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.
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;
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(e) the extent of the voting powers, if any, of the shares of
such series;
(f) the terms and conditions, if any, on which shares of such
series may be converted into shares of stock of the Corporation of any other
class or classes or into shares of any other series of the same or any other
class or classes;
(g) whether, and if so the extent to which, shares of such series
may participate with the Common Stock in any dividends in excess of the
preferential dividend fixed for shares of such series or in any distribution of
the assets of the Corporation, upon a liquidation, dissolution or winding-up
thereof, in excess of the preferential amount fixed for shares of such series;
and
(h) any other designations, preferences and relative,
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, of shares of such series not fixed and determined by
law or in the Certificate of Incorporation of the Corporation, and to increase
or decrease the number of shares of any series so created, subsequent to the
issue of that series but not below the number of such series then outstanding.
In case the number of shares of any series shall be so decreased, the shares
constituting such decrease shall resume the status which they had prior to the
adoption of the resolution originally fixing the number of shares of such
series.
2. There shall be no limitation or restriction on any variation
between any of the different series of Preferred Stock as to the designations,
preferences and relative, participating, optional or other special rights, and
the qualifications, limitations or restrictions thereof; and the several series
of Preferred Stock may, except as hereinafter in this Article FOURTH otherwise
expressly provided, vary in any and all respects as fixed and determined by the
resolution or resolutions of the Board providing for the issuance of the various
series. Different series of Preferred Stock shall not be considered to
constitute different classes of shares for the purpose of voting by classes
except as otherwise fixed by the Board with respect to any series at the time of
the creation thereof.
3. So long as any shares of Preferred Stock are outstanding, the
Corporation shall not declare and pay or set apart for payment any dividends
(other than dividends payable in Common Stock or other stock of the Corporation
ranking junior to the Preferred Stock as to dividends) or make any other
distribution on such junior stock, if at the time of making such declaration,
payment or distribution the
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Corporation shall be in default with respect to any dividend payable on, or any
obligation to retire, shares of Preferred Stock.
4. Subject to such limitations, if any, as may be contained in the
resolution or resolutions providing for the issue of Preferred Stock of any
series adopted by the Board, shares of Preferred Stock purchased, redeemed or
otherwise acquired by the Corporation (excepting shares of such stock acquired
on the conversion or exchange thereof into or for other shares of the
Corporation) (a) shall, upon the filing by the Corporation of a certificate
pursuant to Delaware law reducing its capital in respect to such shares, have
the status of authorized and unissued shares of Preferred Stock and may be
reissued by the Corporation at any time as shares of any series of Preferred
Stock and (b) shall, unless and until a certificate with respect thereto is
filed as aforesaid, constitute treasury stock; and shares of Preferred Stock
acquired on the conversion or exchange thereof into or for other shares of the
Corporation shall, after such conversion or exchange, have the status of
authorized and unissued shares of Preferred Stock and may be reissued by the
Corporation at any time as shares of any series of Preferred Stock.
5. Subject to the provisions of any applicable law or the Bylaws of
the Corporation as from time to time amended with respect to the closing of the
transfer books or the fixing of a record date for the determination of
stockholders entitled to vote, and except as otherwise provided by law or in
resolutions of the Board establishing any series of Preferred Stock pursuant to
this Article FOURTH, the holders of outstanding shares of Common Stock of the
Corporation shall exclusively possess the voting power for the election of
directors and for all other purposes. The amount of either the authorized
Preferred Stock or Common Stock, or the amount of both such classes of stock,
may be increased or decreased by the affirmative vote of the holders of a
majority of the stock of the Corporation entitled to vote. Each holder of
record of shares of Common Stock of the Corporation shall be entitled to one
vote for each share of such stock standing in such holder's name on the books of
the Corporation.
FIFTH. A. The business and affairs of the Corporation shall be
managed by or under the direction of the Board consisting of not less than five
nor more than nine directors, the exact number of directors to be determined
from time to time by resolution adopted by the affirmative vote of a majority of
the entire Board. The directors shall be divided into three groups, designated
Group I, Group II and Group III. Each Group of directors shall consist, as
nearly as may be possible, of one-third of the total number of directors
constituting the entire Board (determined for purposes of the Certificate of
Incorporation without regard to
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whether any vacancies exist on the Board). The term of the initial Group I
directors shall terminate on the date of the 1997 annual meeting of
stockholders; the term of the initial Group II directors shall terminate on the
date of the 1998 annual meeting of stockholders; and the term of the initial
Group III directors shall terminate on the date of the 1999 annual meeting of
stockholders. At each annual meeting of stockholders beginning with the 1997
annual meeting, successors to the Group of directors whose term expires at that
annual meeting shall be elected for a three-year term.
B. If the number of directors is changed, any increase or decrease
shall be apportioned among the Groups so as to maintain the number of directors
in each Group as nearly equal as possible, and any additional director of any
Group elected to fill a vacancy resulting from an increase in such Group shall
hold office for a term that shall coincide with the remaining term of that
Group, but in no case will a decrease in the number of directors shorten the
term of any incumbent director.
C. A director shall hold office until the annual meeting for the year
in which his or her term expires and until his or her successor shall be elected
and shall qualify, subject, however, to prior death, resignation, retirement,
disqualification or removal from office. Any vacancy on the Board, however
resulting, may be filled by a majority of the Board then in office, even if less
than a quorum is present or by a sole remaining director. Any director elected
to fill a vacancy shall have the same remaining term as that of his or her
predecessor.
D. Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of Preferred Stock shall have the right, voting
separately by class or series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of vacancies and
other features of such directorships shall be governed by the terms of the
Certificate of Incorporation of the Corporation applicable thereto.
SIXTH. Elections of directors at an annual or special meeting of
stockholders shall be by written ballot, unless the Bylaws of the Corporation
provide otherwise.
SEVENTH. Subject to the rights, if any, of the holders of shares of
Preferred Stock then outstanding, any or all of the directors of the Corporation
may be removed from office at any time, but only for cause and only by the
affirmative vote of the holders of a majority of the outstanding shares of the
Corporation then
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entitled to vote generally in the election of directors, considered for purposes
of this Article SEVENTH as one class.
EIGHTH. In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized:
(a) to make, alter or repeal the Bylaws of the Corporation;
(b) to authorize and cause to be executed mortgages and liens upon the
real and personal property of the Corporation;
(c) to set apart out of any of the funds of the Corporation available
for dividends a reserve or reserves for any proper purpose and to abolish any
such reserve or reserves in the manner in which the same was created;
(d) by resolution passed by a majority of the whole Board, to
designate one or more committees which, to the extent provided in the resolution
or in the Bylaws of the Corporation, shall have and may exercise the powers of
the Board in the management of the business and affairs of the Corporation, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it. Such committee or committees shall have such name or names as may
be stated in the Bylaws of the Corporation or as may be determined from time to
time by resolution adopted by a majority of the whole Board; and
(e) when and as authorized by the affirmative vote of the holders of a
majority of the stock issued and outstanding having voting power given at a
stockholders' meeting duly called for that purpose, to sell, lease or exchange
all or substantially all of the property and assets of the Corporation,
including its good will and its corporate franchises, upon such terms and
conditions and for such consideration, which may be in whole or in part shares
of stock in, and/or other securities of, any other corporation or corporations,
as the Board shall deem expedient and for the best interests of the Corporation.
NINTH. A. In addition to any affirmative vote required by law, any
other provision of the Certificate of Incorporation of the Corporation, the
Bylaws of the Corporation or otherwise, and except as otherwise expressly
provided in Sections B or C of this Article NINTH, a Business Transaction with
or a Stock Repurchase from, or proposed by or on behalf of, an Interested
Stockholder or an Affiliate or Associate of an Interested Stockholder shall
require the approval by not less than a majority vote of the holders of all of
the Corporation's outstanding Voting Stock,
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voting together as a single class, which is beneficially owned by persons other
than such Interested Stockholder and its Affiliates and Associates. Such
affirmative vote shall be required notwithstanding the fact that no vote may
otherwise be required, or that a lesser percentage or separate class vote may be
required, by law, any other provision of the Certificate of Incorporation of the
Corporation, the Bylaws of the Corporation or otherwise.
B. The provisions of Section A of this Article NINTH shall not be
applicable to any Business Transaction involving an Interested Stockholder or an
Affiliate or Associate of an Interested Stockholder, and such Business
Transaction shall require only such affirmative vote, if any, as is required by
law, any other provision of the Certificate of Incorporation of the Corporation,
the Bylaws of the Corporation or otherwise, if all of the conditions specified
in either of the following Paragraph 1 or 2 are met:
1. The Business Transaction shall have been approved (or shall have
been effected in accordance with a written agreement approved) by a
majority of the Disinterested Directors, whether such approval is given
prior or subsequent to the acquisition of beneficial ownership of the
Voting Stock that caused such Interested Stockholder to become an
Interested Stockholder. A Business Transaction with an Interested
Stockholder or an Affiliate or an Associate of an Interested Stockholder
shall be deemed to have been approved by a majority of the Disinterested
Directors if such Business Transaction either (i) was expressly approved
(or the agreement pursuant to which it was effected was expressly approved)
by a majority of Disinterested Directors, or (ii) is within a category of
Business Transactions with such Interested Stockholder or its Affiliates or
Associates authorized to be entered into by a resolution or resolutions
adopted by, and not subsequently rescinded by, a majority of Disinterested
Directors.
2. The Business Transaction is a Business Combination and all of the
following conditions shall have been met:
(a) The aggregate amount of cash and the Fair Market Value as of
the date of the consummation of the Business Transaction of consideration
other than cash to be received per share by holders of the Corporation's
Common Stock in such Business Transaction shall be at least equal to the
highest amount determined under clauses (i) and (ii) below:
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(i) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees) paid by
or on behalf of such Interested Stockholder or any Affiliate or
Associate of such Interested Stockholder for any shares of Common
Stock in connection with the acquisition by such Interested
Stockholder or any such Affiliate or Associate of beneficial
ownership of shares of Common Stock (x) within the two-year
period immediately prior to the first public announcement of the
proposed Business Transaction (the "Announcement Date"), or (y)
in the transaction in which such Interested Stockholder became an
Interested Stockholder, whichever is higher; and
(ii) the Fair Market Value per share of Common Stock on the
Announcement Date or on the date on which such Interested
Stockholder became an Interested Stockholder (the "Determination
Date"), whichever is higher.
(b) The aggregate amount of cash and the Fair Market Value as of
the date of the consummation of the Business Transaction of
consideration other than cash to be received per share by holders of
shares of any class or series of outstanding Capital Stock other than
Common Stock shall be at least equal to the highest amount determined
under clauses (i), (ii) and (iii) below:
(i) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees) paid by
or on behalf of such Interested Stockholder or any Affiliate or
Associate of such Interested Stockholder for any shares of such
class or series of Capital Stock in connection with the
acquisition by such Interested Stockholder or any such Affiliate
or Associate of beneficial ownership of shares of such class or
series of Capital Stock (x) within the two-year period
immediately prior to the Announcement Date, or (y) in the
transaction in which such Interested Stockholder became an
Interested Stockholder, whichever is higher;
(ii) the Fair Market Value per share of such class or series
of Capital Stock on the Announcement Date or on the Determination
Date, whichever is higher; and
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(iii) the highest preferential amount per share, if any, to
which the holders of shares of such class or series of Capital
Stock would be entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs
of the Corporation, regardless of whether the Business
Transaction to be consummated constitutes such an event.
The provisions of this Paragraph 2(b) shall be required to be met
with respect to every class or series of outstanding Capital Stock,
whether or not such Interested Stockholder or any Affiliate or
Associate of such Interested Stockholder has previously acquired
beneficial ownership of any shares of the particular class or series
of Capital Stock.
(c) The consideration to be received by holders of a particular
class or series of outstanding Capital Stock shall be in cash or in
the same form as previously has been paid by or on behalf of such
Interested Stockholder and its Affiliates and Associates in connection
with their direct or indirect acquisition of beneficial ownership of
shares of such class or series of Capital Stock. If the consideration
so paid for shares of any class or series of Capital Stock varied as
to form, the form of consideration for such class or series of Capital
Stock shall be either cash or the form used to acquire beneficial
ownership of the largest number of shares of such class or series of
Capital Stock previously acquired by such Interested Stockholder and
its Affiliates and Associates. The prices determined in accordance
with Paragraphs 2(a) and 2(b) of this Section B shall be subject to an
appropriate adjustment in the event of any stock dividend, stock
split, combination of shares or similar event.
(d) After the Determination Date and prior to the consummation of
such Business Transaction: (i) except as approved by a majority of
the Disinterested Directors, there shall have been no failure to
declare and pay at the regular date therefor any full quarterly
dividends (whether or not cumulative) payable in accordance with the
terms of any outstanding Capital Stock; (ii) there shall have been no
reduction in the annual rate of dividends paid on the Common Stock
(except as necessary to reflect any stock split, stock dividend or
subdivision of the Common Stock), except as approved by a majority of
the Disinterested Directors; (iii) there shall have been an increase
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
Stockholder's or any such Affiliate's or Associate's percentage
beneficial ownership of any class or series of Capital Stock.
(e) A proxy or information statement describing the proposed
Business Transaction and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (the "Act") (or any subsequent provisions replacing such
Act, rules or regulations) shall be mailed to all stockholders of the
Corporation at least thirty days prior to the consummation of such
Business Transaction (whether or not such proxy or information
statement is required to be mailed pursuant to such Act or subsequent
provisions). The proxy or information statement shall contain on the
first page thereof, in a prominent place, any statement as to the
advisability (or inadvisability) of the Business Transaction that the
Disinterested Directors, or any of them, may choose to make and, if
deemed advisable by a majority of the Disinterested Directors, the
opinion of an investment banking firm selected by a majority of the
Disinterested Directors as to the fairness (or not) of the terms of
the Business Transaction from a financial point of view to the holders
of the outstanding shares of Capital Stock other than such Interested
Stockholder and its Affiliates or Associates, such investment banking
firm to be paid a reasonable fee for its services by the Corporation.
C. The provisions of Section A of this Article NINTH shall not be
applicable to a Stock Repurchase with, or proposed by or on behalf of, an
Interested Stockholder or an Affiliate or Associate of an Interested
Stockholder, and such Stock Repurchase shall require only such affirmative vote,
if any, as is required by law, any other provision of the Certificate of
Incorporation of the Corporation, the
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Bylaws of the Corporation or otherwise, if the conditions specified in either of
the following Paragraph 1 or 2 are met:
1. The Stock Repurchase is made pursuant to a tender offer or exchange
offer for a class of Capital Stock made available on the same basis to all
holders of such class of Capital Stock.
2. The Stock Repurchase is made pursuant to an open market purchase
program approved by a majority of the Disinterested Directors, PROVIDED
that such repurchase is effected on the open market and is not the result
of a privately negotiated transaction.
D. For the purposes of this Article NINTH:
1. The term "Business Transaction" shall mean:
(a) any merger or consolidation of the Corporation with, or any
sale or transfer of all or substantially all of the Corporation's
assets to, (i) any Interested Stockholder or (ii) any other
corporation (whether or not itself an Interested Stockholder) which is
or after such merger, consolidation, sale or transfer would be an
Affiliate or Associate of an Interested Stockholder, or any
liquidation or dissolution of the Corporation (any such merger,
consolidation, sale, transfer, liquidation or dissolution being
referred to herein as a "Business Combination"); or
(b) any other transaction (other than a Stock Repurchase) between
the Corporation or any Subsidiary, on the one hand, and any Interested
Stockholder or any Affiliate or Associate of an Interested
Stockholder, on the other hand, and any amendment to the Bylaws of the
Corporation proposed by or on behalf of any Interested Stockholder or
any Affiliate or Associate of an Interested Stockholder; or
(c) any reclassification of securities (including any reverse
stock split) or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any Subsidiary, or any other
transaction (whether or not with or otherwise involving an Interested
Stockholder) that has the effect, directly or indirectly, of
increasing the percentage beneficial ownership of any class or series
of Capital Stock held by, or the voting power with respect to the
Corporation of,
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any Interested Stockholder or any Affiliate or Associate of any
Interested Stockholder; or
(d) any agreement, contract or other arrangement providing for
any one or more of the actions specified in the foregoing clauses (a)
to (c).
2. The term "Stock Repurchase" shall mean any repurchase by the
Corporation or any Subsidiary of any shares of Capital Stock at a price
greater than the then Fair Market Value of such shares from an Interested
Stockholder or an Affiliate or Associate of an Interested Stockholder if
beneficial ownership of one-quarter or more of all shares of Capital Stock
beneficially owned by such Interested Stockholder and its Affiliates and
Associates were acquired (disregarding shares acquired as part of a
pro-rata stock dividend or stock split) within a period of less than two
years prior to the date of such repurchase (or the date of an agreement in
respect thereof).
3. The term "Capital Stock" shall mean all capital stock of the
Corporation authorized to be issued from time to time under Article FOURTH
of this Amended and Restated Certificate of Incorporation, and the term
"Voting Stock" shall mean all Capital Stock which by its terms may be voted
on all matters submitted to stockholders of the Corporation generally.
4. The term "person" shall mean any individual, firm, corporation or
other entity and shall include any group comprised of any person and any
other person with whom such person or any Affiliate or Associate of such
person has any agreement, arrangement or understanding, directly or
indirectly, for the purpose of acquiring, holding, voting or disposing of
Capital Stock.
5. The term "Interested Stockholder" shall mean any person (other than
any underwriter or similar initial purchaser who acquires such Voting Stock
in connection with a public offering or private placement, the Corporation
or any Subsidiary, or any pension, profit-sharing, employee stock ownership
or other employee benefit plan of the Corporation or any Subsidiary, or any
trustee of or fiduciary with respect to any such plan when acting in such
capacity) who (a) is the beneficial owner of Voting Stock representing ten
percent (10%) or more of the votes entitled to be cast by the holders of
all then outstanding shares of Voting Stock; or (b) is an Affiliate or
Associate of the Corporation and at any time within the two-year period
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immediately prior to the date in question was the beneficial owner of
Voting Stock representing ten percent (10%) or more of the votes entitled
to be cast by the holders of all then outstanding shares of Voting Stock.
6. A person shall be a "beneficial owner" of any Capital Stock (a)
which such person or any of its Affiliates or Associates beneficially owns,
directly or indirectly; (b) which such person or any of its Affiliates or
Associates has, directly or indirectly, (i) the right to acquire (whether
such right is exercisable immediately or subject only to the passage of
time), pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any agreement, arrangement
or understanding; or (c) which are beneficially owned, directly or
indirectly, by any other person with which such person or any of its
Affiliates or Associates has any agreement, arrangement or understanding
for the purpose of acquiring, holding, voting or disposing of any shares of
Capital Stock. For the purposes of determining whether a person is an
Interested Stockholder pursuant to Paragraph 5 of this Section D, the
number of shares of Capital Stock deemed to be outstanding shall include
shares deemed beneficially owned by such person through application of
Paragraph 6 of this Section D, but shall not include any other shares of
Capital Stock that may be issuable pursuant to any agreement, arrangement
or understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
7. A person shall be deemed to be an "Affiliate" of a specified
person, if such person directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, such specified person. A person shall be deemed to be an "Associate"
of a specified person, if such person is (a) a corporation or organization
(other than the Corporation or any Subsidiary) of which such specified
person is an officer or partner or of which such specified person is,
directly or indirectly, the beneficial owner of ten percent (10%) or more
of any class of equity securities, (b) a trust or other estate (other than
any pension, profit-sharing, employee stock ownership or other employee
benefit plan of the Corporation or any Subsidiary) in which such specified
person has a substantial beneficial interest or as to which such specified
person serves as trustee or in a similar fiduciary capacity, or (c) a
relative or spouse of such specified person, or a relative of such spouse,
who has the same home as such specified person.
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8. The term "Subsidiary" means any corporation of which a majority of
any class of equity security is beneficially owned by the Corporation, as
well as any Affiliate of the Corporation which is controlled by the
Corporation; PROVIDED, HOWEVER, that for the purposes of the definition of
Interested Stockholder set forth in Paragraph 5 of this Section D, the term
"Subsidiary" shall mean only a company of which a majority of each class of
equity security is beneficially owned by the Corporation.
9. With respect to any Business Transaction with, or proposed by or on
behalf of, an Interested Stockholder or an Affiliate or Associate of an
Interested Stockholder, and with respect to any proposal of the kind
referred to in Section H of this Article NINTH, which is proposed by or on
behalf of an Interested Stockholder or an Affiliate or Associate of an
Interested Stockholder, the term "Disinterested Director" means any member
of the Board who is not an Affiliate or Associate or representative of such
Interested Stockholder and was a member of the Board prior to the time that
such Interested Stockholder became an Interested Stockholder, and any
successor of a Disinterested Director, while such successor is a member of
the Board, who is not an Affiliate or Associate or representative of such
Interested Stockholder and is recommended or elected to succeed the
Disinterested Director by a majority of Disinterested Directors.
10. The term "Fair Market Value" means (a) in the case of cash, the
amount of such cash; (b) in the case of stock, the highest closing sale
price during the 30-day period immediately preceding the date in question
of a share of such stock on the Composite Tape for New York Stock Exchange
Listed Stocks, or, if such stock is not quoted on the Composite Tape, on
the New York Stock Exchange, or, if such stock is not listed on such
Exchange, on the principal United States securities exchange registered
under the Act on which such stock is listed, or, if such stock is not
listed on any such exchange, the highest closing bid quotation with respect
to a share of such stock during the 30-day period preceding the date in
question on the National Association of Securities Dealers, Inc. Automated
Quotations System or any similar system then in use, or if no such
quotations are available, the fair market value on the date in question of
a share of such stock as determined by a majority of the Disinterested
Directors in good faith, and (c) in the case of property other than cash or
stock, the fair market value of such property on the date in question as
determined in good faith by a majority of the Disinterested Directors.
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11. In the event of any Business Transaction in which the Corporation
survives, the phrase "consideration other than cash to be received" as used
in Paragraphs 2(a) and 2(b) of Section B of this Article NINTH shall
include the shares of Common Stock and/or the shares of any other class or
series of Capital Stock retained by the holders of such shares.
E. A majority of the Disinterested Directors shall have the power and duty
to determine for the purposes of this Article NINTH, on the basis of information
known to them after reasonable inquiry, all questions arising under this Article
NINTH, including, without limitation, (a) whether a person is an Interested
Stockholder, (b) the number of shares of Capital Stock or other securities
beneficially owned by any person, (c) whether a person is an Affiliate or
Associate of another, and (d) whether the consideration to be received in any
Stock Repurchase by the Corporation or any Subsidiary exceeds the then Fair
Market Value of the shares of Capital Stock being repurchased. Any such
determination made in good faith shall be binding and conclusive on all parties.
F. Nothing contained in this Article NINTH shall be construed to relieve
any Interested Stockholder from any fiduciary obligation imposed by law.
G. The fact that any Business Transaction complies with the provisions of
Section B of this Article NINTH shall not be construed to impose any fiduciary
duty, obligation or responsibility on the Board, or any member thereof, to
approve such Business Transaction or recommend its adoption or approval to the
stockholders of the Corporation, nor shall such compliance limit, prohibit or
otherwise restrict in any manner the Board, or any member thereof, with respect
to evaluations of or actions and responses taken with respect to such Business
Transaction.
H. Notwithstanding any other provisions of the Certificate of Incorporation
or the Bylaws of the Corporation (and notwithstanding the fact that a lesser
percentage or separate class vote may be specified by law, the Certificate of
Incorporation or the Bylaws of the Corporation) and in addition to the voting
requirements set forth in Article SEVENTEENTH hereof, any proposal to amend or
repeal, or adopt any provision of the Certificate of Incorporation inconsistent
with, this Article NINTH which is proposed by or on behalf of an Interested
Stockholder or an Affiliate or Associate of an Interested Stockholder shall
require approval by a vote of a majority of the holders of all then outstanding
shares of Voting Stock which are beneficially owned by persons other than such
Interested Stockholder and its Affiliates and Associates, voting together as a
single class; PROVIDED, HOWEVER, that this Section H shall not apply to, and
such majority vote shall not be required for,
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any amendment, repeal or adoption which does not affect the provisions of this
Article NINTH relating to Stock Repurchases and which is recommended by a
majority of the Disinterested Directors, if a majority of the directors then in
office are Disinterested Directors.
TENTH. Meetings of stockholders may be held outside the State of
Delaware, if the Bylaws so provide. The books of the Corporation may be kept
(subject to any provision contained in the statutes) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board or in the Bylaws of the Corporation.
ELEVENTH. Any action required or permitted to be taken at any annual
or special meeting of stockholders may be taken only upon the vote of the
stockholders at an annual or special meeting duly noticed and called, as
provided in the Bylaws of the Corporation, and may not be taken by a written
consent of the stockholders pursuant to the GCL.
TWELFTH. Special meetings of stockholders of the Corporation for any
purpose or purposes may be called at any time by the Chairman of the Board, the
President or a majority of the entire Board. Special meetings of the
stockholders of the Corporation may not be called by any other person or
persons.
THIRTEENTH: No director of the Corporation shall be personally liable
to the Corporation or its stockholders for monetary damages for any breach of
fiduciary duty by such a director as a director to the full extent authorized or
permitted by law (as now or hereafter in effect). Notwithstanding the foregoing
sentence, a director shall be liable to the extent provided by applicable law
(i) for any breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
174 of the GCL or (iv) for any transaction from which the director derived an
improper personal benefit. No amendment to or repeal of this Article THIRTEENTH
shall apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment or repeal.
FOURTEENTH. Advance notice of new business and stockholder
nominations for the election of directors shall be given in the manner and to
the extent provided in the Bylaws of the Corporation.
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FIFTEENTH. The private property of the stockholders of this
Corporation shall not be subject to the payment of corporate debts to any extent
whatsoever.
SIXTEENTH. The officers and directors of the Corporation, and such
other persons as authorized by a majority of the entire Board consistent with
the provisions of the GCL shall be indemnified by the Corporation to the fullest
extent authorized or permitted by law (as now or hereafter in effect).
SEVENTEENTH. The Corporation reserves the right to adopt, amend,
alter or repeal any provisions contained in the Certificate of Incorporation in
the manner now or hereafter prescribed by the statutes of the State of Delaware
and the Certificate of Incorporation, and all rights herein conferred on
stockholders are expressly subject to this reservation. Notwithstanding
anything contained in the Certificate of Incorporation to the contrary, the
affirmative vote of the holders of at least eighty percent (80%) of the
outstanding stock of the Corporation entitled to vote thereon shall be required
to adopt, amend, alter or repeal any provision inconsistent with Articles FIFTH,
SEVENTH, EIGHTH, NINTH, ELEVENTH, TWELFTH, THIRTEENTH, SIXTEENTH and SEVENTEENTH
of the Certificate of Incorporation.
IN WITNESS WHEREOF, Consolidated Freightways Corporation has caused
this Amended and Restated Certificate of Incorporation to be signed by Maryla R.
Boonstoppel, its Secretary, this 21st day of November, 1996.
CONSOLIDATED FREIGHTWAYS
CORPORATION
/s/ Maryla R. Boonstoppel
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