SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
DATE OF REPORT: December 2, 1996
(DATE OF EARLIEST EVENT REPORTED)
CONSOLIDATED FREIGHTWAYS, INC.
(Exact name of Registrant as specified in charter)
Delaware 1-5046 94-1444798___
(State or other jurisdiction (Commission file number) (I.R.S. Employer
of incorporation or origination)
Identification Number)
3240 Hillview Avenue
Palo Alto, California 94304
(Address of principal executive office)
(415) 494-2900
Registrant's telephone number, including area code
ITEM 5. OTHER INFORMATION
On December 2, 1996, the Registrant completed the previously announced spin-off
to its shareholders of a new publicly traded company, Consolidated Freightways
Corporation (CFC), comprising its long-haul motor carrier and related
businesses. All of the Registrant's shareholders received one share of CFC
stock for every two shares of the Registrant's stock owned on November 15, 1996.
Following the spin-off, the Registrant is doing business as CNF Transportation,
and intends to seek stockholder approval to change its name to CNF
Transportation Inc.
CFC is comprised of Consolidated Freightways Corporation of Delaware, a domestic
less-than-truckload motor carrier, and its Canadian operations, Canadian
Freightways, Ltd., Epic Express, Milne and Craighead and Canadian Sufferance
Warehouses and other related businesses.
The Registrant is comprised of Emery Worldwide, the international air and ocean
freight carrier; Con-Way Transportation Services, including its three regional
LTL carriers and Con-Way Truckload Services; Menlo Logistics, a third-party
logistics management firm; Road Systems, a trailer manufacturer; and
VantageParts, a retail distributor of truck parts and supplies.
On December 2, 1996, in connection with the spin-off, William D. Walsh and G.
Robert Evans retired from the Registrant's Board to become board members of
Consolidated Freightways Corporation. Effective December 9, 1996 those
vacancies were filled by the appointments of W. Keith Kennedy, Jr. as a new
Class I director and William J Schroeder as a new Class II director of the
Registrant's Board.
ITEM 7 FINANCIAL STATEMENTS AND EXHIBITS
(C) EXHIBITS
3.1 Consolidated Freightways, Inc. By-laws, as amended, December 9,
1996; including attachment of extract of By-laws, of sections changed.
SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Consolidated Freightways, Inc.
Dated: December 16, 1996 by: /s/Eberhard G. H. Schmoller_________
Name: Eberhard G. H. Schmoller
Title: Senior Vice President, General
Counsel and Secretary
<PAGE 1>
EXHIBIT 3.1
CONSOLIDATED FREIGHTWAYS, INC. BYLAWS
As Amended December 9, 1996
ARTICLE I
OFFICES
SECTION 1. Registered Office. The registered office of the
Corporation in the State of Delaware shall be in the City of
Wilmington, County of New Castle.
SECTION 2. Other Offices. The Corporation shall also have
and maintain a principal office or place of business at such
place as may be fixed by the Board of Directors, and may
also have other offices at such other places both within and
without the State of Delaware as the Board of Directors may
from time to time determine or as the business of the
Corporation may require.
ARTICLE II
STOCKHOLDERS' MEETINGS
SECTION 1. Place of Meetings. Meetings of the stockholders
of the Corporation shall be held at such place, either
within or without the State of Delaware, as may be
designated from time to time by the Board of Directors or,
if not so designated, then at the principal office of the
Corporation.
SECTION 2. Annual Meetings. The annual meetings of the
stockholders of the Corporation for the purpose of election
of directors and for such other business as may lawfully
come before the meetings shall be held on a date and at a
time designated from time to time by the Board of Directors,
or, if not so designated, then at 10:00 a.m. on the last
Monday in April in each year, if not a legal holiday, or, if
a legal holiday at the same hour and place on the next
succeeding day not a holiday. No business may be transacted
at an annual meeting of stockholders, other than business
that is either (a) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the
Board of Directors (or any duly authorized committee
thereof), (b) otherwise properly brought before the annual
meeting by or at the direction of the Board of Directors (or
any duly authorized committee thereof) or (c) otherwise
properly brought before the annual meeting by any
stockholder of the Corporation (i) who is a stockholder of
record on the date of the giving of the notice provided for
in this Section 2 and on the record date for the
determination of stockholders entitled to vote at such
annual meeting and (ii) who complies with the notice
procedures set forth in this Section 2.
In addition to any other applicable requirement, for
business to be properly brought before an annual meeting by
a stockholder, such stockholder must have given timely
notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholders notice to the Secretary must be
delivered to or mailed and received at the principal
executive offices of the Corporation not less than sixty
(60) days nor more than ninety (90) days prior to the
anniversary date of the immediately preceding annual meeting
of stockholders; provided, however, that in the event that
the annual meeting is called for a date that is not within
thirty (30) days before or after such anniversary date,
<PAGE 2>
notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth
(10th) day following the day on which notice of the date of
the annual meeting was mailed or public disclosure of the
date of the annual meeting was made, whichever first occurs.
To be in proper written form, a stockholders notice to the
Secretary must set forth as to each matter such stockholder
proposes to bring before this 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 the annual meeting, (ii) the name and record address of
such stockholder, (iii) the class or series and number of
shares of capital stock of the Corporation which are owned
beneficially or of record by such stockholder, (iv) a
description of all arrangements or understandings between
such stockholder and any other person or persons (including
their names) in connection with the proposal of such
business by such stockholder and any material interest of
such stockholder in business and (v) a representation that
such stockholder intends to appear in person or by proxy at
the annual meeting to bring such business before the
meeting.
Notwithstanding anything in the Bylaws to the contrary, no
business shall be conducted at the annual meeting except in
accordance with the procedures set forth in this Section 2.
The Chairman of an annual meeting shall, if the facts
warrant, determine and declare to the meeting that business
was not properly brought before the meeting in accordance
with the provisions of this Section 2, and if he should so
determine, he shall so declare to the meeting and any such
business shall not be transacted.
SECTION 3. Special Meetings. Special meetings of the
stockholders of the Corporation may be called, for any
purpose or purposes, by the Chief Executive Officer or the
Board of Directors at any time. Upon written request of any
stockholder or stockholders holding in the aggregate a
majority of the voting power of all stockholders, the
Secretary shall call a special meeting of stockholders to be
held at a place in San Francisco, California specified in
the request for call, at such time as the Secretary may fix,
such meeting to be held not less than ten nor more than 60
days after the receipt of the request, and if the Secretary
shall neglect or refuse to call the meeting, the stockholder
or stockholders making the request may do so.
SECTION 4. Notice of Meetings. Except as otherwise provided
by law or the Certificate of Incorporation, written notice
of each meeting of stockholders shall be given not less than
ten nor more than 50 days before the date of the meeting to
each stockholder entitled to vote thereat, directed to his
address as it appears upon the books of the Corporation;
said notice to specify the place, date and hour and purpose
or purposes of the meeting. 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
unless the adjournment is for more than thirty days, or
unless after the adjournment a new record date is fixed for
the adjourned meeting, in which event a notice of the
adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting. Notice of the time,
place and purpose of any meeting of stockholders may be
waived in writing, either before or after such meeting, and
will be waived by any stockholder by his attendance thereat
in person or by proxy. Any stockholder so waiving notice of
such meeting shall be bound by the proceedings of any such
<PAGE 3>
meeting in all respects as if due notice thereof had been
given.
SECTION 5. Quorum. At all meetings of stockholders, except
where otherwise provided by statute or by the Certificate of
Incorporation, or by the Bylaws, the presence, in person or
by proxy duly authorized, of the holders of a majority of
the outstanding shares of stock entitled to vote shall
constitute a quorum for the transaction of business. Shares,
the voting of which at said meeting has been enjoined, or
which for any reason cannot be lawfully voted at such
meeting shall not be counted to determine a quorum at said
meeting. In the absence of a quorum any meeting of
stockholders may be adjourned, from time to time, by vote of
the holders of a majority of the shares represented thereat,
but no other business shall be transacted at such meeting.
At such adjourned meeting at which a quorum is present or
represented any business may be transacted which might have
been transacted at the original meeting. The stockholders
present at a duly called or convened meeting, at which a
quorum is present, may continue to transact business until
adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum. Except as
otherwise provided by law, the Certificate of Incorporation
or these Bylaws, all action taken by the holders of a
majority of the voting power represented at any meeting at
which a quorum is present shall be valid and binding upon
the Corporation.
SECTION 6. Voting Rights. Except as otherwise provided by
law, only persons in whose names shares entitled to vote
stand on the stock records of the Corporation on the record
date for determining the stockholders entitled to vote at
said meeting shall be entitled to vote at such meeting.
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. Every person entitled to vote or
execute consents shall have the right to do so either in
person or by an agent or agents authorized by a written
proxy executed by such person or his duly authorized agent,
which proxy shall be filed with the Secretary of the
Corporation at or before the meeting at which it is to be
used. Said proxy so appointed need not be a stockholder. No
proxy shall be voted on after three years from its date
unless the proxy provides for a longer period.
SECTION 7. List of Stockholders. The officer who has charge
of the stock ledger of the Corporation shall prepare and
make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled
to vote at said meeting, arranged in alphabetical order,
showing the address of and the number of shares registered
in the name of each stockholder. 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 (10) days prior to the meeting, either at a
place within the city where the meeting is to be held and
which place shall be specified in the notice of the meeting,
or, if not specified, at the place where said meeting is to
be held, and the list shall be produced and kept at the time
and place of meeting during the whole time thereof, and may
be inspected by any stockholder who is present.
<PAGE 4>
SECTION 8. Action Without Meeting. Whenever the vote of
stockholders at a meeting thereof is required or permitted
to be taken in connection with any corporate action by any
provisions of the statutes or of the Certificate of
Incorporation, the meeting and vote of stockholders may be
dispensed with: (1) if all of the stockholders who would
have been entitled to vote upon the action if such meeting
were held shall consent in writing to such corporate action
being taken; or (2) if the Certificate of Incorporation
authorizes the action to be taken with the written consent
of the holders of less than all of the stock who would have
been entitled to vote upon the action if a meeting were
held, then on the written consent of the stockholders having
not less than such percentage of the number of votes as may
be authorized in the Certificate of Incorporation; provided
that in no case shall the written consent be by the holders
of stock having less than the minimum percentage of the vote
required by statute for the proposed corporate action, and
provided that prompt notice must be given to all
stockholders of the taking of corporate action without a
meeting and by less than unanimous written consent.
SECTION 9. Rules of Conduct. The Board of Directors of the
Company 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 of Directors, 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 of Directors or the chairman
of the meeting, meetings of shareholders shall not be
required to be held in accordance with rules of
parliamentary procedure.
ARTICLE III
DIRECTORS
SECTION 1. Powers. The powers of the Corporation shall be
exercised, its business conducted and its property
controlled by the Board of Directors.
SECTION 2. Number, Qualifications and Classification. (a) A
majority of the directors holding office may by resolution
increase or decrease the number of directors, provided,
however, that the number thereof shall never be less than
twelve nor greater than fifteen. A director need not be a
stockholder. The directors shall be divided into three
classes, designated Class I, Class II and Class III, as
nearly equal in number as the then total number of directors
permits. At the 1985 annual meeting of stockholders, Class I
directors shall be elected for a one-year term, Class II
directors for a two-year term and Class III directors for a
<PAGE 5>
three-year term. At each succeeding annual meeting of
stockholders beginning in 1986, successors to the class of
directors whose term expires at that annual meeting shall be
elected for a three-year term. If the number of directors is
changed, any increase or decrease shall be apportioned among
the classes so as to maintain the number of directors in
each class as nearly equal as possible, and any additional
directors of any class elected to fill a vacancy resulting
from an increase in such class shall hold office for a term
that shall coincide with the remaining term of that class,
but in no case will a decrease in the number of directors
shorten the term of any incumbent director. A director 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 vacancy on the Board of Directors, including any
vacancy that results from an increase in the number of
directors, may be filled by a majority of the Board of
Directors then in office, although less than a quorum, or by
a sole remaining director. Any director elected to fill a
vacancy shall have the same remaining term as that of his
predecessor.
(b) Notwithstanding the foregoing, whenever the holders of
any one or more classes or series of Preferred Stock issued
by the Corporation 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 applicable thereto, and such
directors so elected shall not be divided into classes
pursuant to these Bylaws unless expressly provided by such
terms.
(c) Any amendment, change or repeal of this Section 2 of
Article III, or any other amendment to these Bylaws that
will have the effect of permitting circumvention of or
modifying this Section 2 of Article III, shall require the
favorable vote, at a stockholders' meeting, of the holders
of at least 80 of the then-outstanding shares of stock of
the Corporation entitled to vote.
SECTION 3. Special Elections. If, for any cause, the Board
of Directors shall not have been elected at an annual
meeting, it may be elected as soon thereafter as is
convenient at a special meeting of the stockholders called
for that purpose in the manner provided in these Bylaws.
SECTION 4. Vacancies. A vacancy in the Board of Directors
shall be deemed to exist in the case of the death,
resignation or removal of any director, or if the number of
directors constituting the whole Board be increased, or if
the stockholders, at any meeting of stockholders at which
directors are to be elected, fail to elect the number of
directors then constituting the whole Board.
SECTION 5. Resignations. Any director may resign at any time
by delivering his written resignation 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 of Directors. If no such specification
is made, it shall be deemed effective at the pleasure of the
Board of Directors.
SECTION 6. Meetings. (a) The annual meeting of the Board of
Directors shall be held not later than the tenth day
following the annual stockholders meeting at such time and
<PAGE 6>
place as the Board may determine. No notice of the annual
meeting of the Board of Directors shall be necessary if such
meeting is held immediately after the annual stockholders
meeting and at the place where such stockholders meeting is
held. If the annual meeting of the Board of Directors is
held on a different date, or at a different time or place,
notice of the date, time and place of such annual meeting of
the Board of Directors shall be furnished to each director
in accordance with the procedures of Article III, Section
6(c) of these Bylaws. The annual meeting of the Board of
Directors shall be held for the purpose of electing officers
and transacting such other business as may lawfully come
before it.
(b) Regular meetings of the Board of Directors shall be held
at such place within or without the State of Delaware, and
at such times as the Board may from time to time determine,
and if so determined no notice thereof need be given.
(c) Special meetings may be called at any time and place
within or without the State of Delaware upon the call of the
Chief Executive Officer or Secretary or any two directors.
Notice of the date, time, place and purposes of each special
meeting, and notice of the date, time and place of each
annual and regular meeting for which notice is required to
be given, shall be sent by mail at least seventy-two hours
in advance of the time of the meeting, or by telegram at
least forty-eight hours in advance of the time of the
meeting, or by facsimile at least twenty-four hours in
advance of the time of the meeting, to the address or
facsimile number (as applicable) of each director. Notice of
any special meeting may be waived in writing at any time
before or after the meeting and will be waived by any
director by attendance thereat.
SECTION 7. Quorum and Voting. (a) A majority of the whole
Board of Directors shall constitute a quorum for all
purposes, provided, however, at any meeting whether a quorum
be present or otherwise, a majority of the directors present
may adjourn from time to time and place to place, within or
without the State of Delaware, without notice other than by
announcement at the meeting.
(b) At each meeting of the Board at which a quorum is
present all questions and business shall be determined by a
vote of a majority of the directors present, unless a
different vote be required by law or by the Certificate of
Incorporation.
SECTION 8. Action Without Meeting. Unless otherwise
restricted by the Certificate of Incorporation or these
Bylaws, any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee
thereof may be taken without a meeting, if all members of
the Board or of such committee, as the case may be, consent
thereto in writing, and such writing or writings are filed
with the minutes of proceedings of the Board or committee.
SECTION 9. Fees and Compensation. Directors shall not
receive any stated salary for their services as directors,
but, by resolution of the Board, compensation in a
reasonable amount may be fixed by the Board, including,
without limitation, compensation in the form of an annual
retainer, a fee for each Board or Board Committee meeting
attended, reimbursement for expenses of attendance at any
such meeting, or any combination of any of the foregoing.
Nothing herein contained shall be construed to preclude any
director from serving the Corporation in any other capacity
as an officer, agent, employee, or otherwise, and receiving
compensation therefor.
<PAGE 7>
SECTION 10. Maximum Age of Directors. Directors who have
attained the age of 72 years shall be ineligible to stand
for election or reelection as a director. Except as may
otherwise be determined by the Board of Directors, a
director who has attained the age of 72 years whose term as
a director continues beyond the annual meeting of
shareholders next following attainment of 72 years shall
retire and resign as a director at the first directors
meeting following such annual meeting of shareholders.
Unless otherwise determined by the Board of Directors in
accordance with the preceding sentence, for this purpose
such resignation will be automatic and need not meet the
requirements for resignation set forth in Section 5 of this
Article III.
SECTION 11. Nominations of Persons for Election to the Board
of Directors. Only persons who are nominated in accordance
with the following procedures set forth in these Bylaws
shall be eligible for election as directors of the
Corporation. Nominations of persons for election to the
Board of Directors may be made at any annual meeting of
stockholders (a) by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (b)
by any stockholder of the Corporation (i) who is a
stockholder of record on the date of the giving of the
notice provided for in this Section 11 and on the record
date for the determination of stockholders entitled to vote
and (II) who complies with the notice procedures set forth
in this Section 11.
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.
To be timely, a stockholder's notice to the Secretary must
be delivered to or mailed and received at the principal
executive offices of the Corporation not less than sixty
(60) days nor more than ninety (90) days prior to the
anniversary date of the immediately preceding annual meeting
of stockholders; provided, however, that in the event that
the annual meeting is called for a date that is not within
thirty (30) 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
(10th) day following the day on which notice of the date of
the annual meeting was mailed or public disclosure of the
date of the annual meeting was made, whichever first occurs.
To be in proper written form, a stockholders notice to the
Secretary must set forth (a) as to each person whom the
stockholder proposes to nominate for election as a director
(i) the name, age, business address and residence address of
the person, (ii) the principal occupation or employment of
the person, (iii) the class or series and number of shares
of capital stock of the Corporation which are owned
<PAGE 8>
beneficially or of record by the person and (iv) 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 (b) as to the stockholder giving the notice (i) the name
and record address of such stockholder, (ii) the class or
series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by
such stockholder, (iii) a description of all arrangements or
understandings between such stockholder 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, (iv) a representation that such
stockholder intends to appear in person or by proxy at the
annual meeting to nominate the persons named in its notice
and (v) any other information relating to such stockholder
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
be named as a nominee and to serve as a director if elected.
The Corporation may require any proposed nominee to furnish
any other information that may reasonably be required by the
Corporation to determine the qualifications of such proposed
nominee to serve as a director of the Corporation. No person
shall be eligible for election as a director of the
Corporation unless nominated in accordance with the
procedures set forth herein. These provisions shall not
apply to nomination of any persons entitled to be separately
elected by holders of Preferred Stock.
The Chairman of the annual meeting shall, if the facts
warrant, determine and declare to the meeting that a
nomination was not made in accordance with the foregoing
procedures, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be
disregarded.
ARTICLE IV
OFFICERS AND COMMITTEES
SECTION 1. Officers Designated. The executive officers of
the Corporation shall be chosen by the Board of Directors
and shall be the Chairman of the Board, the President, one
or more Vice Presidents, the Secretary, one or more
Assistant Secretaries, the Treasurer, one or more Assistant
Treasurers, and such other executive officers as the Board
of Directors from time to time may designate. The Board of
Directors shall designate either the Chairman of the Board
or the President as the Chief Executive Officer of the
Corporation. The officer so designated shall have charge of
the actual conduct and operation of the business of the
Corporation, subject to the control and direction of the
Board of Directors. The Chief Executive Officer shall, with
the consent of the Board of Directors, assign such
additional titles to Vice Presidents as he shall deem
appropriate and designate the succession of officers to act
in his stead in his absence or disability. He may appoint
additional Vice Presidents who shall not, however, be
executive officers. He shall assign all duties not otherwise
specified by these Bylaws to all officers and employees of
the Corporation.
SECTION 2. Election, Qualification, Tenure of Office, and
Duties of Executive Officers and Other Officers. (a) At the
annual meeting of the Board of Directors following their
election by the stockholders, the directors shall elect all
executive officers of the Corporation. Any one person may
hold any number of offices of the Corporation at any one
time unless specifically prohibited therefrom by law. The
Chairman of the Board shall be a director but no other
officer need be a director.
(b) Each executive officer shall hold office from the date
of his election either until the date of his voluntary
resignation, or death, or until the next annual meeting of
the Board of Directors and until a successor shall have been
duly elected and qualified, whichever shall first occur;
provided that any such officer may be removed by the Board
of Directors whenever in its judgment the best interest of
<PAGE 9>
the Corporation will be served thereby, and the Board may
elect another in the place and stead of the person so
removed.
(c) Chairman of the Board: The Chairman of the Board shall
preside at all meetings of the stockholders, of the Board of
Directors, and of the Executive Committee. He shall have the
responsibility of keeping the directors informed on all
policy matters, and shall have such other powers and perform
such other duties as may be prescribed by the Board.
(d) President: The President shall, in the absence of the
Chairman of the Board preside at all meetings of the
stockholders, the Board of Directors and the Executive
Committee. He shall exercise all of the powers and discharge
all of the other duties of the Chairman of the Board in the
absence of the Chairman of the Board. He shall perform such
other duties as may be prescribed by the Chairman of the
Board.
(e) Vice Presidents: The Vice Presidents shall have such
duties and have such other powers as shall be prescribed by
the Chief Executive Officer. Such Vice President as may be
designated by the Board of Directors or the Chairman of the
Board shall preside at all meetings of the stockholders.
(f) Secretary: The Secretary shall record all the
proceedings of the meetings of the Corporation and of the
directors in a book or books kept for that purpose. He shall
attend to the giving and serving of all notices on behalf of
the Corporation. He shall have the custody of the corporate
seal and affix the same to such instruments as may be
required. He shall have such other powers and perform such
other duties as may be prescribed by the Chief Executive
Officer.
(g) Assistant Secretaries: Assistant Secretaries shall
assist the Secretary in the performance of his duties and
any one of the Assistant Secretaries may perform all of the
duties of the Secretary if at any time he shall be unable to
act. Assistant Secretaries shall have such other powers and
perform such other duties as may be prescribed by the Chief
Executive Officer.
(h) Treasurer: The Treasurer shall have charge of the
custody, control and disposition of all funds of the
Corporation and shall account for same. He shall have such
other powers and perform such other duties as may be
prescribed by the Chief Executive Officer.
(i) Assistant Treasurers: Assistant Treasurers shall assist
the Treasurer in the performance of his duties and any one
of the Assistant Treasurers may perform all of the duties of
the Treasurer if at any time he shall be unable to act.
Assistant Treasurers shall have such other powers and
perform such other duties as may be prescribed by the Chief
Executive Officer.
SECTION 3. Committees. (a) Executive Committee. The Board of
Directors shall, by resolution passed by a majority of the
whole Board, appoint an Executive Committee of not less than
three members, all of whom shall be directors. The Executive
Committee, to the extent permitted by law, shall have and
may exercise when the Board of Directors is not in session
all 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. It shall be the duty of the Secretary of the
Corporation to record the minutes of all actions of the
Executive Committee.
(b) Other Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board, from
time to time appoint such other committees as may be
permitted by law. The Chief Executive Officer may appoint
<PAGE 10>
such other committees as he finds necessary to the conduct
of the Corporation's business. Such other committees
appointed by the Board of Directors or the Chief Executive
Officer shall have such powers and perform such duties as
may be prescribed by the body or person appointing such
committee.
(c) Term; Number of Committee Members. The members of all
committees of the Board of Directors shall serve a term
coexistent with that members remaining term as a member of
the Board of Directors, or until such time as the Board of
Directors shall replace that member on such committee or ask
that member to accept another committee assignment in its
stead. The Board, subject to the provisions of subsection
(a) and (b) of this Section 3, may at any time increase or
decrease the number of members of a committee or terminate
the existence of a committee; provided, that no committee,
while it exists, shall consist of less than three members.
The membership of a committee member shall terminate on the
date of his death or voluntary resignation, but the Board
may at any time for any reason remove any individual
committee member and the Board may fill any committee
vacancy created by death, resignation, removal or increase
in the number of members of the committee. The Board of
Directors may designate one or more directors as alternate
members of any committee, to replace any absent or
disqualified member at any meeting of the committee. If the
qualified members of a committee, in attendance at a
committee meeting, believe that the absence or
disqualification of one or more members of that committee
seriously impairs the function of that committee, such
remaining qualified members, whether or not constituting a
quorum, may by unanimous action appoint another member of
the Board of Directors to act as a committee member at that
meeting.
(d) Notice of Committee Meetings. Notice of the date, time
and place of each committee meeting shall be sent to each
committee member by mail at least seventy-two hours in
advance of the time of the meeting, or by telegram at least
forty-eight hours in advance of the time of the meeting, or
by facsimile at least twenty-four hours in advance of the
time of the meeting, to the address or facsimile number (as
applicable) of each committee member.
ARTICLE V
CAPITAL STOCK
SECTION 1. Form and Execution of Certificates. Certificates
for the shares of stock of the Corporation shall be in such
form as are consistent with the Certificate of Incorporation
and applicable law. Every holder of stock in the Corporation
shall be entitled to have a certificate signed by, or in the
name of the Corporation by, the Chairman of the Board,
President or any Vice President and by the Treasurer or
Assistant Treasurer or the Secretary or Assistant Secretary,
certifying the number of shares owned by him in the
Corporation. Where such certificate is countersigned by a
transfer agent other than the Corporation or its employee,
or by a registrar other than the Corporation or its
employee, any other signature on the 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.
<PAGE 11>
SECTION 2. Lost Certificates. The Board of Directors may
direct a new certificate or certificates to be issued in
place of any certificate or certificates theretofore issued
by the Corporation alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost or destroyed.
When authorizing such issue of a new certificate or
certificates, the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof,
require the owner of such lost or destroyed certificate or
certificates, or his legal representative, to advertise the
same in such manner as it shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation
with respect to the certificate alleged to have been lost or
destroyed.
SECTION 3. Transfers. Transfers of record of shares of the
capital stock of the Corporation shall be made upon its
books by the holders thereof, in person or by attorney duly
authorized, and upon the surrender of a certificate or
certificates for a like number of shares, properly endorsed
or accompanied by a properly endorsed stock power.
SECTION 4. Fixing Record Dates. 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 to express consent to corporate
action in writing without a meeting, or entitled to receive
payment of any dividend or other distribution or allotment
of 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 of Directors
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; and (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 of Directors 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 of Directors may fix a new record date for
the adjourned meeting.
SECTION 5. Registered Stockholders. The Corporation shall be
entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive
dividends, and to vote as such owner, 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, except as otherwise provided by the laws of
Delaware.
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
the Chairman of the Board, the President or any Vice
President, or such other person as may be authorized by the
Board of Directors, and the corporate seal impressed thereon
or a facsimile of such seal imprinted thereon and attested
<PAGE 12>
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 of Directors;
provided, however, that where any such bond, debenture or
other corporate security shall be authenticated by a trustee
under an indenture pursuant to which such bond, debenture or
other corporate securities shall be issued, the signatures
of the persons signing and attesting the corporate seal on
such bond, debenture or other corporate security may be the
imprinted facsimile of the signatures of such persons.
Interest coupons appertaining to any such bond, debenture or
other corporate security, authenticated by a trustee as
aforesaid, shall be signed by the Treasurer or an Assistant
Treasurer of the Corporation, or such other person as may be
authorized by the Board of Directors, or bear imprinted
thereon the facsimile signature of 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
SECURITIES OWNED BY THE CORPORATION
Power to Vote. Unless otherwise ordered by the Board of
Directors, the Chief Executive Officer, or any officer
designated in writing by the Chief Executive Officer, shall
have full power and authority in the name and on behalf of
the Corporation, to vote and to act either in person or by
proxy at any meeting of the holders of stock or securities
in any corporation upon and in respect of any securities
therein which the Corporation may hold, and shall possess
and may exercise in the name of the Corporation any and all
rights and powers incident to the ownership of such stock or
securities which, as the owner thereof, the Corporation
shall possess and might exercise including the right to give
written consents in respect to action taken or to be taken.
The Board of Directors may from time to time confer like
powers upon any other person or persons.
ARTICLE VIII
CORPORATE SEAL
The corporate seal shall consist of a die bearing the
inscription, |Consolidated Freightways, Inc.Corporate
SealDelaware.|
ARTICLE IX
AMENDMENTS
These Bylaws may be repealed, altered or amended or new
Bylaws adopted by written consent of stockholders in the
manner authorized by Section 8 of Article II or at any
meeting of the stockholders, either annual or special, by
the affirmative vote of a majority of the stock entitled to
vote at such meeting. The Board of Directors shall also have
the authority to repeal, alter or amend these Bylaws or
adopt new Bylaws by unanimous written consent or by the
affirmative vote of a majority of the whole Board at any
annual, regular, or special meeting subject to the power of
the stockholders to change or repeal such Bylaws.
ARTICLE X
MISCELLANEOUS
<PAGE 13>
SECTION 1. Definitions. As used in these Bylaws and wherever
the context shall require, the word |person| shall include
associations, partnerships and corporations as well as
individuals; words in the masculine gender shall include the
feminine and associations, partnerships and corporations;
words in the singular shall include the plural and words in
the plural may mean only the singular, and words |additional
compensation| shall mean and include all bonus, profit
sharing, retirement, deferred compensation, and all other
additional compensation plans or arrangements affecting
persons individually or as a group.
SECTION 2. Notices. Whenever, under any provisions of these
Bylaws, notice is required to be given to any stockholder,
the same shall be given in writing, timely and duly
deposited in the United States Mail, postage prepaid, and
addressed to his last known post office address as shown by
the stock record of the Corporation or its transfer agent.
Any notice required to be given to any director may be given
by the method hereinabove stated, by personal delivery, or
by telegram, except that such notice, other than one which
is delivered personally, shall be sent to such address as
such director shall have filed in writing with the Secretary
of the Corporation, or, in the absence of such filing, to
the last known post office address of such director. If no
address of a stockholder or director be known, such notice
may be sent to the principal office of the Corporation. An
affidavit of mailing, executed by a duly authorized and
competent employee of the Corporation or its transfer agent
appointed with respect to the class of stock affected,
specifying the name and address or the names and addresses
of the stockholder or stockholders, director or directors,
to whom any such notice or notices was or were given, and
the time and method of giving the same, shall be conclusive
evidence of the statements therein contained. All notices
given by mail, as above provided, shall be deemed to have
been given as at the time of mailing and all notices given
by telegram shall be deemed to have been given as at the
sending time recorded by the telegraph company transmitting
the same. It shall not be necessary that the same method of
giving be employed in respect of all directors, but one
permissible method may be employed in respect of any one or
more, and any other permissible method or methods may be
employed in respect of any other or others.
The period or limitation of time within which any
stockholder may exercise any option or right, or enjoy any
privilege or benefit, or be required to act, or within which
any directors may exercise any power or right, or enjoy any
privilege, pursuant to any notice sent him in the manner
above provided, shall not be affected or extended in any
manner by the failure of such stockholder or such director
to receive such notice. Whenever any notice is required to
be given under the provisions of the statutes or of the
Certificate of Incorporation, or of these Bylaws, a waiver
thereof in writing signed by the person or persons entitled
to said notice, whether before or after the time stated
therein, shall be deemed equivalent thereto. Whenever notice
is required to be given, under any provision of law or of
the Certificate of Incorporation or Bylaws of the
Corporation, to any person with whom communication is
unlawful, the giving of such notice to such person shall not
be required and there shall be no duty to apply to any
governmental authority or agency for a license or permit to
give such notice to such person. Any action or meeting which
<PAGE 14>
shall be taken or held without notice to any such person
with whom communication is unlawful shall have the same
force and effect as if such notice had been duly given. In
the event that the action taken by the Corporation is such
as to require the filing of a certificate under any
provision of the Delaware General Corporation Law, the
certificate shall state, if such is the fact and if notice
is required, that notice was given to all persons entitled
to receive notice except such persons with whom
communication is unlawful.
SECTION 3. Indemnification of Officers, Directors, Employees
and Agents.(a) Right to Indemnification. Each person who was
or is made a party or is threatened to be made a party to or
is involved in any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal,
administrative, or investigative (hereinafter a
|Proceeding|), by reason of the fact that he, or a person of
whom he is the legal representative, 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 or of a
partnership, joint venture, trust, or other enterprise,
including service with respect to employee benefit plans,
whether the basis of the Proceeding is alleged action in an
official capacity as a director, officer, employee, or agent
or in any other capacity while serving as a director,
officer, employee, or agent, shall be indemnified and held
harmless by the Corporation to the fullest extent authorized
by the Delaware General Corporation Law, as the same exists
or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights
than were permitted prior to amendment) against all
expenses, liability, and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties, and
amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith;
provided, however, that except as to actions to enforce
indemnification rights pursuant to paragraph (c) of this
Section, the Corporation shall indemnify any such person
seeking indemnification in connection with a Proceeding (or
part thereof) initiated by such person only if the
Proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation. The right to indemnification
conferred in this Article shall be a contract right for the
benefit of the Corporation's directors, officers, employees,
and agents.
(b) Authority to Advance Expenses. Expenses incurred
(including attorneys' fees) by an officer or director
(acting in his capacity as such) in defending a Proceeding
shall be paid by the Corporation in advance of the final
disposition of such Proceeding, provided, however, that if
required by the Delaware General Corporation Law, as
amended, such expenses shall be advanced only upon delivery
to the Corporation of an undertaking by or on behalf of such
director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Article
or otherwise. Such expenses incurred by other employees or
agents of the Corporation (or by the directors or officers
not acting in their capacity as such, including service with
respect to employee benefit plans) may be advanced upon such
terms and conditions as the Board of Directors deems
appropriate.
<PAGE 15>
(c) Right of Claimant to Bring Suit. If a claim under
paragraph (a) or (b) of this Section is not paid in full by
the Corporation within sixty days after a written claim has
been received by the Corporation, the claimant may at any
time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid
also the expense (including attorneys' fees) of prosecuting
such claim. It shall be a defense to any such action (other
than an action brought to enforce a claim for expenses
incurred in defending a Proceeding in advance of its final
disposition where the required undertaking has been tendered
to the Corporation) that the claimant has not met the
standards of conduct that make it permissible under the
Delaware General Corporation Law for the Corporation to
indemnify the claimant for the amount claimed. The burden of
proving such a defense shall be on the Corporation. Neither
the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders)
to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper
under the circumstances because he has met the applicable
standard of conduct set forth in the Delaware General
Corporation Law, nor an actual determination by the
Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) that the claimant had
not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that claimant
has not met the applicable standard of conduct.
(d) Provisions Nonexclusive. The rights conferred on any
person by this Section shall not be exclusive of any other
rights that such person may have or hereafter acquire under
any statute, provision of the Certificate of Incorporation,
Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding
such office.
(e) Authority to Insure. The Corporation may purchase and
maintain insurance to protect itself and any person who 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 any liability, expense, or loss
asserted against or incurred by such person, whether or not
the Corporation would have the power to indemnify him
against such liability, expense, or loss under applicable
law or the provisions of this Article.
(f) Survival of Rights. The rights provided by this Section
shall continue as to a person who has ceased to be a
director, officer, employee, or agent and shall inure to the
benefit of the heirs, executors, and administrators of such
a person.
(g) Effect of Amendment. Any amendment, repeal, or
modification of this Section shall not (a) adversely affect
any right or protection of any director, officer, employee,
or agent existing at the time of such amendment, repeal, or
modification, or (b) apply to the indemnification of any
such person for liability, expense, or loss stemming from
actions or omissions occurring prior to such amendment,
repeal, or modification.
CERTIFICATE
<PAGE 16>
The undersigned,Secretary of CONSOLIDATED FREIGHTWAYS, INC.,
does hereby certify that the foregoing is a true and correct
copy of the Bylaws of CONSOLIDATED FREIGHTWAYS, INC., as
amended to date hereof.
In witness whereof the undersigned has hereunto set his hand
and affixed the seal of said corporationthis day of , 19
/s/Eberhard G. H. Schmoller
Senior Vice President, General Counsel
Secretary of Consolidated Freightways, Inc.
CONSOLIDATED FREIGHTWAYS, INC.
INCORPORATED IN DELAWARE AUGUST 13, 1958
UNDER THE CORPORATE NAME OF
CONSOLIDATED FREIGHTWAYS COMPANY
BYLAWS
As Amended December 9, 1996
ATTACHMENT
PROPOSED RESOLUTIONS
OF THE BOARD OF DIRECTORS
OF
CONSOLIDATED FREIGHTWAYS, INC.
WHEREAS, the Board of Directors of Consolidated Freightways,
Inc. (The "Company") deems it desirable and in the best
interest of the Corporation to amend the Company's Bylaws in
certain respects, including to increase the period required
for advance notice of stockholder nominations of directors and
stockholder intention to bring new business at annual
meetings.
NOW, THEREFORE, BE IT RESOLVED, that each of the amendments to
the Company Bylaws annexed as Exhibit A to these resolutions
are hereby approved and adopted by the Board of Directors in
accordance with the provisions of Article IX of the Company's
Bylaws.
EXHIBIT "A"
Extract of sections of By-laws that have been changed.
Exhibit A
1. Article II, Section 2 of the Corporation's Bylaws is
hereby amended to read in its entirety as follows:
SECTION 2. Annual Meetings. The annual meetings of the
stockholders of the Corporation for the purpose of
election of directors and for such other business as may
lawfully come before the meetings shall be held on a date
and at a time designated from time to time by the Board
of Directors, or, if not so designated, then at 10:00
a.m. on the last Monday in April in each year, if not a
legal holiday, or, if a legal holiday at the same hour
and place on the next succeeding day not a holiday. No
business may be transacted at an annual meeting of
stockholders, other than business that is either (a)
specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of
Directors (or any duly authorized committee thereof), (b)
otherwise properly brought before the annual meeting by
or at the direction of the Board of Directors (or any
duly authorized committee thereof) or (c) otherwise
properly brought before the annual meeting by any
stockholder of the Corporation (i) who is a stockholder
of record on the date of the giving of the notice
provided for in this Section 2 and on the record date for
the determination of stockholders entitled to vote at
such annual meeting and (ii) who complies with the notice
procedures set forth in this Section 2.
In addition to any other applicable requirement, for
business to be properly brought before an annual meeting
by a stockholder, such stockholder must have given timely
notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholder's notice to the Secretary
must be delivered to or mailed and received at the
principal executive offices of the Corporation not less
than sixty (60) days nor more than ninety (90) days prior
to the anniversary date of the immediately preceding
annual meeting of stockholders; provided, however, that
in the event that the annual meeting is called for a date
that is not within thirty (30) 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 (10th) day following the day on
which notice of the date of the annual meeting was mailed
or public disclosure of the date of the annual meeting
was made, whichever first occurs.
To be in proper written form, a stockholder's notice to
the Secretary must set forth as to each matter such
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 the annual meeting, (ii) the
name and record address of such stockholder, (iii) the
class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record
by such stockholder, (iv) a description of all
arrangements or understandings between such stockholder
and any other person or persons (including their names)
in connection with the proposal of such business by such
stockholder and any material interest of such stockholder
in business and (v) a representation that such
stockholder intends to appear in person or by proxy at
the annual meeting to bring such business before the
meeting.
Notwithstanding anything in the Bylaws to the contrary,
no business shall be conducted at the annual meeting
except in accordance with the procedures set forth in
this Section 2.
The Chairman of an annual meeting shall, if the facts
warrant, determine and declare to the meeting that
business was not properly brought before the meeting in
accordance with the provisions of this Section 2, and if
he should so determine, he shall so declare to the
meeting and any such business shall not be transacted.
2. Article III, Section 11 of the Corporation's Bylaws is
hereby amended to read in its entirety as follows:
SECTION II. Nominations of Persons for Election to the
Board of Directors. Only persons who are nominated in
accordance with the following procedures set forth in
these Bylaws shall be eligible for election as directors
of the Corporation. Nominations of persons for election
to the Board of Directors may be made at any annual
meeting of stockholders (a) by or at the direction of the
Board of Directors (or any duly authorized committee
thereof) or (b) by any stockholder of the Corporation (i)
who is a stockholder of record on the date of the giving
of the notice provided for in this Section 11 and on the
record date for the determination of stockholders
entitled to vote at such annual meeting and (ii) who
complies with the notice procedures set forth in this
Section 11.
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.
To be timely, a stockholder's notice to the Secretary
must be delivered to or mailed and received at the
principal executive offices of the Corporation not less
than sixty (60) days nor more than ninety (90) days prior
to the anniversary date of the immediately preceding
annual meeting of stockholders; provided, however, that
in the event that the annual meeting is called for a date
that is not within thirty (30) 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 (10th) day following the day on
which notice of the date of the annual meeting was mailed
or public disclosure of the date of the annual meeting
was made, whichever first occurs.
To be in proper written form, a stockholder's notice to
the Secretary must set forth (a) as to each person whom
the stockholder proposes to nominate for election as a
director (i) the name, age, business address and
residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the class
or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by
the person and (iv) 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
(b) as to the stockholder giving the notice (i) the name
and record address of such stockholder, (ii) the class or
series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by
such stockholder, (iii) a description of all arrangements
or understandings between such stockholder 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, (iv) a
representation that such stockholder intends to appear in
person or by proxy at the annual meeting to nominate the
persons named in its notice and (v) any other information
relating to such stockholder 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 be named as a nominee
and to serve as a director if elected. The Corporation
may require any proposed nominee to furnish any other
information that may reasonably be required by the
Corporation to determine the qualifications of such
proposed nominee to serve as a director of the
Corporation. No person shall be eligible for election as
a director of the Corporation unless nominated in
accordance with the procedures set forth herein. These
provisions shall not apply to nomination of any persons
entitled to be separately elected by holders of Preferred
Stock.
The Chairman of the annual meeting shall, if the facts
warrant, determine and declare to the meeting that a
nomination was not made in accordance with the foregoing
procedures, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall
be disregarded.
