EXHIBIT 3.2.1
Atlas Air Worldwide Holdings, Inc.
BY-LAWS
of
ATLAS AIR WORLDWIDE HOLDINGS, INC.
* * * * * * * * * * * * * * * * * * * * * *
AS OF JULY 28, 2004
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other places
both within and without the State of Delaware as the Board of Directors may from
time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of
Directors shall be held in the City of Purchase, State of New York, at such
place as may be fixed from time to time by the Board of Directors, or at such
other place either within or without the State of Delaware as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting. Meetings of stockholders for any other purpose may be held at
such time and place, within or without the State of Delaware, as shall be stated
in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held on the last
Thursday of May if not a legal holiday, and if a legal holiday, then on the next
secular day following, at 11:00 A.M., or at such other date and time as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting, at which they shall elect by a plurality vote a Board of
Directors, and transact such other business as may properly be brought before
the meeting.
Section 3. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be
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called by (i) the Chairman of the Board of Directors, (ii) the Chief Executive
Officer of the Corporation or (iii) the Board of Directors pursuant to a
resolution adopted by a majority of the total number of authorized Directors.
Section 4. Whenever stockholders are required or permitted to take any
action at a meeting, unless notice is waived in writing by all stockholders
entitled to vote at the meeting, a written notice of the meeting shall be given
which shall state the place, date and hour of the meeting, and, in the case of a
special meeting, the purpose for which the meeting is called.
Unless otherwise provided by law, and except as to any stockholder
duly waiving notice, the written notice of any meeting shall be given personally
or by mail, not less than ten nor more than 60 days before the date of the
meeting to each stockholder entitled to vote at such meeting. If mailed, notice
shall be deemed given when deposited in the mail, postage prepaid, directed to
the stockholder at his or her address as it appears on the records of the
Corporation.
When a meeting is adjourned to another time or place, notice need
not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting the Corporation may transact any business which might have been
transacted at the original meeting. If, however, the adjournment is for more
than thirty 30 days, or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 5. The officer who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten (10) days before every meeting
of stockholders, a
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complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (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.
The stock ledger shall be the only evidence as to which stockholders
are entitled to examine the stock ledger or the list required by this Section 5,
or to vote in person or by proxy at any meeting of shareholders.
Section 6. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice, except as provided in the
last paragraph of Section 4 of this Article II, until a quorum shall be present
or represented. At such adjourned meeting at which a quorum shall be present or
represented any business may be transacted which might have been transacted at
the meeting as originally notified.
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Section 7. Except as otherwise provided by the Certificate of
Incorporation or these By-Laws, whenever Directors are to be elected at a
meeting, they shall be elected by a plurality of the votes cast at the meeting
by the holders of stock entitled to vote. Whenever any corporate action, other
than the election of Directors, is to be taken by vote of stockholders at a
meeting, it shall be authorized by a majority of the votes cast at the meeting
by the holders of stock entitled to vote thereon, except as otherwise required
by law, by the Certificate of Incorporation or by these By-Laws.
Except as otherwise provided by law, or by the Certificate of
Incorporation or these By-Laws, each holder of record of stock of the
Corporation entitled to vote on any matter at any meeting of stockholders shall
be entitled to one vote for each share of such stock standing in the name of
such holder on the stock ledger of the Corporation on the record date for the
determination of the stockholders entitled to vote at the meeting.
Upon the demand of any stockholder entitled to vote, the vote for
Directors or the vote on any other matter at a meeting shall be by written
ballot, but otherwise the method of voting and the manner in which votes are
counted shall be discretionary with the presiding officer at the meeting.
Section 8. At every meeting of stockholders the Chairman of the Board,
or any Vice Chairman of the Board, or the Chief Executive Officer, as designated
by the Board of Directors, or, if none be present, or in the absence of any such
designation, the appointee of the meeting, shall preside. The Secretary, or in
his or her absence an Assistant Secretary, or if none be present, the appointee
of the presiding officer of the meeting, shall act as secretary of the meeting.
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Section 9. Each stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for him or her by
proxy executed in writing by the stockholder or as otherwise permitted by law,
or by his or her duly authorized attorney-in-fact. Such proxy must be filed with
the Secretary of the Corporation or his or her representative at or before the
time of the meeting.
Section 10. (A) Annual Meetings of Stockholders. (1) Nominations of
persons for election to the Board of Directors of the Corporation and the
proposal of business to be considered by the stockholders may be made at an
annual meeting of stockholders (a) pursuant to the Corporation's notice of
meeting delivered pursuant to Section 4 of Article II of these By-Laws, (b) by
or at the direction of the Board of Directors or (c) by any stockholder of the
Corporation who is entitled to vote at the meeting, who complied with the notice
procedures set forth in clauses (2) and (3) of paragraph (A) of this Section 10
and who was a stockholder of record at the time such notice is delivered to the
Secretary of the Corporation.
(2) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of
this Section 10, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a stockholder's
notice shall be delivered to the Secretary at the principal executive offices of
the Corporation not less than seventy days nor more than ninety days prior to
the first anniversary of the preceding year's annual meeting, or, in the case of
the Corporation's first annual meeting to be held after the initial adoption of
these By-Laws, the preceding year's annual meeting of Atlas Air, Inc., a
Delaware corporation; PROVIDED, HOWEVER, that in the event that the date of the
annual meeting is
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advanced by more than twenty days, or delayed by more than seventy days, from
such anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the ninetieth day prior to such annual meeting and
not later than the close of business on the later of the seventieth day prior to
such annual meeting or the tenth day following the day on which public
announcement of the date of such meeting is first made. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or reelection as a Director all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of Directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), including such person's written consent to being named in the
proxy statement as a nominee and to serving as a Director if elected; (b) as to
any other business that the stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (c) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (ii) the class and number
of shares of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2)
of this Section 10 to the contrary, in the event that the number of Directors to
be elected to the Board of Directors is increased and there is no public
announcement naming all of the
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nominees for Director or specifying the size of the increased Board of Directors
made by the Corporation at least eighty days prior to the first anniversary of
the preceding year's annual meeting, a stockholder's notice required by this
Section 10 shall also be considered timely, but only with respect to nominees
for any new positions created by such increase, if it shall be delivered to the
Secretary at the principal executive offices of the Corporation not later than
the close of business on the tenth day following the day on which such public
announcement is first made by the Corporation.
(B) Special Meeting of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting pursuant to Section
4 of Article II of these By-Laws. Nominations of persons for election to the
Board of Directors may be made at a special meeting of stockholders at which
Directors are to be elected pursuant to the Corporation's notice of meeting (i)
by or at the direction of the Board of Directors or (ii) by any stockholder of
the Corporation who is entitled to vote at the meeting, who complies with the
notice procedures set forth in this Section 10 and who is a stockholder of
record at the time such notice is delivered to the Secretary of the Corporation.
Nominations by stockholders of persons for election to the Board of Directors
may be made at such a special meeting of stockholders if the stockholder's
notice as required by paragraph (A)(2) of this Section 10 shall be delivered to
the Secretary at the principal executive offices of the Corporation not earlier
than the ninetieth day prior to such special meeting and not later than the
close of business on the later of the seventieth day prior to such special
meeting or the tenth day following the day on which public announcement is
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first made of the date of the special meeting and of the nominees proposed by
the Board of Directors to be elected at such meeting.
(C) General. (1) Only persons who are nominated in accordance with the
procedures set forth in this Section 10 shall be eligible to serve as Directors
and only such business shall be conducted at a meeting of stockholders as shall
have been brought before the meeting in accordance with the procedures set forth
in this Section 10. Except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws, the Chairman of the meeting shall have the power
and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made in accordance with the procedures set forth
in this Section 10 and, if any proposed nomination or business is not in
compliance with this Section 10, to declare that such defective proposal or
nomination shall be disregarded.
(2) For purposes of this Section 10, "public
announcement" shall mean disclosures in a press release reported by the Dow
Jones News Service, Associated Press or comparable national news service or in a
document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this
Section 10, a stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 10. Nothing in this Section 10 shall be deemed
to affect any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
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Section 11. The Board of Directors by resolution shall appoint one or
more inspectors, which inspector or inspectors may include individuals who serve
the Corporation in other capacities, including, without limitation, as officers,
employees, agents or representatives of the Corporation, to act at the meeting
and make a written report thereof. One or more persons may be designated as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate has been appointed to act, or if all inspectors or alternates who
have been appointed are unable to act, at the meeting of stockholders, the
Chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before discharging his or her duties, shall take and
sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspectors
shall have the duties prescribed by the General Corporation Law of the State of
Delaware (the "GCL").
The Chairman of the meeting shall fix and announce at the
meeting the time of the opening and the closing of the polls for each matter
upon which the stockholders will vote at a meeting.
ARTICLE III
DIRECTORS
Section 1. The number of Directors which shall constitute the whole
Board shall be not less than 1 nor more than 11. The first Board shall consist
of one Director. Thereafter, within the limits above specified, the number of
Directors shall be determined by resolution of the Board of Directors or by the
stockholders at the annual meeting. The Directors shall be elected at the annual
meeting of the stockholders, except as provided in Section 2 of this Article,
and each Director elected shall hold office until his successor is elected and
qualified. Except as otherwise permitted by or consistent with applicable
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statutory, regulatory and interpretive restrictions regarding foreign ownership
or control of U.S. air carriers, at no time shall more than one-third of the
Directors in office be Aliens (as defined in the Certificate of Incorporation).
Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any
increase in the authorized number of Directors may be filled by a majority of
the Directors then in office, though less than a quorum, or by a sole remaining
Director, and the Directors so chosen shall hold office until the next annual
election and until their successors are duly elected and shall qualify, unless
sooner displaced. If there are no Directors in office, then an election of
Directors may be held in the manner provided by statute. If, at the time of
filling any vacancy or any newly created directorship, the Directors then in
office shall constitute less than a majority of the whole Board (as constituted
immediately prior to any such increase), the Court of Chancery may, upon
application of any stockholder or stockholders holding at least ten percent of
the total number of the shares at the time outstanding having the right to vote
for such Directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the Directors chosen by
the Directors then in office.
Section 3. The business of the Corporation shall be managed by or under
the direction of its Board of Directors which may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by statute or
by the Certificate of Incorporation or by these By-Laws directed or required to
be exercised or done by the stockholders.
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ARTICLE IV
CHAIRMAN OF THE BOARD OF DIRECTORS
Section 1. The Board of Directors in its discretion may elect a
Chairman of the Board of Directors and may also choose one or more Vice-Chairman
of the Board. The Chairman of the Board of Directors shall be a Director. He
shall preside at all meetings of stockholders and of the Board of Directors at
which he shall be present, and he shall perform such other duties and enjoy such
other powers as shall be delegated to him by the Board of Directors or which are
or may at any time be required by law.
Section 2. Each Vice Chairman of the Board, in the absence of the
Chairman of the Board, shall have all powers herein conferred upon the Chairman
of the Board. In addition, each Vice Chairman shall have such other powers and
duties as may be delegated to him or her by the Board of Directors.
Section 3. The Chairman and any Vice-Chairman of the Corporation shall
hold office until their successors are chosen and qualify. Any Chairman or
Vice-Chairman elected or appointed by the Board of Directors may be removed at
any time by the affirmative vote of a majority of the Board of Directors.
ARTICLE V
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. The Board of Directors of the Corporation may hold meetings,
both regular and special, either within or without the State of Delaware at such
place as is indicated in the notice or waiver of notice thereof.
Section 2. The first meeting of each newly elected Board of Directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected Directors
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in order legally to constitute the meeting, provided a quorum shall be present.
In the event of the failure of the stockholders to fix the time or place of such
first meeting of the newly elected Board of Directors, or in the event such
meeting is not held at the time and place so fixed by the stockholders, the
meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for special meetings of the Board of Directors, or
as shall be specified in a written waiver signed by all of the Directors.
Section 3. Regular meetings of the Board of Directors shall be held on
such date and at such times and places as shall be designated from time to time
by the Board of Directors; PROVIDED, that the Board shall hold at least four (4)
regular meetings in each year; PROVIDED, FURTHER, that the regular meetings of
the Board of Directors can be waived at the request of the Chief Executive
Officer if at least a majority of the Directors agree in writing to such waiver
at least seven days before the date of the meeting to be so waived except that
in any event the Board shall hold at least four (4) regular meetings in each
year. The Secretary shall forward to each Director, at least five days before
any such regular meeting, a notice of the time and place of the meeting,
together with the reports and recommendations of any committee of the Board of
Directors required to deliver periodic reports and the agenda for the meeting
prepared by the Chief Executive Officer or in lieu thereof a notice of waiver if
the regular meeting has been waived.
Section 4. Special meetings of the Directors may be called by the
Chairman of the Board, any Vice Chairman, the Chief Executive Officer or a
majority of the Directors, at such time and place as shall be specified in the
notice or waiver thereof. Notice of each special meeting, including the time and
place of the meeting and the agenda
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therefor, shall be given by the Secretary or by the person calling the meeting
to each Director by causing the same to be delivered personally or by facsimile
transmission not later than the close of business on the second day next
preceding the day of the meeting.
Section 5. Members of the Board of Directors, or of any committee
designated by the Board, may participate in a meeting of the Board of Directors
or such committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
Section 6. At all meetings of the Board a majority of the Directors
shall constitute a quorum for the transaction of business and the act of a
majority of the Directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute or by the Certificate of Incorporation. If a
quorum shall not be present at any meeting of the Board of Directors the
Directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 7. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee thereof may be taken
without a meeting, if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
Section 8. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting of
the Board of Directors, or any
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committee, by means of conference telephone or similar communications equipment
but by means of which all persons participating in the meeting can hear each
other, and such participation in a meeting shall constitute presence in person
at the meeting.
ARTICLE VI
COMMITTEES OF DIRECTORS
Section 1. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each committee to
consist of one or more of the Directors of the Corporation. The Board may
designate, subject to the requirements of such committee's charter and
applicable laws, rules and regulations, one or more Directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee.
In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint,
subject to the requirements of such committee's charter and applicable laws,
rules and regulations, another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution
of the Board of Directors, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to amending the Certificate of Incorporation
(except that a committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted by the
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Board of Directors as provided in Section 151(a) of the GCL, fix any of the
preferences or rights of such shares relating to dividends, redemption,
dissolution, any distribution of assets of the Corporation or the conversion
into, or the exchange of such shares for, shares of any other class or classes
or any other series of the same or any other class or classes of stock of the
Corporation), adopting an agreement of merger or consolidation, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending the
By-Laws of the Corporation; and, unless the resolution or the Certificate of
Incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock or to
adopt a certificate of ownership and merger. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the Board of Directors.
Section 2. A Chairman of each committee shall be selected by the Board
of Directors to serve for such term as the Board of Directors may determine.
Subject to any requirements of the applicable committee charter and applicable
laws, rules and regulations, each committee shall fix its own rules of procedure
and shall meet at such times and places and upon such call or notice as shall be
provided by such rules. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required.
Section 3. The Board of Directors may, in its discretion designate
annually an Executive Committee consisting of not less than three Directors as
it may, from time to time determine, subject to applicable laws, rules and
regulations. The Committee shall
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have and may exercise such powers and authority of the Board of Directors in the
management of the business and affairs of the corporation as the Board of
Directors may from time to time prescribe, subject to applicable laws, rules and
regulations; PROVIDED, HOWEVER, that to the extent prohibited by law, the
Executive Committee shall not have the power or authority of the Board of
Directors in respect of (1) approving or adopting, or recommending to the
stockholders, any action or matter expressly required by the GCL to be submitted
to the stockholders of the Company for approval or (2) adopting, amending or
repealing any By-Law of the Company.
Section 4. The Board of Directors shall designate annually an Audit and
Governance Committee comprised of three or more Directors. Such committee shall
satisfy the requirements of applicable laws, rules and regulations regarding its
composition and the qualifications of its members. The Audit and Governance
Committee shall conduct its activities and govern itself in accordance with the
requirements of an Audit and Governance Committee Charter adopted and from time
to time amended by the Board of Directors.
Section 5. The Board of Directors shall designate annually a
Compensation Committee comprised of three or more Directors. Such committee
shall satisfy the requirements of applicable laws, rules and regulations
regarding its composition and the qualifications of its members. The
Compensation Committee shall conduct its activities and govern itself in
accordance with the requirements of a Compensation Committee Charter adopted and
from time to time amended by the Board of Directors.
Section 6. The Board of Directors may designate a Nominating Committee
comprised of three or more independent Directors (as defined below) of the
Corporation.
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Such committee, if appointed, shall satisfy the requirements of applicable laws,
rules and regulations regarding its composition and the qualifications of its
members. The Nominating Committee, if appointed, shall conduct its activities
and govern itself in accordance with the requirements of a Nominating Committee
Charter adopted and from time to time amended by the Board of Directors. For
purposes of this Section 20, the term "independent directors" shall have the
meaning ascribed to such term under the rules of the Nasdaq Stock market or, if
different, the primary exchange on which the common stock of the Corporation is
listed for trading.
Section 7. At each meeting of any committee the presence of a majority
of the members of such committee, whether regular or alternate, shall be
necessary to constitute a quorum for the transaction of business, and if a
quorum is present the concurrence of a majority of those present shall be
necessary for the taking of any action; PROVIDED, HOWEVER, that no action may be
taken by the Executive Committee when two or more officers of the corporation
are present as members at a meeting of such committee unless such action shall
be concurred in by the vote of two or more members of such committee who are not
officers of the corporation.
ARTICLE VII
COMPENSATION OF DIRECTORS
Section 1. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, the Board of Directors shall have the authority
to fix the compensation of Directors. The Directors may be paid their expenses,
if any, of attendance at each meeting of the Board of Directors and may be paid
a fixed sum for attendance at each meeting of the Board of Directors or a stated
salary as Director. No such payment shall preclude any Director from serving the
Corporation in any other capacity and receiving
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compensation therefor. Members of special or standing committees may be allowed
like compensation for attending committee meetings.
ARTICLE VIII
REMOVAL OF DIRECTORS
Section 1. Unless otherwise restricted by the Certificate of
Incorporation or by law, any Director or the entire Board of Directors may be
removed, with or without cause, by the holders of a majority of shares entitled
to vote at an election of Directors.
ARTICLE IX
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
Certificate of Incorporation or of these By-Laws, notice is required to be given
to any Director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
Director or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
Notice to Directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation or of these
By-Laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE X
OFFICERS
Section 1. The officers of the Corporation shall be chosen by the Board
of Directors and shall be a Chief Executive Officer, a President, a
Vice-President, a
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Secretary and a Treasurer. The Board of Directors may also choose additional
Vice-Presidents, and one or more Assistant Secretaries and Assistant Treasurers.
Any number of offices may be held by the same person, unless the Certificate of
Incorporation or these By-Laws otherwise provide.
Section 2. The Board of Directors at its first meeting after each
annual meeting of stockholders shall choose a Chief Executive Officer, a
President, one or more Vice-Presidents, a Secretary and a Treasurer.
Section 3. The Board of Directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the Board of Directors.
Section 4. The salaries of all officers and agents of the Corporation
shall be fixed by the Board of Directors or the Compensation Committee of the
Board.
Section 5. The officers of the Corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed by the
Board of Directors may be removed at any time by the affirmative vote of a
majority of the Board of Directors. Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors.
ARTICLE XI
CHIEF EXECUTIVE OFFICER
Section 1. In the absence of the Chairman of the Board of Directors,
the Chief Executive Officer shall preside at all meetings of the stockholders
and the Board of Directors. He shall have general and active management of the
business of the
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Corporation and shall see that all orders and resolutions of the Board of
Directors are carried into effect.
Section 2. The Chief Executive Officer shall execute bonds, mortgages
and other contracts requiring a seal, under the seal of the Corporation, except
where required or permitted by law to be otherwise signed and executed and
except where the signing and execution thereof shall be expressly delegated by
the Board of Directors to some other officer or agent of the Corporation.
ARTICLE XII
PRESIDENT
Section 1. The President shall perform all the duties and enjoy all the
powers commonly incident to his office or delegated to him or which are, or may
be, authorized or required by law. In the absence of the Chairman of the Board
of Directors, he shall have and perform the duties of that office.
ARTICLE XIII
THE VICE-PRESIDENTS
Section 1. In the absence of the President or in the event of his
inability or refusal to act, the Vice-President (or in the event there be more
than one Vice-President, the Vice-Presidents in the order designated by the
Directors, or in the absence of any designation, then in the order of their
election) shall perform the duties of the President, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the
President. The Vice-Presidents shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
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ARTICLE XIV
THE SECRETARY AND ASSISTANT SECRETARY
Section 1. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the proceedings of
the meetings of the Corporation and of the Board of Directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors or
Chief Executive Officer, under whose supervision he shall be. He shall have
custody of the corporate seal of the Corporation and he, or an Assistant
Secretary, shall have authority to affix the same to any instrument requiring it
and when so affixed, it may be attested by his signature or by the signature of
such Assistant Secretary. The Board of Directors may give general authority to
any other officer to affix the seal of the Corporation and to attest the
affixing by his signature.
Section 2. The Assistant Secretary, or if there be more than one, the
Assistant Secretaries in the order determined by the Board of Directors (or if
there be no such determination, then in the order of their election) shall, in
the absence of the Secretary or in the event of his inability or refusal to act,
perform the duties and exercise the powers of the Secretary and shall perform
such other duties and have such other powers as the Board of Directors may from
time to time prescribe.
ARTICLE XV
THE TREASURER AND ASSISTANT TREASURERS
Section 1. The Treasurer shall have the 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 all moneys
and other valuable
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effects in the name and to the credit of the Corporation in such depositories as
may be designated by the Board of Directors.
Section 2. He shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
Corporation.
Section 3. If required by the Board of Directors, he shall give the
Corporation a bond (which shall be renewed every six years) in such sum and with
such surety or sureties as shall be 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.
Section 4. The Assistant Treasurer, or if there shall be more than one,
the Assistant Treasurers in the order determined by the Board of Directors (or
if there be no such determination, then in the order of their election) shall,
in the absence of the treasurer or in the event of his inability or refusal to
act, perform the duties and exercise the powers of the treasurer and shall
perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe.
ARTICLE XVI
CERTIFICATES FOR SHARES
Section 1. The shares of the Corporation shall be represented by a
certificate or shall be uncertificated. Certificates shall be signed by, or in
the name of the Corporation
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by the Chairman or Vice-Chairman of the Board of Directors, the Chief Executive
Officer, or the President or a Vice-President, and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation.
Within a reasonable time after the issuance or transfer of
uncertificated stock, the Corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to Sections 151, 156, 202(a) or 218(a) of the GCL or a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
Section 2. Any of or all the signatures on a certificate may be
facsimile. In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
ARTICLE XVII
LOST CERTIFICATES
Section 1. The Board of Directors or any officer of the Corporation may
direct a new certificate or certificates or uncertificated shares to be issued
in place of any certificate or certificates theretofore issued by the
Corporation alleged to have been lost, stolen or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen or destroyed. When authorizing such issue of a new certificate or
certificates or uncertificated shares, the Board of Directors or any
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officer may, in its/his/her discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it/he/she shall require and/or to give the Corporation a bond
in such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
ARTICLE XVIII
TRANSFER OF STOCK
Section 1. Upon surrender to the Corporation or the transfer agent of
the Corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, it shall be
the duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares such uncertificated shares shall be canceled and issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the books
of the Corporation.
ARTICLE XIX
FIXING RECORD DATE
Section 1. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the
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purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty nor less than ten days before
the date of such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; PROVIDED,
HOWEVER, that the Board of Directors may fix a new record date for the adjourned
meeting.
ARTICLE XX
REGISTERED STOCKHOLDERS
Section 1. The Corporation shall be 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 to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE XXI
OWNERSHIP BY ALIENS
Section 1. Foreign Stock Record. There shall be maintained a separate
stock record, designated the "Foreign Stock Record," for the registration of
Voting Stock, as defined in Section 2, that is Beneficially Owned (as defined in
the Certificate of Incorporation) by aliens, as defined in the Certificate of
Incorporation ("Alien Stock"). The Beneficial Ownership by aliens of Voting
Stock shall be determined in conformity with regulations prescribed by the Board
of Directors.
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Section 2. Maximum Percentages. At no time shall ownership of shares
representing more than the Maximum Percentage, as defined below, be registered
in the Foreign Stock Record. As used herein, (a) "Maximum Percentage" means the
maximum percentage of voting power of Voting Stock, as defined below, which may
be voted by, or at the direction of, Aliens without violating applicable
statutory, regulatory and interpretive restrictions regarding foreign ownership
or control of U.S. air carriers or adversely affecting the Corporation's
operating certificates or authorities, and (b) "Voting Stock" means all
outstanding shares of capital stock of the Corporation issued from time to time
by the Corporation which, by their terms may vote (at the time such
determination is made) for the election of Directors of the Corporation, except
shares of Preferred Stock that are entitled to vote for the election of
Directors solely as a result of the failure to pay dividends by the Corporation
or other breach of the terms of such Preferred Stock.
Section 3. Recording of Shares. If at any time there exist shares of
Voting Stock that are Alien Stock but that are not registered in the Foreign
Stock Record, the Beneficial Owner thereof may request, in writing, the
Corporation to register ownership of such shares on the Foreign Stock Record and
the Corporation shall comply with such request, subject to the limitation set
forth in Section 2. The order in which Alien Stock shall be registered on the
Foreign Stock Record shall be chronological, based on the date the Corporation
received a written request to so register such shares of Alien Stock. If at any
time the Corporation shall find that the combined voting power of Voting Stock
then registered in the Foreign Stock Record exceeds the Maximum Percentage,
there shall be removed from the Foreign Stock Record the registration of such
number of shares so registered as is sufficient to reduce the combined voting
power of the shares so registered
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to an amount not in excess of the Maximum Percentage. The order in which such
shares shall be removed shall be reverse chronological order based upon the date
the Corporation received a written request to so register such shares of Alien
Stock.
ARTICLE XXII
GENERAL PROVISIONS - DIVIDENDS
Section 1. Dividends upon the capital stock of the Corporation, subject
to the provisions of the Certificate of Incorporation, if any, may be declared
by the Board of Directors at any regular or special meeting, pursuant to law.
Dividends may be paid in cash, in property, or in shares of the capital stock,
subject to the provisions of the Certificate of Incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the Corporation available for dividends such sum or sums as the
Directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the Directors shall think conducive to the interest of the
Corporation, and the Directors may modify or abolish any such reserve in the
manner in which it was created.
ARTICLE XXIII
ANNUAL STATEMENT
Section 1. The Board of Directors shall present at each annual meeting
a full and clear statement of the business and condition of the Corporation.
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ARTICLE XXIV
CHECKS
Section 1. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as
the Board of Directors may from time to time designate.
ARTICLE XXV
FISCAL YEAR
Section 1. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
ARTICLE XXVI
SEAL
Section 1. The corporate seal shall have inscribed thereon the name of
the Corporation and the words "Corporate Seal, Delaware." The seal may be used
by causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE XXVII
INDEMNIFICATION
Section 1. Any person made a party or threatened to be made a party to
a threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an 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 or officer of the Corporation, or is or
was serving at the request of the Corporation as a Director or officer of
another corporation, partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan, shall be indemnified
by the Corporation against expenses (including attorneys' fees), judgment, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding to the fullest extent authorized
by the
29
GCL as the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said law permitted the Corporation
to provide prior to such amendment). The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of NOLO
CONTENDERE or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, that the person had
reasonable cause to believe that his conduct was unlawful.
Section 2. Any person made a party or 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 or officer of the Corporation, or is or was serving at the
request of the Corporation as a Director or officer of another corporation,
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan, shall be indemnified by the Corporation
against expenses (including attorneys' fees), judgment, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action or suit to the fullest extent authorized by the GCL as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide prior
to such amendment) except that no indemnification shall be made hereunder in
respect of any claim, issue or matter as to which the person shall be adjudged
liable to the Corporation unless and only to the extent
30
that the court of Chancery of the State of Delaware or the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability, but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which said Court of Chancery or such other court shall deem proper.
Section 3. The indemnification and advancement of expenses provided by,
or granted pursuant to, this Section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a Director
or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 4. Insurance. The Board of Directors of the Corporation may, in
its discretion, authorize the Corporation to purchase and maintain insurance on
behalf of any person who is or was a Director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
Director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise including service with respect to an employee
benefit plan, against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of Section 3 of this Article IX.
ARTICLE XXVIII
AMENDMENTS
Section 1. The Board of Directors is expressly authorized to adopt,
repeal, alter or amend these By-Laws by the vote of a majority of the entire
Board of Directors. In addition, the stockholders of the Corporation may adopt,
repeal, alter or amend provisions of these By-Laws upon the affirmative vote of
the holders of 66 2/3% of the
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combined voting power of the then outstanding stock of the Corporation entitled
to vote generally in the election of Directors.
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