Zip Code, of Principal Executive Offices)
CONSOLIDATED FREIGHTWAYS CORPORATION
1996 STOCK OPTION AND INCENTIVE PLAN
(Full Title of the Plan)
STEPHEN D. RICHARDS
CONSOLIDATED FREIGHTWAYS CORPORATION
175 LINFIELD AVENUE
MENLO PARK, CALIFORNIA 94025
(415) 326-1700
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
COPY TO:
BRIAN J. MCCARTHY
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
300 SOUTH GRAND AVENUE
SUITE 3400
LOS ANGELES, CALIFORNIA 90071
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Amount to be Proposed Maximum Offering Proposed Maximum Aggre- Amount of Registration
Title of Securities to be Registered Registered Price Per Share (1)(2) gate Offering Price (1)(2) Fee (3)
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 per share . . . . . 3,303,798 (4) $ 7.56 $ 24,976,713 $ 7,568.70
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee.
(2) Estimated pursuant to Rules 457(c) and (h) under the Securities Act of
1933, as amended (the "Securities Act"), on the basis of the average of the
high and low sale prices for when issued trading for a share of common
stock of Consolidated Freightways Corporation ("Common Stock") on the
Nasdaq Stock Market's National Market on November 25, 1996.
(3) The registration fee has been calculated pursuant to Section 6(b) of the
Securities Act as follows: one-thirty-third (1/33) of one percent of the
Proposed Maximum Aggregate Offering Price of the shares registered hereby.
(4) Plus such additional number of shares of Common Stock as may be issuable
pursuant to the antidilution provisions of the Consolidated Freightways
Corporation 1996 Stock Option and Incentive Plan.
<PAGE>
REGISTRATION STATEMENT
ON
FORM S-8
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8
have been or will be sent or given to employees as specified by Rule 428(b)(1)
under the Securities Act.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") by the registrant, Consolidated Freightways Corporation, a
Delaware corporation (the "Company") pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act") or the Securities Act, are incorporated by
reference in this registration statement:
(a) The Company's Registration Statement on Form 10, as declared
effective on November 7, 1996 and filed pursuant to Section 12(g)
of the Exchange Act (File No. 1-12149), including any amendment
or report filed for the purpose of updating such information (the
"Registration Statement");
(b) All other reports filed under Section 13(a) or 15(d) of the
Exchange Act since the end of the most recent fiscal year; and
(c) The description of the Company's Common Stock included in the
Registration Statement.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents.
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<PAGE>
Any statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this registration statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
LIMITATION OF LIABILITY
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL")
permits a corporation's certificate of incorporation to include a provision
eliminating or limiting the personal liability of a director to the corporation
or its shareholders for monetary damages for breach of fiduciary duty as a
director provided that such provision shall not eliminate or limit the liability
of a director (i) for any breach of the director's duty of loyalty to the
corporation or its shareholders, (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 DGCL (relating to unlawful payment of dividends and unlawful
stock purchase and redemption) or (iv) for any transaction from which the
director derived an improper personal benefit. As permitted by Section
102(b)(7) of the DGCL, the Company's Certificate of Incorporation provides that
the Company's directors shall not be liable to the Company or its shareholders
for monetary damages for breach of fiduciary duty as a director, except to the
extent that exculpation from liabilities is not permitted under the DGCL as in
effect at the time such liability is determined.
INDEMNIFICATION AND INSURANCE
The Company's Certificate of Incorporation and Bylaws provide that the
Company shall indemnify its directors and officers to the full extent permitted
by the
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<PAGE>
law of the State of Delaware. Section 145 of the DGCL provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal or investigative (other than an action by or
in the right of the corporation) by reason of the fact that he or she is or was
a director, officer, employee or agent of the corporation or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the corporation, and with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. Section 145
further provides that a corporation similarly may indemnify any such person
serving in any such capacity who was or is a party or is threatened to be made
by a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor, against expenses
(including attorneys' fees) actually and reasonably incurred in connection with
the defense or settlement of such action or suit if he or she acted in good
faith and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the extent
that the Delaware Court of Chancery or such other court in which such action or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
The Company has obtained an insurance policy that insures its directors and
officers against certain liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Page 4
<PAGE>
ITEM 8. EXHIBITS.
Exhibit No. Description
----------- -----------
4.1 Amended and Restated Certificate of Incorporation of the
Company.
4.2 Amended and Restated Bylaws of the Company.
5.1 Opinion and consent of Skadden, Arps, Slate, Meagher & Flom
LLP.
23.1 Consent of Arthur Andersen LLP, independent public
accountants.
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in their opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggre-
Page 5
<PAGE>
gate, the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforce-
Page 6
<PAGE>
able. In the event that a claim for indemnification against such liabilities
(other than payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
Page 7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunder duly
authorized, in the City of Menlo Park, State of California, on this 26th day of
November, 1996.
CONSOLIDATED FREIGHTWAYS CORPORATION
By /s/ W. Roger Curry
--------------------------------------
Name: W. Roger Curry
Title: President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated. Each person whose signature appears
below constitutes and appoints Stephen D. Richards his or her true and lawful
attorney-in-fact and agent, acting alone, with full powers of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, acting alone, full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent, acting
alone, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Signature Title Date
--------- ----- ----
/s/ W. Roger Curry President and Chief Executive November 26, 1996
- ----------------------- Officer and Director
W. Roger Curry (Principal Executive Officer)
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<PAGE>
/s/ David F. Morrison Executive Vice President November 26, 1996
- ------------------------ and Chief Financial Officer
David F. Morrison (Principal Financial and
Accounting Officer)
/s/ Eberhard G.H. Schmoller Director November 26, 1996
- ---------------------------
Eberhard G. H. Schmoller
Page 9
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
- ----------- ----------- ----
4.1 Amended and Restated Certificate of Incorporation of
the Company.
4.2 Amended and Restated Bylaws of the Company.
5.1 Opinion and consent of Skadden, Arps, Slate, Meagher &
Flom LLP.
23.1 Consent of Arthur Andersen LLP, independent public
accountants.
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in their opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of
this Registration Statement).
Page 10
<PAGE>
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CONSOLIDATED FREIGHTWAYS CORPORATION
The undersigned, Maryla R. Boonstoppel, certifies that she is the
Secretary of Consolidated Freightways Corporation, a corporation organized and
existing under the laws of the State of Delaware (the "Corporation"), and does
hereby further certify as follows:
1. The name of the Corporation is Consolidated Freightways
Corporation.
2. The Corporation was originally incorporated under the name
LHT Holdings, Inc. Pursuant to an amendment to its Certificate of Incorporation
filed on August 26, 1996, the Corporation changed its name to Consolidated
Freightways Corporation.
3. The original Certificate of Incorporation of the Corporation
was filed in the Office of the Secretary of State of the State of Delaware on
March 20, 1996.
4. This Amended and Restated Certificate of Incorporation was duly
adopted by stockholder written consent in accordance with Sections 228, 242 and
245 of the General Corporation Law of the State of Delaware.
5. The text of the Certificate of Incorporation of the Corporation
as amended hereby is restated to read in its entirety as follows:
FIRST. The name of the Corporation is Consolidated Freightways
Corporation.
SECOND. The address of the Corporation's registered office in the
State of Delaware is 1013 Centre Road, City of Wilmington 19805, County of New
Castle, and the name of its registered agent at such address is the The
Prentice-Hall Corporation System, Inc.
<PAGE>
THIRD. The purpose for which the Corporation is formed is to engage
in any lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware (the "GCL").
FOURTH. The aggregate number of shares of all classes of stock which
the Corporation shall have authority to issue is 55,000,000, 50,000,000 of which
shares shall be common stock having a par value of $.01 per share ("Common
Stock") and 5,000,000 of which shares shall be Preferred Stock having a par
value of $.01 per share ("Preferred Stock"). A description of each of such
classes of stock and the designations and the powers, preferences and rights,
and the qualifications, limitations or restrictions thereof, of each class of
stock of the Corporation which are fixed by the Certificate of Incorporation of
the Corporation, and the express grant of authority to the Board of Directors of
the Corporation (the "Board") to fix by resolution or resolutions the
designations and the powers, preferences and rights of each other class, and the
qualifications, limitations or restrictions thereof, are as follows:
1. The Board shall have authority, by resolution or resolutions, at
any time and from time to time to divide and establish any or all of the
unissued shares of Preferred Stock not then allocated to any series of Preferred
Stock into one or more series, and, without limiting the generality of the
foregoing, to fix and determine the designation of each such series, the number
of shares which shall constitute such series and the following relative rights
and preferences of the shares of each series so established:
(a) the annual dividend rate payable on shares of such series,
the time of payment thereof, whether such dividends shall be cumulative or
non-cumulative, and the date or dates from which any cumulative dividends shall
commence to accrue;
(b) the price or prices at which and the terms and conditions, if
any, on which shares of such series may be redeemed;
(c) the amounts payable upon shares of such series in the event
of the voluntary or involuntary dissolution, liquidation or winding-up of the
affairs of the Corporation;
(d) the sinking fund provisions, if any, for the redemption or
purchase of shares of such series;
2
<PAGE>
(e) the extent of the voting powers, if any, of the shares of
such series;
(f) the terms and conditions, if any, on which shares of such
series may be converted into shares of stock of the Corporation of any other
class or classes or into shares of any other series of the same or any other
class or classes;
(g) whether, and if so the extent to which, shares of such series
may participate with the Common Stock in any dividends in excess of the
preferential dividend fixed for shares of such series or in any distribution of
the assets of the Corporation, upon a liquidation, dissolution or winding-up
thereof, in excess of the preferential amount fixed for shares of such series;
and
(h) any other designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, of shares of such series not fixed and determined by
law or in the Certificate of Incorporation of the Corporation, and to increase
or decrease the number of shares of any series so created, subsequent to the
issue of that series but not below the number of such series then outstanding.
In case the number of shares of any series shall be so decreased, the shares
constituting such decrease shall resume the status which they had prior to the
adoption of the resolution originally fixing the number of shares of such
series.
2. There shall be no limitation or restriction on any variation
between any of the different series of Preferred Stock as to the designations,
preferences and relative, participating, optional or other special rights, and
the qualifications, limitations or restrictions thereof; and the several series
of Preferred Stock may, except as hereinafter in this Article FOURTH otherwise
expressly provided, vary in any and all respects as fixed and determined by the
resolution or resolutions of the Board providing for the issuance of the various
series. Different series of Preferred Stock shall not be considered to
constitute different classes of shares for the purpose of voting by classes
except as otherwise fixed by the Board with respect to any series at the time of
the creation thereof.
3. So long as any shares of Preferred Stock are outstanding, the
Corporation shall not declare and pay or set apart for payment any dividends
(other than dividends payable in Common Stock or other stock of the Corporation
ranking junior to the Preferred Stock as to dividends) or make any other
distribution on such junior stock, if at the time of making such declaration,
payment or distribution the
3
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Corporation shall be in default with respect to any dividend payable on, or any
obligation to retire, shares of Preferred Stock.
4. Subject to such limitations, if any, as may be contained in the
resolution or resolutions providing for the issue of Preferred Stock of any
series adopted by the Board, shares of Preferred Stock purchased, redeemed or
otherwise acquired by the Corporation (excepting shares of such stock acquired
on the conversion or exchange thereof into or for other shares of the
Corporation) (a) shall, upon the filing by the Corporation of a certificate
pursuant to Delaware law reducing its capital in respect to such shares, have
the status of authorized and unissued shares of Preferred Stock and may be
reissued by the Corporation at any time as shares of any series of Preferred
Stock and (b) shall, unless and until a certificate with respect thereto is
filed as aforesaid, constitute treasury stock; and shares of Preferred Stock
acquired on the conversion or exchange thereof into or for other shares of the
Corporation shall, after such conversion or exchange, have the status of
authorized and unissued shares of Preferred Stock and may be reissued by the
Corporation at any time as shares of any series of Preferred Stock.
5. Subject to the provisions of any applicable law or the Bylaws of
the Corporation as from time to time amended with respect to the closing of the
transfer books or the fixing of a record date for the determination of
stockholders entitled to vote, and except as otherwise provided by law or in
resolutions of the Board establishing any series of Preferred Stock pursuant to
this Article FOURTH, the holders of outstanding shares of Common Stock of the
Corporation shall exclusively possess the voting power for the election of
directors and for all other purposes. The amount of either the authorized
Preferred Stock or Common Stock, or the amount of both such classes of stock,
may be increased or decreased by the affirmative vote of the holders of a
majority of the stock of the Corporation entitled to vote. Each holder of
record of shares of Common Stock of the Corporation shall be entitled to one
vote for each share of such stock standing in such holder's name on the books of
the Corporation.
FIFTH. A. The business and affairs of the Corporation shall be
managed by or under the direction of the Board consisting of not less than five
nor more than nine directors, the exact number of directors to be determined
from time to time by resolution adopted by the affirmative vote of a majority of
the entire Board. The directors shall be divided into three groups, designated
Group I, Group II and Group III. Each Group of directors shall consist, as
nearly as may be possible, of one-third of the total number of directors
constituting the entire Board (determined for purposes of the Certificate of
Incorporation without regard to
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whether any vacancies exist on the Board). The term of the initial Group I
directors shall terminate on the date of the 1997 annual meeting of
stockholders; the term of the initial Group II directors shall terminate on the
date of the 1998 annual meeting of stockholders; and the term of the initial
Group III directors shall terminate on the date of the 1999 annual meeting of
stockholders. At each annual meeting of stockholders beginning with the 1997
annual meeting, successors to the Group of directors whose term expires at that
annual meeting shall be elected for a three-year term.
B. If the number of directors is changed, any increase or decrease
shall be apportioned among the Groups so as to maintain the number of directors
in each Group as nearly equal as possible, and any additional director of any
Group elected to fill a vacancy resulting from an increase in such Group shall
hold office for a term that shall coincide with the remaining term of that
Group, but in no case will a decrease in the number of directors shorten the
term of any incumbent director.
C. A director shall hold office until the annual meeting for the year
in which his or her term expires and until his or her successor shall be elected
and shall qualify, subject, however, to prior death, resignation, retirement,
disqualification or removal from office. Any vacancy on the Board, however
resulting, may be filled by a majority of the Board then in office, even if less
than a quorum is present or by a sole remaining director. Any director elected
to fill a vacancy shall have the same remaining term as that of his or her
predecessor.
D. Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of Preferred Stock shall have the right, voting
separately by class or series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of vacancies and
other features of such directorships shall be governed by the terms of the
Certificate of Incorporation of the Corporation applicable thereto.
SIXTH. Elections of directors at an annual or special meeting of
stockholders shall be by written ballot, unless the Bylaws of the Corporation
provide otherwise.
SEVENTH. Subject to the rights, if any, of the holders of shares of
Preferred Stock then outstanding, any or all of the directors of the Corporation
may be removed from office at any time, but only for cause and only by the
affirmative vote of the holders of a majority of the outstanding shares of the
Corporation then
5
<PAGE>
entitled to vote generally in the election of directors, considered for purposes
of this Article SEVENTH as one class.
EIGHTH. In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized:
(a) to make, alter or repeal the Bylaws of the Corporation;
(b) to authorize and cause to be executed mortgages and liens upon the
real and personal property of the Corporation;
(c) 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 or reserves in the manner in which the same was created;
(d) by resolution passed by a majority of the whole Board, to
designate one or more committees which, to the extent provided in the resolution
or in the Bylaws of the Corporation, shall have and may exercise the powers of
the Board 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. Such committee or committees shall have such name or names as may
be stated in the Bylaws of the Corporation or as may be determined from time to
time by resolution adopted by a majority of the whole Board; and
(e) 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 for that purpose, 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 be in whole or in part shares
of stock in, and/or other securities of, any other corporation or corporations,
as the Board shall deem expedient and for the best interests of the Corporation.
NINTH. A. In addition to any affirmative vote required by law, any
other provision of the Certificate of Incorporation of the Corporation, the
Bylaws of the Corporation or otherwise, and except as otherwise expressly
provided in Sections B or C of this Article NINTH, a Business Transaction with
or a Stock Repurchase from, or proposed by or on behalf of, an Interested
Stockholder or an Affiliate or Associate of an Interested Stockholder shall
require the approval by not less than a majority vote of the holders of all of
the Corporation's outstanding Voting Stock,
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<PAGE>
voting together as a single class, which is beneficially owned by persons other
than such Interested Stockholder and its Affiliates and Associates. Such
affirmative vote shall be required notwithstanding the fact that no vote may
otherwise be required, or that a lesser percentage or separate class vote may be
required, by law, any other provision of the Certificate of Incorporation of the
Corporation, the Bylaws of the Corporation or otherwise.
B. The provisions of Section A of this Article NINTH shall not be
applicable to any Business Transaction involving an Interested Stockholder or an
Affiliate or Associate of an Interested Stockholder, and such Business
Transaction shall require only such affirmative vote, if any, as is required by
law, any other provision of the Certificate of Incorporation of the Corporation,
the Bylaws of the Corporation or otherwise, if all of the conditions specified
in either of the following Paragraph 1 or 2 are met:
1. The Business Transaction shall have been approved (or shall have
been effected in accordance with a written agreement approved) by a
majority of the Disinterested Directors, whether such approval is given
prior or subsequent to the acquisition of beneficial ownership of the
Voting Stock that caused such Interested Stockholder to become an
Interested Stockholder. A Business Transaction with an Interested
Stockholder or an Affiliate or an Associate of an Interested Stockholder
shall be deemed to have been approved by a majority of the Disinterested
Directors if such Business Transaction either (i) was expressly approved
(or the agreement pursuant to which it was effected was expressly approved)
by a majority of Disinterested Directors, or (ii) is within a category of
Business Transactions with such Interested Stockholder or its Affiliates or
Associates authorized to be entered into by a resolution or resolutions
adopted by, and not subsequently rescinded by, a majority of Disinterested
Directors.
2. The Business Transaction is a Business Combination and all of the
following conditions shall have been met:
(a) The aggregate amount of cash and the Fair Market Value as of
the date of the consummation of the Business Transaction of consideration
other than cash to be received per share by holders of the Corporation's
Common Stock in such Business Transaction shall be at least equal to the
highest amount determined under clauses (i) and (ii) below:
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<PAGE>
(i) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees) paid by
or on behalf of such Interested Stockholder or any Affiliate or
Associate of such Interested Stockholder for any shares of Common
Stock in connection with the acquisition by such Interested
Stockholder or any such Affiliate or Associate of beneficial
ownership of shares of Common Stock (x) within the two-year
period immediately prior to the first public announcement of the
proposed Business Transaction (the "Announcement Date"), or (y)
in the transaction in which such Interested Stockholder became an
Interested Stockholder, whichever is higher; and
(ii) the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which such Interested
Stockholder became an Interested Stockholder (the "Determination
Date"), whichever is higher.
(b) The aggregate amount of cash and the Fair Market Value as of
the date of the consummation of the Business Transaction of
consideration other than cash to be received per share by holders of
shares of any class or series of outstanding Capital Stock other than
Common Stock shall be at least equal to the highest amount determined
under clauses (i), (ii) and (iii) below:
(i) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees) paid by
or on behalf of such Interested Stockholder or any Affiliate or
Associate of such Interested Stockholder for any shares of such
class or series of Capital Stock in connection with the
acquisition by such Interested Stockholder or any such Affiliate
or Associate of beneficial ownership of shares of such class or
series of Capital Stock (x) within the two-year period
immediately prior to the Announcement Date, or (y) in the
transaction in which such Interested Stockholder became an
Interested Stockholder, whichever is higher;
(ii) the Fair Market Value per share of such class or series
of Capital Stock on the Announcement Date or on the Determination
Date, whichever is higher; and
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(iii) the highest preferential amount per share, if any, to
which the holders of shares of such class or series of Capital
Stock would be entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs
of the Corporation, regardless of whether the Business
Transaction to be consummated constitutes such an event.
The provisions of this Paragraph 2(b) shall be required to be met
with respect to every class or series of outstanding Capital Stock,
whether or not such Interested Stockholder or any Affiliate or
Associate of such Interested Stockholder has previously acquired
beneficial ownership of any shares of the particular class or series
of Capital Stock.
(c) The consideration to be received by holders of a particular
class or series of outstanding Capital Stock shall be in cash or in
the same form as previously has been paid by or on behalf of such
Interested Stockholder and its Affiliates and Associates in connection
with their direct or indirect acquisition of beneficial ownership of
shares of such class or series of Capital Stock. If the consideration
so paid for shares of any class or series of Capital Stock varied as
to form, the form of consideration for such class or series of Capital
Stock shall be either cash or the form used to acquire beneficial
ownership of the largest number of shares of such class or series of
Capital Stock previously acquired by such Interested Stockholder and
its Affiliates and Associates. The prices determined in accordance
with Paragraphs 2(a) and 2(b) of this Section B shall be subject to an
appropriate adjustment in the event of any stock dividend, stock
split, combination of shares or similar event.
(d) After the Determination Date and prior to the consummation of
such Business Transaction: (i) except as approved by a majority of
the Disinterested Directors, there shall have been no failure to
declare and pay at the regular date therefor any full quarterly
dividends (whether or not cumulative) payable in accordance with the
terms of any outstanding Capital Stock; (ii) there shall have been no
reduction in the annual rate of dividends paid on the Common Stock
(except as necessary to reflect any stock split, stock dividend or
subdivision of the Common Stock), except as approved by a majority of
the Disinterested Directors; (iii) there shall have been an increase
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in the annual rate of dividends paid on the Common Stock as necessary
to reflect any reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction that has
the effect of reducing the number of outstanding shares of Common
Stock, unless the failure so to increase such annual rate is approved
by a majority of the Disinterested Directors; and (iv) neither such
Interested Stockholder nor any Affiliate or Associate of such
Interested Stockholder shall have become the beneficial owner of any
additional shares of Capital Stock except as part of the transaction
that results in such Interested Stockholder becoming an Interested
Stockholder and except in a transaction that, after giving effect
thereto, would not result in any increase in such Interested
Stockholder's or any such Affiliate's or Associate's percentage
beneficial ownership of any class or series of Capital Stock.
(e) A proxy or information statement describing the proposed
Business Transaction and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (the "Act") (or any subsequent provisions replacing such
Act, rules or regulations) shall be mailed to all stockholders of the
Corporation at least thirty days prior to the consummation of such
Business Transaction (whether or not such proxy or information
statement is required to be mailed pursuant to such Act or subsequent
provisions). The proxy or information statement shall contain on the
first page thereof, in a prominent place, any statement as to the
advisability (or inadvisability) of the Business Transaction that the
Disinterested Directors, or any of them, may choose to make and, if
deemed advisable by a majority of the Disinterested Directors, the
opinion of an investment banking firm selected by a majority of the
Disinterested Directors as to the fairness (or not) of the terms of
the Business Transaction from a financial point of view to the holders
of the outstanding shares of Capital Stock other than such Interested
Stockholder and its Affiliates or Associates, such investment banking
firm to be paid a reasonable fee for its services by the Corporation.
C. The provisions of Section A of this Article NINTH shall not be
applicable to a Stock Repurchase with, or proposed by or on behalf of, an
Interested Stockholder or an Affiliate or Associate of an Interested
Stockholder, and such Stock Repurchase shall require only such affirmative vote,
if any, as is required by law, any other provision of the Certificate of
Incorporation of the Corporation, the
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Bylaws of the Corporation or otherwise, if the conditions specified in either of
the following Paragraph 1 or 2 are met:
1. The Stock Repurchase is made pursuant to a tender offer or exchange
offer for a class of Capital Stock made available on the same basis to all
holders of such class of Capital Stock.
2. The Stock Repurchase is made pursuant to an open market purchase
program approved by a majority of the Disinterested Directors, PROVIDED
that such repurchase is effected on the open market and is not the result
of a privately negotiated transaction.
D. For the purposes of this Article NINTH:
1. The term "Business Transaction" shall mean:
(a) any merger or consolidation of the Corporation with, or any
sale or transfer of all or substantially all of the Corporation's
assets to, (i) any Interested Stockholder or (ii) any other
corporation (whether or not itself an Interested Stockholder) which is
or after such merger, consolidation, sale or transfer would be an
Affiliate or Associate of an Interested Stockholder, or any
liquidation or dissolution of the Corporation (any such merger,
consolidation, sale, transfer, liquidation or dissolution being
referred to herein as a "Business Combination"); or
(b) any other transaction (other than a Stock Repurchase) between
the Corporation or any Subsidiary, on the one hand, and any Interested
Stockholder or any Affiliate or Associate of an Interested
Stockholder, on the other hand, and any amendment to the Bylaws of the
Corporation proposed by or on behalf of any Interested Stockholder or
any Affiliate or Associate of an Interested Stockholder; or
(c) any reclassification of securities (including any reverse
stock split) or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any Subsidiary, or any other
transaction (whether or not with or otherwise involving an Interested
Stockholder) that has the effect, directly or indirectly, of
increasing the percentage beneficial ownership of any class or series
of Capital Stock held by, or the voting power with respect to the
Corporation of,
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any Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder; or
(d) any agreement, contract or other arrangement providing for
any one or more of the actions specified in the foregoing clauses (a)
to (c).
2. The term "Stock Repurchase" shall mean any repurchase by the
Corporation or any Subsidiary of any shares of Capital Stock at a price
greater than the then Fair Market Value of such shares from an Interested
Stockholder or an Affiliate or Associate of an Interested Stockholder if
beneficial ownership of one-quarter or more of all shares of Capital Stock
beneficially owned by such Interested Stockholder and its Affiliates and
Associates were acquired (disregarding shares acquired as part of a
pro-rata stock dividend or stock split) within a period of less than two
years prior to the date of such repurchase (or the date of an agreement in
respect thereof).
3. The term "Capital Stock" shall mean all capital stock of the
Corporation authorized to be issued from time to time under Article FOURTH
of this Amended and Restated Certificate of Incorporation, and the term
"Voting Stock" shall mean all Capital Stock which by its terms may be voted
on all matters submitted to stockholders of the Corporation generally.
4. The term "person" shall mean any individual, firm, corporation or
other entity and shall include any group comprised of any person and any
other person with whom such person or any Affiliate or Associate of such
person has any agreement, arrangement or understanding, directly or
indirectly, for the purpose of acquiring, holding, voting or disposing of
Capital Stock.
5. The term "Interested Stockholder" shall mean any person (other than
any underwriter or similar initial purchaser who acquires such Voting Stock
in connection with a public offering or private placement, the Corporation
or any Subsidiary, or any pension, profit-sharing, employee stock ownership
or other employee benefit plan of the Corporation or any Subsidiary, or any
trustee of or fiduciary with respect to any such plan when acting in such
capacity) who (a) is the beneficial owner of Voting Stock representing ten
percent (10%) or more of the votes entitled to be cast by the holders of
all then outstanding shares of Voting Stock; or (b) is an Affiliate or
Associate of the Corporation and at any time within the two-year period
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immediately prior to the date in question was the beneficial owner of
Voting Stock representing ten percent (10%) or more of the votes entitled
to be cast by the holders of all then outstanding shares of Voting Stock.
6. A person shall be a "beneficial owner" of any Capital Stock (a)
which such person or any of its Affiliates or Associates beneficially owns,
directly or indirectly; (b) which such person or any of its Affiliates or
Associates has, directly or indirectly, (i) the right to acquire (whether
such right is exercisable immediately or subject only to the passage of
time), pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement, arrangement
or understanding; or (c) 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
Capital Stock. For the purposes of determining whether a person is an
Interested Stockholder pursuant to Paragraph 5 of this Section D, the
number of shares of Capital Stock deemed to be outstanding shall include
shares deemed beneficially owned by such person through application of
Paragraph 6 of this Section D, but shall not include any other shares of
Capital Stock that may be issuable pursuant to any agreement, arrangement
or understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
7. A person shall be deemed to be an "Affiliate" of a specified
person, if such person directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, such specified person. A person shall be deemed to be an "Associate"
of a specified person, if such person is (a) a corporation or organization
(other than the Corporation or any Subsidiary) of which such specified
person is an officer or partner or of which such specified person is,
directly or indirectly, the beneficial owner of ten percent (10%) or more
of any class of equity securities, (b) a trust or other estate (other than
any pension, profit-sharing, employee stock ownership or other employee
benefit plan of the Corporation or any Subsidiary) in which such specified
person has a substantial beneficial interest or as to which such specified
person serves as trustee or in a similar fiduciary capacity, or (c) a
relative or spouse of such specified person, or a relative of such spouse,
who has the same home as such specified person.
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8. The term "Subsidiary" means any corporation of which a majority of
any class of equity security is beneficially owned by the Corporation, as
well as any Affiliate of the Corporation which is controlled by the
Corporation; PROVIDED, HOWEVER, that for the purposes of the definition of
Interested Stockholder set forth in Paragraph 5 of this Section D, the term
"Subsidiary" shall mean only a company of which a majority of each class of
equity security is beneficially owned by the Corporation.
9. With respect to any Business Transaction with, or proposed by or on
behalf of, an Interested Stockholder or an Affiliate or Associate of an
Interested Stockholder, and with respect to any proposal of the kind
referred to in Section H of this Article NINTH, which is proposed by or on
behalf of an Interested Stockholder or an Affiliate or Associate of an
Interested Stockholder, the term "Disinterested Director" means any member
of the Board who is not an Affiliate or Associate or representative of such
Interested Stockholder and was a member of the Board prior to the time that
such Interested Stockholder became an Interested Stockholder, and any
successor of a Disinterested Director, while such successor is a member of
the Board, who is not an Affiliate or Associate or representative of such
Interested Stockholder and is recommended or elected to succeed the
Disinterested Director by a majority of Disinterested Directors.
10. The term "Fair Market Value" means (a) in the case of cash, the
amount of such cash; (b) in the case of stock, the highest closing sale
price during the 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, or, if such stock is not quoted on the Composite Tape, on
the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered
under the Act on which such stock is listed, or, if such stock is not
listed on any such exchange, the highest closing bid quotation 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 or any similar 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 a majority of the Disinterested
Directors in good faith, and (c) in the case of property other than cash or
stock, the fair market value of such property on the date in question as
determined in good faith by a majority of the Disinterested Directors.
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11. In the event of any Business Transaction in which the Corporation
survives, the phrase "consideration other than cash to be received" as used
in Paragraphs 2(a) and 2(b) of Section B of this Article NINTH shall
include the shares of Common Stock and/or the shares of any other class or
series of Capital Stock retained by the holders of such shares.
E. A majority of the Disinterested Directors shall have the power and duty
to determine for the purposes of this Article NINTH, on the basis of information
known to them after reasonable inquiry, all questions arising under this Article
NINTH, including, without limitation, (a) whether a person is an Interested
Stockholder, (b) the number of shares of Capital Stock or other securities
beneficially owned by any person, (c) whether a person is an Affiliate or
Associate of another, and (d) whether the consideration to be received in any
Stock Repurchase by the Corporation or any Subsidiary exceeds the then Fair
Market Value of the shares of Capital Stock being repurchased. Any such
determination made in good faith shall be binding and conclusive on all parties.
F. Nothing contained in this Article NINTH shall be construed to relieve
any Interested Stockholder from any fiduciary obligation imposed by law.
G. The fact that any Business Transaction complies with the provisions of
Section B of this Article NINTH shall not be construed to impose any fiduciary
duty, obligation or responsibility on the Board, or any member thereof, to
approve such Business Transaction or recommend its adoption or approval to the
stockholders of the Corporation, nor shall such compliance limit, prohibit or
otherwise restrict in any manner the Board, or any member thereof, with respect
to evaluations of or actions and responses taken with respect to such Business
Transaction.
H. Notwithstanding any other provisions of the Certificate of Incorporation
or the Bylaws of the Corporation (and notwithstanding the fact that a lesser
percentage or separate class vote may be specified by law, the Certificate of
Incorporation or the Bylaws of the Corporation) and in addition to the voting
requirements set forth in Article SEVENTEENTH hereof, any proposal to amend or
repeal, or adopt any provision of the Certificate of Incorporation inconsistent
with, this Article NINTH which is proposed by or on behalf of an Interested
Stockholder or an Affiliate or Associate of an Interested Stockholder shall
require approval by a vote of a majority of the holders of all then outstanding
shares of Voting Stock which are beneficially owned by persons other than such
Interested Stockholder and its Affiliates and Associates, voting together as a
single class; PROVIDED, HOWEVER, that this Section H shall not apply to, and
such majority vote shall not be required for,
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<PAGE>
any amendment, repeal or adoption which does not affect the provisions of this
Article NINTH relating to Stock Repurchases and which is recommended by a
majority of the Disinterested Directors, if a majority of the directors then in
office are Disinterested Directors.
TENTH. Meetings of stockholders may be held outside the State of
Delaware, if the Bylaws so provide. The books of the 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 or in the Bylaws of the Corporation.
ELEVENTH. Any action required or permitted to be taken at any annual
or special meeting of stockholders may be taken only upon the vote of the
stockholders at an annual or special meeting duly noticed and called, as
provided in the Bylaws of the Corporation, and may not be taken by a written
consent of the stockholders pursuant to the GCL.
TWELFTH. Special meetings of stockholders of the Corporation for any
purpose or purposes may be called at any time by the Chairman of the Board, the
President or a majority of the entire Board. Special meetings of the
stockholders of the Corporation may not be called by any other person or
persons.
THIRTEENTH: No director of the Corporation shall be personally liable
to the Corporation or its stockholders for monetary damages for any breach of
fiduciary duty by such a director as a director to the full extent authorized or
permitted by law (as now or hereafter in effect). Notwithstanding the foregoing
sentence, a director shall be liable 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) pursuant to Section
174 of the GCL or (iv) for any transaction from which the director derived an
improper personal benefit. No amendment to or repeal of this Article THIRTEENTH
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.
FOURTEENTH. Advance notice of new business and stockholder
nominations for the election of directors shall be given in the manner and to
the extent provided in the Bylaws of the Corporation.
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FIFTEENTH. The private property of the stockholders of this
Corporation shall not be subject to the payment of corporate debts to any extent
whatsoever.
SIXTEENTH. The officers and directors of the Corporation, and such
other persons as authorized by a majority of the entire Board consistent with
the provisions of the GCL shall be indemnified by the Corporation to the fullest
extent authorized or permitted by law (as now or hereafter in effect).
SEVENTEENTH. The Corporation reserves the right to adopt, amend,
alter or repeal any provisions contained in the Certificate of Incorporation in
the manner now or hereafter prescribed by the statutes of the State of Delaware
and the Certificate of Incorporation, and all rights herein conferred on
stockholders are expressly subject to this reservation. Notwithstanding
anything contained in the Certificate of Incorporation to the contrary, the
affirmative vote of the holders of at least eighty percent (80%) of the
outstanding stock of the Corporation entitled to vote thereon shall be required
to adopt, amend, alter or repeal any provision inconsistent with Articles FIFTH,
SEVENTH, EIGHTH, NINTH, ELEVENTH, TWELFTH, THIRTEENTH, SIXTEENTH and SEVENTEENTH
of the Certificate of Incorporation.
IN WITNESS WHEREOF, Consolidated Freightways Corporation has caused
this Amended and Restated Certificate of Incorporation to be signed by Maryla R.
Boonstoppel, its Secretary, this 21st day of November, 1996.
CONSOLIDATED FREIGHTWAYS
CORPORATION
/s/ Maryla R. Boonstoppel
------------------------------
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- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
AMENDED AND RESTATED
AS OF NOVEMBER 20, 1996
BYLAWS
OF
CONSOLIDATED FREIGHTWAYS CORPORATION
INCORPORATED UNDER THE LAWS OF DELAWARE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
BYLAWS
OF
CONSOLIDATED FREIGHTWAYS CORPORATION
ARTICLE I:
LOCATION AND OFFICES
SECTION 1:1. Principal Office.............................................. 1
SECTION 1:2. Other Offices................................................. 1
ARTICLE II:
STOCKHOLDERS
SECTION 2:1. Annual Meeting................................................ 1
SECTION 2:2. Business to be Conducted at Annual Meeting.................... 2
SECTION 2:3. Special Meetings.............................................. 3
SECTION 2:4. Place of Meetings............................................. 3
SECTION 2:5. Notice of Meetings............................................ 3
SECTION 2:6. Rules of Conduct................................................4
SECTION 2.7. Quorum and Voting............................................. 4
SECTION 2:8. Voting; Proxy................................................. 5
SECTION 2:9. Voting by Fiduciaries, Pledgees and Pledgors.................. 6
SECTION 2:10. Nomination of Directors....................................... 6
SECTION 2:11. List of Stockholders.......................................... 7
ARTICLE III:
DIRECTORS
SECTION 3:1. General Powers................................................ 8
SECTION 3:2. Number and Qualifications..................................... 8
SECTION 3:3. Election; Resignation......................................... 8
SECTION 3:4. Meetings...................................................... 9
SECTION 3:5. Quorum........................................................ 9
SECTION 3:6. Committees.................................................... 9
<PAGE>
SECTION 3:7. Waiver of Notice.............................................. 10
SECTION 3:8. Consent....................................................... 10
SECTION 3:9. Notice to Members of the Board................................ 10
SECTION 3:10. Presiding Officer............................................. 11
SECTION 3:11. Compensation.................................................. 11
SECTION 3:12. Interested Directors.......................................... 11
ARTICLE IV:
OFFICERS
SECTION 4:1. Appointment................................................... 12
SECTION 4:2. Tenure........................................................ 12
SECTION 4:3. Salaries...................................................... 12
SECTION 4:4. Chairman of the Board......................................... 12
SECTION 4:5. President. ................................................... 13
SECTION 4:6. Vice Presidents. ............................................. 13
SECTION 4:7. Secretary..................................................... 14
SECTION 4:8. Treasurer. ................................................... 14
SECTION 4:9. Other Officers................................................ 15
ARTICLE V:
CAPITAL STOCK AND DIVIDENDS
SECTION 5:1. Certificates for Shares....................................... 15
SECTION 5:2. Transfers..................................................... 15
SECTION 5:3. Regulations Governing Issuance and Transfers
of Shares..................................................... 16
SECTION 5:4. Transfer Agents and Registrars................................ 16
SECTION 5:5. Lost or Destroyed Certificates................................ 16
SECTION 5:6. Fractions of Shares........................................... 16
SECTION 5:7. Determination of Stockholders................................. 17
SECTION 5:8. Record Date................................................... 17
ARTICLE VI:
OTHER SECURITIES OF THE CORPORATION......................................17
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ARTICLE VII:
INDEMNIFICATION
SECTION 7:1. General Indemnification....................................... 18
SECTION 7:2. Insurance, Indemnification Agreements and
Other Matters................................................. 18
SECTION 7:3. Nonexclusivity................................................ 19
ARTICLE VIII:
MISCELLANEOUS
SECTION 8:1. Voting Shares in Other Corporations........................... 19
SECTION 8:2. Execution of Other Papers and Documents....................... 19
SECTION 8:3. Corporate Seal................................................ 20
SECTION 8:4. Books and Records............................................. 20
SECTION 8:5. Fiscal Year................................................... 20
SECTION 8:6. Amendments.................................................... 20
iii
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AMENDED AND RESTATED
BYLAWS
OF
CONSOLIDATED FREIGHTWAYS CORPORATION
ARTICLE I: LOCATION AND OFFICES
PRINCIPAL OFFICE.
SECTION 1:1. The principal office of Consolidated Freightways Corporation
(the "Corporation") shall be at such place as the Board of Directors of the
Corporation (the "Board") may from time to time determine, but until a change is
effected such principal office shall be at 175 Linfield Drive in the City of
Menlo Park, California.
OTHER OFFICES.
SECTION 1:2. The Corporation may also have other offices, in such places
(within or without the State of Delaware) as the Board may from time to time
determine.
ARTICLE II: STOCKHOLDERS
ANNUAL MEETING.
SECTION 2:1. An annual meeting of the stockholders of the Corporation
shall be held at 10:00 o'clock a.m. on the last Monday of April of each year,
beginning in 1997, if not a legal holiday, and if a legal holiday then on the
next succeeding day not a legal holiday or on such other date as shall be
designated from time to time by the Board. The purpose of the meeting shall be
to elect directors and to transact such other business as properly may be
brought before the meeting. If the Corporation shall fail to hold said meeting
for the election of directors on the date aforesaid, the Board shall cause the
election to be held by the stockholders as soon thereafter as convenient.
<PAGE>
BUSINESS TO BE CONDUCTED AT ANNUAL MEETING.
SECTION 2:2.1 At an annual meeting of stockholders, only such business
shall be conducted as shall have been brought before the meeting (i) pursuant to
the Corporation's notice of the meeting, (ii) by or at the direction of the
Board (or any duly organized committee thereof), or (iii) by any stockolder of
the Corporation who is a stockholder of record on the date of giving of the
notice provided for in this Section 2:2 and on the record date for the
determination of stockholders entitled to vote at such meeting and who has
complied with the notice procedures set forth in this Section 2:2.
SECTION 2:2.2 In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a stockholder, such
stockholder must have given timely notice in proper written form to the
Secretary which notice is not withdrawn by such stockholder at or prior to such
annual meeting.
SECTION 2:2.3 To be timely, a stockholder's notice to the Secretary must
be delivered or mailed to and received by the Secretary at the principal
executive offices of the Corporation, not less than sixty days nor more than
ninety days prior to the first anniversary date of the preceding year's annual
meeting of stockholders; PROVIDED, HOWEVER, that in the event that the annual
meeting is called for a date that is not within thirty days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth day following the day
on which such notice of the date of the annual meeting was mailed or such public
disclosure of the date of the annual meeting was made, whichever occurs first.
SECTION 2:2.4 To be in proper written form, such stockholder's notice must
set forth as to each matter the stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at such meeting;
(ii) the name and address, as they appear on the Corporation's books, of the
stockholder proposing such business, and the name and address of the beneficial
owner, if any, on whose behalf the proposal is made; (iii) the class, series and
the number of shares of the Corporation's stock which are beneficially owned by
such stockholder, and the beneficial owner, if any, on whose behalf the proposal
is made; (iv) a description of all arrangements or understandings between such
stockholder or beneficial owner and any other person or persons (including their
names) in connection with the proposal of such business by such stockholder or
beneficial owner and any material
2
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interest of the stockholder, and of the beneficial owner, if any, on whose
behalf the proposal is made, in such business; and (v) a representation that
such stockholder or beneficial owner intends to appear in person or by proxy at
the annual meeting to bring such business before the meeting.
SECTION 2:2.5 Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted at an annual meeting except in accordance with the
procedures set forth in this Section 2:2. The chairman of the meeting may, if
the facts warrant, determine that the business was not properly brought before
the meeting in accordance with the provisions of this Section 2:2; and if the
chairman should so determine, the chairman shall so declare to the meeting, and
any such business not properly brought before the meeting shall not be
transacted.
SPECIAL MEETINGS.
SECTION 2:3. Special meetings of stockholders of the Corporation for any
purpose or purposes may be called at any time by the Chairman of the Board, the
Chief Executive Officer or a majority of the entire Board. Special meetings of
the stockholders of the Corporation may not be called by any other person or
persons. Written notice of a special meeting stating the place, date and hour
of the meeting and the purpose or purposes for which the meeting is called shall
be given to each stockholder entitled to vote at such meeting as provided in
Section 2:5, and only such business as is stated in such notice shall be acted
upon thereat.
PLACE OF MEETINGS.
SECTION 2:4. All meetings of the stockholders shall be held at the
principal office of the Corporation, or at such other place, within or without
the State of Delaware, as may be determined by the Board and stated in the
notice of the meeting.
NOTICE OF MEETINGS.
SECTION 2:5. Written notice of each meeting of the stockholders stating
the place, date, and hour of the meeting, and, in case of a special meeting or
where otherwise required by statute, the purpose or purposes for which the
meeting is called, shall be delivered by mail not less than ten nor more than
sixty days before the date of the meeting, by or at the direction of the person
calling the meeting, to each stockholder entitled to vote at such meeting. The
notice of a stockholders' meeting shall be deemed to be delivered when deposited
in the United States mail
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with postage prepaid, addressed to each stockholder at such stockholder's
address as it appears on the records of the Corporation.
RULES OF CONDUCT.
SECTION 2:6. The Board of the Corporation shall be entitled to make such
rules or regulations for the conduct of meetings of stockholders as it shall
deem necessary, appropriate or convenient. Subject to such rules and
regulations of the Board, if any, the chairman of the meeting shall have the
right and authority to prescribe such rules, regulations and procedures and to
do all such acts as, in the judgment of such chairman, are necessary,
appropriate or convenient for the proper conduct of the meeting, including,
without limitation, establishing an agenda or order of business for the meeting,
rules and procedures for maintaining order at the meeting and the safety of
those present, limitations on participation in such meeting to stockholders of
record of the Corporation and their duly authorized and constituted proxies, and
such other persons as the chairman shall permit, restrictions on entry to the
meeting after the time fixed for the commencement thereof, limitations on the
time allotted to questions or comments by participants and regulation of the
opening and closing of the polls for balloting on matters which are to be voted
on by ballot. Unless, and to the extent, determined by the Board or the
chairman of the meeting, meeting of stockholders shall not be required to be
held in accordance with rules of parliamentary procedure.
QUORUM AND VOTING.
SECTION 2:7.1 The holders of a majority of the outstanding shares
(exclusive of treasury stock) entitled to vote at any meeting of the
stockholders, when present in person or by proxy, shall constitute a quorum for
the transaction of business, except as otherwise provided by statute, the
Certificate of Incorporation of the Corporation or these Bylaws; but in the
absence of such a quorum the holders of a majority of the shares represented at
the meeting shall have the right successively to adjourn the meeting to a
specified date. When a meeting is adjourned to another time or place, notice
need not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
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meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
SECTION 2:7.2 The absence from any meeting of the number of shares
required by statute, the Certificate of Incorporation of the Corporation or
these Bylaws for action upon one matter shall not prevent action at such meeting
upon any other matter or matters which may properly come before the meeting, if
the number of shares required in respect of such other matters shall be present.
SECTION 2:7.3 When a quorum is present at any meeting of the stockholders,
the vote of the holders (present in person or represented by proxy) of a
majority of the shares of stock which are actually voted (and have the power to
vote) on any proposition or question properly brought to a vote at such meeting
shall decide any such proposition or question, unless the proposition or
question is one upon which by express provision of statute or of the Certificate
of Incorporation, or of these Bylaws, a different vote is required, in which
case such express provision shall govern and establish the number of votes
required to determine such proposition or question.
VOTING; PROXY.
SECTION 2:8.1 Whenever the law requires or the chairman of the meeting
orders that a vote be taken by ballot, each stockholder entitled to vote on a
particular question at a meeting of stockholders, pursuant to law or the
Certificate of Incorporation, shall be entitled to one vote for each share of
voting stock held by such stockholder. Shares standing in the names of two or
more persons shall be voted or represented in accordance with the determination
of the majority of such persons, or, if only one of such persons is present in
person or represented by proxy, such person shall have the right to vote such
shares and such shares shall be deemed to be represented for the purpose of
determining a quorum. The date for determining the stockholders entitled to
vote at a meeting of the stockholders shall be determined pursuant to Section
5:8.
SECTION 2:8.2 Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for such stockholder
by proxy; but no such proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period. A duly executed proxy
shall be irrevocable if it states that it is irrevocable and if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A proxy may be
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made irrevocable regardless of whether the interest with which it is coupled is
an interest in the stock itself or an interest in the Corporation generally.
VOTING BY FIDUCIARIES, PLEDGEES AND PLEDGORS.
SECTION 2:9. Persons holding stock in a fiduciary capacity shall be
entitled to vote the shares so held. Persons whose stock is pledged shall be
entitled to vote, unless in the transfer by the pledgor on the books of the
Corporation the pledgor has expressly empowered the pledgee to vote thereon, in
which case only the pledgee or the pledgee's proxy may represent such stock and
vote thereon.
NOMINATION OF DIRECTORS.
SECTION 2:10.1 Only persons who are nominated in accordance with the
following procedures shall be eligible for election as directors of the
Corporation, except as may be otherwise expressly provided in the Certificate of
Incorporation of the Corporation with respect to the right of holders of
preferred stock of the Corporation to nominate and elect a specified number of
directors in certain circumstances. Nominations of persons for election to the
Board may be made at any annual meeting of stockholders, (i) by or at the
direction of the Board (or any duly authorized committee thereof) or (ii) by any
stockholder of the Corporation who is a stockholder of record on the date of the
giving of the notice provided for in this Section 2:10 and on the record date
for the determination of stockholders entitled to vote at such meeting and who
complies with the notice procedures set forth in this Section 2:10.
SECTION 2:10.2 In addition to any other applicable requirements, for a
nomination to be made by a stockholder, such stockholder must have given timely
notice thereof in proper written form to the Secretary of the Corporation.
SECTION 2:10.3 To be timely, a stockholder's notice to the Secretary must
be delivered or mailed to and received by the Secretary at the principal
executive offices of the Corporation not less than sixty days nor more than
ninety days prior to the first anniversary date of the preceding year's annual
meeting of stockholders; PROVIDED, HOWEVER, that in the event that the annual
meeting is called for a date that is not within thirty days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth day following the day
on which such notice of the date of the annual meeting was mailed or such public
disclosure of the date of the annual meeting was made, whichever occurs first.
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SECTION 2:10.4 To be in proper written form, a stockholder's notice to the
Secretary must set forth (i) as to each person whom the stockholder proposes to
nominate for election as a director (A) the name, age, business address and
residence address of the person, (B) the principal occupation or employment of
the person, (C) the class, series and the number of shares of capital stock of
the Corporation which are owned beneficially or of record by the person and (D)
any other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations promulgated thereunder; and (ii) as to the
stockholder giving the notice or the beneficial owner on whose behalf the
nomination is made, (A) the name and address of such stockholder as they appear
on the Corporation's books, (B) the class or series and the number of shares of
the Corporation's stock which are beneficially owned by such stockholder or
beneficial owner, (C) a description of all arrangements or understandings
between such stockholder or beneficial owner and each proposed nominee and any
other person or persons (including their names) pursuant to which the
nomination(s) are to be made by such stockholder or beneficial owner, (D) a
representation that such stockholder or beneficial owner intends to appear in
person or by proxy at the meeting to nominate the persons named in its notice,
and (E) any other information relating to such stockholder or beneficial owner
that would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. Such notice must be accompanied by a
written consent of each proposed nominee to being named as a nominee and to
serve as a director if elected.
SECTION 2:10.5 No person shall be eligible for election as a director of
the Corporation unless nominated in accordance with the procedures set forth in
this Section 2:10. If the chairman of the meeting determines that a nomination
was not made in accordance with the foregoing procedures, the chairman shall
declare to the meeting that the nomination was defective and such defective
nomination shall be disregarded.
LIST OF STOCKHOLDERS.
SECTION 2:11. The Secretary shall prepare and make, at least ten days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder.
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Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or, if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger, the list required by this
Section 2:11 or the books of the Corporation, or to vote in person or by proxy
at any meeting of stockholders.
ARTICLE III: DIRECTORS
GENERAL POWERS.
SECTION 3:1. The Board shall control and manage the business and property
of the Corporation. The Board may exercise all such powers of the Corporation
and do all lawful acts and things as are not by law, the Certificate of
Incorporation or these Bylaws directed or required to be exercised or done by
the stockholders or some particular officer of the Corporation.
NUMBER AND QUALIFICATIONS.
SECTION 3:2. The number of directors shall be determined from time to time
by resolution of the Board in accordance with the terms of Article FIFTH of the
Certificate of Incorporation.
ELECTION; RESIGNATION.
SECTION 3:3. Except as provided in the Certificate of Incorporation with
respect to the filling of vacancies, directors shall be elected by a plurality
of the votes cast at annual meetings of stockholders, and shall hold office
until the annual meeting for the year in which his term expires and until his
successor shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification or removal from office. Any director
may resign at any time upon written notice to the Secretary, such resignation to
specify whether it will be effective at a particular time, upon receipt by the
Secretary or at the pleasure of the Board. If no such specification is made, it
shall be deemed effective at the pleasure of the Board. Directors need not be
stockholders. The directors who are to be
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elected at the annual meeting of the stockholders shall be elected by ballot by
the holders of shares entitled to vote.
MEETINGS.
SECTION 3:4.1. The Board of the Corporation may hold meetings, both
regular and special, either within or without the State of Delaware. Regular
meetings of the Board may be held without notice at such time and at such place
as may from time to time be determined by the Board. Special meetings of the
Board may be called by the Chairman, if there be one, the President or any
director. Notice thereof stating the place, date and hour of the meeting shall
be given to each director either by mail not less than forty-eight (48) hours
before the date of the meeting, by telephone or facsimile transmission on
twenty-four (24) hours' notice, or on such shorter notice as the person or
persons calling such meeting may deem necessary or appropriate in the
circumstances.
SECTION 3:4.2. Members of the Board, or any committee designated by the
Board, may participate in a meeting of the Board or such committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participating in
the meeting in this manner shall constitute presence in person at such meeting.
QUORUM.
SECTION 3:5. Except as may be otherwise specifically provided by law, the
Certificate of Incorporation or these Bylaws, at all meetings of the Board, a
majority of the entire Board shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board. If a quorum shall not be
present at any meeting of the Board, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
COMMITTEES.
SECTION 3:6. The Board shall have the following committees: a
Compensation Committee and an Audit Committee. The Board may, by resolution
passed by a majority of the entire Board, designate one or more additional
committees. Each committee shall consist of three or more of the directors of
the Corporation. The Board may designate one or more directors as alternate
members
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of any committee, who may replace any absent or disqualified member at any
meeting of any such committee. In the absence or disqualification of a member
of a committee, and in the absence of a designation by the Board of an alternate
member to replace the absent or disqualified member, 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 to act at the meeting in the place of any absent or disqualified member.
Any committee, to the extent allowed by law and provided in the resolution
establishing such committee, shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the
Corporation. Each committee shall keep regular minutes and report to the Board
when required.
WAIVER OF NOTICE.
SECTION 3:7. Any notice which is required by law or by the Certificate of
Incorporation or by these Bylaws to be given to any director may be waived in
writing, signed by such director, whether before or after the time stated
therein. Attendance of a director at any meeting shall constitute waiver of
notice of such meeting, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened.
CONSENT.
SECTION 3:8. Any action required or permitted to be taken at any meeting
of the Board (or of any committee thereof) may be taken without a meeting if all
members of the Board (or committee) consent thereto in writing, and the writing
or writings are filed with the minutes of the proceedings of the Board (or
committee).
NOTICE TO MEMBERS OF THE BOARD.
SECTION 3:9. Each member of the Board shall file with the Secretary of the
Corporation an address to which mail, by hand deliveries or overnight commercial
courier deliveries may be transmitted and, if appropriate, a telephone number to
which facsimile notices may be transmitted. A notice mailed, delivered by hand
or by overnight commercial courier (receipt requested) or transmitted by
facsimile (with confirmation receipt) in accordance with the instructions
provided by the director shall be deemed sufficient notice. Such address or
telephone number may be changed at any time and from time to time by a director
by giving written notice of such change to the Secretary. Failure on the part
of any director to keep
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an address and, if applicable, telephone number on file with the Secretary shall
automatically constitute a waiver of notice of any regular or special meeting of
the Board which might be held during the period of time that such address and
telephone number, if applicable, are not on file with the Secretary. A notice
shall be deemed to be mailed when deposited in the United States mail, postage
prepaid. A notice shall be deemed to be delivered by hand or by overnight
commercial courier or by facsimile transmission when sent to the address or
telephone number, as the case may be, which the director has placed on file with
the Secretary, and in the case of facsimile transmission, when a confirmation
receipt is received.
PRESIDING OFFICER.
SECTION 3:10. The Chairman of the Board shall preside at all meetings of
the Board at which the Chairman is present. In the absence of the Chairman, the
Board shall select a chairman of the meeting from among the directors present.
COMPENSATION.
SECTION 3:11. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board and may be paid a fixed sum for
attendance at each meeting of the Board or a stated retainer as director. No
such payment shall preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee
meetings.
INTERESTED DIRECTORS.
SECTION 3:12. No contract or transaction between the Corporation and one
or more of its directors or officers, or between the Corporation and any other
Corporation, partnership, association, or other organization in which one or
more of its directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because
the director or officer is present at or participates in the meeting of the
Board or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose if (i) the
material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the Board or the
committee, and the Board or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or
(ii) the material facts as to his or their relationship or interest and as to
the contract or transaction are dis-
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closed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified, by the Board, a committee
thereof or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board or of a committee
which authorizes the contract or transaction.
ARTICLE IV: OFFICERS
APPOINTMENT.
SECTION 4:1. At the annual meeting of the Board following their election
by the stockholders, the directors shall elect from its membership a Chairman of
the Board and a President. The Board shall elect such Vice Presidents, a
Secretary, a Treasurer, Assistant Secretaries, Assistant Treasurers and such
other officers, as the Board may from time to time deem necessary or
appropriate.
TENURE.
SECTION 4:2. Officers appointed by the Board shall hold their respective
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board; and all officers of the
Corporation shall hold office until their successors are chosen and qualified,
subject, however, to prior death, resignation, retirement, disqualification or
removal from office. Any officer appointed by the Board may be removed by the
Board with or without a hearing and with or without cause whenever in its
judgment the best interests of the Corporation will be served thereby.
SALARIES.
SECTION 4:3. The salaries of all officers of the Corporation shall be
fixed by the Board (or any committee thereof established for such purpose).
CHAIRMAN OF THE BOARD.
SECTION 4:4. The Chairman of the Board, if there be one, shall preside at
all meetings of the stockholders and of the Board. Either the Chairman of the
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Board or the President shall be the Chief Executive Officer of the Corporation,
and except where by law the signature of the President is required, the Chairman
of the Board shall possess the same power as the President to sign certificates
for the stock of the Corporation, with the Secretary (or any Assistant
Secretary) or Treasurer (or any Assistant Treasurer), and all bonds, mortgages,
contracts, and other instruments of the Corporation which may be authorized by
the Board or by such Chairman of the Board or by the President except where
required or permitted by law to be otherwise signed and executed and except that
the other officers of the Corporation may sign and execute documents when so
authorized by these Bylaws, the Board, the Chairman of the Board or the
President. During the absence or disability of the President, the Chairman of
the Board shall exercise all the powers and discharge all the duties of the
President.
PRESIDENT.
SECTION 4:5. The President shall have general supervision of the business
of the corporation and shall see that all orders and resolutions of the Board or
the Chairman of the Board are carried into effect. The President may sign
certificates for the stock of the Corporation, with the Secretary (or any
Assistant Secretary) or Treasurer (or any Assistant Treasurer) and execute all
deeds, bonds, mortgages, contracts and other instruments of the Corporation
authorized by the Board, by the Chairman of the Board or by such President,
except where required or permitted by law to be otherwise signed and executed
and except that the other officers of the Corporation may sign and execute
documents when so authorized by these Bylaws, the Board, the Chairman of the
Board or the President. In the absence or disability of the Chairman of the
Board, or if there be none, the President shall preside at all meetings of the
stockholders and the Board.
VICE PRESIDENTS.
SECTION 4:6. Each Vice President shall have such powers, duties and
designations as the Board (or any committee thereof established for such
purpose) assigns to such Vice President. In the absence or disability of the
President and the Chairman of the Board, the Vice Presidents, in the order
designated by the Board, shall perform the duties of the President, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the President. Any Vice President may also sign certificates for the stock of
the Corporation, with the Secretary (or any Assistant Secretary) or Treasurer
(or any Assistant Treasurer), and, when so authorized by these Bylaws, the
Board, the Chairman of the Board or the President, may also sign and execute in
the name of the Corporation deeds,
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mortgages, bonds, contracts or other instruments authorized by the Board, and
shall perform such other duties as from time to time may be assigned to any Vice
President by the Board, the Chairman of the Board or the President.
SECRETARY.
SECTION 4:7. The Secretary shall attend all meetings of the Board and all
meetings of stockholders and record all the proceedings thereat in a book or
books to be kept for that purpose; the Secretary shall also perform like duties
for the standing committees when required. The Secretary shall give, or cause
to be given, notice of all meetings of the stockholders and special meetings of
the Board, and shall perform such other duties as may be prescribed by the Board
or the President, under whose supervision such Secretary shall be. If the
Secretary shall be unable or shall refuse to cause to be given notice of all
meetings of the stockholders and special meetings of the Board, and if there be
no Assistant Secretary, then either the Board or the President may choose
another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation and the Secretary or any Assistant
Secretary, if there be one, shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by the signature
of the Secretary, any Assistant Secretary, the Treasurer, any Assistant
Treasurer or other officer. The Board, the Chairman of the Board or the
President may give general authority to any other officer to affix the seal of
the Corporation and to attest the affixing by such officer's signature. The
Secretary shall see that all books, reports, statements, certificates and other
documents and records required by law to be kept or filed are properly kept or
filed, as the case may be. In the absence of the Secretary from any meeting,
the minutes shall be recorded by the person appointed for that purpose by the
presiding officer.
TREASURER.
SECTION 4:8. The Treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board, the Chairman of the Board
or the President. The Treasurer shall disburse the funds of the Corporation as
may be ordered by the Board, taking proper vouchers for such disbursements, and
shall render to the President and the Board at its regular meetings, or when the
Board so requires, an account of all transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board, the Treasurer
shall give the Corporation a
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bond in such sum and with such surety or sureties as shall be satisfactory to
the Board for the faithful performance of the duties of the office and for the
restoration to the Corporation, in case of the Treasurer's death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the Corporation.
OTHER OFFICERS.
SECTION 4:9. In accordance with Section 4:1, such other officers as the
Board may choose shall perform such duties and have such powers as from time to
time may be assigned to them by the Board. The Board may delegate to any other
officer of the Corporation the power to choose such other officers and to
prescribe their respective duties and powers.
ARTICLE V: CAPITAL STOCK AND DIVIDENDS
CERTIFICATES FOR SHARES.
SECTION 5:1. Every holder of stock in the Corporation shall be entitled to
have a certificate signed, in the name of the Corporation (i) by the Chairman of
the Board, the President or a Vice President and (ii) by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by him in the Corporation.
Any or all of the signatures on a certificate may be a facsimile. In case any
officer, transfer agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued
by the Corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue.
TRANSFERS.
SECTION 5:2. Certificates representing shares of stock of the Corporation
shall be transferable only on the books of the Corporation by the person or
persons named in the certificate or by the attorney lawfully constituted in
writing representing such person or persons and upon surrender of the
certificate or certificates being transferred which certificate shall be
properly endorsed for transfer or accompanied by a duly executed stock power.
Whenever a certificate is endorsed by or accompanied by a stock power executed
by someone other than the person or persons named in the certificate, evidence
of authority to transfer shall also be
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submitted with the certificate. All certificates surrendered to the Corporation
for transfer shall be cancelled.
REGULATIONS GOVERNING ISSUANCE AND TRANSFERS OF SHARES.
SECTION 5:3. The Board shall have the power and authority to make all such
rules and regulations as it shall deem expedient concerning the issue, transfer
and registration of certificates for shares of stock of the Corporation.
TRANSFER AGENTS AND REGISTRARS.
SECTION 5:4. Transfer agents and registrars for the Corporation's stock
shall be banks, trust companies or other financial institutions located within
or without the State of Delaware as shall be appointed by the Board, the
Chairman of the Board or the President. The Board shall define the authority of
such transfer agents and registrars.
LOST OR DESTROYED CERTIFICATES.
SECTION 5:5. Where a certificate for shares of the Corporation has been
lost or destroyed, the Board may authorize the issuance of a new certificate in
lieu thereof upon satisfactory proof of such loss or destruction, and upon the
giving of an open penalty bond with surety satisfactory to the Corporation's
Treasurer and General Counsel, if there be one, to protect the Corporation or
any person injured by the issuance of the new certificate from any liability or
expense which it or they may incur by reason of the original certificate's
remaining outstanding, and upon payment of the Corporation's reasonable costs
incident thereto.
FRACTIONS OF SHARES.
SECTION 5:6. The Corporation shall not issue fractions of a share. It
shall, however, (1) arrange for the disposition of fractional interests by those
entitled thereto, and (2) pay in cash the fair value of fractions of a share as
of the time when those entitled to receive such fractions are determined, or (3)
issue scrip or warrants in registered or bearer form which shall entitle the
holder to receive a certificate for a full share upon the surrender of such
scrip or warrants aggregating a full share. Scrip or warrants shall not, unless
otherwise provided therein, entitle the holder to exercise voting rights, to
receive dividends thereon, or to participate in any of the assets of the
Corporation in the event of liquidation. The Board may cause scrip or warrants
to be issued subject to the conditions that the shares for which scrip or
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warrants are exchangeable may be sold by the Corporation and the proceeds
thereof distributed to the holders of scrip or warrants, or subject to any other
conditions which the Board may impose.
DETERMINATION OF STOCKHOLDERS.
SECTION 5:7. The Corporation shall be entitled to treat the holder of
record of any share or shares of stock as the holder in fact thereof, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, save as expressly provided by the laws of the
State of Delaware.
RECORD DATE.
SECTION 5:8. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment or any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board may fix, in advance, a record date, which shall
not be more than sixty nor less than ten days before the date of such meeting,
nor more than sixty days prior to any other action. If no record date is fixed:
(1) The record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held.
(2) The record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board adopts the
resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
PROVIDED, HOWEVER, that the Board may fix a new record date for the adjourned
meeting.
ARTICLE VI: OTHER SECURITIES OF THE CORPORATION
All bonds, debentures and other corporate securities of the Corporation,
other than stock certificates, may be signed (by manual or facsimile signature)
by the
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Chairman of the Board, the President or any Vice President, or such other person
as may be authorized by the Board, and the corporate seal impressed thereon or a
facsimile of such seal imprinted thereon and attested (by manual or facsimile
signature) by the signature of the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer, or such other person as may be authorized
by the Board. Interest coupons appertaining to any such bond, debenture or
other corporate security, shall be signed by the Chairman of the Board, the
President, any Vice President, Treasurer or any Assistant Treasurer of the
Corporation, or such other person as may be authorized by the Board, or bear
imprinted thereon the facsimile signature such person. In case any person who
shall have signed or attested any bond, debenture or other corporate security,
or whose facsimile signature shall appear thereon or on any such interest
coupon, shall have ceased to be an officer before the bond, debenture or other
corporate security so signed or attested shall have been delivered, such bond,
debenture or other corporate security nevertheless may be adopted by the
Corporation and issued and delivered as though the person who signed the same or
whose facsimile signature shall have been used thereon had not ceased to be such
officer of the Corporation.
ARTICLE VII: INDEMNIFICATION
GENERAL INDEMNIFICATION.
SECTION 7:1. The Corporation shall indemnify to the fullest extent
authorized or permitted by law (as now or hereafter in effect) any person made,
or threatened to be made, a party to or otherwise involved in any action or
proceeding (whether civil or criminal or otherwise) by reason of the fact that
he, his testator or intestate, is or was a director or officer of the
Corporation or by reason of the fact that such director or officer, at the
request of the Corporation, is or was serving any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, in
any capacity. Nothing contained herein shall affect any rights to
indemnification to which employees other than directors and officers may be
entitled by law. No amendment or repeal of this Section 7:1 shall apply to or
have any effect on any right to indemnification provided hereunder with respect
to any acts or omissions occurring prior to such amendment or repeal.
INSURANCE, INDEMNIFICATION AGREEMENTS AND OTHER MATTERS.
SECTION 7:2. The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the
Corporation, or is serving at the request of the Corporation as a director,
officer,
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employee or agent of another Corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of the law. The Corporation may
create a trust fund, grant a security interest and/or use other means
(including, without limitation, letters of credit, surety bonds and/or other
similar arrangements), as well as enter into contracts providing for
indemnification to the fullest extent authorized or permitted by law and
including as part thereof any or all of the foregoing, to ensure the payment of
such sums as may become necessary to effect full indemnification.
NONEXCLUSIVITY.
SECTION 7:3. The rights to indemnification conferred in this Article VII
shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, the Certificate of Incorporation of the Corporation,
these Bylaws or any agreement, vote of stockholders or directors or otherwise.
ARTICLE VIII: MISCELLANEOUS
VOTING SHARES IN OTHER CORPORATIONS.
SECTION 8:1. The Corporation may vote any and all shares of stock and
other securities having voting rights which may at any time and from time to
time be held by it in any other corporation or corporations and such vote may be
cast either in person or by proxy by such officer of the Corporation as the
Board may appoint or, in default of such appointment, the Chairman, the
President or a Vice President.
EXECUTION OF OTHER PAPERS AND DOCUMENTS.
SECTION 8:2. All checks, bills, notes, drafts, vouchers, warehouse
receipts, bonds, mortgages, contracts, registration certificates and all other
instruments, agreements, papers and documents of the Corporation shall be signed
or endorsed for the Corporation by such of its officers, other employees and
agents as the Board may from time to time determine, or in the absence of such
determination, by the Chairman of the Board, the President or a Vice President.
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CORPORATE SEAL.
SECTION 8:3. The Board shall provide a suitable seal, containing the name
of the Corporation, the year of its organization and the words "Corporate Seal,
Delaware," which seal shall be in the custody of the Secretary of the
Corporation, and may provide for one or more duplicates thereof to be kept in
the custody of such other officers of the Corporation as the Board may
prescribe.
BOOKS AND RECORDS.
SECTION 8:4. Except as the Board may from time to time direct or as may be
required by law, the Corporation shall keep its books and records at its
principal office.
FISCAL YEAR.
SECTION 8:5. The fiscal year of the Corporation shall be fixed by
resolution of the Board.
AMENDMENTS.
SECTION 8:6. These Bylaws may be amended, altered or repealed, or new
Bylaws may be adopted (a) by the affirmative vote of eighty percent of the
outstanding stock of the Corporation entitled to vote thereon, or (b) by the
affirmative vote of the majority of the Board at any regular or special meeting;
PROVIDED that the notice of such meeting of stockholders or directors, whether
regular or special, shall specify as one of the purposes thereof the making of
such amendment, alteration or repeal.
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Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue
Los Angeles, California 90071
November 26, 1996
Consolidated Freightways Corporation
175 Linfield Drive
Menlo Park, California 94025
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form
S-8 (the "Registration Statement") that you intend to file with the Securities
and Exchange Commission (the "Commission") in connection with the registration
under the Securities Act of 1933, as amended (the "Securities Act"), of
3,303,798 shares (the "Shares") of common stock, par value $.01 per share
("Common Stock"), of Consolidated Freightways Corporation, a Delaware
corporation (the "Company"), which may be issued by the Company under the
Consolidated Freightways Corporation 1996 Stock Option and Incentive Plan (the
"Plan").
In connection with this opinion, we have examined and are familiar
with originals or copies, certified or otherwise identified to our satisfaction,
of (i) the Plan, (ii) the Amended and Restated Certificate of Incorporation of
the Company and the Amended and Restated Bylaws of the Company, (iii) copies of
certain resolutions of the Board of Directors of the Company relating to, among
other things, the Plan, the Shares and the Registration Statement and (iv) such
other documents, certificates and records as we have considered necessary or
appropriate for purposes of this opinion. In our examination, we have assumed
the legal capacity of all natural persons, the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, the conformity
to origi-
<PAGE>
nal documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such latter documents. As to
any facts material to the opinion expressed herein, we have relied upon oral or
written statements and representations of officers and other representatives of
the Company and others.
Members of our firm are admitted to the Bar in the State of California
and we do not express any opinion as to the laws of any other jurisdiction,
other than the General Corporation Law of the State of Delaware.
Based upon and subject to the foregoing, we are of the opinion that
the Shares, when issued and paid for upon exercise of options in accordance with
the terms of the Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5 to the Registration Statement. In giving this consent, we do not
thereby admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations of the
Commission.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 26, 1996
included in Consolidated Freightways Corporation's registration statement on
Form 10, as amended, dated November 7, 1996 (File No. 1-12149), and to all
references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
San Francisco, California
November 26, 1996
