10
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ATLANTIC COAST AIRLINES, INC.
The undersigned, for the purpose of amending and
restating the Certificate of Incorporation of Atlantic Coast
Airlines, Inc., a Delaware corporation (the "Corporation"), does
hereby certify that:
1. The date of filing of the Corporation's original Certificate
of Incorporation with the Secretary of State of the State of
Delaware was June 14, 1991.
2. This Amended and Restated Certificate of Incorporation has
been duly adopted pursuant to Sections 242 and 245 of the
Delaware General Corporation Law.
3. The Certificate of Incorporation of the Corporation is
hereby amended and restated in its entirety 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 76,000,000 shares, which
shall consist of (i) 65,000,000 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
Amended and Restated Certificate of Incorporation on behalf of
the Corporation and does hereby verify and affirm, under penalty
of perjury, that this Amended and Restated Certificate of
Incorporation is the act and deed of the Corporation and that the
facts stated herein are true as of May 5, 1998.
________________________________
Richard J. Kennedy
Vice President, General Counsel and
Secretary
WA980210.153/7+