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 (IRS Employer Identification No.)
of incorporation or organization)
175 LINFIELD DRIVE
MENLO PARK, CALIFORNIA 94025
(Address of Principal Executive Offices) (Zip Code)
---------------
CONSOLIDATED FREIGHTWAYS CORPORATION STOCK AND SAVINGS PLAN
(Full title of plan)
---------------
STEPHEN D. RICHARDS
CONSOLIDATED FREIGHTWAYS CORPORATION
175 LINFIELD AVENUE
MENLO PARK, CALIFORNIA 94025
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (415) 326-1700
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum Amount
Amount Offering Aggregate of Regis-
Title of Securities to Be Price Per Offering tration
to Be Registered Registered Share (1) Price (1) Fee (2)
- ----------------- ---------- --------- ----------- -------
<S> <C> <C> <C> <C>
Common Stock 2,500,000 Shares $7.5375 $18,843,750 $5,710.23
(par value $.01
per share)
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
- --------------------------------------------------------------------------------------------------
<FN>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933.
The calculation of the registration fee for the shares is based on
$7.5375, which was the average of the high and low sale prices for
when issued trading of the Common Stock of Consolidated Freightways
Corporation on November 25, 1996, as reported in The Wall Street
Journal for Nasdaq National Market issues.
(2) 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.
</FN>
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents By Reference.
---------------------------------------
The following documents filed by Consolidated Freightways
Corporation, a Delaware corporation (the "Company"), with the Securities
and Exchange Commission are incorporated herein by reference:
(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 Securities Exchange Act of 1934, as amended (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 pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 since the end of the most recent
fiscal year; and
(c) The description of the Company's Common Stock contained in
the Registration Statement.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, as amended, prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of
the filing of such reports and documents.
Item 4. Description of Securities.
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable.
II-3
<PAGE>
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 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
II-4
<PAGE>
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.
Item 8. Exhibits.
--------
4.1 Amended and Restated Certificate of Incorporation of the
Company.
4.2 Amended and Restated Bylaws of the Company.
5.1 Opinion of Counsel for Consolidated Freightways Corporation.
23.1 Consent of Arthur Andersen LLP, independent public
accountants.
23.2 Consent of Counsel for Consolidated Freightways Corporation
(included in Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
Item 9. Undertakings.
------------
The undersigned registrant hereby undertakes:
(a)(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;
II-5
<PAGE>
(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 information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13
or Sec tion 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 Company 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 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 Company 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, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the 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.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company 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,
thereunto duly authorized, in the City of Menlo Park, State of California
on November 26, 1996.
CONSOLIDATED FREIGHTWAYS CORPORATION
By DAVID F. MORRISON
------------------------------------
David F. Morrison
Executive Vice President,
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on November 26, 1996. 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
--------- -----
W. ROGER CURRY President, Chief Executive Officer
- -------------------------------- (Principal Executive Officer)
W. Roger Curry
DAVID F. MORRISON Executive Vice President, Chief
- -------------------------------- Financial Officer
David F. Morrison (Principal Financial and Accounting Officer)
EBERHARD G.H. SCHMOLLER Director
- --------------------------------
Eberhard G.H. Schmoller
II-7
<PAGE>
The Plan. Pursuant to the requirements of the Securities Act of 1933,
the members of the Administrative Committee of the Plan have duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Menlo Park, State of California
on November 26, 1996.
CONSOLIDATED FREIGHTWAYS CORPORATION
STOCK AND SAVINGS PLAN
ADMINISTRATIVE COMMITTEE
STEPHEN D. RICHARDS
----------------------------------------
Stephen D. Richards, Member
DAVID F. MORRISON
----------------------------------------
David F. Morrison, Member
SUNIL BHARDWAJ
----------------------------------------
Sunil Bhardwaj, Member
II-8
<PAGE>
EXHIBIT INDEX
Exhibit
Number Document Description
- ------ --------------------
4.1 Amended and Restated Certificate of Incorporation of the
Company.
4.2 Amended and Restated Bylaws of the Company.
5.1 Opinion of Counsel for Consolidated Freightways Corporation.
23.1 Consent of Arthur Andersen LLP, independent public accountants.
23.2 Consent of Counsel for Consolidated Freightways Corporation
(included in Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this
Registration State ment).
II-9
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.
1
<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,
participat ing, 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
<PAGE>
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 conver sion 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 exclu sively 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
4
<PAGE>
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, disqualifi cation 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,
6
<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
consider ation 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:
7
<PAGE>
(i) the highest per share price (including any broker
age 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 an
nouncement 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 deter mined
under clauses (i), (ii) and (iii) below:
(i) the highest per share price (including any broker
age 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
Capi tal 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 consum
mation of such Business Transaction: (i) except as approved by a ma
jority 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 Stock
holder'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
applica ble to a Stock Repurchase with, or proposed by or on behalf of, an
Interested Stock holder 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 dissolu tion 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 Stockhold er 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 Corpora tion 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 Asso ciates 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
interme diaries, 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 Corpora tion; 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 ex change, 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 Corpo
ration 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 per centage or separate class vote may be specified by
law, the Certificate of Incorpora tion 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 Affil iate 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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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 sen tence, 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 amend ment 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
incon sistent 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
MARYLA R. BOONSTOPPEL
----------------------------------------
Maryla R. Boonstoppel
17
================================================================================
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 Corpora
tion (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 stockholder 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
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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 (ex
clusive 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 busi ness, 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 re
quired 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 stock
holders, 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 proposi
tion 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 Incorpo ration, 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 stock
holders 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 stock holder 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 under standings 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 meet ings 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
commit tees. 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 writ ing, 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 auto matically 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 Corpora tion 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 inter
ests 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 represent ing 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 allot ment 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
autho rized or permitted by law (as now or hereafter in effect) any person
made, or threat ened 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 determina tion, 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
out standing 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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EXHIBIT 5.1
November 26, 1996
Board of Directors
Consolidated Freightways Corporation
175 Linfield Avenue
Menlo Park, CA 94025
I have acted as counsel for Consolidated Freightways Corporation (the
"Company") in connection with the filing of a Registration Statement on
Form S-8 (the "Registration Statement") under the Securities Act of 1933,
as amended, covering the issuance of 2,500,000 shares of common stock, par
value $0.01 per share (the "Shares"), of the Company pursuant to the
Company's Stock and Savings Plan (the "Plan"). I have reviewed the
corporate actions of the Company in connection with this matter and have
examined those documents, corporate records, and other instruments we
deemed necessary for the purposes of this opinion.
Based on the foregoing, it is our opinion that:
1. The Company is a corporation duly organized and validly
existing under the laws of the state of Delaware; and
2. The Shares issuable under the Plan have been duly authorized
and, when issued in accordance with the Plan, will be
legally issued, fully paid, and nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Sincerely,
STEPHEN D. RICHARDS
Stephen D. Richards
Senior Vice President and General Counsel
SDR:kk
EXHIBIT 23.1
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.
ARTHUR ANDERSEN LLP
San Francisco, California,
November 26, 1996
