Exhibit 3.1
FOURTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ATLANTIC COAST AIRLINES HOLDINGS, INC.
The undersigned, for the purpose of amending and restating
the Amended and Restated Certificate of Incorporation of Atlantic
Coast Airlines Holdings, Inc., a corporation duly organized and
existing under the General Corporation Law of the State of
Delaware (the "Corporation"), does hereby certify that:
1. (a) The present name of the Corporation is Atlantic
Coast Airlines Holdings, Inc.
(b) The name under which the corporation was originally
incorporated is Atlantic Coast Airlines, Inc., and the date of
filing the original Certificate of Incorporation of the
Corporation with the Secretary of State of the State of Delaware
is June 14, 1991.
2. The third Amended and Restated Certificate of
Incorporation of the Corporation, filed with the Secretary of
State of the State of Delaware on May 8, 1998, is hereby amended
by striking out Article IV thereof and by substituting in lieu
thereof new Article IV which is set forth in the Fourth Amended
and Restated Certificate of Incorporation hereinafter provided
for.
3. The provisions of the Certificate of Incorporation of
the Corporation as heretofore amended and/or supplemented, and as
herein amended, are hereby restated and integrated into the
single instrument which is hereinafter set forth, and which is
entitled Fourth Amended and Restated Certificate of Incorporation
of Atlantic Coast Airlines Holdings, Inc. without any further
amendment other than the amendment herein certified and without
any discrepancy between the provisions of the Certificate of
Incorporation as heretofore amended and supplemented and the
provisions of the said single instrument hereinafter set forth.
4. The amendment and the restatement of the Certificate of
Incorporation herein certified have been duly adopted by the
stockholders in accordance with the provisions of Sections 228,
242, and 245 of the General Corporation Law of the State of
Delaware.
5. The Certificate of Incorporation of the Corporation, as
amended and restated herein, shall at the effective time of this
Fourth Amended and Restated Certificate of Incorporation, read as
follows:
ARTICLE I
The name of the Corporation (the "Corporation") is Atlantic
Coast Airlines Holdings, Inc.
ARTICLE II
The address of the registered office of the Corporation in
the State of Delaware is Corporation Trust Center, 1209 Orange
Street in the City of Wilmington, County of New Castle, Delaware
19801. The name of the registered agent at such address is The
Corporation Trust Company.
ARTICLE III
The nature of the business or purposes to be conducted or
promoted by the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
ARTICLE IV
1. The total number of shares which the Corporation shall
have the authority to issue is 141,000,000 shares, which shall
consist of (i) 130,000,000 shares of Common Stock ("Common"), par
value $.02 per share, (ii) 6,000,000 shares of Class A Non-Voting
Common Stock, par value $.02 per share ("Class A Non-Voting
Common" and, together with the Common, the "Common Stock"); and
(iii) 5,000,000 shares of preferred stock, par value $.02 per
share ("Preferred Stock").
2. Except as otherwise provided in this Article IV or as
otherwise required by applicable law, all shares of Common and
Class A Non-Voting Common shall be identical in all respects and
shall entitle the holders thereof to the same rights and
privileges, subject to the same qualifications, limitations and
restrictions.
A. Voting Rights. Except as otherwise provided in this
Article IV or as otherwise required by applicable law, holders of
Common shall be entitled to one vote per share on all matters to
be voted on by the stockholders of the Corporation, and the
holders of Class A Non-Voting Common shall have no right to vote
on any matters to be voted on by the stockholders of the
Corporation; provided, however, that the approval of the holders
of a majority of the outstanding Class A Non-Voting Common,
voting as a separate class, shall be required for any merger or
consolidation of the Corporation with or into another entity or
entities, any sale of all or substantially all the Corporation's
assets, or any recapitalization or reorganization, if, as a
result of any of the foregoing, the shares of Class A Non-Voting
Common would receive or be exchanged for consideration different
on a per share basis than the consideration received with respect
to or in exchange for the shares of Common or would otherwise be
treated differently from shares of Common in connection with such
transaction, except that shares of Class A Non-Voting Common may,
without such a separate class vote, receive or be exchanged for
non-voting securities which are otherwise identical on a per
share basis in amount and form to the voting securities received
with respect to or exchanged for the Common so long as (i) such
non-voting securities are convertible into such voting securities
on the same terms as the Class A Non-Voting Common is convertible
into Common and (ii) all other consideration is equal on a per
share basis.
B. Dividends. As and when dividends are declared or paid
thereon, whether in cash, property or securities of the
Corporation, the holders of Common and the holders of Class A Non-
Voting Common shall be entitled to participate in such dividends
ratably on a per share basis; provided that (i) if dividends are
declared which are payable in shares of Common or Class A Non-
Voting Common, dividends shall be declared which are payable at
the same rate on both classes of stock and the dividends payable
in shares of Common shall be payable to holders of that class of
stock and the dividends payable in shares of Class A Non-Voting
Common shall be payable to holders of that class of stock and
(ii) if the dividends consist of other voting securities of the
Corporation, the Corporation shall make available to each holder
of Class A Non-Voting Common, at such holder's request, dividends
consisting of non-voting securities of the Corporation which are
otherwise identical to the voting securities and which are
convertible into or exchangeable for such voting securities on
the same terms as the Class A Non-Voting Common is convertible
into the Common.
C. Liquidation. The holders of the Common and the Class A
Non-Voting Common shall be entitled to participate ratably on a
per share basis in all distributions to the holders of Common
Stock in any liquidation, dissolution or winding up of the
Corporation.
D. Conversion.
(i) Subject to and upon compliance with the
provisions herein, at the option of the holder, shares
of Class A Non-Voting Common may, at any time and from
to time, be converted into fully paid and nonassessable
shares of Common at the rate of one share of Common for
each share of Class A Non-Voting Common.
(ii) Each conversion of shares of Class A Non-
Voting Common into shares of Common will be effected by
the surrender of the certificate or certificates
representing the shares to be converted to the
Corporation at the principal office of the Corporation
at any time during normal business hours, together with
a written notice by the holder of such shares of Class
A Non-Voting Common stating that such holder desires to
convert the shares, or a stated number of the shares,
of such Class A Non-Voting Common represented by such
certificate or certificates into shares of Common.
Such conversion will be deemed to have been effected
immediately prior to the close of business on the date
of surrender of certificates for conversion in
accordance with the foregoing provisions, and at such
time the rights of the holder of the converted Class A
Non-Voting Common as such holder shall cease and the
person or persons in whose name or names the
certificate or certificates for shares of Common are to
be issued upon such conversion shall be deemed to have
become the holder or holders of record of the shares of
Common represented thereby from and after such time.
(iii) Promptly after the surrender of certificates
and the receipt of written notice, the Corporation
shall issue and deliver in accordance with the
surrendering holder's instructions (i) the certificate
or certificates for the Common issuable upon such
conversion and (ii) a certificate representing any
Class A Non-Voting Common which was represented by the
certificate or certificates delivered to the
Corporation in connection with such conversion but
which was not converted.
(iv) The issuance of certificates for Common upon
conversion of Class A Non-Voting Common will be made
without charge to the holders of such shares for any
issuance tax in respect thereof or other cost incurred
by the Corporation in connection with such conversion
and the related issuance of Common.
(v) The Corporation shall at all times reserve and
keep available, out of its authorized and unissued
shares of Common solely for the purpose of issuance
upon the conversion of shares of the Class A Non-Voting
Common as herein provided, free from preemptive and
other subscription rights, such number of shares of
Common as shall then be issuable upon the conversion of
all outstanding Class A Non-Voting Common. The
Corporation shall ensure that all shares of Common
which shall be so issuable shall, upon issue, be duly
and validly issued and fully paid and nonassessable,
and free from all taxes, liens and charges.
(vi) The Corporation shall take all such actions
as may be necessary to assure that all shares of Common
Stock may be issued without violation of any applicable
law or governmental regulation or any requirements of
any domestic securities exchange upon which shares of
Common Stock may be listed (except for official notice
of issuance which will be immediately transmitted by
the Corporation upon issuance). If any shares of
Common required to be reserved for the purposes of
conversion of shares of Class A Non-Voting Common
hereunder require registration with or approval of any
governmental authority under any federal or state law
or regulation, or listing upon any national securities
exchange, before such shares may be issued upon
conversion, the Corporation will, in good faith and as
expeditiously as possible, endeavor to cause such
shares to be duly registered, approved or listed, as
the case may be. The Corporation shall provide upon
request to any holder who proposes to convert shares of
Class A Non-Voting Common for shares of Common with any
information that may be required concerning the
Corporation in any filing or application to be made by
such holder to any governmental authority or agency
prior to, in connection with, or as a result of such
conversion.
(vii) If the Corporation in any manner subdivides
or combines the outstanding shares of one class of
Common Stock, the outstanding shares of the other class
of Common Stock will be proportionately subdivided or
combined.
(viii) The Corporation will not close its books
against the transfer of Class A Non-Voting Common or of
Common issued or issuable upon conversion of Class A
Non-Voting Common in any manner which would interfere
with the timely conversion of any shares of Class A Non-
Voting Common.
E. Registration of Transfer. The Corporation shall keep
at its principal office (or such other place as the Corporation
reasonably designates) a register for the registration of shares
of Common Stock. Upon the surrender of any certificate
representing shares of any class of Common Stock at such place,
the Corporation shall, at the request of the registered holder of
such certificate, execute and deliver a new certificate or
certificates in exchange therefor representing in the aggregate
the number of shares of such class represented by the surrendered
certificate, and the Corporation forthwith shall cancel such
surrendered certificate. Each such new certificate will be
registered in such name and, in the case of Class A Non-Voting
Common, will represent such number of shares of such class as is
requested by the holder of the surrendered certificate and will
be substantially identical in form to the surrendered
certificate. The issuance of new certificates shall be made
without charge to the holders of the surrendered certificates for
any issuance tax in respect thereof, or other cost incurred by
the Corporation in connection with such issuance.
F. Replacement. Upon receipt of evidence reasonably
satisfactory to the Corporation (an affidavit of the registered
holder will be satisfactory) of the ownership and the loss,
theft, destruction or mutilation of any certificate evidencing
one or more shares of any class of Common Stock, and in the case
of any such loss, theft or destruction, upon receipt of indemnity
reasonably satisfactory to the Corporation (provided that, if the
holder is a financial institution or other institutional
investor, its own agreement will be satisfactory), or, in the
case of any such mutilation upon surrender of such certificate,
the Corporation shall (at its expense) execute and deliver in
lieu of such certificate a new certificate of like kind
representing the number of shares of such class represented by
such lost, stolen, destroyed or mutilated certificate and dated
the date of such lost, stolen, destroyed or mutilated
certificate.
G. Notices. All notices referred to herein shall be in
writing, shall be delivered personally or by first class mail,
postage prepaid, and shall be deemed to have been given when so
delivered or mailed to the Corporation at its principal executive
offices and to any stockholder at such holder's address as it
appears in the stock records of the Corporation (unless otherwise
specified in a written notice to the Corporation by such holder).
H. Amendment and Waiver. No amendment or waiver of any
provision of this Article IV shall be effective without the prior
approval of the holders of a majority of the then outstanding
Class A Non-Voting Common voting as a separate class.
3. The Preferred Stock may be issued from time to time as
herein provided in one or more series. The designations,
relative rights, preferences and limitations of the Preferred
Stock, and particularly of the shares of each series thereof,
may, to the extent permitted by law, be similar to or differ from
those of any other series. The Board of Directors of the
Corporation is hereby expressly granted authority, subject to the
provisions of this Article IV, to fix, from time to time before
issuance thereof, the number of shares in each series and all
designations, relative rights, preferences and limitations of the
shares in each such series, including, but without limiting the
generality of the foregoing, the following:
(a) the designation of the series and the number of shares
to constitute each series;
(b) the dividend rate on the shares of each series, any
conditions on which and times at which dividends are payable,
whether dividends shall be cumulative, and the preference or
relation (if any) with respect to such dividends (including
possible preferences over dividends on the Common and the Class A
Non-Voting Common or any other class or classes);
(c) whether the series will be redeemable (at the option of
the Corporation or the holders of such shares or both, or upon
the happening of a specified event) and, if so, the redemption
prices and the conditions and times upon which redemption may
take place and whether for cash, property or rights, including
securities of the Corporation or another Corporation;
(d) the terms and amount of any sinking, retirement or
purchase fund;
(e) the conversion or exchange rights (at the option of the
Corporation or the holders of such shares or both, or upon the
happening of a specified event), if any, including the conversion
or exchange price and other terms of conversion or exchange;
(f) the voting rights, if any (other than any voting rights
that the Preferred Stock may have as a matter of law);
(g) any restrictions on the issue or reissue or sale of
additional Preferred Stock;
(h) the rights of the holders upon voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
Corporation (including preferences over the Common and the Class
A Non-Voting Common or other class or classes or series of
stock);
(i) the preemptive rights, if any, to subscribe to
additional issues of stock or securities of the Corporation; and
(j) such other special rights and privileges, if any, for
the benefit of the holders of the Preferred Stock, as shall not
be inconsistent with provisions of this Restated Certificate of
Incorporation.
All shares of Preferred Stock of the same series shall be
identical in all respects, except that shares of any one series
issued at different times may differ as to dates, if any, from
which dividends thereon may accumulate. All shares of Preferred
Stock of all series shall be of equal rank and shall be identical
in all respects except that any series may differ from any other
series with respect to any one or more of the designations,
relative rights, preferences and limitations described or
referred to in subparagraphs 2(a) to 2(j) inclusive above.
ARTICLE V
1. Notwithstanding anything to the contrary contained in
this Restated Certificate of Incorporation, at no time shall
shares of capital stock of the Corporation be voted by, or at the
direction of, Persons ("Aliens") who are not "Citizens of the
United States" as defined in 49 U.S.C. 40102(a)(15), as now in
effect or as it may hereafter from time to time be amended ("U.S.
Citizens"), unless such shares are registered on the separate
stock record maintained by the Corporation for the registration
of ownership of Voting Stock, as defined in the Bylaws, by
Aliens. The Bylaws may contain provisions to implement this
provision.
2. (a) The Bylaws of the Corporation may make appropriate
provisions to effect the requirement of this Article V.
(b) All certificates representing Common Stock or any other
voting stock of the Corporation are subject to the restrictions
set forth in this Article V.
(c) A majority of the directors of the Corporation shall
have the exclusive power to determine all matters necessary to
determine compliance with this Article V; and the good faith
determination of a majority of the directors on such matters
shall be conclusive and binding for all the purposes of this
Article V.
3. (a) The Corporation may by notice in writing (which may
be included in the form of proxy or ballot distributed to
stockholders of the Corporation in connection with the annual
meeting or any special meeting of the Stockholders of the
Corporation, or otherwise) require a Person that is a holder of
record of equity securities of the Corporation or that the
Corporation knows to have, or has reasonable cause to believe
has, beneficial ownership of equity securities of the
Corporation, to certify in such manner the Corporation shall deem
appropriate (including by way of execution of any form of proxy
or ballot by such Person) that, to the knowledge of such Person:
(i) all equity securities of the Corporation as to
which such Person has record ownership or beneficial
ownership are owned and controlled only by U.S.
Citizens; or
(ii) the number and class or series of equity
securities of the Corporation owned of record or
beneficially owned by such person that are owned or
controlled by Aliens are as set forth in such
certificate.
As used herein, "beneficial ownership" and "beneficially
owned" refer to beneficial ownership as defined in Rule 13d-3
(without regard to the 60-day provision in paragraph (d)(1)(i)
thereof) under the Securities Exchange Act of 1934.
(b) With respect to any equity securities identified by such
Person in response to Section 3(a)(ii) of this Article V, the
Corporation may require such Person to provide such further
information as the Corporation may reasonably require in order to
implement the provisions of this Article V.
(c) For the purpose of applying the provisions of this
Article V with respect to any equity securities of the
Corporation, in the event of the failure of any Person to provide
the certificate or other information to which the Corporation is
entitled pursuant to this Section 3, the Corporation shall
presume that the equity securities in question are owned or
controlled by Aliens.
ARTICLE VI
The business and affairs of the Corporation shall be managed
by or under the direction of a Board of Directors consisting of
such number of directors as is determined from time to time by
resolution adopted by the Board of Directors.
ARTICLE VII
In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to
make, alter or repeal the by-laws of the Corporation.
ARTICLE VIII
1. Elections of directors need not be written ballot
unless the by-laws of the Corporation shall so provide.
2. Meetings of stockholders may be held at such place
either within or without the State of Delaware, as may be
designated by or in the manner provided by the by-laws. The
books of the Corporation may be kept (subject to any provision
contained in the statutes of the State of Delaware) outside the
State of Delaware at such place or places as may be designated
from time to time by the Board of Directors or in the by-laws of
the Corporation.
ARTICLE IX
1. A director of the Corporation shall not 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 Delaware
General Corporation Law, or (iv) for any transaction from which
the director derived any improper personal benefit. If the
Delaware General Corporation Law is amended after approval by the
stockholders of this Article VIII to authorize corporate action
further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by
the Delaware General Corporation Law, as so amended.
2. (a) Each person who was or is made 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 (hereinafter a "proceeding")
(including an action by or in the right of the Corporation), by
reason of the fact that he is or was serving as a director or
officer of the Corporation (or is or was serving at the request
of the Corporation in a similar capacity with another entity,
including employee benefit plans), shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by
the Delaware General Corporation Law. This indemnification will
cover all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and settlement
amounts) reasonably incurred by the director in connection with a
proceeding. All such indemnification shall continue as to a
director or officer who has ceased to be a director or officer
and shall continue to the benefit of such director's or officer's
heirs, executors and administrators. Except as provided in
paragraph (b) hereof with respect to proceedings to enforce
rights to indemnification, the Corporation shall indemnify any
such director or officer who initiates a proceeding only if such
proceeding was authorized by the Board of Directors of the
Corporation. The right to indemnification conferred by this
Section shall be a contract right and shall include the right to
be paid by the Corporation the expenses incurred in defending any
such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"). If the Delaware General
Corporation Law requires, an advancement of expenses incurred by
a director or officer in his capacity as a director or officer
shall be made only upon delivery to the Corporation of an
undertaking by such director or officer to repay all amounts so
advanced if it is ultimately determined by final judicial
decision that such director or officer is not entitled to be
indemnified for such expenses under this Section or otherwise
(hereinafter an "undertaking").
(b) If a claim under paragraph (a) of this Section is not
paid in full by the Corporation within ninety days after receipt
of a written claim, the director or officer may bring suit
against the Corporation to recover the unpaid amount. (In the
case of a claim for advancement of expenses, the applicable
period will be twenty days.) If successful in any such suit, the
director or officer will also be entitled to be paid the expense
of prosecuting such suit. In any suit brought by the director or
officer to enforce a right to indemnification hereunder (but not
in a suit brought by the director or officer to enforce a right
to an advancement of expenses), it shall be a defense that the
director or officer has not met the applicable standard of
conduct under the Delaware General Corporation Law. In any suit
by the Corporation to recover an advancement of expenses pursuant
to the terms of an undertaking, it shall be entitled to recover
such expenses upon a final adjudication that the director or
officer has not met the applicable standard of conduct set forth
in the Delaware General Corporation Law. Neither the failure of
the Board of Directors of the Corporation to determine prior to
the commencement of such suit that the director or officer has
met the applicable standard of conduct for indemnification set
forth in the Delaware General Corporation Law, nor an actual
determination by the Board of Directors of the Corporation that
the director or officer has not met such applicable standard of
conduct, shall create a presumption that the director or officer
has not met the applicable standard of conduct or, in the case of
such a suit brought by the director or officer to enforce a right
hereunder, or by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the burden of
proving that the director or officer is not entitled to be
indemnified or to such advancement of expenses under this Section
or otherwise shall be on the Corporation.
(c) The rights to indemnification and to the advancement of
expenses conferred in this Section will not be exclusive of any
other right which any person may have or hereafter acquire under
any statute, this Restated Certificate of Incorporation, by-law,
agreement, vote of stockholders or disinterested directors or
otherwise.
(d) The Corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of
the Corporation or other entity against any expense, liability or
loss, whether or not the Corporation would have the power to
indemnify such person under the Delaware General Corporation Law.
(e) The Corporation may, if authorized by the Board of
Directors, grant rights to indemnification and to the advancement
of expenses to any employee or agent of the Corporation to the
same extent as for directors of the Corporation.
ARTICLE X
The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Restated Certificate of
Incorporation, in the manner now or hereafter prescribed by the
Laws of the State of Delaware and may add additional provisions
authorized by such laws as are then in force. All rights
conferred upon the directors or stockholders of the Corporation
herein or in any amendment hereof are granted subject to this
reservation.
IN WITNESS WHEREOF, the undersigned has executed this Fourth
Amended and Restated Certificate of Incorporation on behalf of
the Corporation and does hereby verify and affirm, under penalty
of perjury, that this Fourth Amended and Restated Certificate of
Incorporation is the act and deed of the Corporation and that the
facts stated herein are true as of June __, 2001.
________________________________
Richard J. Kennedy
Vice President, General Counsel and Secretary