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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 or 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1995
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM __________ TO __________
Commission File Number 0-9781
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, Suite 2010
Houston, Texas 77019
(Address of principal executive offices)
(Zip Code)
713-834-2950
(Registrant's telephone number, including area code)
Indicate by check mark whether registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes X No _____
Indicate by check mark whether the registrant has filed all documents
and reports required to be filed by Sections 12, 13 or 15(d) of the
Securities Exchange Act of 1934 subsequent to the distribution of
securities under a plan confirmed by a court. Yes X No _____
_______________
As of October 13, 1995, 6,301,056 shares of Class A common stock and
21,276,963 shares of Class B common stock were outstanding.
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
Exhibit 3.1
BY-LAWS
OF
CONTINENTAL AIRLINES, INC.
Including all amendments through November 2, 1995
TABLE OF CONTENTS
Page
ARTICLE I
Stockholders
Section 1.1 Annual Meeting 1
Section 1.2 Special Meetings 1
Section 1.3 Place of Meeting 1
Section 1.4 Notice of Meetings 2
Section 1.5 Quorum 2
Section 1.6 Voting 3
Section 1.7 Presiding Officer and Secretary 3
Section 1.8 Proxies 4
Section 1.9 List of Stockholders 4
Section 1.10 Notice of Stockholder Business and Nominations 5
Section 1.11 Inspectors of Elections; Opening and
Closing the Polls 8
ARTICLE II
Directors 9
Section 2.1 Powers and Duties of Directors 9
Section 2.2 Election; Term; Vacancies 10
Section 2.3 Resignation 10
Section 2.4 Removal 11
Section 2.5 Meetings 11
Section 2.6 Quorum and Voting 13
Section 2.7 Written Consent of Directors in Lieu of
of a Meeting 13
Section 2.8 Compensation
ARTICLE III
Committees of the Board of Directors 14
Section 3.1 Creation 14
Section 3.2 Committee Procedure 15
Section 3.3 Certain Definitions 15
ARTICLE IV
Officers, Agents and Employees 16
Section 4.1 Appointment and Term of Office 16
Section 4.2 Resignation and Removal 17
Section 4.3 Compensation and Bond 17
Section 4.4 Chairman of the Board 18
Section 4.5 Vice Chairman 18
Section 4.6 Chief Executive Officer 18
Section 4.7 President 19
Section 4.8 Chief Operating Officer 19
Section 4.9 Vice Presidents 19
Section 4.10 Treasurer 19
Section 4.11 Secretary 19
Section 4.12 Assistant Treasurers 20
Section 4.13 Assistant Secretaries 20
Section 4.14 Delegation of Duties 20
Section 4.15 Loans to Officers and Employees; Guaranty
of Officers and Employees 21
ARTICLE V
Indemnification 21
Section 5.1 Indemnification of Directors, Officers,
Employees and Agents 21
ARTICLE VI
Common Stock 23
Section 6.1 Certificates 23
Section 6.2 Transfers of Stock 24
Section 6.3 Lost, Stolen or Destroyed Certificates 24
Section 6.4 Stockholder Record Date 24
ARTICLE VII
Ownership by Aliens 25
Section 7.1 Foreign Stock Record 25
Section 7.2 Maximum Percentage 26
Section 7.3 Recording of Shares 26
ARTICLE VIII
General Provisions 28
Section 8.1 Fiscal Year 28
Section 8.2 Dividends 28
Section 8.3 Checks, Notes, Drafts, Etc. 28
Section 8.4 Corporate Seal 29
Section 8.5 Waiver of Notice 29
ARTICLE IX
Restated Certificate of Incorporation to Govern 29
Section 9.1 Restated Certificate of Incorporation to Govern 29
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 (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 any Vice Chairman of the Board,
or the Chief Executive Officer, as designated by the Board of Directors,
or, if none be 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, and in the
case of the Corporation's first annual meeting to be held after the initial
adoption of these By-Laws, 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. 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 of Directors shall have the principal role in
the formulation of short and long-term strategic, financial, and
organizational goals of the Corporation and shall oversee and supervise the
performance of corporate management in carrying out the directives of the
Board of Directors. 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 the Board by resolution
adopted by the affirmative vote of that number of Directors as is required
pursuant to Article Fifth, Section 2(b) of the Restated Certificate of
Incorporation to approve an amendment of Articles II and III of these By-
Laws.
Section 2.2 Election; Term; Vacancies. The Directors shall hold
office until the next annual election and until their successors are
elected and qualified. No Independent Director (as defined in the Restated
Certificate of Incorporation) shall be nominated by the Board of Directors
or by the Corporation to serve on the Board of Directors unless such
Independent Director shall be satisfactory to Air Partners. 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 case of any AC Director or AP Director (as defined in Section
3.3) the vacancy shall be filled for the unexpired term by the remaining AC
Directors or AP Directors, as the case may be, by a majority affirmative
vote of such Directors; provided further, that in the event of a vacancy by
reason of death, resignation or otherwise of a Director elected by the
holders of Class C Common Stock or Class D Common Stock, such vacancy shall
be filled for the unexpired term by the holders of Class C Common Stock or
Class D Common Stock, as the case may be, 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; provided, that until the Third
Annual Meeting, Creditors Designees (as those terms are defined in the
Restated Certificate of Incorporation) may only be removed for cause.
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, development of an
annual calendar (the "Board Calendar"), 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. The Board
Calendar shall specify, to the extent practicable, at which meeting the
Board of Directors will carry out various duties and reviews, and shall
include all topics the Board of Directors deems relevant to the management
of the Corporation, including, without limitation, strategic planning,
capital allocation, long-range goals, performance appraisal, and personnel
planning. The Board Calendar will be distributed to all Directors promptly
after its approval by the Board of Directors. The place and time of the
inaugural meeting of the Board may also be fixed by written consent of the
Directors.
(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 the Board shall
hold at least four (4) regular meetings in each year; provided further,
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 except that in any event the Board
shall hold at least four (4) regular meetings in each year prior to the
Third Annual Meeting (as defined in the Restated Certificate of
Incorporation). 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 reports and recommendations of any
committee of the Board of Directors required to deliver periodic reports
and the agenda for the meeting prepared by the Chief Executive Officer 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, any Vice Chairman, 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. Two-thirds 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 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 AC Directors (as defined
in Section 3.3) or AP Directors (as defined in Section 3.3) any such
committee shall include (if so requested by any AP Director or AC Director,
as the case may be), to the extent consistent with applicable laws and
regulations, such number of AC Directors or AP 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 AP Directors or AC Directors, as the case may be, on the Entire Board
(as defined in the Restated Certificate of Incorporation); provided
further, that for so long as there shall be any AC Directors or AP
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), an AP Director and an AC
Director. Each such committee shall have and may exercise such powers and
duties as shall be delegated to it by the Board, except that no such
committee shall have the power to (a) elect Directors, (b) alter, amend or
repeal these By-Laws or any resolution or resolutions of the Board relating
to such committee, (c) appoint any member of such committee, (d) declare
any dividend or make any other distribution to the stockholders of the
Corporation, or (e) take any other actions which may lawfully be taken only
by the full Board of Directors. In the event that the Board creates an
audit or similar committee prior to the Third Annual Meeting, at least one
Creditors Designee (as defined in the Restated Certificate of
Incorporation) shall serve on such committee until the Third Annual
Meeting.
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 and other reports
and recommendations to be delivered to the Board of Directors in sufficient
time to be distributed to the Board of Directors in connection with the
regular meeting of the Board of Directors to which the committee is
scheduled to report, as indicated on the Board Calendar. 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 a detailed 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) and shall
be recommended to the Board by the appropriate committee thereof not later
than thirty (30) days prior to the end of such preceding fiscal year.
(B) Annual Financial Plan. When used in these By-Laws, the term
"Annual Financial Plan" shall mean a detailed 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) and shall be recommended to the Board by the
appropriate committee thereof not later than thirty (30) days prior to the
end of such preceding fiscal year.
(C) AC Director. When used in these By-Laws, the term "AC Director"
shall mean a Director designated or elected by Air Canada (as defined in
the Restated Certificate of Incorporation) under the Shareholders Agreement
(as defined in the Restated Certificate of Incorporation), elected by the
holders of Class C Common Stock or elected by Directors to fill a vacancy
created by the departure of any of the foregoing Directors.
(D) AP Director. When used in these By-Laws, the term "AP Director"
shall mean a Director designated or elected by Air Partners (as defined in
the Restated Certificate of Incorporation) under the Shareholders Agreement
(as defined in the Restated Certificate of Incorporation), elected by the
holders of Class D Common Stock or elected by Directors to fill a vacancy
created by the departure of any of the foregoing Directors.
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 one or more
Vice Chairmen of the Board, 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 Vice Chairman. Each Vice Chairman of the Board, in the
absence of the Chairman of the Board, shall have all powers herein
conferred upon the Chairman of the Board. In addition, each Vice Chairman
shall have such other powers and duties as may be delegated to him or her
by the Board of Directors.
Section 4.6 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 and the Vice 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 prepare an agenda for each
annual and regular meeting of the Board of Directors, which agenda shall
include those topics scheduled to be addressed pursuant to the Board
Calendar. He or she 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 4.7 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 4.8 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 4.9 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 4.10 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 4.11 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 4.12 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 4.13 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 4.14 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 4.15 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
General Corporation Law of the State of Delaware (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 or a Vice
Chairman of the Board, if any, 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 Air Canada is an
Alien, shares of Voting Stock held by Air Canada which were acquired
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 pursuant to Air Canada's rights under the
Shareholders Agreement, or upon conversion or exchange of such securities,
or as a dividend or distribution in respect of such securities
(collectively, "AC 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 Air Canada
requests that shares of AC Original Equity Securities be so registered;
provided further, 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 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 (other than shares
of AC Original Equity Securities) 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 Air Canada is an Alien, shares of AC Original Equity Securities
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; provided further,
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 (other than shares of AC Original Equity Securities) 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 4.1
CERTIFICATE OF ELIMINATION
OF
SERIES A 8% CUMULATIVE PREFERRED STOCK OF
CONTINENTAL AIRLINES, INC.
Pursuant to Section 151(g) of the General Corporation Law
of the State of Delaware
Continental Airlines, Inc., a Delaware corporation (the "Company"),
certifies that pursuant to the authority contained in its Restated
Certificate of Incorporation, and in accordance with the provisions of
Section 151(g) of the General Corporation Law of the State of Delaware, its
Board of Directors has adopted the following resolutions to the effect that
all outstanding shares of the Company's Series A 8% Cumulative Preferred
Stock, $.01 par value each (the "Series A 8% Cumulative Preferred Stock"),
be acquired by the Company, and that upon such acquisition, no shares of
the Series A 8% Cumulative Preferred Stock shall be issued or reissued by
the Company:
RESOLVED, that all shares of Series A 8% Cumulative Preferred
Stock acquired by the Company pursuant to such exchange be retired.
RESOLVED, that upon the retirement of all outstanding shares of
the Series A 8% Cumulative Preferred Stock, the Company shall not
issue any additional shares of Series A 8% Cumulative Preferred Stock,
and that the Company file with the Secretary of State of the State of
Delaware a certificate to the foregoing effect, which certificate,
pursuant to Section 151(g) of the Delaware General Corporation Law,
shall have the effect of eliminating from the Company's Restated
Certificate of Incorporation the certificate of designation with
respect to the Series A 8% Cumulative Preferred Stock and shall return
the retired shares of Series A 8% Cumulative Preferred Stock to the
status of authorized but unissued shares of Preferred Stock of the
Company.
The Company further certifies that all outstanding shares of the
Series A 8% Cumulative Preferred Stock have been repurchased by the
Company, that no shares of the Series A 8% Cumulative Preferred Stock are
outstanding as of the date hereof, and that no shares of the Series A 8%
Cumulative Preferred Stock will be issued or reissued from and after the
date hereof.
IN WITNESS WHEREOF, the undersigned officer of the Company subscribes
to this Certificate of Elimination of Series A 8% Cumulative Preferred
Stock and affirms that the statements made herein are true under penalties
of perjury as of the 2nd day of October, 1995.
CONTINENTAL AIRLINES, INC.
By: /s/ Jeffery A. Smisek
Name: Jeffery A. Smisek
Title: Secretary
Exhibit 10.1
FIRST 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 (the "Plan") on March 4, 1994, subject to approval by the
stockholders of the Company, which was obtained at the annual meeting held
June 30, 1994. Subject to applicable provisions of Paragraph 15 of the
Plan, the Board retained the right to amend the Plan. The Board has
determined by resolutions adopted on April 27, 1995 that the Plan be
amended as follows. Capitalized terms not otherwise defined in this First
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 is hereby amended so as 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 3,000,000
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. The first sentence of Paragraph 4(k) is hereby amended so as to
read in its entirety as follows:
"In the discretion of the Administrator, a percentage (determined
by the Administrator and set forth in the written agreement or
notification evidencing each grant of a Stock Option) of the
aggregate shares of Common Stock obtained from exercises of a
Stock Option (which percentage may be satisfied out of particular
exercises as determined by the Administrator and set forth in the
written agreement or notification evidencing each grant of a
Stock Option) shall not be transferable prior to the earliest to
occur of: the termination of the relevant Stock Option term (or
such shorter period as may be determined by the Administrator and
set forth in the written agreement or notification evidencing the
grant of the Stock Option); the Participant's retirement, death
or Disability; or termination of the Participant's employment
with the Company and its subsidiaries."
3. The term "Committee" is hereby replaced by the term
"Administrator" throughout the Plan, except as follows:
(i) Paragraph 2(f) is hereby amended so as to read in its
entirety as follows:
""Committee" means the Human Resources Committee of the Board,
which at all times will consist of not less than two directors
(all of whom are Outside Directors) appointed by the Board, each
of whom will be a "disinterested person" within the meaning of
Rule 16b-3 and an "outside director" within the meaning of
Section 162(m) of the Code. The action of a majority of the
members of the Committee (but not less than two members) will be
the act of the Committee. "Administrator" means (i) in the
context of Awards made to, or the administration (or
interpretation of any provision) of the Plan as it relates to,
any Participant who is subject to Section 16 of the Exchange Act
(or any successor section to the same or similar effect)
("Section 16"), the Committee, (ii) in the context of Awards made
to, or the administration (or interpretation of any provision) of
the Plan as it relates to, any Participant who is not subject to
Section 16, the Chief Executive Officer of the Company and (iii)
to the extent administration of the Plan has been assumed by the
Board pursuant to a resolution of the Board, the Board.";
(ii) Paragraph 2(y): the clause "or the Committee" is hereby
deleted;
(iii) Paragraph 14(a) is hereby amended so as to read in its
entirety as follows:
"This Plan shall be administered by the Administrator.";
(iv) The second sentence of Paragraph 14(b) is hereby amended
so as to read in its entirety as follows:
"Neither the Board, the Committee, the Chief Executive Officer
nor any member of the Board or the Committee will, in connection
with the administration of the Plan as the Administrator, be
liable for any such action or determination taken or made in good
faith."; and
(v) Paragraph 16(b): the term "Committee" is hereby replaced
by the term "Board".
4. The last sentence of Paragraph 2(y), and Schedule A to the Plan,
are hereby deleted.
5. There is hereby inserted at the end of clause (i) of the first
sentence of Paragraph 11 of the following clause:
", unless otherwise provided in the written agreement evidencing
an Award," and
there is hereby inserted in clause (1) of the first sentence of Paragraph
11, immediately after the words "Qualifying Event" and before the
parenthetical reference, the following clause:
"or, if the written agreement evidencing an Award so provides,
for a period of 30 calendar days commencing upon the date of such
Change in Control".
6. Paragraph 2(d) is hereby amended to read in its entirety as
follows:
"Change in Control" means the occurrence of one of the events
described in subclause (a), (b), (c) or (d) of clause (i) of the
first sentence of Paragraph 11."
The foregoing amendments to the Plan are effective April 27, 1995;
provided, however, that any such amendment that without approval by the
stockholders of the Company would result in the Plan no longer satisfying
the requirements of Rule 16b-3 shall only be effective upon approval
thereof by the stockholders of the Company within one year following April
27, 1995.