-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, K3j9xxISamrxMEE9rIU80wyQyQYtK40UJEblTAz3PlJ1ITOKU97JDSHurvWZq4Tg cnsykFpFL79KdGcoCKbtxA== 0000893877-96-000409.txt : 19961202 0000893877-96-000409.hdr.sgml : 19961202 ACCESSION NUMBER: 0000893877-96-000409 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19961126 EFFECTIVENESS DATE: 19961126 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: CONSOLIDATED FREIGHTWAYS CORP CENTRAL INDEX KEY: 0001022581 STANDARD INDUSTRIAL CLASSIFICATION: TRUCKING (NO LOCAL) [4213] IRS NUMBER: 770425334 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-16851 FILM NUMBER: 96672799 BUSINESS ADDRESS: STREET 1: 175 LINFIELD DRIVE CITY: MENLO PARK STATE: CA ZIP: 94025 BUSINESS PHONE: 4153261700 MAIL ADDRESS: STREET 1: 175 LINFIELD DRIVE CITY: MENLO PARK STATE: CA ZIP: 94025 S-8 1 FORM S-8 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
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) - ----------------- ---------- --------- ----------- ------- 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. - -------------------------------------------------------------------------------------------------- (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.
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 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 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 (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 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 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 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 EX-4.1 2 CERTIFICATE OF INCORPORATION 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 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 (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 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 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 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 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 (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 8 (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 9 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 10 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, 11 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 12 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. 13 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. 14 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, 15 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. 16 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 EX-4.2 3 BYLAWS ================================================================================ Amended and Restated as of November 20, 1996 BYLAWS OF CONSOLIDATED FREIGHTWAYS CORPORATION INCORPORATED UNDER THE LAWS OF DELAWARE ================================================================================ 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 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 ii 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 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. 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 2 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 3 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 4 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 5 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. 6 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. 7 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 8 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 9 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 10 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- 11 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 12 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, 13 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 14 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 15 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 16 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 17 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, 18 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. 19 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. 20 EX-5.1 4 OPINION OF COUNSEL 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 EX-23.1 5 CONSENT OF ARTHUR ANDERSEN LLP 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 -----END PRIVACY-ENHANCED MESSAGE-----