View:
As filed with the Securities and Exchange Commission
on June 27, 1996.
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________
CONTINENTAL AIRLINES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 74-2099724
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2929 Allen Parkway
Houston, Texas 77019
(Address of principal executive offices)
(Zip Code)
______________
CONTINENTAL AIRLINES, INC.
1994 INCENTIVE EQUITY
PLAN
(Full title of the plan)
______________
Jeffery A. Smisek
Senior Vice President and
General Counsel
Continental Airlines, Inc.
2929 Allen Parkway, Suite 2010
Houston, Texas 77019
(Name and address of agent for service)
(713) 834-2950
(Telephone number, including area code, of agent for service)
______________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
Securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share (1) price (1) fee
Class B Common 1,500,000 $59.625 $89,437,500 $30,841
Stock, par
value $.01
per share
(1) Estimated solely for the purpose of calculating the
registration fee which, pursuant to Rule 457(c), is based on the
average of the high and low prices of the Class B Common Stock
reported on the New York Stock Exchange on June 21, 1996.
Pursuant to General Instruction E to Form S-8, the undersigned
Registrant hereby incorporates herein by this reference the
contents of Registration Statements Nos. 33-81324 and 33-60009
relating to the Registrant's 1994 Incentive Equity Plan; provided
that:
(i) Item 5 thereof, "Interest of Named Experts and Counsel",
is hereby replaced in its entirety by the following paragraph:
"Certain legal matters with respect to the Class B
common stock offered hereby are being passed upon by Jeffery
A. Smisek, Senior Vice President and General Counsel of the
Registrant.
(ii) Item 6 thereof, "Indemnification of Directors and
Officers", is hereby replaced in its entirety with the following:
"The Company's Certificate of Incorporation and bylaws
provide that the Company will indemnify each of its directors
and officers to the full extent permitted by the laws of the
State of Delaware and may indemnify certain other persons as
authorized by the Delaware General Corporation Law (the
"GCL"). Section 145 of the GCL provides as follows:
"(a) 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, administrative or
investigative (other than an action by or in the right
of the corporation) by reason of the fact that he 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 in
connection with such action, suit or proceeding if he
acted in good faith and in a manner he 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 conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a
manner which he 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
reasonable cause to believe that his conduct was
unlawful.
(b) 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 or suit by or in
the right of the corporation to procure a judgment in
its favor by reason of the fact that he 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)
actually and reasonably incurred by him in connection
with the defense or settlement of such action or suit if
he acted in good faith and in a manner he 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 Court of Chancery or the court in which such
action or suit was brought shall determine upon
application that, despite the adjudication of liability
but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity
for such expenses which the Court of Chancery or such
other court shall deem proper.
(c) To the extent that a director, officer,
employee or agent of a corporation has been successful
on the merits or otherwise in defense of any action,
suit or proceeding referred to in subsections (a) and
(b) of this section, or in defense of any claim, issue
or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and
(b) of this section (unless ordered by a court) shall be
made by the corporation only as authorized in the
specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in
the circumstances because he has met the applicable
standard of conduct set forth in subsections (a) and
(b). Such determination shall be made (1) by a majority
vote of the board of directors who are not parties to
such action, suit or proceeding, even though less than
a quorum, or (2) if there are no such directors, or if
such directors so direct, by independent legal counsel
in a written opinion, or (3) by the stockholders.
(e) Expenses (including attorneys' fees) incurred
by an officer or director in defending any civil,
criminal, administrative, or investigative action, suit
or proceeding may be paid by the corporation in advance
of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount
if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation as
authorized in this section. Such expenses (including
attorneys' fees) incurred by other employees and agents
may be so paid upon such terms and conditions, if any,
as the board of directors deems appropriate.
(f) The indemnification and advancement of
expenses provided by, or granted pursuant to, the other
subsections of this section shall not be deemed
exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to
action in another capacity while holding such office.
(g) A corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was
a director, officer, employee or agent of the
corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust
or other enterprise against any liability 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 this section.
(h) For purposes of this section, references to
"the corporation" shall include, in addition to the
resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate
existence had continued, would have had power and
authority to indemnify its directors, officers, and
employees or agents, so that any person who is or was a
director, officer, employee or agent for such
constituent corporation, or is or was serving at the
request of such constituent corporation as a director,
officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise,
shall stand in the same position under this section with
respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation
if its separate existence had continued.
(i) For purposes of this section, references to
"other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request
of the corporation" shall include any service as a
director, officer, employee or agent of the corporation
which imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an
employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and
in a manner he reasonably believed to be in the interest
of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner
"not opposed to the best interests of the corporation"
as referred to in this section.
j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this section shall,
unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of
such a person.
(k) The Court of Chancery is hereby vested with
exclusive jurisdiction to hear and determine all actions
for advancement of expenses or indemnification brought
under this section or under any bylaw, agreement, vote
of stockholders or disinterested directors, or
otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses
(including attorneys' fees)."
The Certificate of Incorporation and bylaws also limit
the personal liability of directors to the Company and its
stockholders for monetary damages resulting from certain
breaches of the directors' fiduciary duties. The bylaws of
the Company provide as follows:
"No Director of the Corporation shall be personally
liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a
Director, except for liability (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) under Section 174 of the
. . . GCL, or (iv) for any transaction from which the
Director derived any improper personal benefit. If the
GCL is amended to authorize corporate action further
eliminating or limiting the personal liability of
Directors, then the liability of Directors of the
Corporation shall be eliminated or limited to the full
extent permitted by the GCL, as so amended."
The Company maintains directors' and officers' liability
insurance.
Insofar as the indemnification for liabilities arising
under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has
been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public
policy as expressed in the Securities 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 Securities Act
and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1934,
the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Houston, State of Texas, on June 26, 1996.
CONTINENTAL AIRLINES, INC.
by: /s/ JEFFERY A. SMISEK
Jeffery A. Smisek
Senior Vice President
and General Counsel
POWER OF ATTORNEY
Each of the undersigned directors and officers of Continental
Airlines, Inc. does hereby constitute and appoint Jeffery A.
Smisek, Scott R. Peterson, Sarah E. Hagy, or any of them, as the
undersigned's true and lawful attorneys-in-fact and agents to do
any and all acts and things in the undersigned's name and behalf in
the undersigned's capacities as director and/or officer, and to
execute any and all instruments for the undersigned and in the
undersigned's name in the capacities indicated below which such
person or persons may deem necessary or advisable to enable
Continental Airlines, Inc. to comply with the Securities Act of
1933, as amended, and any rules, regulations and requirements of
the Securities and Exchange Commission in connection with this
Registration Statement, including specifically, but not limited to,
power and authority to sign for the undersigned in the capacities
indicated below any and all amendments (including post-effective
amendments) hereto, and the undersigned does hereby ratify and
confirm all that such person or persons shall do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacity and on the dates indicated.
Signature Title Date
/s/ GORDON M. BETHUNE President, Chief June 26, 1996
Gordon M. Bethune Executive Officer
(Principal Executive
Officer and Director)
/s/ LAWRENCE W. KELLNER Senior Vice President June 26, 1996
Lawrence W. Kellner and Chief Financial
Officer (Principal
Financial Officer)
/s/ MICHAEL P. BONDS Vice President and June 26, 1996
Michael P. Bonds Controller (Principal
Accounting Officer)
/s/ DAVID BONDERMAN Director June 26, 1996
David Bonderman
Director
Thomas J. Barrack, Jr.
/s/ GREGORY D. BRENNEMAN Chief Operating June 26, 1996
Gregory D. Brenneman Officer and Director
/s/ PATRICK FOLEY Director June 26, 1996
Patrick Foley
Director
Douglas H. McCorkindale
/s/ GEORGE G.C. PARKER Director June 26, 1996
George G.C. Parker
/s/ RICHARD W. POGUE Director June 26, 1996
Richard W. Pogue
/s/ WILLIAM S. PRICE Director June 26, 1996
William S. Price
/s/ DONALD L. STURM Director June 26, 1996
Donald L. Sturm
/s/ KAREN HASTIE WILLIAMS Director June 26, 1996
Karen Hastie Williams
/s/ CHARLES A. YAMARONE Director June 26, 1996
Charles A. Yamarone
EXHIBIT INDEX
Exhibit No. Description
4.1(a) Amended and Restated Certificate of
Incorporation of the Company.
4.1(b) Certificate of Designations of Series A 12%
Cumulative Preferred Stock (incorporated by
reference to Exhibit 4.3 to the Company's
Quarterly Report on Form 10-Q for the quarter
ended June 30, 1995).
4.2 By-Laws of the Company.
4.3(a) Continental Airlines, Inc. 1994 Incentive
Equity Plan (incorporated by reference to
Exhibit 4.3 to the Company's Form S-8
Registration Statement (No. 33-81324)).
4.3(b) First Amendment to Continental Airlines, Inc.
1994 Incentive Equity Plan (incorporated by
reference to Exhibit 10.1 to the Company's
Quarterly Report on Form 10-Q for the quarter
ended September 30, 1995).
4.3(c) Second Amendment to Continental Airlines, Inc.
1994 Incentive Equity Plan.
5 Opinion of Senior Vice President and General
Counsel.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Senior Vice President and General
Counsel (included in Exhibit 5).
EXHIBIT 4.1(a)
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CONTINENTAL AIRLINES, INC.
Filed in accordance with Sections 103, 242 and
245 of the General Corporation Law of the State of Delaware
and amended and restated in its entirety on June 26, 1996.
(This Corporation was originally incorporated under the
name People Express, Inc. on April 7, 1980.)
FIRST: The name of this corporation is Continental Airlines, Inc.
(the "Corporation").
SECOND: The address of the Corporation's registered office in the
State of Delaware is 1209 Orange Street, in the City of Wilmington,
County of New Castle. The name of the Corporation's registered
agent at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware ("GCL").
FOURTH: The total number of shares of all classes of capital
stock which the Corporation shall have the authority to issue is
310 million shares, par value $.01 per share, of which 10 million
shall be Preferred Stock ("Preferred Stock"), 50 million shall be
Class A Common Stock ("Class A Common Stock"), 200 million shall be
Class B Common Stock ("Class B Common Stock") and 50 million shall
be Class D Common Stock ("Class D Common Stock" and collectively
with Class A Common Stock and Class B Common Stock, "Common
Stock"). The powers, designations, preferences and relative,
participating, optional or other special rights, if any, and the
qualifications, limitations or restrictions of each class of stock
shall be governed by the following provisions:
SECTION 1. Preferred Stock. The Preferred Stock may be issued
from time to time in one or more series. The Board of Directors
is hereby authorized (i) to provide by resolution or resolutions
from time to time for the issuance of shares of Preferred Stock
in one or more series, (ii) to establish from time to time the
number of shares to be included in each such series, (iii) (to
the extent not expressly provided for herein) to fix the
designations, powers, preferences and relative, participating,
optional or other special rights of the shares of each such
series and the qualifications, limitations or restrictions, if
any, thereof, by filing one or more certificates pursuant to the
GCL (hereinafter, referred to as a "Preferred Stock
Designation"), and (iv) to increase or decrease the number of
shares of any such series to the extent permitted by the GCL and
the Preferred Stock Designation. The authority of the Board of
Directors with respect to each series shall include, but not be
limited to, determination of the following:
(i) The designation of the series, which may be by
distinguishing the number, letter or title of such series.
(ii) The number of shares of the series.
(iii) Whether dividends, if any, shall be paid in cash or
in capital stock or other securities, whether such dividends
shall be cumulative (and, if so, from which date or dates for
each such series) or noncumulative, the preference or relation
which such dividends, if any, shall bear to the dividends
payable on any other class or classes or any other series of
capital stock, and the dividend rate, if any, of the series.
(iv) Conditions and dates upon which dividends, if any,
shall be payable.
(v) The redemption rights and redemption price or prices,
if any, for shares of the series.
(vi) The terms and amount of any sinking fund provided for
the purchase or redemption of shares of the series.
(vii) The amounts payable on and the preferences, if any,
of shares of the series in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
affairs of the Corporation.
(viii) Whether the shares of the series shall be
convertible into or exchangeable for shares of any other class
or series of capital stock, or any other security, of the
Corporation or any other corporation and, if so, the
specification of such other class or series or such other
security, the conversion or exchange price or prices or rate
or rates, any adjustments thereof, the date or dates at which
such shares shall be convertible or exchangeable and all other
terms and conditions upon which such conversion or exchange
may be made.
(ix) Restrictions on the issuance of shares of the same
series or of any other class or series.
(x) The voting rights, if any, of the holders of shares of
the series, whether as a class or otherwise, with respect to
the election of directors or otherwise.
(xi) The price or other consideration for which shares of
the series shall be issued and, if deemed desirable, the
stated value or other valuation of the shares constituting
such series.
(xii) Any other relative rights, preferences and
limitations of that series.
Notwithstanding anything to the contrary in this Amended and
Restated Certificate of Incorporation or in a Preferred Stock
Designation, the holders of Preferred Stock shall not be entitled
to vote separately as a class with respect to any amendment to this
Amended and Restated Certificate of Incorporation to increase the
number of authorized shares of Preferred Stock.
SECTION 2. Common Stock. All shares of Common Stock shall be
identical and will entitle the holders thereof to the same
rights and privileges, except as otherwise provided herein.
Except as may be provided herein or in a Preferred Stock
Designation, the holders of shares of Common Stock shall be
entitled to receive, when and if declared by the Board of
Directors, out of the assets of the Corporation which are by law
available therefor, dividends payable either in cash, in stock
or otherwise.
(a) Ownership Restrictions. In addition to the restrictions
contained in Article Sixth, shares of Class D Common Stock shall
be issued only to Air Partners, L.P., a Texas limited
partnership, or any successor partnership thereto by merger,
consolidation or other similar transaction, or to any 100% Party
Subsidiary of Air Partners ("Air Partners"), in exchange for
shares of Class A Common Stock pursuant to Section 2(e) of this
Article Fourth. As used in this Amended and Restated Certificate
of Incorporation, the term "100% Party Subsidiary" means, with
respect to any Person, any entity as to which 100% of the
capital stock (other than directors' qualifying shares and the
like) is Beneficially Owned (as defined in Article Sixth,
Section 3), directly or indirectly, by such Person, and "Person"
means any person or entity of any nature whatsoever,
specifically including an individual, a firm, a company, a
corporation, a partnership, a trust or other entity.
(b) Voting Rights.
(i) Except as provided in Article Sixth, each registered
holder of Class A Common Stock and Class D Common Stock shall
be entitled to ten votes for each share of such stock held by
such holder, and each registered holder of Class B Common
Stock shall be entitled to one vote for each share of such
stock held by such holder.
(ii) Except as otherwise provided in this Article Fourth or
required by law,
(A) Class A Common Stock and Class B Common Stock, voting
together as a single class and Class D Common Stock, voting
as a class, shall be entitled to elect directors of the
Corporation as provided for in Section 1 of Article Fifth;
and
(B) Common Stock shall be entitled, voting together as a
single class, to vote on all other matters submitted to a
vote of stockholders of the Corporation.
(c) Dividends. Any dividend or distribution on the Common
Stock shall be payable on shares of Common Stock ratably;
provided, however, that in the case of dividends payable in
shares of Common Stock, or options, warrants or rights to
acquire shares of such Common Stock, or securities convertible
into or exchangeable for shares of such Common Stock, the
shares, options, warrants, rights or securities so payable
shall be payable in shares of, or options, warrants or rights
to acquire, or securities convertible into or exchangeable
for, Common Stock of the same class upon which the dividend or
distribution is being paid.
(d) Liquidation. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation, after payment or provision for payment of the
debts and other liabilities of the Corporation, including the
liquidation preferences of any series of Preferred Stock, the
holders of shares of all classes of Common Stock shall be
entitled to share ratably in the remaining net assets of the
Corporation. Neither the merger or consolidation of the
Corporation, nor the sale, lease or conveyance of all or part
of its assets, shall be deemed to be a liquidation,
dissolution or winding up of the Corporation, either
voluntarily or involuntarily, within the meaning of this
Section 2(d).
(e) Conversion. The conversion of shares of the Corporation
under this Section 2(e) shall be effected by the surrender of
the certificate or certificates representing the shares to be
converted (the "Converting Shares") at the principal office of
the Corporation's transfer agent for Common Stock at any time
during its usual business hours, together with written notice
by the surrendering stockholder, stating that such holder
desires to convert the Converting Shares into an equal number
of shares of the class of Common Stock into which such shares
may be converted under this Section 2(e) the ("Conversion
Shares"). Such notice shall certify that the Conversion Shares
are being issued in accordance with Section 2(a) hereof (if
such section is applicable) and this Section 2(e) and shall
also state the name or names (with addresses) and
denominations in which the certificate or certificates for
Conversion Shares are to be issued and shall include
instructions for the delivery thereof. Promptly after such
surrender and the receipt of such written notice, the
Corporation will, subject to the provisions of Section 2(a)
hereof (if such section is applicable), issue and deliver in
accordance with the surrendering holder's instructions the
certificate or certificates evidencing the Conversion Shares
issuable upon such conversion. Such conversion, to the extent
permitted by law, shall be deemed to have been effected as of
the close of business on the date on which the certificate or
certificates representing the Converting Shares shall have
been surrendered and the notice of conversion shall have been
received by the Corporation, and at such time, subject to the
provisions of Section 2(a) hereof, the rights of the holder of
the Converting Shares as such holder shall cease and the
Person or Persons in whose name or names the certificate or
certificates for the Conversion Shares are to be issued upon
such conversion shall be deemed to have become the holder or
holders of record of the Conversion Shares. Upon issuance of
shares in accordance with this Section 2(e), such Conversion
Shares shall be deemed to be duly authorized, validly issued,
fully paid and non-assessable. The right of Air Partners to
convert Converting Shares into Conversion Shares pursuant to
each of clauses (i) and (vi) of this Section 2(e) may be
exercised by Air Partners only once, and after any such
conversion by Air Partners pursuant to clause (i) or (vi) of
this Section 2(e), no further shares of Common Stock shall be
converted by Air Partners into Conversion Shares pursuant to
such clause.
(i) If at any time (A) the total number of outstanding
shares of Class A Common Stock and Class B Common Stock
held by Air Canada, a Canadian corporation, or any
successor to Air Canada by merger, consolidation or other
similar transaction, or any 100% Party Subsidiary of Air
Canada ("Air Canada") and Air Partners shall not constitute
more than 50% of the voting power of the outstanding shares
of Common Stock or (B) Section 7.01 of the Subscription and
Stockholders' Agreement, dated as of April 27, 1993, among
the Corporation, Air Partners and Air Canada, as it may be
amended or modified from time to time, shall no longer be
in full force and effect, Air Partners shall be entitled to
convert all, but not less than all, shares of Class A
Common Stock held by Air Partners into an equal number of
Class D Common Stock, provided the Class A Common Stock and
Class B Common Stock Beneficially Owned by Air Partners at
the time of such conversion constitutes at least 20% of the
voting power of the outstanding shares of Common Stock.
Converting Shares received by the Corporation upon
surrender hereunder shall not be canceled, but shall be
held by the Corporation as treasury shares.
(ii) If at any time the total number of outstanding
shares of Class D Common Stock and Class B Common Stock
Beneficially Owned by Air Partners shall constitute less
than 20% of the voting power of the outstanding shares of
Common Stock, the shares of Class D Common Stock shall be
converted automatically, without any action on the part of
the holder thereof, into an equal number of shares of Class
A Common Stock, and at any time upon or after such a
conversion, upon presentation to the Corporation's transfer
agent for transfer or exchange of the certificate or
certificates representing such shares of Class D Common
Stock, a certificate or certificates representing an equal
number of shares of Class A Common Stock shall be issued in
exchange therefor. Upon any such conversion, the shares of
Class D Common Stock so converted shall be canceled by the
Corporation.
(iii) Each share of Class D Common Stock shall convert
automatically, without any action on the part of the
registered holder thereof, into one share of Class A Common
Stock, upon the transfer of record or beneficial ownership
thereof to any Person other than a transfer of Class D
Common Stock to a successor partnership by merger,
consolidation or other similar transaction of Air Partners
or to a 100% Party Subsidiary of Air Partners; provided
that if a 100% Party Subsidiary of Air Partners that has
acquired Class D Common Stock ceases to be a 100% Party
Subsidiary of Air Partners, each share of Class D Common
Stock beneficially owned by such 100% Party Subsidiary of
Air Partners shall convert automatically, without any
action on the part of the registered holder thereof, into
one share of Class A Common Stock; provided, further that
no change-in-control or change in ownership of Air Partners
shall constitute a transfer of record or beneficial
ownership for purposes of this sentence. Upon any such
conversion, the shares of Class D Common Stock so converted
shall be canceled by the Corporation. As used in this
Amended and Restated Certificate of Incorporation,
"Affiliate" means any Person that directly, or indirectly
through one or more intermediaries, controls, is controlled
by, or is under common control with the Person specified
(as used in this definition, "control" (including, with its
correlative meanings "controlled by" and "under common
control with") shall mean ownership, directly or
indirectly, of 50.1% or more of the securities having
ordinary voting power for the election of directors or
other governing body of a corporation or 50.1% or more of
the partnership or other ownership interests of any other
Person (other than as a Limited Partner of such Person)).
(iv) Notwithstanding anything to the contrary in this
Amended and Restated Certificate of Incorporation, no
shares of Class B Common Stock Beneficially Owned by Air
Partners shall be entitled to vote in any election of
Directors of the Corporation at any time that any shares of
Class D Common Stock shall be outstanding.
(v) Each share of Class A Common Stock which shall become
Beneficially Owned by Air Partners at any time that any
shares of Class D Common Stock shall be outstanding shall
convert immediately and without any action on the part of
the registered holder thereof into one share of Class D
Common Stock. Converting shares received by the Corporation
upon surrender hereunder shall not be canceled, but shall
be held by the Corporation as treasury shares.
(vi) Each holder of Class D Common Stock shall have the
right to convert all, but not less than all, of its shares
of Class D Common Stock into an equal number of shares of
Class A Common Stock. Upon any such conversion, the shares
of Class D Common Stock, as the case may be, so converted
shall be canceled by the Corporation.
(vii) Each holder of Class A Common Stock shall have the
right to convert, at any time and from time to time after
January 1, 1997, any or all shares of Class A Common Stock
held of record by it into an equal number of shares of
Class B Common Stock. Upon any such conversion, the shares
of Class A Common Stock so converted shall be canceled by
the Corporation.
(viii) The Corporation shall at all times reserve and
keep available out of its authorized but unissued (or
authorized and held in treasury) shares of (A) Class A
Common Stock, solely for the purposes of issuance upon the
conversion of shares of Class D Common Stock pursuant to
clauses (ii), (iii) or (vi) of this Section 2(e), such
number of shares of such class as may at any time be
issuable upon the conversion of all issued and outstanding
shares of Class D Common Stock and (B) Class B Common
Stock, solely for the purpose of issuance upon the
conversion of Class A Common Stock by a holder thereof
pursuant to clause (vii) of this Section 2(e), such number
of shares of such class as may at any time be issuable upon
the conversion of all issued and outstanding shares of
Class A Common Stock.
FIFTH: The Board of Directors of the Corporation shall consist
of such number of directors as may be determined from time to time
by the Board of Directors in its sole discretion in accordance with
Section 2.1 of the By-Laws of the Corporation, subject to the
rights of the holders of any class or series of preferred stock of
the Corporation, as set forth in a Preferred Stock Designation, to
elect additional Directors under specified circumstances, and shall
be subject to the following provisions:
SECTION 1. Election. The Board of Directors shall be elected as
follows:
(a) at any time no shares of Class D Common Stock are
outstanding, holders of Class A Common Stock and Class B Common
Stock, voting as a single class, shall elect all directors of
the Corporation (other than directors, if any, which holders of
any series of Preferred Stock are entitled to elect pursuant to
the provisions of the certificate of designations establishing
such series); or
(b) at any time shares of Class D Common Stock are outstanding
(i) holders of Class D Common Stock, if any, shall be entitled
to elect one-third of the number of directors determined by the
Board of Directors pursuant to the initial paragraph of Article
Fifth, with fractional directors rounded to the nearest whole
number, and (ii) holders of Class A Common Stock and, subject to
Article Fourth, Section 2(e)(iv), Class B Common Stock, voting
together as a single class, shall be entitled to elect the
remaining directors (other than directors, if any, which holders
of any series of Preferred Stock are entitled to elect pursuant
to the provisions of the certificate of designations
establishing such series).
Except as otherwise consistent with applicable statutory,
regulatory and interpretive restrictions regarding foreign
ownership or control of U.S. air carriers, all directors shall be
U.S. Citizens (as defined in Article Sixth, Section 1 hereof). The
election of directors need not be by written ballot except as may
otherwise be provided in the By-laws. In connection with each
annual election of directors of the Corporation, the Board of
Directors shall nominate the Chief Executive Officer of the
Corporation for election as a director.
SIXTH:
SECTION 1. Limitation of Voting Rights. Notwithstanding
anything to the contrary contained in this Amended and Restated
Certificate of Incorporation, at no time shall shares of capital
stock of the Corporation be voted by, or at the direction of,
Persons ("Aliens") who are not "Citizens of the United States"
as defined in 49 U.S.C. 1301(16), as now in effect or as it may
hereafter from time to time be amended ("U.S. Citizens"), unless
such shares are registered on the separate stock record
maintained by the Corporation for the registration of ownership
of Voting Stock, as defined in the By-Laws, by Aliens. The By-
Laws may contain provisions to implement this provision.
SECTION 2. By-Laws, Etc.
(a) The By-Laws of the Corporation may make appropriate
provisions to effect the requirements of this Article Sixth.
(b) All certificates representing Common Stock or any other
Voting Stock of the Corporation are subject to the restrictions
set forth in this Article Sixth.
(c) A majority of the directors of the Corporation shall have
the exclusive power to determine all matters necessary to
determine compliance with this Article Sixth; and the good faith
determination of a majority of the directors on such matters
shall be conclusive and binding for all the purposes of this
Article Sixth.
SECTION 3. Beneficial Ownership Inquiry.
(a) The Corporation may by notice in writing (which may be
included in the form of proxy or ballot distributed to
stockholders of the Corporation in connection with the annual
meeting (or any special meeting) of the stockholders of the
Corporation, or otherwise) require a Person that is a holder of
record of equity securities of the Corporation or that the
Corporation knows to have, or has reasonable cause to believe
has, Beneficial Ownership of equity securities of the
Corporation to certify in such manner as the Corporation shall
deem appropriate (including by way of execution of any form of
proxy or ballot by such Person) that, to the knowledge of such
Person:
(i) all equity securities of the Corporation as to which
such Person has record ownership or Beneficial Ownership are
owned and controlled only by U.S. Citizens; or
(ii) the number and class or series of equity securities of
the Corporation owned of record or Beneficially Owned by such
Person that are owned or controlled by Aliens are as set forth
in such certificate.
As used herein, "Beneficial Ownership," "Beneficially Owned,"
or "Owned Beneficially" refers to beneficial ownership as
defined in Rule 13d-3 (without regard to the 60-day provision in
paragraph (d)(l)(i) thereof) under the Securities Exchange Act
of 1934, as amended.
(b) With respect to any equity securities identified by such
Person in response to Section 3(a)(ii) of this Article Sixth,
the Corporation may require such Person to provide such further
information as the Corporation may reasonably require in order
to implement the provisions of this Article Sixth.
(c) For purposes of applying the provisions of this Article
Sixth with respect to any equity securities of the Corporation,
in the event of the failure of any Person to provide the
certificate or other information to which the Corporation is
entitled pursuant to this Section 3, the Corporation shall
presume that the equity securities in question are owned or
controlled by Aliens.
SEVENTH: Air Partners ("Investor") shall have the right to
purchase Class B Common Stock from the Corporation in order to
maintain its percentage ownership of the issued and outstanding
shares of Class B Common Stock (its "Relative Class B Position").
Class B Common Stock purchased from the Corporation pursuant to
this Article Seventh is hereinafter called "Additional Shares."
SECTION 1. Semi-Annual Adjustments for Minor Issuances. (a)
The Corporation shall deliver to Investor a written notice (a
"Dilution Notice") no later than January 15 and July 15 in each
year indicating the calculation as of the preceding December 31
and June 30, respectively, of the number of Additional Shares,
if any, that Investor may acquire in order to maintain its
Relative Class B Position to the extent diluted as a result of
increases in outstanding Class B Common Stock due to issuances
of Class B Common Stock which, in any single transaction, did
not have the effect of causing Investor's Relative Class B
Position to be reduced by more than five percentage points. Such
Dilution Notice shall also set forth the per share price for
such Additional Shares which shall be the average of the "close"
prices (the "Close Prices") of Class B Common Stock as reported
in The Wall Street Journal (or as otherwise reasonably
determined by the Board of Directors if such price is not so
reported) on the last trading day of each week during the six-
month period preceding the date as of which the calculation is
made (the "Calculation Period"). If within 30 days of the
delivery of such Dilution Notice, Investor advises the
Corporation in writing of its desire to purchase such Additional
Shares, the Corporation shall sell and Investor shall purchase
such Additional Shares in accordance with Section 5 of this
Article Seventh.
(b) In the event that any stock split, reverse stock split,
combination of shares, recapitalization, merger, consolidation
or other reorganization (each of the foregoing, a "Transaction")
occurs during the Calculation Period, the Close Prices utilized
in the calculation of the per share price for Additional Shares
shall be adjusted in an appropriate manner so as to give effect
to the Transaction and maintain, mutatis mutandis, the rights
granted Investor under Section 1(a) of this Article Seventh. The
determination of any such adjustment shall be made by the Board
of Directors of the Corporation, which determination shall be
final.
SECTION 2. Adjustment for Public Offerings. If the Corporation
at any time shall propose to register under the Securities Act
of 1933, as amended, shares of Class B Common Stock to be
offered for sale by the Corporation in an underwritten public
offering, the Corporation shall advise Investor by written
notice of such proposal. Such notice shall set forth the
estimated number of Additional Shares that Investor may purchase
from, at the Corporation's sole discretion, either the
Corporation or any underwriter in order to maintain its Relative
Class B Position upon the closing of the offering. If within 15
days of the date such notice is delivered, Investor advises the
Corporation by notice that it elects to maintain its Relative
Class B Position on a post-offering basis, Investor shall
purchase and the Corporation shall cause the number of
Additional Shares necessary to maintain Investor's Relative
Class B Position to be sold to Investor. Such purchase and sale
shall occur as of the closing of the sale of the Class B Common
Stock in the underwritten public offering at the public offering
price. Prior to the closing of any offering, the Corporation may
change the size or terms thereof, may accelerate or delay the
closing thereof, may withdraw the offering entirely and may take
all other actions which the Corporation, in its sole discretion,
may consider necessary or appropriate in connection therewith;
provided, however, that the Corporation shall use its best
efforts to promptly advise Investor of any such actions.
SECTION 3. Other Significant Issuances. If the Corporation
issues shares of Class B Common Stock in any transaction other
than an underwritten public offering which has the effect of
causing Investor's Relative Class B Position to be reduced by
more than five percentage points, the Corporation shall by
notice advise Investor of such transaction. Such notice shall
set forth (i) the number of Additional Shares that Investor may
purchase in order to maintain its Relative Class B Position
after giving effect to such proposed issuance, and (ii) the cash
purchase price therefor. If such transaction involves the
issuance of Class B Common Stock solely in consideration for
cash, such purchase price shall be the cash price per share at
which shares of Class B Common Stock were issued in such
transaction. If such transaction involves the issuance of Class
B Common Stock other than solely in consideration for cash, such
purchase price shall be the fair market value of such
consideration per share as determined by a United States
headquartered investment banking firm designated by the
Corporation and reasonably acceptable to Investor. Absent
manifest error, such determination shall be final. If within 15
days of the date such notice is delivered, Investor advises the
Corporation by notice of its desire to purchase such Additional
Shares, the Corporation shall sell and Investor shall purchase
such Additional Shares in accordance with Section 5 of this
Article Seventh.
SECTION 4. Failure to Maintain Minimum Holdings. If the total
voting power of the Common Stock Beneficially Owned by Investor
is less than 20% of the total voting power of all of the
outstanding Common Stock, Investor's rights and the
Corporation's obligations with respect to Investor under this
Article Seventh shall terminate.
SECTION 5. Sales; Payments. All sales of Additional Shares
shall be concluded as promptly as practicable and all payments
shall be in U.S. Dollars in immediately available funds.
SECTION 6. Reservation of Shares. The Corporation at all times
shall reserve an appropriate number of shares from its
authorized but unissued Class B Common Stock for issuance as
Additional Shares pursuant to this Article Seventh. Upon
issuance, all Additional Shares issued pursuant to this Article
Seventh shall be deemed duly authorized, validly issued, fully
paid and non-assessable.
EIGHTH: Except as otherwise expressly provided herein, the Board
of Directors is expressly authorized to adopt, amend or repeal the
By-Laws of the Corporation.
NINTH: Effective as of the Consummation Date (as defined in the
Investment Agreement, dated November 9, 1992, among Air Canada, Air
Partners, the Corporation and Continental Airlines Holdings, Inc.,
as amended), the Corporation elects not to be governed by Section
203 of the General Corporation Law of the State of Delaware.
TENTH: No Director of the Corporation shall be personally liable
to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a Director, except for liability (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) under Section 174 of the GCL, or (iv) for any
transaction from which the Director derived any improper personal
benefit. If the GCL is amended after the date of the filing of this
Amended and Restated Certificate of Incorporation to authorize
corporate action further eliminating or limiting the personal
liability of directors, then the liability of a Director of the
Corporation shall be eliminated or limited to the fullest extent
permitted by the GCL, as so amended. No amendment to or repeal of
this Article Tenth shall affect in a manner adverse to any such
Director the liability or alleged liability of such Director for or
with respect to any acts or omissions of such Director or member
occurring prior to such amendment or repeal.
ELEVENTH: The corporation shall indemnify, to the full extent
permitted by the laws of the State of Delaware as from time to time
in effect, each Director and officer of the Corporation, and may
indemnify each employee and agent of the Corporation, and all other
persons whom the Corporation is authorized to indemnify under the
provisions of the GCL.
TWELFTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Amended and
Restated Certificate of Incorporation, and any other provisions
authorized by the laws of the State of Delaware at the time in
force may be added or inserted, in the manner now or hereafter
prescribed by law and this Amended and Restated Certificate of
Incorporation; and all rights, preferences and privileges of
whatsoever nature and conferred upon stockholders, directors or any
other Persons whomsoever by and pursuant to this Amended and
Restated Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the right reserved in this
Article Twelfth.
IN WITNESS WHEREOF, the undersigned officers of the Corporation
subscribe this Amended and Restated Certificate of Incorporation
and affirm that this instrument is the act and deed of the
Corporation and the facts stated herein are true this 26th day of
June, 1996.
CONTINENTAL AIRLINES, INC.
By: /S/ JEFFERY A. SMISEK
Name: Jeffery A. Smisek
Title: Senior Vice President and
General Counsel
ATTEST:
By: /S/ SCOTT R. PETERSON
Name: Scott R. Peterson
Title: Assistant Secretary
EXHIBIT 4.2
BY-LAWS
OF
CONTINENTAL AIRLINES, INC.
Including all amendments through June 26, 1996
TABLE OF CONTENTS
Page
ARTICLE I
Stockholders. . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.1 Annual Meeting . . . . . . . . . . . . . . . .1
Section 1.2 Special Meetings . . . . . . . . . . . . . . .1
Section 1.3 Place of Meeting . . . . . . . . . . . . . . .2
Section 1.4 Notice of Meetings . . . . . . . . . . . . . .2
Section 1.5 Quorum . . . . . . . . . . . . . . . . . . . .2
Section 1.6 Voting . . . . . . . . . . . . . . . . . . . .3
Section 1.7 Presiding Officer and Secretary. . . . . . . .4
Section 1.8 Proxies. . . . . . . . . . . . . . . . . . . .4
Section 1.9 List of Stockholders . . . . . . . . . . . . .4
Section 1.10 Notice of Stockholder Business and Nominations5
Section 1.11 Inspectors of Elections; Opening and Closing
the Polls. . . . . . . . . . . . . . . . . . . . . . . . . . . .8
ARTICLE II
Directors . . . . . . . . . . . . . . . . . . . . . . . . .9
Section 2.1 Powers and Duties of Directors; Number . . . .9
Section 2.2 Election; Term; Vacancies. . . . . . . . . . 10
Section 2.3 Resignation. . . . . . . . . . . . . . . . . 10
Section 2.4 Removal. . . . . . . . . . . . . . . . . . . 10
Section 2.5 Meetings . . . . . . . . . . . . . . . . . . 10
Section 2.6 Quorum and Voting. . . . . . . . . . . . . . 12
Section 2.7 Written Consent of Directors in Lieu of a
Meeting. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.8 Compensation . . . . . . . . . . . . . . . . 12
ARTICLE III
Committees of the Board of Directors. . . . . . . . . . . 13
Section 3.1 Creation . . . . . . . . . . . . . . . . . . 13
Section 3.2 Committee Procedure. . . . . . . . . . . . . 13
Section 3.3 Certain Definitions. . . . . . . . . . . . . 14
ARTICLE IV
Officers, Agents and Employees. . . . . . . . . . . . . . 14
Section 4.1 Appointment and Term of Office . . . . . . . 14
Section 4.2 Resignation and Removal. . . . . . . . . . . 15
Section 4.3 Compensation and Bond. . . . . . . . . . . . 15
Section 4.4 Chairman of the Board. . . . . . . . . . . . 16
Section 4.5 Chief Executive Officer. . . . . . . . . . . 16
Section 4.6 President. . . . . . . . . . . . . . . . . . 16
Section 4.7 Chief Operating Officer. . . . . . . . . . . 16
Section 4.8 Vice Presidents. . . . . . . . . . . . . . . 16
Section 4.9 Treasurer. . . . . . . . . . . . . . . . . . 16
Section 4.10 Secretary. . . . . . . . . . . . . . . . . . 16
Section 4.11 Assistant Treasurers . . . . . . . . . . . . 18
Section 4.12 Assistant Secretaries. . . . . . . . . . . . 18
Section 4.13 Delegation of Duties . . . . . . . . . . . . 18
Section 4.14 Loans to Officers and Employees; Guaranty
of Obligations of Officers and Employees.. 18
ARTICLE V
Indemnification . . . . . . . . . . . . . . . . . . . . . 19
Section 5.1 Indemnification of Directors, Officers,
Employees and Agents . . . . . . . . . . . 19
ARTICLE VI
Common Stock. . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.1 Certificates . . . . . . . . . . . . . . . . 21
Section 6.2 Transfers of Stock . . . . . . . . . . . . . 21
Section 6.3 Lost, Stolen or Destroyed Certificates . . . 22
Section 6.4 Stockholder Record Date. . . . . . . . . . . 22
ARTICLE VII
Ownership by Aliens . . . . . . . . . . . . . . . . . . . 23
Section 7.1 Foreign Stock Record . . . . . . . . . . . . 23
Section 7.2 Maximum Percentage . . . . . . . . . . . . . 23
Section 7.3 Recording of Shares. . . . . . . . . . . . . 24
ARTICLE VIII
General Provisions. . . . . . . . . . . . . . . . . . . . 25
Section 8.1 Fiscal Year. . . . . . . . . . . . . . . . . 25
Section 8.2 Dividends. . . . . . . . . . . . . . . . . . 25
Section 8.3 Checks, Notes, Drafts, Etc.. . . . . . . . . 25
Section 8.4 Corporate Seal . . . . . . . . . . . . . . . 26
Section 8.5 Waiver of Notice . . . . . . . . . . . . . . 26
ARTICLE IX
Restated Certificate of Incorporation to Govern . . . . . 27
Section 9.1 Restated Certificate of Incorporation to
Govern . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
BY-LAWS
OF
CONTINENTAL AIRLINES, INC.
Incorporated under the Laws of the State of Delaware
ARTICLE I
Stockholders
Section 1.1 Annual Meeting. The annual meeting of
stockholders of the Corporation for the election of Directors and
for the transaction of any other proper business shall be held at
such time and date in each year as the Board of Directors may
determine from time to time. The annual meeting in each year shall
be held at such place within or without the State of Delaware as
may be fixed by the Board of Directors, or if not so fixed, at the
principal business office of the Corporation.
Section 1.2 Special Meetings. Subject to the rights of the
holders of any class or series of preferred stock of the
Corporation, or any other series or class of stock as set forth in
the Restated Certificate of Incorporation of the Corporation (as it
may be amended from time to time in accordance with its terms and
applicable law, the "Restated Certificate of Incorporation"), to
elect additional Directors under specified circumstances, special
meetings of the stockholders may be called only by (i) stockholders
holding Common Stock constituting more than 50% of the voting power
of the outstanding shares of Common Stock, (ii) the Chief Executive
Officer or (iii) the Board of Directors.
Section 1.3 Place of Meeting. The Board of Directors may
designate the place of meeting for any meeting of the stockholders.
If no designation is made by the Board of Directors, the place of
meeting shall be the principal executive offices of the
Corporation.
Section 1.4 Notice of Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, unless
notice is waived in writing by all stockholders entitled to vote at
the meeting, a written notice of the meeting shall be given which
shall state the place, date and hour of the meeting, and, in the
case of a special meeting, the purpose for which the meeting is
called.
Unless otherwise provided by law, and except as to any
stockholder duly waiving notice, the written notice of any meeting
shall be given personally or by mail, not less than ten nor more
than 60 days before the date of the meeting to each stockholder
entitled to vote at such meeting. If mailed, notice shall be
deemed given when deposited in the mail, postage prepaid, directed
to the stockholder at his or her address as it appears on the
records of the Corporation.
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, however, the adjournment is for more than 30 days, or if after
the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 1.5 Quorum. Except as otherwise provided by law, by
the Restated Certificate of Incorporation, or by these By-Laws in
respect of the vote required for a specified action, at any meeting
of stockholders the holders of a majority of the aggregate voting
power of the outstanding stock entitled to vote thereat, either
present or represented by proxy, shall constitute a quorum for the
transaction of any business, but the stockholders present, although
less than a quorum, may adjourn the meeting to another time or
place and, except as provided in the last paragraph of Section 1.4,
notice need not be given of the adjourned meeting.
Section 1.6 Voting. Except as otherwise provided by the
Restated Certificate of Incorporation or these By-Laws, whenever
Directors are to be elected at a meeting, they shall be elected by
a plurality of the votes cast at the meeting by the holders of
stock entitled to vote. Whenever any corporate action, other than
the election of Directors, is to be taken by vote of stockholders
at a meeting, it shall be authorized by a majority of the votes
cast at the meeting by the holders of stock entitled to vote
thereon, except as otherwise required by law, by the Restated
Certificate of Incorporation or by these By-Laws.
Except as otherwise provided by law, or by the Restated
Certificate of Incorporation or these By-Laws, each holder of
record of stock of the Corporation entitled to vote on any matter
at any meeting of stockholders shall be entitled to one vote for
each share of such stock standing in the name of such holder on the
stock ledger of the Corporation on the record date for the
determination of the stockholders entitled to vote at the meeting.
Upon the demand of any stockholder entitled to vote, the vote
for Directors or the vote on any other matter at a meeting shall be
by written ballot, but otherwise the method of voting and the
manner in which votes are counted shall be discretionary with the
presiding officer at the meeting.
Section 1.7 Presiding Officer and Secretary. At every
meeting of stockholders the Chairman of the Board or the Chief
Executive Officer, as designated by the Board of Directors, or, if
neither is present, or in the absence of any such designation, the
appointee of the meeting, shall preside. The Secretary, or in his
or her absence an Assistant Secretary, or if none be present, the
appointee of the presiding officer of the meeting, shall act as
secretary of the meeting.
Section 1.8 Proxies. Each stockholder entitled to vote at a
meeting of stockholders may authorize another person or persons to
act for him or her by proxy executed in writing by the stockholder
or as otherwise permitted by law, or by his or her duly authorized
attorney-in-fact. Such proxy must be filed with the Secretary of
the Corporation or his or her representative at or before the time
of the meeting.
Section 1.9 List of Stockholders. The officer who has charge
of the stock ledger of the Corporation 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. 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 which
stockholders are the stockholders entitled to examine the stock
ledger or the list required by this Section 1.9, or to vote in
person or by proxy at any meeting of stockholders.
Section 1.10 Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders. (1) Subject to Section
2.2 of these By-Laws, nominations of persons for election to the
Board of Directors of the Corporation and the proposal of business
to be considered by the stockholders may be made at an annual
meeting of stockholders (a) pursuant to the Corporation's notice of
meeting delivered pursuant to Section 1.4 of these By-Laws, (b) by
or at the direction of the Board of Directors or (c) by any
stockholder of the Corporation who is entitled to vote at the
meeting, who complied with the notice procedures set forth in
clauses (2) and (3) of paragraph (A) of this Section 1.10 and who
was a stockholder of record at the time such notice is delivered to
the Secretary of the Corporation.
(2) For nominations or other business to be
properly brought before an annual meeting by a stockholder pursuant
to clause (c) of paragraph (A) (1) of this Section 1.10, the
stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a stockholder's notice
shall be delivered to the Secretary at the principal executive
offices of the Corporation not less than seventy days nor more than
ninety days prior to the first anniversary of the preceding year's
annual meeting; provided, however, that in the event that the date
of the annual meeting is advanced by more than twenty days, or
delayed by more than seventy days, from such anniversary date,
notice by the stockholder to be timely must be so delivered not
earlier than the ninetieth day prior to such annual meeting and not
later than the close of business on the later of the seventieth day
prior to such annual meeting or the tenth day following the day on
which public announcement of the date of such meeting is first
made. Such stockholder's notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or
reelection as a Director all information relating to such person
that is required to be disclosed in solicitations of proxies for
election of Directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), including such person's
written consent to being named in the proxy statement as a nominee
and to serving as a Director if elected; (b) as to any other
business that the stockholder proposes to bring before the meeting,
a brief description of the business desired to be brought before
the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the
proposal is made; and (c) as to the stockholder giving the notice
and the beneficial owner, if any, on whose behalf the nomination or
proposal is made (i) the name and address of such stockholder, as
they appear on the Corporation's books, and of such beneficial
owner and (ii) the class and number of shares of the Corporation
which are owned beneficially and of record by such stockholder and
such beneficial owner.
(3) Notwithstanding anything in the second
sentence of paragraph (A) (2) of this Section 1.10 to the contrary,
in the event that the number of Directors to be elected to the
Board of Directors is increased and there is no public announcement
naming all of the nominees for Director or specifying the size of
the increased Board of Directors made by the Corporation at least
eighty days prior to the first anniversary of the preceding year's
annual meeting, a stockholder's notice required by this Section
1.10 shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it
shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on
the tenth day following the day on which such public announcement
is first made by the Corporation.
(B) Special Meeting of Stockholders. Only such business
shall be conducted at a special meeting of stockholders as shall
have been brought before the meeting pursuant to the Corporation's
notice of meeting pursuant to Section 1.4 of these By-Laws.
Subject to Section 2.2 of these By-Laws, nominations of persons for
election to the Board of Directors may be made at a special meeting
of stockholders at which Directors are to be elected pursuant to
the Corporation's notice of meeting (i) by or at the direction of
the Board of Directors or (ii) by any stockholder of the
Corporation who is entitled to vote at the meeting, who complies
with the notice procedures set forth in this Section 1.10 and who
is a stockholder of record at the time such notice is delivered to
the Secretary of the Corporation. Nominations by stockholders of
persons for election to the Board of Directors may be made at such
a special meeting of stockholders if the stockholder's notice as
required by paragraph (A) (2) of this Section 1.10 shall be
delivered to the Secretary at the principal executive offices of
the Corporation not earlier than the ninetieth day prior to such
special meeting and not later than the close of business on the
later of the seventieth day prior to such special meeting or the
tenth day following the day on which public announcement is first
made of the date of the special meeting and of the nominees
proposed by the Board of Directors to be elected at such meeting.
(C) General. (1) Only persons who are nominated in
accordance with the procedures set forth in this Section 1.10 shall
be eligible to serve as Directors and only such business shall be
conducted at a meeting of stockholders as shall have been brought
before the meeting in accordance with the procedures set forth in
this Section 1.10. Except as otherwise provided by law, the
Restated Certificate of Incorporation or these By-Laws, the
chairman of the meeting shall have the power and duty to determine
whether a nomination or any business proposed to be brought before
the meeting was made in accordance with the procedures set forth in
this Section 1.10 and, if any proposed nomination or business is
not in compliance with this Section 1.10, to declare that such
defective proposal or nomination shall be disregarded.
(2) For purposes of this Section 1.10, "public
announcement" shall mean disclosure in a press release reported by
the Dow Jones News Service, Associated Press or comparable national
news service or in a document publicly filed by the Corporation
with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of
this Section 1.10, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules and
regulations thereunder with respect to the matters set forth in
this Section 1.10. Nothing in this Section 1.10 shall be deemed to
affect any rights of stockholders to request inclusion of proposals
in the Corporation's proxy statement pursuant to Rule 14a-8 under
the Exchange Act.
Section 1.11 Inspectors of Elections; Opening and Closing the
Polls. The Board of Directors by resolution shall appoint one or
more inspectors, which inspector or inspectors may include
individuals who serve the Corporation in other capacities,
including, without limitation, as officers, employees, agents or
representatives of the Corporation, to act at the meeting and make
a written report thereof. One or more persons may be designated as
alternate inspectors to replace any inspector who fails to act. If
no inspector or alternate has been appointed to act, or if all
inspectors or alternates who have been appointed are unable to act,
at the meeting of stockholders, the chairman of the meeting shall
appoint one or more inspectors to act at the meeting. Each
inspector, before discharging his or her duties, shall take and
sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his or her
ability. The inspectors shall have the duties prescribed by the
General Corporation Law of the State of Delaware (the "GCL").
The chairman of the meeting shall fix and announce at the
meeting the time of the opening and the closing of the polls for
each matter upon which the stockholders will vote at a meeting.
ARTICLE II
Directors
Section 2.1 Powers and Duties of Directors; Number. The
business of the Corporation shall be managed by or under the
direction of the Board of Directors, which may exercise all such
powers of the Corporation and do all such lawful acts and things as
are not directed or required to be exercised or done by the
stockholders by the Restated Certificate of Incorporation, by these
By-Laws, or by law. Except as otherwise permitted by or consistent
with Foreign Ownership Restrictions (as defined in the Restated
Certificate of Incorporation), at no time shall more than one-third
of the Directors in office be Aliens (as defined in the Restated
Certificate of Incorporation). The Board shall adopt the Annual
Capital Expenditure Budget and the Annual Financial Plan, both as
defined in Section 3.3, for each fiscal year not later than the
last day of the preceding fiscal year or at such later time as
shall be determined by resolution of the Board.
The number of Directors which shall constitute the whole Board
of Directors shall be determined from time to time by resolution of
the Board of Directors (provided that no decrease in the number of
Directors which would have the effect of shortening the term of an
incumbent Director may be made by the Board of Directors). If the
Board of Directors makes no such determination, the number of
Directors shall be twelve.
Section 2.2 Election; Term; Vacancies. Each
Director shall hold office until the next annual election and until
his or her successor is elected and qualified, or until his earlier
death, resignation or removal. The Directors shall be elected
annually by the stockholders in the manner specified by the
Restated Certificate of Incorporation and these By-Laws, except
that if there be a vacancy in the Board of Directors by reason of
death, resignation or otherwise, such vacancy may also be filled
for the unexpired term by a majority affirmative vote of the Board
of Directors; provided, that in the event of a vacancy by reason of
death, resignation or otherwise of a Class D Director, such vacancy
shall be filled for the unexpired term by the holders of Class D
Common Stock, voting separately as a class by a majority
affirmative vote thereof.
Section 2.3 Resignation. Any Director may resign at any time
upon written notice to the Corporation. Any such resignation shall
take effect at the time specified therein or, if the time be not
specified, upon receipt thereof, and the acceptance of such
resignation, unless required by the terms thereof, shall not be
necessary to make such resignation effective.
Section 2.4 Removal. Any Director may be removed at any
time, with or without cause, by vote at a meeting or written
consent of the holders of stock entitled to vote on the election of
such Director pursuant to the Restated Certificate of
Incorporation.
Section 2.5 Meetings.
(A) Annual Meeting. Immediately after each annual meeting of
stockholders, the duly elected Directors shall hold an inaugural
meeting for the purpose of organization, election of officers, and
the transaction of other business, at such place as shall be fixed
by the person presiding at the meeting of stockholders at which
such Directors are elected.
(B) Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such times and places
as shall be designated from time to time by the Board of Directors;
provided, that regular meetings of the Board of Directors can be
waived at the request of the Chief Executive Officer if at least a
majority of the Directors agree in writing to such waiver at least
seven days before the date of the meeting to be so waived. The
Secretary shall forward to each Director, at least five days before
any such regular meeting, a notice of the time and place of the
meeting, together with the agenda for the meeting or in lieu
thereof a notice of waiver if the regular meeting has been waived.
(C) Special Meetings. Special meetings of the Directors may
be called by the Chairman of the Board, the Chief Executive Officer
or a majority of the Directors, at such time and place as shall be
specified in the notice or waiver thereof. Notice of each special
meeting, including the time and place of the meeting and the agenda
therefor, shall be given by the Secretary or by the person calling
the meeting to each Director by causing the same to be delivered
personally or by facsimile transmission not later than the close of
business on the second day next preceding the day of the meeting.
(D) Location; Methods of Participation. Meetings of the
Board of Directors, regular or special, may be held at any place
within or without the State of Delaware at such place as is
indicated in the notice or waiver of notice thereof. Members of
the Board of Directors, or of any committee designated by the
Board, may participate in a meeting of the Board of Directors 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 participation
in a meeting by such means shall constitute presence in person at
such meeting.
Section 2.6 Quorum and Voting. A majority of the total
number of Directors (excluding those who must recuse themselves
under the terms of the Restated Certificate of Incorporation or
these By-Laws, or by law)("Recused Directors") shall constitute a
quorum for the transaction of business, but, if there be less than
a quorum at any meeting of the Board of Directors, a majority of
the Directors present may adjourn the meeting from time to time,
and no further notice thereof need be given other than announcement
at the meeting which shall be so adjourned. Except as otherwise
provided by law, by the Restated Certificate of Incorporation, or
by these By-Laws, the affirmative vote of a majority of the
Directors present at a meeting (excluding Recused Directors) at
which a quorum is present shall be the act of the Board of
Directors.
Section 2.7 Written Consent of Directors in Lieu of a
Meeting. Any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee thereof may
be taken without a meeting if all members of the Board or of such
committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of
the Board or committee.
Section 2.8 Compensation. Directors may receive compensation
for services to the Corporation in their capacities as Directors or
otherwise in such manner and in such amounts as may be fixed from
time to time by the Board of Directors.
ARTICLE III
Committees of the Board of Directors
Section 3.1 Creation. The Board of Directors, by resolution
or resolutions passed by a majority of the whole Board of Directors
(except as otherwise provided in the Restated Certificate of
Incorporation), may designate one or more committees, each to
consist of such number of Directors of the Corporation as shall be
specified in such resolution; provided,that for so long as there
shall be any Class D Directors (as defined in Section 3.3), any
such committee shall include (if so requested by any Class D
Director), to the extent consistent with applicable laws and
regulations, such number of Class D Directors as shall not be
greater than the number of Directors equal to the same percentage
of the Directors comprising such committee as the percentage of the
total number of Class D Directors on the whole Board of Directors;
provided further, that for so long as there shall be any Class D
Directors, any executive or other similar committee of the Board
with full power to take all actions which may lawfully be taken by
the Board, and any nominating committee of the Board, shall
consist, to the extent consistent with applicable laws and
regulations, only of a Director that is an officer of the
Corporation (or his or her designee) and a Class D Director. Each
such committee shall have and may exercise such powers and duties
as may be provided in such resolution, except that no such
committee shall have the power to elect Directors or the power or
authority reserved for the whole Board of Directors pursuant to
Section 141(c) of the GCL, except as otherwise set forth in such
Section 141(c).
Section 3.2 Committee Procedure. Each committee of the Board
of Directors shall meet at the times stated by the Board in the
resolution or resolutions establishing such committee or on notice
to all members given by any member of such committee. The Board by
resolution or resolutions shall establish the rules of procedure to
be followed by each committee, which shall include a requirement
that such committee keep regular minutes of its proceedings and
deliver to the Secretary the same. The affirmative vote of a
majority of the members of any such committee shall constitute the
act of such committee.
Section 3.3 Certain Definitions.
(A) Annual Capital Expenditure Budget. When used in these
By-Laws, the term "Annual Capital Expenditure Budget" shall mean an
annual capital expenditure budget, which shall be approved by the
Board of Directors not later than the last day of the preceding
fiscal year (or at such later time determined by the Board pursuant
to Section 2.1).
(B) Annual Financial Plan. When used in these By-Laws, the
term "Annual Financial Plan" shall mean an annual financial plan,
which shall be approved by the Board of Directors not later than
the last day of the preceding fiscal year (or at such later time
determined by the Board pursuant to Section 2.1).
(C) Class D Director. When used in these By-Laws, the term
"Class D Director" shall mean a Director elected by the holders of
Class D Common Stock or elected by Directors to fill a vacancy
created by the departure of a Class D Director.
ARTICLE IV
Officers, Agents and Employees
Section 4.1 Appointment and Term of Office. The officers of
the Corporation shall include a Chairman of the Board, a Chief
Executive Officer, a President, and a Secretary, and may also
include a Chief Operating Officer, a Treasurer, one or more Vice
Presidents (who may be further classified by such descriptions as
"executive", "senior", "assistant", "staff" or otherwise, as the
Board of Directors shall determine), one or more Assistant
Secretaries and one or more Assistant Treasurers. All such
officers shall be appointed by the Board of Directors. Any number
of such offices may be held by the same person, but no officer
shall execute, acknowledge or verify any instrument in more than
one capacity. Except as may be prescribed otherwise by the Board
of Directors in a particular case, all such officers shall hold
their offices at the pleasure of the Board for an unlimited term
and need not be reappointed annually or at any other periodic
interval. The Board of Directors may appoint, and may delegate
power to appoint, such other officers, agents and employees as it
may deem necessary or proper, who shall hold their offices or
positions for such terms, have such authority and perform such
duties as may from time to time be determined by or pursuant to
authorization of the Board of Directors.
Section 4.2 Resignation and Removal. Any officer may resign
at any time upon written notice to the Corporation. Any officer,
agent or employee of the Corporation may be removed by the Board of
Directors with or without cause at any time. The Board of
Directors may delegate such power of removal as to officers, agents
and employees not appointed by the Board of Directors. Such
removal shall be without prejudice to a person's contract rights,
if any, but the appointment of any person as an officer, agent or
employee of the Corporation shall not of itself create contract
rights.
Section 4.3 Compensation and Bond. The compensation of the
officers of the Corporation shall be fixed by the Board of
Directors, but this power may be delegated to any officer by the
Board of Directors. The Corporation may secure the fidelity of any
or all of its officers, agents or employees by bond or otherwise.
Section 4.4 Chairman of the Board. The Chairman of the Board
shall be selected from the members of the Board of Directors and
shall preside at all meetings of the Board of Directors. In
addition, the Chairman of the Board shall have such other powers
and duties as may be delegated to him or her by the Board of
Directors. The Chairman of the Board shall not be deemed to be an
officer of the Corporation for purposes of Article III of these
By-Laws unless he or she shall also be the Chief Executive Officer.
Section 4.5 Chief Executive Officer. The Chief Executive
Officer shall be the chief executive officer of the Corporation
and, in the absence of the Chairman of the Board (or if there be
none), he or she shall preside at all meetings of the Board of
Directors. The Chief Executive Officer shall have general charge
of the business affairs of the Corporation. He or she may employ
and discharge employees and agents of the Corporation, except such
as shall be appointed by the Board of Directors, and he or she may
delegate these powers. The Chief Executive Officer may vote the
stock or other securities of any other domestic or foreign
corporation of any type or kind which may at any time be owned by
the Corporation, may execute any stockholders' or other consents in
respect thereof and may in his or her discretion delegate such
powers by executing proxies, or otherwise, on behalf of the
Corporation. The Board of Directors by resolution from time to
time may confer like powers upon any other person.
Section 4.6 President. The President shall have such powers
and perform such duties as the Board of Directors or the Chief
Executive Officer may from time to time prescribe.
Section 4.7 Chief Operating Officer. The Chief Operating
Officer of the Company shall have general charge of the operating
affairs of the Corporation, and shall have such other powers and
duties as the Chief Executive Officer or the Board of Directors
shall delegate to him or her from time to time.
Section 4.8 Vice Presidents. Each Vice President shall have
such powers and perform such duties as the Board of Directors or
the Chief Executive Officer may from time to time prescribe.
Section 4.9 Treasurer. The Treasurer shall have charge of
all funds and securities of the Corporation, may endorse the same
for deposit or collection when necessary and deposit the same to
the credit of the Corporation in such banks or depositaries as the
Board of Directors may authorize. He or she may endorse all
commercial documents requiring endorsements for or on behalf of the
Corporation and may sign all receipts and vouchers for payments
made to the Corporation. He or she shall have all such further
powers and duties as generally are incident to the position of
Treasurer or as may be assigned to him or her by the Board of
Directors or the Chief Executive Officer.
Section 4.10 Secretary. The Secretary shall distribute all
materials to be distributed in connection with regular and special
meetings of the Board of Directors, record all the proceedings of
the meetings of the stockholders and Directors in a book to be kept
for that purpose and shall also record therein all action taken by
written consent of the Directors, and committees of the Board of
Directors in lieu of a meeting. He or she shall attend to the
giving and serving of all notices of the Corporation. He or she
shall have custody of the seal of the Corporation and shall attest
the same by his or her signature whenever required. He or she
shall have charge of the stock ledger and such other books and
papers as the Board of Directors may direct, but he or she may
delegate responsibility for maintaining the stock ledger to any
transfer agent appointed by the Board of Directors. He or she
shall have all such further powers and duties as generally are
incident to the position of Secretary or as may be assigned to him
or her by the Board of Directors or the Chief Executive Officer.
Section 4.11 Assistant Treasurers. In the absence or
inability to act of the Treasurer, any Assistant Treasurer may
perform all the duties and exercise all the powers of the
Treasurer. The performance of any such duty shall, in respect of
any other person dealing with the Corporation, be conclusive
evidence of his or her power to act. An Assistant Treasurer shall
also perform such other duties as the Treasurer or the Board of
Directors may assign to him or her.
Section 4.12 Assistant Secretaries. In the absence or
inability to act of the Secretary, any Assistant Secretary may
perform all the duties and exercise all the powers of the
Secretary. The performance of any such duty shall, in respect of
any other person dealing with the Corporation, be conclusive
evidence of his or her power to act. An Assistant Secretary shall
also perform such other duties as the Secretary or the Board of
Directors may assign to him or her.
Section 4.13 Delegation of Duties. In case of the absence of
any officer of the Corporation, or for any other reason that the
Board of Directors may deem sufficient, the Board of Directors may
confer for the time being the powers or duties, or any of them, of
such officer upon any other officer or upon any Director.
Section 4.14 Loans to Officers and Employees; Guaranty of
Obligations of Officers and Employees. The Corporation may lend
money to, or guarantee any obligation of, or otherwise assist any
officer or other employee of the Corporation or any subsidiary,
including any officer or employee who is a Director of the
Corporation or any subsidiary, whenever, in the judgment of the
Directors, such loan, guaranty or assistance may reasonably be
expected to benefit the Corporation. The loan, guaranty or other
assistance may be with or without interest, and may be unsecured,
or secured in such manner as the Board of Directors shall approve,
including, without limitation, a pledge of shares of stock of the
Corporation.
ARTICLE V
Indemnification
Section 5.1 Indemnification of Directors, Officers, Employees
and Agents. No Director of the Corporation shall be personally
liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a Director, except for liability
(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) under Section 174 of the GCL, or (iv) for
any transaction from which the Director derived any improper
personal benefit. If the GCL is amended to authorize corporate
action further eliminating or limiting the personal liability of
Directors, then the liability of Directors of the Corporation shall
be eliminated or limited to the full extent permitted by the GCL,
as so amended.
The Corporation shall indemnify to the full extent permitted
by the laws of the State of Delaware as from time to time in effect
any person who was or is a party or is threatened to be made a
party to, or otherwise requires representation by counsel in
connection with, any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or
investigative (whether or not an action by or in the right of the
Corporation), by reason of the fact that he or she is or was a
Director or officer of the Corporation, or, while serving as a
Director or officer of the Corporation, 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, or by reason of any action alleged to have been
taken or omitted in such capacity. The right to indemnification
conferred by this Article V also shall include the right of such
persons to be paid in advance by the Corporation for their expenses
(including attorneys' fees) to the full extent permitted by the
laws of the State of Delaware, as from time to time in effect. The
right to indemnification conferred on such persons by this Article
V shall be a contract right.
Unless otherwise determined by the Board of Directors, the
Corporation shall indemnify to the full extent permitted by the
laws of the State of Delaware as from time to time in effect any
person who was or is a party or is threatened to be made a party
to, or otherwise requires representation by counsel in connection
with, any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (whether or not an action by or in the right of the
Corporation), by reason of the fact that he or she is or was an
employee (other than an officer) 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, or by reason of any
action alleged to have been taken or omitted in such capacity.
The rights and authority conferred in this Article V shall not
be exclusive of any other right which any person seeking
indemnification or advancement of expenses may have or hereafter
acquire under any statute, provision of the Restated Certificate of
Incorporation or these By-Laws, agreement, vote of stockholders or
disinterested Directors or otherwise, both as to action in his or
her official capacity and as to action in another capacity while
holding such office and shall continue as to a person who has
ceased to be a Director, officer, employee or agent and shall inure
to the benefit of the heirs, executors and administrators of such
a person. Neither the amendment or repeal of this Article V nor
the adoption of any provision of the Restated Certificate of
Incorporation or these By-Laws or of any statute inconsistent with
this Article V shall eliminate or reduce the effect of this Article
V in respect of any acts or omissions occurring prior to such
amendment, repeal or adoption or an inconsistent provision.
ARTICLE VI
Common Stock
Section 6.1 Certificates. Certificates for stock of the
Corporation shall be in such form as shall be approved by the Board
of Directors and shall be signed in the name of the Corporation by
the Chairman of the Board or the Chief Executive Officer or the
President or a Vice President, and by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary. Such
certificates may be sealed with the seal of the Corporation or a
facsimile thereof. Any of or all 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 or
she were such officer, transfer agent or registrar at the date of
issue.
Section 6.2 Transfers of Stock. Upon surrender to any
transfer agent of the Corporation of a certificate for shares of
the Corporation duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the
duty of the Corporation, provided such succession, assignment or
transfer is not prohibited by the Restated Certificate of
Incorporation, these By-Laws, applicable law or contractual
prohibitions, to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon
its books.
Section 6.3 Lost, Stolen or Destroyed Certificates. The
Corporation may issue a new stock certificate in the place of any
certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the Corporation may require the owner of
the lost, stolen or destroyed certificate or his or her legal
representative to give the Corporation a bond sufficient to
indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such
certificate or the issuance of any such new certificate. The Board
of Directors may require such owner to satisfy other reasonable
requirements.
Section 6.4 Stockholder Record Date. In order that the
Corporation may determine the stockholders entitled to notice of or
to vote at any meeting of stockholders or any adjournment thereof,
or to express consent to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of
Directors may fix, in advance, a record date, which shall not be
more than 60 nor less than ten days before the date of such
meeting, nor more than 60 days prior to any other action. Only
such stockholders as shall be stockholders of record on the date so
fixed shall be entitled to notice of, and to vote at, such meeting
and any adjournment thereof, or to give such consent, or to receive
payment of such dividend or other distribution, or to exercise such
rights in respect of any such change, conversion or exchange of
stock, or to participate in such action, as the case may be,
notwithstanding any transfer of any stock on the books of the
Corporation after any record date so fixed.
If no record date is fixed by the Board of Directors, (a) 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 date on which notice is
given, or, if notice is waived by all stockholders entitled to vote
at the meeting, at the close of business on the day next preceding
the day on which the meeting is held and (b) the record date for
determining stockholders for any other purpose shall be at the
close of business on the day on which the Board of Directors adopts
the resolution relating thereto.
A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
ARTICLE VII
Ownership by Aliens
Section 7.1 Foreign Stock Record. There shall be maintained
a separate stock record, designated the "Foreign Stock Record," for
the registration of Voting Stock, as defined in Section 7.2, that
is Beneficially Owned (as defined in the Restated Certificate of
Incorporation) by Aliens, as defined in the Restated Certificate of
Incorporation ("Alien Stock"). The Beneficial Ownership by Aliens
of Voting Stock shall be determined in conformity with regulations
prescribed by the Board of Directors.
Section 7.2 Maximum Percentage. At no time shall ownership
of shares representing more than the Maximum Percentage, as defined
below, be registered in the Foreign Stock Record. As used herein,
(a) "Maximum Percentage" means the maximum percentage of voting
power of Voting Stock, as defined below, which may be voted by, or
at the direction of, Aliens without violating Foreign Ownership
Restrictions or adversely affecting the Corporation's operating
certificates or authorities, and (b) "Voting Stock" means all
outstanding shares of capital stock of the Corporation issued from
time to time by the Corporation and Beneficially Owned by Aliens
which, but for the provisions of Section 1 of Article Sixth of the
Restated Certificate of Incorporation, by their terms may vote (at
the time such determination is made) for the election of Directors
of the Corporation, except shares of Preferred Stock that are
entitled to vote for the election of Directors solely as a result
of the failure to pay dividends by the Corporation or other breach
of the terms of such Preferred Stock.
Section 7.3 Recording of Shares. If at any time there exist
shares of Voting Stock that are Alien Stock but that are not
registered in the Foreign Stock Record, the Beneficial Owner
thereof may request, in writing, the Corporation to register
ownership of such shares on the Foreign Stock Record and the
Corporation shall comply with such request, subject to the
limitation set forth in Section 7.2. The order in which Alien
Stock shall be registered on the Foreign Stock Record shall be
chronological, based on the date the Corporation received a written
request to so register such shares of Alien Stock; provided, that
for so long as any transferee of Air Partners is an Alien, shares
of Voting Stock held by such transferee which were originally
acquired by Air Partners pursuant to the Investment Agreement,
dated as of November 9, 1992, as amended, among the Corporation,
Air Canada and Air Partners (the "Investment Agreement"), or upon
conversion or exchange of such securities, or as a dividend or
distribution in respect of such securities (collectively "AP
Original Equity Securities") shall be registered on the Foreign
Ownership Record prior to, and to the exclusion of, any other
shares of Alien Stock whether or not any such other shares of Alien
Stock are registered on the Foreign Stock Record at the time that
any such transferee of Air Partners requests that shares of AP
Original Equity Securities be so registered. If at any time the
Corporation shall find that the combined voting power of Voting
Stock then registered in the Foreign Stock Record exceeds the
Maximum Percentage, there shall be removed from the Foreign Stock
Record the registration of such number of shares so registered as
is sufficient to reduce the combined voting power of the shares so
registered to an amount not in excess of the Maximum Percentage.
The order in which such shares shall be removed shall be reverse
chronological order based upon the date the Corporation received a
written request to so register such shares of Alien Stock;
provided, that for so long as any transferee of Air Partners is an
Alien, shares of AP Original Equity Securities owned by such
transferee shall not be removed from the Foreign Ownership Record
(regardless of the date on which such shares were registered
thereon) until all other outstanding shares of Alien Stock have
been so removed.
ARTICLE VIII
General Provisions
Section 8.1 Fiscal Year. The fiscal year of the Corporation
shall begin the first day of January and end on the last day of
December of each year.
Section 8.2 Dividends. Dividends upon the capital stock may
be declared by the Board of Directors at any regular or special
meeting and may be paid in cash or in property or in shares of the
capital stock. Before paying any dividend or making any
distribution of profits, the Directors may set apart out of any
funds of the Corporation available for dividends a reserve or
reserves for any proper purpose and may alter or abolish any such
reserve or reserves.
Section 8.3 Checks, Notes, Drafts, Etc. Checks, notes,
drafts, acceptances, bills of exchange and other orders or
obligations for the payment of money shall be signed by such
officer or officers or person or persons as the Board of Directors
or a duly authorized committee thereof, the Chief Executive Officer
or the Treasurer may from time to time designate.
Section 8.4 Corporate Seal. The seal of the Corporation
shall be circular in form and shall bear, in addition to any other
emblem or device approved by the Board of Directors, the name of
the Corporation, the year of its incorporation and the words
"Corporate Seal" and "Delaware." The seal may be used by causing
it or a facsimile thereof to be impressed or affixed or in any
other manner reproduced.
Section 8.5 Waiver of Notice. Whenever notice is required to
be given by statute, or under any provision of the Restated
Certificate of Incorporation or these By-Laws, a written waiver
thereof, signed by the person entitled to notice, whether before or
after the time stated therein, shall be deemed equivalent to
notice. In the case of a stockholder, such waiver of notice may be
signed by such stockholder's attorney or proxy duly appointed in
writing. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting at the beginning of
the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting
of the stockholders, Directors or members of a committee of
Directors need be specified in any written waiver of notice.
ARTICLE IX
Restated Certificate of Incorporation to Govern
Section 9.1 Restated Certificate of Incorporation to
Govern. Notwithstanding anything to the contrary herein, if any
provision contained herein is inconsistent with or conflicts with
a provision of the Restated Certificate of Incorporation, such
provision herein shall be superseded by the inconsistent provision
in the Restated Certificate of Incorporation, to the extent
necessary to give effect to such provision in the Restated
Certificate of Incorporation.
EXHIBIT 4.3(c)
SECOND AMENDMENT TO
CONTINENTAL AIRLINES, INC.
1994 INCENTIVE EQUITY PLAN
The Board of Directors (the "Board") of Continental Airlines, Inc.
(the "Company") adopted the Continental Airlines, Inc. 1994
Incentive Equity Plan, as amended (the "Plan"), on March 4, 1994,
subject to approval by the stockholders of the Company, which was
obtained at the Company's 1994 Annual Meeting of Stockholders.
Subject to applicable provisions of Paragraph 15 of the Plan, the
Board retained the right to amend the Plan, which was amended by
the First Amendment to Continental Airlines, Inc. 1994 Incentive
Equity Plan, which amendment was approved by the stockholders at
the Company's 1995 Annual Meeting of Stockholders. The Board has
determined by resolutions adopted on February 1, 1996 and April 19,
1996 that the Plan be further amended (the "Second Amendment") as
follows. Capitalized terms not otherwise defined in this Second
Amendment to the Plan have the meanings ascribed thereto in the
Plan.
The Plan is hereby amended as follows:
1. The first sentence of Paragraph 3 of the Plan is hereby
amended to read in its entirety as follows:
"Subject to adjustment as provided in Paragraph 10 and in
accordance with and subject to Rule 16b-3 under the Exchange
Act and applicable judicial and administrative interpretations
thereof, the shares of Common Stock covered by all Awards
granted under this Plan will not exceed in the aggregate
4,500,000 shares, of which number (a) no more than 300,000
shares will be granted or sold as Restricted Stock, (b) Stock
Options with respect to no more than 400,000 shares will be
granted to any Participant during any calendar year, and (c)
no more than 200,000 shares will be delivered in payment of
Annual Incentive Awards (for all Participants in the
aggregate) in respect of any given year."
2. Paragraph 2(d) of the Plan is hereby amended to read in its
entirety as follows:
"(d) "Change in Control" shall have the meaning set forth
in Paragraph 11.".
3. Paragraph 11 of the Plan is hereby amended to read in its
entirety as follows:
"11. Change in Control. As used in this Plan, the term
"Change in Control" shall mean:
(a) any person (within the meaning of Section 13(d) or
14(d) under the Exchange Act, including any group (within the
meaning of Section 13(d)(3) under the Exchange Act), a
"Person") is or becomes the "beneficial owner" (as such term
is defined in Rule 13d-3 promulgated under the Exchange Act),
directly or indirectly, of securities of the Company (such
Person being referred to as an "Acquiring Person")
representing the greater of (x) 25% of the combined voting
power of the Company's outstanding securities and (y) the
proportion of the combined voting power of the Company's
outstanding securities represented by securities of the
Company beneficially owned, directly or indirectly, by Air
Partners and any Person controlling, controlled by or under
common control with Air Partners at the time of reference
(excluding, for purposes of determining such proportion of the
combined voting power under this clause (y), any securities
beneficially owned by Air Partners (and any Person
controlling, controlled by or under common control with Air
Partners) which are deemed beneficially owned by such
Acquiring Person); other than beneficial ownership by (i) the
Company or any subsidiary of the Company, (ii) any employee
benefit plan of the Company or any Person organized, appointed
or established pursuant to the terms of any such employee
benefit plan (unless such plan or Person is a party to or is
utilized in connection with a transaction led by Outside
Persons), (iii) Air Partners or any Person (other than any air
carrier that is not the Company and that is currently
controlled by or under common control with Air Partners, or a
holding company or subsidiary of any such air carrier)
controlling, controlled by or under common control with Air
Partners, or (iv) Air Canada or any Person controlling,
controlled by or under common control with Air Canada (Persons
referred to in clauses (i) through (iv) hereof are hereinafter
referred to as "Excluded Persons"); or
(b) individuals who constituted the Board as of April 19,
1996 (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board, provided that any
individual becoming a director subsequent to April 19, 1996
whose appointment to fill a vacancy or to fill a new Board
position or whose nomination for election by the Company's
shareholders was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board or who was
nominated for election by Excluded Persons shall be considered
as though such individual were a member of the Incumbent
Board; or
(c) the Company merges with or consolidates into or engages
in a reorganization or similar transaction with another entity
pursuant to a transaction in which the Company is not the
"Controlling Corporation"; or
(d) the Company sells or otherwise disposes of all or
substantially all of its assets, other than to Excluded
Persons.
For purposes of clause (a) above, if at any time there
exist securities of different classes entitled to vote
separately in the election of directors, the calculation of
the proportion of the voting power held by a beneficial owner
of the Company's securities shall be determined as follows:
first, the proportion of the voting power represented by
securities held by such beneficial owner of each separate
class or group of classes voting separately in the election of
directors shall be determined, provided that securities
representing more than 50% of the voting power of securities
of any such class or group of classes shall be deemed to
represent 100% of such voting power; second, such proportion
shall then be multiplied by a fraction, the numerator of which
is the number of directors which such class or classes is
entitled to elect and the denominator of which is the total
number of directors elected to membership on the Board at the
time; and third, the product obtained for each such separate
class or group of classes shall be added together, which sum
shall be the proportion of the combined voting power of the
Company's outstanding securities held by such beneficial
owner.
For purposes of clause (a) above, the term "Outside
Persons" means any Persons other than Persons described in
clauses (a)(i), (iii) or (iv) above (as to Persons described
in clauses (a)(iii) or (iv) above, while they are Excluded
Persons) or members of senior management of the Company in
office immediately prior to the time the Acquiring Person
acquires the beneficial ownership described in clause (a).
For purposes of clause (c) above, the Company shall be
considered to be the Controlling Corporation in any merger,
consolidation, reorganization or similar transaction unless
either (1) the shareholders of the Company immediately prior
to the consummation of the transaction (the "Old
Shareholders") would not, immediately after such consummation,
beneficially own, directly or indirectly, securities of the
resulting entity entitled to elect a majority of the members
of the Board of Directors or other governing body of the
resulting entity or (2) those persons who were directors of
the Company immediately prior to the consummation of the
proposed transaction would not, immediately after such
consummation, constitute a majority of the directors of the
resulting entity, provided that (I) there shall be excluded
from the determination of the voting power of the Old
Shareholders securities in the resulting entity beneficially
owned, directly or indirectly, by the other party to the
transaction and any such securities beneficially owned,
directly or indirectly, by any Person acting in concert with
the other party to the transaction (unless such other party or
such Person is Air Partners, if Air Partners has not ceased to
be an Excluded Person), (II) there shall be excluded from the
determination of the voting power of the Old Shareholders
securities in the resulting entity acquired in any such
transaction other than as a result of the beneficial ownership
of Company securities prior to the transaction and (III)
persons who are directors of the resulting entity shall be
deemed not to have been directors of the Company immediately
prior to the consummation of the transaction if they were
elected as directors of the Company within 90 days prior to
the consummation of the transaction.
The exclusion described in clause (a)(iii) above shall
cease to have any force or effect (and the Persons described
therein shall cease to be Excluded Persons) if (A) Air
Partners ceases to be, for a period of thirty consecutive
calendar days, the beneficial owner, directly or indirectly,
of securities of the Company representing at least 25% of the
combined voting power of the Company's outstanding securities
or (B) there occurs a "change in the ownership or effective
control" (within the meaning of Section 280G of the Code) of
Air Partners. The exclusion described in clause (a)(iv) above
shall cease to have any force or effect (and the Persons
described therein shall cease to be Excluded Persons) if (c)
Air Canada ceases to be, for a period of thirty consecutive
calendar days, the beneficial owner, directly or indirectly,
of securities of the Company representing at least 20% of the
combined voting power of the Company's outstanding securities
or (D) there occurs a "change in the ownership or effective
control" (within the meaning of Section 280G of the Code) of
Air Canada.
Upon the occurrence of a Change in Control, with respect to
each Participant, (AA) all Stock Options granted to such
Participant and outstanding at such time shall immediately
become exercisable in full, whether or not otherwise
exercisable, for a period of thirty (30) calendar days
following the occurrence of the Change in Control (but
subject, however, in the case of ISOs, to the aggregate fair
market value, determined as of the date the ISOs are granted,
of the stock with respect to which ISOs are exercisable for
the first time by such Participant during any calendar year
not exceeding $100,000) and, except as required by law, all
restrictions on the transfer of shares acquired pursuant to
such Stock Options shall terminate and (BB) all restrictions
applicable to such Participant's Restricted Stock shall be
deemed to have been satisfied and such Restricted Stock shall
vest in full.
In addition, if a Participant becomes entitled to one or
more payments (with a "payment" including, without limitation,
the vesting of an Award) pursuant to the terms of the Plan
(the "Total Payments"), which are or become subject to the tax
imposed by Section 4999 of the Code (or any similar tax that
may hereafter be imposed) (the "Excise Tax"), the Company or
Subsidiary for whom the Participant is then performing
services shall pay to the Participant an additional amount
(the "Gross-Up Payment") such that the net amount retained by
the Participant, after reduction for any Excise Tax on the
Total Payments and any federal, state and local income or
employment tax and Excise Tax on the Gross-Up Payment, shall
equal the Total Payments. For purposes of determining the
amount of the Gross-Up Payment, the Participant shall be
deemed (aa) to pay federal income taxes at the highest stated
rate of federal income taxation (including surtaxes, if any)
for the calendar year in which the Gross-Up Payment is to be
made (for 1994, the highest stated rate is 39.6%); and (bb) to
pay any applicable state and local income taxes at the highest
stated rate of taxation (including surtaxes, if any) for the
calendar year in which the Gross-Up Payment is to be made. Any
Gross-Up Payment required hereunder shall be made to the
Participant at the same time any Total Payment subject to the
Excise Tax is paid or deemed received by the Participant."
The amendment to Paragraph 3 of the Plan is effective February
1, 1996, and the amendments to Paragraph 2(d) and the Paragraph 11
of the Plan are effective April 19, 1996; provided, however, that
such amendments shall be subject to approval by the stockholders of
the Company at the 1996 Annual Meeting of Stockholders of the
Company as required for the Plan to continue to satisfy the
requirements of Rule 16b-3 under the Securities Exchange Act of
1934, as amended.
EXHIBIT 5
June 26, 1996
Continental Airlines, Inc.
2929 Allen Parkway
Houston, Texas 77019
Ladies and Gentlemen:
I am Senior Vice President and General Counsel of Continental
Airlines, Inc., a Delaware corporation (the "Company"), and I have
advised the Company in connection with the registration pursuant to
a Registration Statement on Form S-8 being filed with the
Securities and Exchange Commission (the "Registration Statement")
under the Securities Act of 1933, as amended (the "Act"), of the
proposed offering and sale of up to 1,500,000 shares of Class B
common stock, par value $.01 per share, of the Company (the "Common
Stock") pursuant to the Company's 1994 Incentive Equity Plan, as
amended (the "Plan").
In this connection, I have examined the corporate records of
the Company, including its Restated Certificate of Incorporation,
its Bylaws and minutes of meetings of its directors. I have also
examined the Registration Statement, together with the exhibits
thereto and such other documents as I have deemed necessary for the
purpose of expressing the opinion contained herein.
Based upon the foregoing, I am of the opinion that the Common
Stock, when issued in accordance with the terms of the Plan and the
Awards (as such term is defined in the Plan) made thereunder, will
be validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of my name herein
under the caption "Named Experts and Counsel". In giving this
consent, I do not thereby admit that I am within the category of
persons whose consent is required under Section 7 of the Act and
the rules and regulations thereunder.
Very truly yours,
Jeffery A. Smisek
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) of Continental Airlines, Inc. (the "Company")
pertaining to the Company's 1994 Incentive Equity Plan, as amended,
of our reports dated February 12, 1996, with respect to the
consolidated financial statements and schedules of Continental
Airlines, Inc. at December 31, 1995 and 1994, and for the years
then ended and the period from April 28, 1993 through December 31,
1993, and the consolidated statements of operations, redeemable and
nonredeemable preferred stock and common stockholders' equity and
cash flows for the period January 1, 1993 through April 27, 1993,
for Continental Airlines Holdings, Inc., all included in the
Company's 1995 Annual Report (Form 10-K) filed with the Securities
and Exchange Commission.
ERNST & YOUNG LLP
Houston, Texas
June 27, 1996