RESTATED
BYLAWS
OF
AMERICA WEST AIRLINES, INC.
(as Amended through and effective on December 31, 1993)
1. OFFICES.
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1.01 Offices. In addition to its registered office in the
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State of Delaware, the Corporation shall have a general office at
Maricopa County, Arizona, and such other offices, either within
or without the State of Delaware, at such locations as the Board
of Directors may from time to time determine or the business of
the Corporation may require.
2. SEAL.
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2.01 Seal. The Corporation shall have a seal, which shall
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have inscribed thereon its name and year of incorporation and the
words, "Corporate Seal Delaware."
2.02 The seal shall be kept in safe custody by the
Secretary of the Corporation. It shall be affixed by the
Chairman of the Board, the President, any Vice President, the
Secretary or any Assistant Secretary, or the Treasurer to any
corporate instrument or document requiring it, by practice or by
law, and when so affixed, it may be attested by the signature of
the officer so affixing it.
3. MEETINGS OF STOCKHOLDERS.
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3.01 Place of Meetings. All meetings of stockholders of
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the Corporation shall be held at the general office of the
Corporation in Maricopa County, State of Arizona, unless
otherwise specified in the notice calling any such meeting.
3.02 (a) Annual Meetings. The annual meeting of
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Stockholders for 1984 shall be held at the Corporate offices on
Friday, May 18, 1984, at 10:00 a.m. or at such other time, date
and place as shall be determined by the Board of Directors,
complying with Section 3.04(b) of the Bylaws of the Corporation.
All subsequent annual meetings of Stockholders, beginning with
the annual meeting to be held in 1985, shall be held on the first
Tuesday of May, if not a legal holiday, and if a legal holiday,
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then on the next business day following, or at such other time,
date and place as shall be determined by the Board of Directors,
complying with Section 3.04(b) of the Bylaws of the Corporation.
(b) At each annual meeting the stockholders shall
elect, by plurality of the votes cast, one class of Directors as
provided in Section 4.03 of these Bylaws and shall transact such
other business as may properly be brought before them.
(c) The Board of Directors may, in advance of any
annual or special meeting of the stockholders, adopt an agenda
for such meeting, adherence to which the Chairman of the Board
may enforce.
3.03 Special Meetings. Special meetings of the
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stockholders of the Corporation, for any purpose or purposes,
unless otherwise prescribed herein or by statute, may be called
by the Chairman of the Board and shall be called by the Secretary
at the written request, or by resolution adopted by the
affirmative vote, of a majority of the Board of Directors. Such
request shall state the purpose or purposes of the proposed
meeting. Stockholders of the Corporation shall not be entitled
to request a special meeting of the stockholders.
3.04 (a) Notices of Meetings. Notices of meetings of
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stockholders shall be in writing and shall state the place (which
may be within or without the State of Delaware), date and hour of
the meeting, and, in the case of a special meeting, the purpose
or purposes for which a meeting is called. No business other
than that specified in the notice thereof shall be transacted at
any special meeting.
(b) Such notice shall either be delivered personally
or mailed, postage prepaid, to each stockholder entitled to vote
at such meeting not less than ten (10) nor more than sixty (60)
days before the date of the meeting. If mailed, the notice shall
be directed to the stockholder at his address as it appears on
the records of the Corporation. Personal delivery of any such
notice to any officer of a corporation or association or to any
member of a partnership shall constitute delivery of such notice
to such corporation, association or partnership.
3.05 Adjourned Meetings. When a meeting is adjourned to
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another time or place, unless otherwise provided by these Bylaws,
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 stockholders
may transact any business which might have been transacted at the
original meeting. If an adjournment is for more than thirty (30)
days or if after an adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder entitled to vote at the meeting.
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3.06 Quorum and Adjournment. Except as otherwise provided
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by law, by the Certificate of Incorporation of this Corporation
or by these Bylaws, the presence, in person or by proxy, of the
holders of a majority of the stock issued and outstanding and
entitled to vote thereat, shall be requisite and shall constitute
a quorum for the transaction of business at all meetings of
stockholders. If, however, such majority shall not be present or
represented at any meeting of stockholders, the holders of a
majority of the stock entitled to vote, present in person or by
proxy, shall have the power to adjourn the meeting.
3.07 Majority Vote Required. When a quorum is present at
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any meeting of stockholders, the affirmative vote of the majority
of shares present in person or represented by proxy at the
meeting and entitled to vote on the subject matter shall
constitute the act of the stockholders, unless by express
provision of law or of the Certificate of Incorporation or of
these Bylaws a different vote is required, in which case such
express provision shall govern and control.
3.08 Manner of Voting. At each meeting of stockholders,
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every stockholder having the right to vote shall be entitled to
vote in person or by proxy. Proxies need not be filed with the
Secretary of the Corporation until the meeting is called to
order, but shall be filed before being voted. Each stockholder
shall have one vote for each share of stock having voting power
registered in his name on the books of the Corporation on the
record date fixed as provided in Section 6.04 of these Bylaws,
for the determination of stockholders entitled to vote at such
meeting. All elections of directors shall be by written ballot.
3.09 (a) Proxies. At any meeting of stockholders, any
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stockholder may be represented and vote by proxy or proxies
appointed by a written form of proxy. In the event that any form
of proxy shall designate two or more persons to act as proxies, a
majority of such persons present at the meeting or, if only one
shall be present, then that one shall have and may exercise all
of the powers conferred by the form of proxy upon all of the
persons so designated unless the form of proxy shall otherwise
provide.
(b) The Board of Directors may, in advance of any
annual or special meeting of the stockholders, prescribe
additional regulations concerning the manner of execution and
filing of proxies and the validation of the same, which are
intended to be voted at any such meeting.
3.10 Organization. At each meeting of stockholders, the
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Chairman of the Board shall preside and the Secretary shall act
as Secretary of the meeting.
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4. DIRECTORS.
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4.01 Powers. The Board of Directors shall exercise all of
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the power of the Corporation except such as are by law, or by the
Certificate of Incorporation of this Corporation or by these
Bylaws conferred upon or reserved to the stockholders of any
class or classes.
4.02 (a) Number. The number of Directors of this
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Corporation shall be a minimum of five (5) and a maximum of
thirteen (13) persons. The Board of Directors shall have sole
authority to determine the number of Directors, within the limits
set forth herein, and may increase or decrease the exact number
of Directors from time to time by resolution duly adopted by such
Board. No decrease in the number of Directors shall have the
effect of shortening the term of any incumbent Director. The
exact number of Directors shall be eleven (11) until so increased
or decreased; provided however, that so long as the Amended and
Restated Management Letter Agreement between America West
Airlines, Inc. and the lenders party thereto dated as of
September 30, 1993 (such Amended and Restated Management Letter
of Agreement, as supplemented and amended from time to time,
being hereinafter referred to as the "Management Agreement")
shall remain in force and effect, the exact number of directors
shall be as prescribed in the Management Agreement.
(b) At all times the composition of the Board of
Directors shall comply in all respects with the U.S. citizenship
requirements of the Federal Aviation Act of 1958, as amended.
4.03 (a) Classification of Board. From and after the
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first annual meeting of stockholders, the Board of Directors
shall be divided into three classes, in respect to term of
office, each class to contain as nearly as may be one third (1/3)
of the whole number of the Board. Of the Board of Directors
elected at the first annual meeting of the stockholders, the
members of the first class shall serve until the annual meeting
of stockholders held in 1983; the members of the second class
shall serve until the annual meeting of stockholders held in
1984; and the members of the third class shall serve until the
annual meeting of stockholders held in 1985.
(b) At each annual meeting after the first annual
meeting, the stockholders shall elect, by a plurality of the
votes cast, one class of Directors to serve until the annual
meeting of stockholders held three (3) years next following,
provided, however, that in each case Directors shall continue to
serve until their successors shall be elected and shall qualify.
4.04 Nominations. No person shall be elected to the Board
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of Directors of this Corporation at an annual meeting of the
stockholders, or at a special meeting called for that purpose,
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unless a written nomination of such person to the Board of
Directors by a stockholder of the Corporation shall be received
by the Secretary of the Corporation at least thirty (30) days
prior to such meeting.
4.05 Resignations. Any Director may resign at any time by
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giving written notice to the Board of Directors or the Secretary.
Such resignation shall take effect at the date of receipt of such
notice or at any later time specified therein. Acceptance of
such resignation shall not be necessary to make it effective.
4.06 (a) Removal. At any special meeting of the
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stockholders duly called as provided heretofore, any or all of
the Directors may, by a vote of the holders of a majority of all
the shares of stock issued and outstanding and entitled to vote
thereat, be removed from office for cause, and the successor or
successors of the Director or Directors so removed may be elected
at such meeting. In the absence of such an election, any vacancy
or vacancies may be filled as provided herein.
(b) As used herein, "cause" for the removal of a
Director shall be deemed to exist if (i) there has been a finding
by not less than two-thirds (2/3) of the entire Board of
Directors that cause exists and the Directors have recommended
removal to the stockholders, or (ii) any other cause defined by
law.
4.07 (a) Vacancies. In case any vacancy shall occur on
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the Board of Directors because of death, resignation, retirement,
disqualification, removal, an increase in the authorized number
of Directors or any other cause, the Board of Directors may, at
any meeting, by resolution adopted by the affirmative vote of
two-thirds (2/3) of the Directors then in office, though less
than a quorum, elect a Director or Directors to fill such vacancy
or vacancies until the next election of the class for which such
Director or Directors shall have been chosen; provided however,
that so long as the Management Agreement shall remain in force
and effect, any vacancy on the Board of Directors shall be filled
in accordance with the provisions of the Management Agreement.
(b) If, as a result of a disaster or emergency (as
determined in good faith by the then remaining Directors), it
becomes impossible to ascertain whether or not vacancies exist on
the Board of Directors, and a person is or persons are elected by
Directors, who in good faith believe themselves to be a majority
of the remaining Directors, to fill a vacancy or vacancies that
said remaining Directors in good faith believe exists, then the
acts of such person or persons who are so elected as Directors
shall be valid and binding upon the Corporation and the
stockholders, although it may subsequently develop that at the
time of the election (i) there was in fact no vacancy or
vacancies existing on the Board of Directors, or (ii) the
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Directors who so elected such person or persons did not in fact
constitute a majority of the remaining Directors.
4.08 Organization. At each meeting of the Board of
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Directors, the Chairman of the Board shall preside, and the
Secretary shall act as Secretary of the meeting.
4.09 Annual Meetings. The Board of Directors shall meet
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each year following the annual meeting of stockholders, at the
place where such meeting of stockholders has been held, for the
purpose of organization, election of officers, and consideration
of such other business as may properly be brought before the
meeting, and no notice of any kind to either old or new members
of the Board of Directors of such annual meeting shall be
necessary.
4.10 Regular Meetings. Regular meetings of the Board of
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Directors shall be held monthly. Such meetings may be held
without notice at such times and places, within or without the
State of Delaware, as shall from time to time be determined by
the Board of Directors. In the absence of any such
determination, such meetings shall be held at such times and
places, within or without the State of Delaware, as shall be
designated by the Chairman of the Board on not less than three
(3) days' notice to each Director, given either personally, by
telephone, by facsimile transmission, by mail, by telegram or by
telex.
4.11 Special Meetings. Special meetings of the Board of
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Directors shall be held at the call of the Chairman of the Board
at such times and places, within or without the State of
Delaware, as he shall designate, on not less than three (3) days'
notice to each Director, given either personally, by telephone,
by facsimile transmission, by mail, by telegram or by telex.
Special meetings shall be called by the Secretary on like notice
at the written request of a majority of the Directors.
4.12 Quorum and Powers of a Majority. At all meetings of
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the Board of Directors and of each committee thereof, a majority
of the members shall be necessary and sufficient to constitute a
quorum for the transaction of business, and the act of a majority
of the members present at any meeting at which a quorum is
present shall be the act of the Board of Directors or such
committee, unless by express provision of law or of the
Certificate of Incorporation or of these Bylaws, a different vote
is required, in which case such express provision shall govern
and control. In the absence of a quorum, a majority of the
members present may, without notice other than announcement at
the meeting, adjourn a meeting from time to time until a quorum
be present.
4.13 Waiver of Notice. Notice of any meeting of the Board
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of Directors, or any committee thereof, need not be given to any
member if waived by him in writing, whether before or after such
meeting is held, or if he shall sign the minutes or if he shall
attend the meeting.
4.14 (a) Manner of Acting. Members of the Board of
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Directors, or any committee thereof, may participate in any
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 therein can hear each other,
and participation in a meeting by such means shall constitute
presence in person at such meeting.
(b) Any action required or permitted to be taken at
any meeting of the Board of Directors or any committee thereof
may be taken without a meeting if all members of the Board of
Directors or 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 of Directors or such
committee.
4.15 (a) Compensation. The Board of Directors, by a
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resolution or resolutions may fix, and from time to time change,
the compensation of Directors.
(b) Each Director shall be entitled to reimbursement
from the Corporation for his or her reasonable expenses incurred
in attending meetings of the Board of Directors or any committee
thereof.
(c) Nothing contained in these Bylaws shall be
construed to preclude any Director from serving the Corporation
in any other capacity and from receiving compensation from the
Corporation for service rendered to it in such other capacity.
4.16 [Reserved.]
4.17 Committees. The Board of Directors may, by resolution
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or resolutions adopted by the affirmative vote of a majority of
the whole Board of Directors, designate one or more committees,
each committee to consist of two or more Directors, which to the
extent provided in said resolution or resolutions shall have and
may exercise the powers and authority of the Board of Directors
in the management of the business and affairs of the Corporation.
Such committee or committees shall have such name or names as may
be determined from time to time by resolutions adopted by the
Board of Directors.
4.18 (a) Committees in General. Except as otherwise
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provided by these Bylaws, each committee shall adopt its own
rules governing the time, place and method of holding its
meetings and the conduct of its proceedings and shall meet as
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provided by such rules or by resolution of the Board of
Directors. Unless otherwise provided by these Bylaws or any such
rules or resolutions, notice of the time and place of each
meeting of a committee shall be given to each member of such
committee as provided in Section 4.10 of these Bylaws with
respect to notices of special meetings of the Board of Directors.
(b) Each committee shall keep regular minutes of its
proceedings and report the same to the Board of Directors when
required.
(c) Any member of any committee, other than a member
thereof serving ex officio, may be removed from such committee
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either with or without cause, any time, by resolution adopted by
the affirmative vote of a majority of the whole Board of
Directors at any meeting thereof. Any vacancy in any committee
shall be filled by the Board of Directors in the manner
prescribed by these Bylaws for the original appointment of the
members of such committee.
5. OFFICERS.
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5.01 (a) Number. The officers of the Corporation shall be a
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President, one or more Vice Presidents (including one or more
Executive Vice Presidents and one or more Senior Vice Presidents
if deemed appropriate by the Board of Directors), a Secretary and
a Treasurer. The Board of Directors may also elect a Chairman of
the Board; provided that, so long as the Management Agreement
shall remain in force and effect, the Board of Directors shall
elect a Chairman of the Board in compliance with the terms and
conditions of the Management Agreement. The Board of Directors
may also elect such other officers as the Board of Directors may
from time to time deem appropriate or necessary. Except for the
Chairman of the Board (if one shall be elected), none of the
officers of the Corporation need be a director of the
Corporation. Any two or more offices may be held by the same
person.
(b) The Chairman of the Board (if one shall be elected)
shall be the Chief Executive Officer unless the Board of
Directors, by resolution adopted by the affirmative vote of not
less than two-thirds (2/3) of the Directors then in office,
designates the President as Chief Executive Officer. The
President shall be the Chief Operating Officer. If at any time
the office of the Chairman of the Board shall not be filled, the
President shall also be the Chief Executive Officer.
(c) The Board of Directors may delegate to the Chief
Executive Officer the power to appoint one or more employees of
the corporation as divisional or departmental vice presidents and
fix their duties as such appointees. However, no such divisional
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or departmental vice president shall be considered as an officer
of the Corporation, the officers of the Corporation being limited
to those officers elected by the Board of Directors.
5.02 Election of Officers, Qualification and Term. The
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officers of the Corporation to be elected by the Board of
Directors shall be elected annually at the first meeting of the
Board of Directors held after each annual meeting of the
stockholders. Each such officer shall hold office for one (1)
year and until his successor shall have been duly elected and
shall qualify in his stead unless the Board of Directors shall
have provided by contract or otherwise in any particular case, or
until he shall have resigned and his resignation shall have
become effective, or until he shall have been removed in the
manner hereinafter provided. Notwithstanding anything in this
Section 5.02 to the contrary, the Chairman of the Board may be
elected only by the vote of two-thirds (2/3) of the Directors
then in office (who may include the Director who is or is to be
the Chairman of the Board).
5.03 Removal. Except as otherwise expressly provided in a
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contract duly authorized by the Board of Directors, any officer
elected by the Board of Directors may be removed, either with or
without cause, at any time by resolution adopted by the
affirmative vote of a majority of the whole Board of Directors at
any meeting thereof; provided that the Chairman of the Board may
be removed only by the vote of two-thirds (2/3) of the Directors
then in office (excluding the Director who is the Chairman of the
Board), and provided further that so long as the Management
Agreement shall remain in force and effect, the Chairman of the
Board may not be removed except in compliance with the terms and
conditions of the Management Agreement.
5.04 Resignations. Any officer of the Corporation may
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resign at any time by giving written notice to the Board of
Directors or the Chairman of the Board. Such resignation shall
take effect at the date of the receipt of such notice or at any
later time specified therein and, unless otherwise specified
therein, the acceptance of such resignation shall not be
necessary to make it effective.
5.05 Vacancies. A vacancy in any office because of death,
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resignation, removal, disqualification or any other cause may be
filled for the unexpired portion of the term by election by the
Board of Directors at any meeting thereof; provided that so long
as the Management Agreement shall remain in effect, any vacancy
in the office of Chairman of the Board shall be filled in
accordance with the provisions of the Management Agreement.
5.06 Salaries. The salaries of all officers of the
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Corporation shall be fixed by the Board of Directors from time to
time, and no officer shall be prevented from receiving such
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salary by reason of the fact that he is also a Director of the
Corporation.
5.07 (a) The Chairman of the Board. The Chairman of the
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Board (if one shall be elected) shall have the powers and duties
customarily and usually associated with the office of the
Chairman of the Board. He shall preside at meetings of the
stockholders and of the Board of Directors. In the event of his
temporary absence or disability and the absence or disability of
the President, the Chairman of the Board shall have the power to
designate any Director to preside at any or all meetings of the
stockholders and of the Board of Directors.
(b) If at any time the office of President shall not
be filled, or in the event of the disability of the President,
the Chairman of the Board (if one shall be elected) shall have
the duties and powers of the President. The Chairman of the
Board shall have such other powers and perform such other duties
as may be delegated to him by the Board of Directors.
5.08 The President. In the event of the disability of the
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Chairman of the Board, the President shall have the powers and
duties of the Chairman of the Board. The President shall have
such other powers and perform such other duties as may be
delegated to him by the Board of Directors or the Chairman of the
Board (if one shall be elected).
5.09 [Reserved.]
5.10 The Vice Presidents. The Vice Presidents shall have
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such powers and perform such duties as may from time to time be
assigned to them by the Board of Directors, the Chairman of the
Board or the President.
5.11 The Secretary and the Assistant Secretary. (a) The
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Secretary shall attend meetings of the Board of Directors and
meetings of the Stockholders and record all votes and minutes of
all such proceedings in a book kept for the purpose and shall
perform like duties for the committees of Directors as provided
for in these Bylaws when required. He shall give, or cause to be
given, notice of all meetings of Stockholders and of the Board of
Directors, and shall have such other powers and perform such
other duties as may from time to time be assigned to him by the
Board of Directors or the Chairman of the Board.
(b) The Assistant Secretaries shall have such powers
and perform such duties as may from time to time be assigned to
them by the Board of Directors, the Chairman of the Board or the
Secretary. In case of the absence or disability of the
Secretary, the Assistant Secretary designated by the Secretary
(or, in the absence of such designation, the senior Assistant
Secretary) shall perform the duties and exercise the powers of
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the Secretary.
5.12 (a) The Treasurer and the Assistant Treasurer. The
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Treasurer shall have custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts
and disbursements in books belonging to the Corporation and shall
deposit moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be
designated by the Board of Directors.
(b) The Treasurer shall disburse funds of the
Corporation as may from time to time be ordered by the Board of
Directors, taking proper vouchers for such disbursements, and
render to the Board of Directors, the Chairman of the Board and
President whenever they may require it, an account of all his
transactions as Treasurer and of the financial conditions of the
Corporation.
(c) The Treasurer shall also maintain adequate
records of all assets, liabilities and transactions of the
Corporation and shall see that adequate audits thereof are
currently and regularly made. He shall have such other powers
and perform such other duties as may from time to time be
assigned to him by the Board of Directors, the Chairman of the
Board or the President.
(d) The Assistant Treasurers shall have such powers and
perform such duties as may from time to time be assigned to them
by the Board of Directors, the Chairman of the Board, the
President or the Treasurer. In case of the absence or disability
of the Treasurer, the Assistant Treasurer designated by the
Treasurer (or, in the absence of such designation, the senior
Assistant Treasurer) shall perform the duties and exercise the
powers of the Treasurer.
5.13 Treasurer's Bond. If required by the Board of
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Directors, the Treasurer or any Assistant Treasurer shall give
the Corporation a bond in such sum and with such surety or
sureties as are satisfactory to the Board of Directors for the
faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death,
resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in
his possession or under his control belonging to the Corporation.
5.14 Chief Executive Officer. The Chief Executive Officer
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shall have, subject to the supervision, direction and control of
the Board of Directors, the general powers and duties of
supervision, direction and management of the affairs and business
of the Corporation usually vested in the chief executive officer
of a corporation, including, without limitation, all powers
necessary to direct and control the organizational and reporting
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relationships within the Corporation. If at any time the office
of Chairman of the Board shall not be filled, the Chief Executive
Officer shall have the powers and duties of the Chairman of the
Board.
5.15 Chief Operating Officer. The Chief Operating Officer
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shall, subject to the supervision, direction and control of the
Chief Executive Officer, manage the day-to-day operations of the
Corporation and, in general, shall assist the Chief Executive
Officer.
6. STOCK.
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6.01 Certificates. Certificates of shares of the stock of
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the Corporation shall be issued under the seal of the
Corporation, or facsimile thereof, and shall be numbered and
shall be entered in the books of the Corporation as they are
issued. Each certificate shall bear a serial number, shall
exhibit the holder's name and the number of shares evidenced
thereby, and shall be signed by the Chairman of the Board, the
President or any vice president of the Corporation and the
Secretary or the Treasurer. Any or all of the signatures on the
certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature
has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect
as if such person or entity were such officer, transfer agent or
registrar at the date of issue.
6.02 Transfers. Transfers of stock of the Corporation
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shall be made on the books of the Corporation only upon surrender
to the Corporation of a certificate for the shares duly endorsed
or accompanied by proper evidence of succession, assignment or
authority to transfer. Thereupon, the Corporation shall issue a
new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
6.03 Lost, Stolen or Destroyed Certificates. Any person
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claiming a certificate of stock to be lost, stolen or destroyed
shall make an affidavit or an affirmation of that fact, and shall
give the Corporation a bond of indemnity in satisfactory from and
with one or more satisfactory sureties, whereupon a new
certificate may be issued of the same tenor and for the same
number of shares as the one alleged to be lost or destroyed.
6.04 Record Date. In order that the Corporation may
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determine the stockholders entitled to notice of or to vote at
any meeting of the 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
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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 shall fix, in advance, a record date, which shall not
be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any
other action, except that the record date for the first annual
meeting of stockholders is fixed by these Bylaws as of the close
of business on November 16, 1981.
6.05 Registered Stockholders. The Corporation shall be
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entitled to recognize the exclusive right of a person registered
on its books as the owner of shares to receive dividends, and to
vote as such owner, and shall not be bound to recognize any
equitable or other claim to or interest in any such shares on the
part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise expressly provided by
the laws of the State of Delaware.
6.06 (a) Powers of the Board. The Board of Directors
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shall have power and authority to make all such rules and
regulations as it shall deem expedient concerning the issue,
transfer and registration of certificates for shares of stock of
the Corporation.
(b) The Board of Directors may appoint and remove
transfer agents and registrars of transfers, and may require all
stock certificates to bear the signature of any such transfer
agent and/or any such registrar of transfers.
(c) The Board of Directors shall have power and
authority to create and issue (whether or not in connection with
the issue and sale of any stock or other securities of the
Corporation) warrants, rights or options entitling the holders
thereof to purchase from the Corporation any shares of any class
or classes or any other securities of the Corporation. Such
warrants, rights or options shall be evidenced by such instrument
or instruments as shall be approved by the Board of Directors.
(d) The terms upon which, the time or times (which
may be limited or unlimited in duration) at or within which, and
the price or prices at which any such shares or other securities
may be purchased from the Corporation upon the exercise of any
such warrant, right or option shall be such as shall be fixed and
stated in a resolution or resolutions of the Board of Directors
providing for the creation and issue of such warrants, rights or
options. The Board of Directors is hereby authorized to create
and issue any such warrants, rights or options from time to time
for such consideration and to such persons, firms or corporations
as the Board of Directors, in its sole discretion, may determine
setting aside from the authorized but unissued stock of the
Corporation the requisite number of shares for issuance upon the
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exercise of such warrants, rights or options.
7.0 MISCELLANEOUS.
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7.01 (a) Place and Inspection of Books. The books of the
-----------------------------
Corporation other than such books as are required by law to be
kept within the State of Delaware, shall be kept at such place or
places either within or without the State of Delaware as the
Board of Directors may from time to time determine.
(b) At least ten (10) 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 shall be prepared.
Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is
to be held, 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.
(c) The Board of Directors shall determine from time
to time whether, and if allowed, when and under what conditions
and regulations the accounts and books of the Corporation (except
such as may be by law specifically open to inspection or as
otherwise provided by these Bylaws) or any of them shall be open
to the inspection of the stockholders, and the stockholders'
rights in this respect are and shall be restricted and limited
accordingly.
7.02 (a) Indemnification of Directors, Officers, Employees
-------------------------------------------------
and Agents. The Corporation shall 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, agent or
fiduciary of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, against
expenses, including attorneys' fees, judgments, fines and amounts
paid or owed in settlement actually and reasonably paid or
incurred by him or rendered or levied against 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
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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, in 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) The Corporation shall 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,
agent or fiduciary of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise,
against expenses, including attorneys' fees, actually and
reasonably paid or 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; provided, however, that no
indemnification shall be made in respect to 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,
despite the adjudication of liability but in view of all
circumstances of the case, such person fairly and equitably
merits indemnification.
(c) To the extent that a person who may be entitled
to indemnification by the Corporation under this section is or
has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and
(b), or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses, including attorney's fees,
actually and reasonably paid or incurred by him in connection
therewith.
(d) Any indemnification under subsections (a) and (b)
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 subsection (a) or (b). Such determination
shall be made (i) by the Board of Directors by a majority vote of
a quorum consisting of Directors who were not parties to such
action, suit or proceeding, or (ii) if such a quorum is not
obtainable or, even if obtainable, a quorum of disinterested
Directors so directs, by independent legal counsel in a written
opinion, (iii) the stockholders, or (iv) in any case in which
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applicable law makes court approval a prerequisite to
indemnification, by the court in which such action, suit or
proceeding was brought or another court of competent
jurisdiction.
(e) Expenses incurred in defending a civil or
criminal 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 the Director, officer, employee or agent 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.
(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 the
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) The provisions of this section shall continue as
to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the estate, executors,
administrators, heirs, legatees or devisees of a person entitled
to indemnification hereunder and the term "person," where used in
the section shall include the estate, executors, administrators,
heirs, legatees or devisees of such person.
(h) For the purposes of this Section 7.02, (i)
"employee benefit plan" and "fiduciary" shall be deemed to
include, but not be limited to, the meanings set forth,
respectively, in Sections 3(3) and 21(A) of the Employee
Retirement Income Security Act of 1974, as amended, (ii)
references to the judgments, fines and amounts paid or owed in
settlement or rendered or levied shall be deemed to encompass and
include excise taxes required to be paid pursuant to applicable
law in respect of any transaction involving an employee benefit
plan, and (iii) references to the Corporation shall be deemed to
include any predecessor corporation and any constituent
corporation absorbed in a merger, consolidation or other
reorganization of or by the Corporation which, if its separate
existence had continued, would have had power and authority to
indemnify its directors, officer, employees, agents or
fiduciaries so that any person who was a director, officer,
employee, agent or fiduciary of such predecessor or constituent
corporation, or served at the request of such predecessor or
constituent corporation as a director, officer, employee, agent
or fiduciary of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, shall stand in
the same position under the provisions of this Section 7.02 with
16
respect to the Corporation as such person would have with respect
to such predecessor or constituent corporation if its separate
existence had continued.
7.03 (a) Dividends. Dividends may be declared at the
---------
discretion of the Board of Directors at any meeting thereof.
(b) Dividends may be paid to stockholders from the
Corporation's surplus, as computed in accordance with the laws of
the State of Delaware, or in case there shall be no surplus, out
of its net profits for the fiscal year then current and/or the
preceding fiscal year, but not otherwise. When the Directors
shall so determine, dividends may be paid in stock. A Director
shall be fully protected in relying in good faith upon the books
of account of the Corporation or statements prepared by any of
its officers as to the value and amount of the assets,
liabilities or net profits of the Corporation, or any other facts
pertinent to the existence and amount of surplus or other funds
from which dividends might properly be declared.
(c) Before payment of any dividend or any
distribution of profits, there may be set aside out of the said
surplus of the Corporation such sum or sums as the Board of
Directors from time to time, in its discretion thinks proper as a
reserve fund to meet contingencies, or for equalizing dividends,
or for such other purpose as the Board of Directors shall think
conducive to the interests of the Corporation and the Board of
Directors may abolish any such reserve in the manner in which it
was created.
7.04 Execution of Deeds, Contracts, Etc. Subject always to
-----------------------------------
the specific directions of the Board of Directors, all deeds,
mortgages and bonds made by the Corporation and all other written
contracts and agreements to which the Corporation shall be a
party shall be executed in its name by the Chairman of the Board,
the President, or a Vice President, or such other person or
persons as may be authorized by any such officer.
7.05 Checks. All checks, drafts, acceptances, notes and
------
other orders, demands or instruments in respect to the payment of
money may be signed or endorsed on behalf of the Corporation by
such officer or officers or by such agent or agents as the Board
of Directors may from time to time designate.
7.06 Voting Shares in Other Corporations. The Corporation
-----------------------------------
may vote any and all shares held by it in any other corporation
or corporations by the Chairman of the Board.
7.07 Fiscal Year. The fiscal year of the Corporation shall
-----------
correspond with the calendar year.
7.08 Gender/Number. As used in this instrument, the
-------------
17
masculine, feminine or neuter gender, and the singular or plural
number, shall each include the others whenever context so
indicates.
7.09 Paragraph Titles. The titles of the paragraphs have
----------------
been inserted as a matter of convenience of reference only and
shall not control or affect the meaning or construction of any of
the terms and provisions hereof.
8. LIMITATIONS OF OWNERSHIP BY NON-CITIZENS.
----------------------------------------
8.01 Definitions.
-----------
(a) "Act" shall mean The Federal Aviation Act of
1958, as amended (Title 49 United States Code) or as the same may
be from time to time amended.
(b) "Foreign Stock Record" shall have the meaning set
forth at Section 8.03 hereof.
(c) "Non-Citizen" shall mean any person or entity who
is not a "citizen of the United States" as defined in Section 101
of the Act, including any agent, trustee or representative of a
Non-Citizen.
(d) "Own or Control" or "Owned or Controlled" shall
mean (i) ownership of record, (ii) beneficial ownership or (iii)
the power to direct, by agreement, agency or in any other manner,
the voting of Stock. Any determination by the Board of Directors
as to whether Stock is Owned or Controlled by a Non-Citizen shall
be final.
(e) "Permitted Percentage" shall mean 25 percent of
the voting power of the Stock.
(f) "Stock" shall mean the outstanding capital stock
of the Corporation entitled to vote; provided, however, that for
the purpose of determining the voting power of Stock that shall
at any time constitute the Permitted Percentage, the voting power
of Stock outstanding shall not be adjusted downward solely
because shares of Stock may not be entitled to vote by reason of
any provision of this Section 8.
8.02 Policy. It is the policy of the Corporation that,
------
consistent with the requirements of Section 101 of the Act, Non-
Citizens shall not Own or Control more than the Permitted
Percentage and, if Non-Citizens nonetheless at any time Own or
Control more than the Permitted Percentage, the voting rights of
the Stock in excess of the Permitted Percentage shall be
automatically suspended in accordance with Sections 8.03 and 8.04
below.
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8.03 Foreign Stock Record. The Corporation or any transfer
--------------------
agent designated by it shall maintain a separate stock record
(the "Foreign Stock Record") in which shall be registered Stock
known to the Corporation to be Owned or Controlled by Non-
Citizens. The Foreign Stock Record shall include (i) the name
and nationality of each such Non-Citizen, (ii) the number of
shares of Stock Owned or Controlled by such Non-Citizen and (iii)
the date of registration of such shares in the Foreign Stock
Record. In no event shall shares in excess of the Permitted
Percentage be entered on the Foreign Stock Record. In the event
that the Corporation shall determine that Stock registered on the
Foreign Stock Record exceeds the Permitted Percentage, sufficient
shares shall be removed from the Foreign Stock Record so that the
number of shares entered therein does not exceed the Permitted
Percentage. Stock shall be removed from the Foreign Stock Record
in reverse chronological order based upon the date of
registration therein.
8.04 Suspension of Voting Rights. If at any time the
---------------------------
number of shares of Stock known to the Corporation to be Owned or
Controlled by Non-Citizens exceeds the Permitted Percentage, the
voting rights of Stock Owned or Controlled by Non-Citizens and
not registered on the Foreign Stock Record at the time of any
vote or action of the stockholders of the Corporation shall,
without further action by the Corporation, be suspended. Such
suspension of voting rights shall automatically terminate upon
the earlier of the (i) transfer of such shares to a person or
entity who is not a Non-Citizen, or (ii) registration of such
shares on the Foreign Stock Record, subject to the final sentence
of Section 8.03.
9. AMENDMENT.
---------
9.01 Amendment. These Bylaws may be altered, amended or
---------
repealed by the affirmative vote of the holders of a majority of
the stock issued and outstanding and entitled to vote at any
meeting of stockholders or by resolution adopted by the
affirmative vote of not less than a majority of the Directors in
office at any annual or regular meeting of the Board of Directors
or at any special meeting of the Board of Directors if notice of
the proposed alteration, amendment or repeal be contained in the
notice of such special meeting.
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