<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarter Ended September 30, 1998
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Commission File Number 1-5424
DELTA AIR LINES, INC.
State of Incorporation: Delaware
IRS Employer Identification No.: 58-0218548
Hartsfield Atlanta International Airport, Atlanta, Georgia 30320
Telephone: (404) 715-2600
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months, and (2) has been subject to such filing requirements
for the past 90 days. Yes /X/ No / /
Number of shares outstanding by each class of common stock,
as of November 2, 1998:
Common Stock, $1.50 par value - 142,790,850 shares outstanding
<PAGE>
Part 1. FINANCIAL INFORMATION
Item 1. Financial Statements
DELTA AIR LINES, INC.
Consolidated Balance Sheets
(In Millions)
<TABLE>
<CAPTION>
September 30 June 30
ASSETS 1998 1998
- --------------------------------------------------------------------------------------------------
(Unaudited)
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 534 $ 1,077
Short-term investments 603 557
Accounts receivable, net of allowance for uncollectible accounts
of $38 at September 30, 1998 and $36 at June 30, 1998 969 938
Deferred income taxes 475 464
Prepaid expenses and other 276 326
------- -------
Total current assets 2,857 3,362
------- -------
PROPERTY AND EQUIPMENT:
Flight equipment 11,542 11,180
Less: Accumulated depreciation 3,990 3,895
------- -------
7,552 7,285
------- -------
Flight equipment under capital leases 515 515
Less: Accumulated amortization 228 216
------- -------
287 299
------- -------
Ground property and equipment 3,387 3,285
Less: Accumulated depreciation 1,928 1,854
------- -------
1,459 1,431
------- -------
Advance payments for equipment 428 306
------- -------
Total property and equipment 9,726 9,321
------- -------
OTHER ASSETS:
Marketable equity securities 360 424
Investments in associated companies 331 326
Cost in excess of net assets acquired, net 277 265
Leasehold and operating rights, net 121 124
Other 767 781
------- -------
Total other assets 1,856 1,920
------- -------
Total assets $14,439 $14,603
------- -------
------- -------
</TABLE>
The accompanying notes are an integral part of these consolidated balance
sheets.
2
<PAGE>
DELTA AIR LINES, INC.
Consolidated Balance Sheets
(In Millions)
<TABLE>
<CAPTION>
September 30 June 30
LIABILITIES AND SHAREOWNERS' EQUITY 1998 1998
- ------------------------------------------------------------------------------------------------------------
(Unaudited)
<S> <C> <C>
CURRENT LIABILITIES:
Current maturities of long-term debt $ 62 $ 67
Current obligations under capital leases 76 63
Accounts payable and miscellaneous accrued liabilities 2,094 2,025
Air traffic liability 1,611 1,667
Accrued salaries and vacation pay 424 553
Accrued rent 198 202
-------- --------
Total current liabilities 4,465 4,577
-------- --------
NONCURRENT LIABILITIES:
Long-term debt 1,524 1,533
Postretirement benefits 1,884 1,873
Accrued rent 652 651
Capital leases 217 249
Deferred income taxes 339 262
Other 524 511
-------- --------
Total noncurrent liabilities 5,140 5,079
-------- --------
DEFERRED CREDITS:
Deferred gain on sale and leaseback transactions 680 694
Manufacturers' and other credits 55 55
-------- --------
Total deferred credits 735 749
-------- --------
COMMITMENTS AND CONTINGENCIES (Notes 3 and 4)
EMPLOYEE STOCK OWNERSHIP PLAN
PREFERRED STOCK:
Series B ESOP Convertible Preferred Stock (issued and outstanding 6,596,638
shares at September 30, 1998 and 6,603,429 shares at
June 30, 1998) 475 475
Unearned compensation under employee stock ownership plan (284) (300)
-------- --------
191 175
-------- --------
SHAREOWNERS' EQUITY:
Common Stock at par (total shares issued: 177,512,754 shares at
September 30, 1998 and 176,566,178 shares at June 30, 1998) 266 265
Additional paid-in capital 3,077 3,034
Accumulated other comprehensive income 51 89
Retained earnings 2,007 1,687
Treasury stock at cost (33,988,300 shares at September 30, 1998
and 26,115,784 shares at June 30, 1998) (1,493) (1,052)
-------- --------
Total shareowners' equity 3,908 4,023
-------- --------
Total liabilities and shareowners' equity $ 14,439 $ 14,603
-------- --------
-------- --------
</TABLE>
The accompanying notes are an integral part of these consolidated balance
sheets.
3
<PAGE>
DELTA AIR LINES, INC.
Consolidated Statements of Operations
(Unaudited)
(In Millions, except Share Data)
<TABLE>
<CAPTION>
Three Months Ended
September 30
---------------------------------
1998 1997
------------- -------------
<S> <C> <C>
OPERATING REVENUES:
Passenger $ 3,487 $ 3,260
Cargo 139 143
Other, net 176 150
------------- -------------
Total operating revenues 3,802 3,553
------------- -------------
OPERATING EXPENSES:
Salaries and related costs 1,237 1,204
Aircraft fuel 339 409
Passenger commissions 252 266
Depreciation and amortization 218 198
Other selling expenses 196 164
Contracted services 183 172
Landing fees and other rents 179 169
Aircraft rent 145 137
Aircraft maintenance materials and outside repairs 143 124
Passenger service 133 111
Other 225 168
------------- -------------
Total operating expenses 3,250 3,122
------------- -------------
OPERATING INCOME 552 431
------------- -------------
OTHER INCOME (EXPENSE):
Interest expense (49) (50)
Interest capitalized 10 9
Interest income 22 17
Miscellaneous income, net 3 11
------------- -------------
(14) (13)
------------- -------------
INCOME BEFORE INCOME TAXES 538 418
INCOME TAXES PROVIDED (211) (164)
------------- -------------
NET INCOME 327 254
PREFERRED STOCK DIVIDENDS (3) (3)
------------- -------------
NET INCOME AVAILABLE TO COMMON
SHAREOWNERS $ 324 $ 251
------------- -------------
------------- -------------
BASIC INCOME PER COMMON SHARE $ 2.19 $ 1.71
------------- -------------
------------- -------------
DILUTED INCOME PER COMMON SHARE $ 2.08 $ 1.63
------------- -------------
------------- -------------
WEIGHTED AVERAGE SHARES USED IN
PER SHARE COMPUTATION:
Basic 147,929,524 147,434,074
Diluted 156,711,974 154,597,218
DIVIDENDS PER COMMON SHARE $ 0.025 $ 0.025
------------- -------------
------------- -------------
</TABLE>
The accompanying notes are an integral part of these consolidated statements.
4
<PAGE>
DELTA AIR LINES, INC.
Statistical Summary
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended
September 30
-----------------------
Statistical Summary: 1998 1997
------ ------
<S> <C> <C>
Revenue Passengers Enplaned (thousands) 27,602 26,506
Revenue Passenger Miles (millions) 28,113 26,585
Available Seat Miles (millions) 36,673 35,683
Operating Margin 14.5% 12.1%
Passenger Mile Yield 12.40 cents 12.26 cents
Operating Revenue Per Available Seat Mile 10.37 cents 9.96 cents
Operating Cost Per Available Seat Mile 8.86 cents 8.75 cents
Passenger Load Factor 76.66% 74.50%
Breakeven Passenger Load Factor 64.52% 64.66%
Revenue Ton Miles (millions) 3,229 3,073
Cargo Ton Miles (millions) 418 415
Cargo Ton Mile Yield 33.27 cents 34.29 cents
Fuel Gallons Consumed (millions) 703 682
Average Price Per Fuel Gallon 48.21 cents 59.91
Number of Aircraft in Fleet at End of Period 578 558
Average Full-Time Equivalent Employees 71,000 65,800
</TABLE>
5
<PAGE>
DELTA AIR LINES, INC.
Consolidated Condensed Statements of Cash Flows
(Unaudited)
(In Millions)
<TABLE>
<CAPTION>
Three Months Ended
September 30
------------------------------
1998 1997
----------- -----------
<S> <C> <C>
CASH PROVIDED BY OPERATING ACTIVITIES:
Net Income $ 327 $ 254
Adjustments to reconcile net income to cash
provided by operating activities, net 314 293
Changes in certain assets and liabilities, net (104) 431
----------- -----------
Net cash provided by operating activities 537 978
----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Property and equipment additions:
Flight equipment, including advance payments (514) (405)
Ground property and equipment (90) (62)
(Increase) Decrease in short-term investments, net (46) 9
Other, net 1 -
----------- -----------
Net cash used in investing activities (649) (458)
----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Issuance of common stock 32 3
Repurchase of common stock (441) -
Payments on long-term debt and capital lease obligations (31) (30)
Income tax benefit from exercise of stock options 13 -
Cash dividends (4) (4)
----------- -----------
Net cash used in financing activities (431) (31)
----------- -----------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (543) 489
Cash and cash equivalents at beginning of period 1,077 662
----------- -----------
Cash and cash equivalents at end of period $ 534 $ 1,151
----------- -----------
----------- -----------
SUPPLEMENTAL CASH FLOW INFORMATION:
Cash paid during the period for:
Interest (net of amounts capitalized) $ 56 $ 56
Income taxes $ 55 $ 19
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
statements.
6
<PAGE>
DELTA AIR LINES, INC.
Notes to Consolidated Financial Statements
September 30, 1998
(Unaudited)
1. ACCOUNTING AND REPORTING POLICIES:
The Company's accounting and reporting policies are summarized in Note 1
(page 39) of the Notes to Consolidated Financial Statements in Delta's 1998
Annual Report to Shareowners. These interim financial statements should be
read in conjunction with the consolidated financial statements and the
notes thereto included in the Company's 1998 Annual Report to Shareowners.
In the opinion of management, the accompanying unaudited consolidated
condensed financial statements reflect all adjustments, consisting of
normal recurring items necessary for a fair statement of results for the
interim periods presented. Certain prior year amounts have been
reclassified to conform with the current year financial statement
presentation.
As a result of a review of its aircraft fleet plan and comparable industry
practices, the Company increased the depreciable life of certain new
generation aircraft types from 20 to 25 years. The change in estimate was
effective July 1, 1998, and resulted in lower depreciation expense of
approximately $26 million ($0.18 basic and $0.17 diluted earnings per
common share, as restated to reflect the Company's two-for-one Common
Stock split) for the September 1998 quarter.
2. LONG-TERM DEBT:
Under its 1997 Bank Credit Agreement with a group of banks, the Company may
borrow up to $1.25 billion on an unsecured and revolving basis until May 1,
2002, subject to compliance with certain conditions. Up to $700 million of
this facility may be used for the issuance of letters of credit. The
interest rate under this facility is, at the Company's option, the London
Interbank Offered Rate or the prime rate, in each case plus a margin which
is subject to adjustment based on certain changes in the credit ratings of
the Company's long-term senior unsecured debt. The Company also has the
option to obtain loans through a competitive bid procedure. The 1997 Bank
Credit Agreement contains certain covenants that restrict the Company's
ability to grant liens, to incur or guarantee debt and to enter into flight
equipment leases. It also provides that if there is a change of control (as
defined) of the Company, the banks' obligation to extend credit terminates,
any amounts outstanding become immediately due and payable and the Company
will immediately deposit cash collateral with the banks in an amount equal
to all outstanding letters of credit. At September 30, 1998, no borrowings
or letters of credit were outstanding under the 1997 Bank Credit Agreement.
The Company's credit agreement with ABN AMRO Bank, N.V. and a group of
banks (Letter of Credit Facility) provides for the issuance of letters of
credit for up to $500 million in stated amount to credit enhance the Delta
Family-Care Savings Plan's Series C Guaranteed Serial ESOP Notes (Series C
ESOP Notes), which are guaranteed by Delta. At September 30, 1998, the face
amount of the letter of credit issued under the Letter of Credit Facility
was $445 million, which covers the $290 million outstanding principal
amount of the Series C
7
<PAGE>
ESOP Notes, up to $123 million of Make Whole Premium Amount and
approximately one year of interest on the Series C ESOP Notes. For
additional information regarding the Letter of Credit Facility and Delta's
long-term debt, including the Series C ESOP Notes, see Note 6 (page 43) of
the Notes to Consolidated Financial Statements in Delta's 1998 Annual
Report to Shareowners.
3. AIRCRAFT PURCHASE COMMITMENTS:
At September 30, 1998, the Company's aircraft fleet, purchase commitments,
options (which have scheduled delivery slots), and rolling options (which
replace options and are assigned delivery slots as options expire or are
exercised) were:
<TABLE>
<CAPTION>
Current Fleet
-----------------------
Rolling
Aircraft Type Owned Leased Total Orders Options Options
- ------------------- ------ ------ ----- ------ ------- -------
<S> <C> <C> <C> <C> <C> <C>
B-727-200 121 10 131 0 0 0
B-737-200 1 53 54 0 0 0
B-737-300 0 26 26 0 0 0
B-737-600/700/800 0 0 0 88 60 274
B-757-200 55 41 96 13 20 83
B-767-200 15 0 15 0 0 0
B-767-300 2 24 26 2 0 0
B-767-300ER 33 8 41 11 11 18
B-767-400ER 0 0 0 21 24 25
B-777-200 0 0 0 14 20 30
L-1011-1 17 0 17 0 0 0
L-1011-250 6 0 6 0 0 0
L-1011-500 15 0 15 0 0 0
MD-11 8 7 15 0 0 0
MD-88 63 57 120 0 0 0
MD-90 16 0 16 0 0 0
--- --- --- --- --- ---
Total 352 226 578 149 135 430
--- --- --- --- --- ---
--- --- --- --- --- ---
</TABLE>
During the September 1998 quarter, Delta accepted delivery of one new
B-757-200 aircraft and two new B-767-300ER aircraft, acquired under
operating leases seven B-737-300 aircraft, and retired one L-1011-1
aircraft.
Subsequent to September 30, 1998, Delta accepted delivery of one new
B-757-200 aircraft, one new B-767-300 aircraft, and three new B-737-800
aircraft.
8
<PAGE>
Future expenditures for aircraft, engines and engine hushkits on firm
order at September 30, 1998 are estimated to be $6.8 billion, as follows:
<TABLE>
<CAPTION>
Amount
Years Ending June 30 (In Millions)
-------------------- ---------------
<S> <C>
Remainder of fiscal year 1999 1,300
2000 1,770
2001 1,570
2002 300
2003 370
After 2003 1,460
---------------
Total $ 6,770
---------------
---------------
</TABLE>
4. CONTINGENCIES:
Delta is a defendant in certain legal actions relating to alleged
employment discrimination practices, antitrust matters, environmental
issues and other matters concerning Delta's business. Although the ultimate
outcome of these matters cannot be predicted with certainty, management
believes that the resolution of these actions is not likely to have a
material adverse effect on Delta's consolidated financial statements.
5. SHAREOWNERS' EQUITY:
On October 22, 1998, Delta's shareowners approved an amendment to the
Company's Certificate of Incorporation to increase the authorized Common
Stock of the Company from 150 million shares, par value $3.00 per share, to
450 million shares, par value $1.50 per share, and to effect a two-for-one
split of the issued Common Stock. This amendment became effective on
November 2, 1998. All references in this Form 10-Q to the number of shares
of Common Stock (including references to the number of common shares
relating to the Company's broad-based employee stock option plans and
its Common Stock repurchase programs), the Company's earnings per share
and per share Common Stock prices have been restated to reflect this
Common Stock split.
During the September 1998 quarter, the Company issued a total of 946,576
common shares, at an average price of $36.50 per share, under its
broad-based employee stock option plans, 1989 Stock Incentive Plan,
Dividend Reinvestment and Stock Purchase Plan, and Non-Employee Directors'
Stock Plan. In addition, the Company distributed a total of 5,106 shares of
Common Stock from treasury under its 1989 Stock Incentive Plan.
The Company has two common stock repurchase programs. The Company's Board
of Directors (Board) authorized the Company to repurchase its common stock
and common stock equivalents (1) for an aggregate purchase price of up to
$750 million from time to time through December 31, 1999 (July 1998
Authorization); and (2) in connection with the Company's broad-based
employee stock option plans (April 1996 Authorization). During the
September 1998 quarter, the Company repurchased (1) 7,268,756 common
shares, at an average price of $55.21 per share, under the July 1998
Authorization; and (2) 608,866 common shares, at an average price of $66.30
per share, under the April 1996 Authorization.
9
<PAGE>
At September 30, 1998, 40,453,030 common shares were reserved for issuance
under the Company's broad-based employee stock option plans; 15,001,790
common shares were reserved for issuance under the 1989 Stock Incentive
Plan; 11,312,990 common shares were reserved for conversion of the Series B
ESOP Convertible Preferred Stock; and 496,090 common shares were reserved
for issuance under the Non-Employee Directors' Stock Plan.
6. INCOME TAXES:
Income taxes are provided at the estimated annual effective tax rate, which
differs from the federal statutory rate of 35% primarily due to state
income taxes and the effect of certain expenses that are not deductible for
income tax purposes. Deferred income taxes reflect the net effect of
temporary differences between the carrying amounts of assets and
liabilities for financial reporting purposes and the amounts used for
income tax purposes.
7. COMPREHENSIVE INCOME
As of July 1, 1998, the Company adopted Statement of Financial Accounting
Standards ("SFAS") No. 130, "Reporting Comprehensive Income," which
establishes standards for the reporting and presentation of comprehensive
income and its components in a full set of general purpose financial
statements. The adoption of SFAS No. 130 had no net effect on the Company's
net income or shareowners' equity for the quarters ended September 30, 1998
and 1997. The reconciliation of net income to comprehensive net income is
as follows:
<TABLE>
<CAPTION>
Three Months Ended September 30
-------------------------------
1998 1997
----- -----
<S> <C> <C>
Net income, as reported $ 327 $ 254
Other comprehensive income (38) (17)
----- -----
Total comprehensive income $ 289 $ 237
----- -----
----- -----
</TABLE>
10
<PAGE>
8. EARNINGS PER SHARE:
During the December 1997 quarter, Delta adopted SFAS No. 128, "Earnings per
Share," which established new standards for computing and presenting income
per share data. Earnings per share data for the quarter ended September 30,
1997 have been restated in accordance with SFAS No. 128. Application of
SFAS No. 128 did not have a material effect on previously reported income
per share amounts for the three months ended September 30, 1997.
<TABLE>
<CAPTION>
Three Months Ended
September 30
------------------------------------
1998 1997
------- -------
(In Millions, except per share data)
<S> <C> <C>
Basic:
Net income $ 327 $ 254
Preferred stock dividends (3) (3)
------- -------
Income available to common
shareowners $ 324 $ 251
Weighted average shares outstanding 147.9 147.4
Basic income per common share $ 2.19 $ 1.71
------- -------
------- -------
Diluted:
Net income $ 327 $ 254
Adjustment to net income
assuming conversion of Series B ESOP
Convertible Preferred Stock (1) (1)
------- -------
Income available to
common shareowners $ 326 $ 253
Weighted average shares outstanding 147.9 147.4
Conversion of Series B ESOP
Convertible Preferred Stock 4.8 4.3
Exercise of stock options 4.0 2.9
------- -------
Average shares outstanding as adjusted 156.7 154.6
Diluted income per common share $ 2.08 $ 1.63
------- -------
------- -------
</TABLE>
11
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and
- ------------------------------------------------------------------------
Results of Operations
---------------------
FINANCIAL CONDITION
Cash and cash equivalents and short-term investments totaled $1.14 billion at
September 30, 1998, compared to $1.63 billion at June 30, 1998, a decline of
30% largely due to the Company's Common Stock repurchases during the
September 1998 quarter. During the three months ended September 30, 1998, the
principal sources of funds were $537 million of cash from operations and $45
million (including an income tax benefit of $13 million related to the
exercise of stock options) from the issuance of 946,576 common shares (as
restated to reflect the Company's two-for-one Common Stock split) primarily
under the Company's broad-based employee stock option plans. The decrease in
cash from operations for the quarter ended September 30, 1998 compared to the
quarter ended September 30, 1997 was primarily attributable to $310 million
received during the September 1997 quarter from Delta's frequent flyer
partners for the prepayment of mileage credits. During the three months ended
September 30, 1998, the Company invested $514 million in flight equipment and
$90 million in ground property and equipment; paid $441 million to repurchase
7,877,622 common shares (as restated for the Common Stock split); made
payments of $31 million on long-term debt and capital lease obligations; and
paid $4 million in cash dividends. The Company may repurchase additional
long-term debt and Common Stock from time to time. For information regarding
Delta's Common Stock repurchase authorizations, see Note 5 of the Notes to
Consolidated Financial Statements in this Form 10-Q and Note 14 (page 51) of
the Notes to Consolidated Financial Statements in Delta's 1998 Annual Report
to Shareowners.
As of September 30, 1998, the Company had negative working capital of $1.61
billion, compared to negative working capital of $1.22 billion at June 30, 1998.
A negative working capital position is normal for Delta and does not indicate a
lack of liquidity. The Company expects to meet its current obligations as they
become due through available cash, short-term investments and internally
generated funds, supplemented as necessary by debt financing and proceeds from
sale and leaseback transactions.
At September 30, 1998, the Company had $1.25 billion of credit available on a
revolving basis under its 1997 Bank Credit Agreement. See Note 2 of the Notes to
Consolidated Financial Statements in this Form 10-Q for additional information
regarding the 1997 Bank Credit Agreement.
At September 30, 1998, long-term debt and capital lease obligations, including
current maturities, totaled $1.88 billion, compared to $1.91 billion at June 30,
1998. Shareowners' equity was $3.91 billion at September 30, 1998 and $4.02
billion at June 30, 1998. The Company's debt-to-equity position, including
current maturities, was 32% debt and 68% equity at September 30, 1998 and June
30, 1998.
At September 30, 1998, there was outstanding $290 million principal amount of
the Delta Family-Care Savings Plan's Series C Guaranteed Serial ESOP Notes
(Series C ESOP Notes), which are guaranteed by Delta. Delta is required to
purchase the Series C ESOP Notes in certain circumstances. See Note 6 (page 43)
of the Notes to Consolidated Financial Statements in Delta's 1998 Annual Report
to Shareowners.
12
<PAGE>
RESULTS OF OPERATIONS
Three Months Ended September 30, 1998 and 1997
- ----------------------------------------------
For the quarter ended September 30, 1998, Delta recorded unaudited operating
income of $552 million and quarterly net income of $327 million. For the quarter
ended September 30, 1997, Delta recorded operating income of $431 million and
net income of $254 million. The Company's operating margin (operating income
divided by operating revenue) for the quarter ended September 30, 1998 was
14.5%, compared to 12.1% for the quarter ended September 30, 1997.
Operating revenues in the September 1998 quarter totaled $3.80 billion, an
increase of 7% from $3.55 billion in the September 1997 quarter. Passenger
revenue increased 7% to $3.49 billion, the result of a 6% increase in revenue
passenger miles and a 1% increase in passenger mile yield. The increase in
revenue passenger miles is mainly due to a 3% increase in capacity, favorable
economic conditions and improved asset utilization. The increase in passenger
mile yield is largely due to a domestic fare increase implemented during
September 1997.
Domestic passenger revenue increased 7% to $2.76 billion, reflecting a 4%
increase in domestic revenue passenger miles on a 1% decrease in domestic
capacity and a 3% increase in domestic passenger mile yield. The increase in
domestic revenue passenger miles is primarily due to increased traffic
(including the effects of the Northwest labor strike), improved asset
utilization, and favorable economic conditions. The increase in passenger
mile yield is largely due to a domestic fare increase implemented during
September 1997.
International passenger revenue increased 6%, to $725 million, reflecting a
12% increase in international revenue passenger miles, partially offset by a
5% decline in international passenger mile yield. The increase in
international revenue passenger miles is primarily due to the Company's
addition of new routes, increased capacity in the Atlantic market, and
continued expansion into the Latin American market. The decrease in
international passenger mile yield is primarily due to industry capacity
growth and increased sale activity in the Atlantic and Latin American markets.
Cargo revenue decreased 3% to $139 million. Cargo ton miles increased 1%, while
the cargo ton mile yield declined 3%. The decrease in cargo ton mile yield is
largely due to continued shifting of certain U.S. Postal Service business from
passenger carriers to dedicated air-freight carriers and ground transportation
providers. All other revenue, net, increased 17% to $176 million, largely due to
improved results from frequent flyer partnership programs, code share
arrangements and increased administrative service charges.
Operating expenses for the September 1998 quarter totaled $3.25 billion, an
increase of 4% from the September 1997 quarter, and operating capacity increased
3% to 36.67 billion available seat miles. Salaries and related costs increased
3%, primarily the result of an 8% increase in full-time equivalent employees.
This increase in employees is primarily in the areas of in-flight service,
airport customer service and technical operations. Aircraft fuel expense
decreased 17% as the average fuel price per gallon decreased 20% to 48.21 cents,
partially offset by a 3% increase in
13
<PAGE>
fuel gallons consumed. Passenger commissions decreased 5% as reduced costs
related to a new travel agent commission rate structure implemented in
September 1997 were partially offset by higher commissions associated with
increased passenger revenue. Depreciation and amortization expense rose 10%
mainly due to the acquisition of 18 additional aircraft since the September
1997 quarter and increased amortization of software development, partially
offset by the increase in the depreciable life of certain aircraft types.
(See Note 1 of Notes to Consolidated Financial Statements in this Form 10-Q.)
Other selling expenses increased 20%, primarily the result of increased
advertising and promotion expense and higher credit card transaction fees.
Contracted services expense increased 6% largely due to higher information
technology costs, as well as increased building and equipment maintenance
costs. Landing fees and other rents increased 6% due to higher facility rents
at certain locations and new operating leases. Aircraft rent increased 6% due
to new operating leases entered into since the September 1997 quarter.
Aircraft maintenance materials and outside repairs increased 15% largely due
to the timing of scheduled maintenance visits and other costs resulting from
the maturation of the fleet. Passenger service expense increased 20% due to
increased passenger traffic, domestic product upgrades, and certain
transatlantic business class product upgrades. Other operating expenses
increased 34% primarily due to higher professional fees, including Year 2000
consulting fees, and increased expenses associated with enhanced customer
loyalty programs, as well as higher supplies, communications, and utilities
costs.
Nonoperating expense in the September 1998 quarter totaled $14 million, compared
to nonoperating expense of $13 million in the September 1997 quarter.
Pretax income of $538 million for the September 1998 quarter resulted in an
income tax provision of $211 million. After a $3 million provision for preferred
stock dividends, net income available to common shareowners was $324 million.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
- -------------------------------------------------------------------
For information regarding the Company's exposure to certain market risks, see
"Market Risks Associated With Financial Instruments" (page 33), as well as Notes
2 and 4 (page 40 and 41, respectively) of the Notes to Consolidated Financial
Statements, in Delta's 1998 Annual Report to Shareowners.
14
<PAGE>
ARTHUR ANDERSEN LLP
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To Delta Air Lines, Inc.:
We have reviewed the accompanying consolidated balance sheet of DELTA AIR LINES,
INC. (a Delaware corporation) AND SUBSIDIARIES as of September 30, 1998 and the
related consolidated statements of operations and condensed consolidated
statements of cash flows for the three-month periods ended September 30, 1998
and 1997. These financial statements are the responsibility of the Company's
management.
We conducted our review in accordance with standards established by the American
Institute of Certified Public Accountants. A review of interim financial
information consists principally of applying analytical procedures to financial
data and making inquiries of persons responsible for financial and accounting
matters. It is substantially less in scope than an audit conducted in accordance
with generally accepted auditing standards, the objective of which is the
expression of an opinion regarding the financial statements taken as a whole.
Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material modifications that should
be made to the financial statements referred to above for them to be in
conformity with generally accepted accounting principles.
Arthur Andersen LLP
- -------------------
Atlanta, Georgia
November 3, 1998
15
<PAGE>
PART II. OTHER INFORMATION
Item 2. Changes in Securities
- -----------------------------
For information regarding the Company's two-for-one Common Stock split, which
became effective at 5 p.m., eastern standard time, on November 2, 1998 (Stock
Split), see Note 5 of the Notes to Consolidated Financial Statements in this
Form 10-Q.
As a result of the Stock Split, the number of preferred stock purchase rights
(Rights) which accompany each outstanding share of Common Stock was adjusted
from one Right per common share to one-half Right per common share. The Rights
become exercisable only in certain circumstances. See Note 12 of the Notes to
Consolidated Financial Statements in Delta's 1998 Annual Report to Shareowners
for additional information regarding the Rights.
Also as a result of the Stock Split, each outstanding share of the Company's
Series B ESOP Convertible Preferred Stock was adjusted by changing (1) the
conversion price from $83.94 to $41.97; (2) the conversion rate from 0.8578 to
1.7155; and (3) the voting rights from one vote to two votes.
Under the Delta Air Lines, Inc. Directors' Deferred Compensation Plan (Plan),
members of the Company's Board of Directors may defer for a specified period all
or any part of their cash compensation earned as a director. A participating
director may choose an investment return on the deferred amount from among
certain of the investment return choices available under the Delta Family-Care
Savings Plan, a qualified defined contribution pension plan for eligible Delta
personnel. One of the investment return choices under the Delta Family-Care
Savings Plan is a fund invested primarily in Delta's Common Stock (Delta Common
Stock Fund). During the quarter ended September 30, 1998, a participant in the
Plan deferred $17,125 in the Delta Common Stock Fund investment return choice
(equivalent to approximately 294 shares of Delta Common Stock, as restated for
the Stock Split, at prevailing market prices). These transactions were not
registered under the Securities Act of 1933, as amended, in reliance on Section
4(2) of such Act.
16
<PAGE>
Item 4. Submission of Matters to a Vote of Security Holders
- ------------------------------------------------------------
At Delta's Annual Meeting of Shareowners held on October 22, 1998, the
shareowners took the following actions, with the holders of Delta's Common Stock
and Series B ESOP Convertible Preferred Stock voting together as a single class
on all such actions, and the holders of Delta's Common Stock also voting as a
separate class with respect to the amendment to the Company's Certificate of
Incorporation described below:
1. Elected the persons named below to Delta's Board of Directors by the
following vote:
<TABLE>
<CAPTION>
FOR WITHHELD
---------- ---------
<S> <C> <C>
Edwin L. Artzt 70,786,706 1,034,712
Henry A. Biedenharn, III 70,809,153 1,012,265
James L. Broadhead 70,745,238 1,076,180
Edward H. Budd 70,804,446 1,016,972
R. Eugene Cartledge 70,806,780 1,014,638
Mary Johnson Evans 70,774,652 1,046,766
Gerald Grinstein 70,804,776 1,016,642
Leo F. Mullin 70,824,548 996,870
Andrew J. Young 70,616,665 1,204,753
</TABLE>
There were no broker non-votes on this matter.
2. Ratified the appointment of Arthur Andersen LLP as independent auditors of
Delta for fiscal year 1999 by a vote of 71,311,751 FOR; 352,429 AGAINST;
and 157,238 ABSTENTIONS. There were no broker non-votes on this matter.
3. Approved an amendment to the Company's Certificate of Incorporation to
increase the authorized Common Stock of the Company from 150 million
shares, par value $3.00 per share, to 450 million shares, par value $1.50
per share, and to effect a two-for-one split of the issued Common Stock of
the Company. The holders of Delta's Common Stock and Series B ESOP
Convertible Preferred Stock, voting together as a single class, approved
this amendment by a vote of 69,293,571 FOR; 2,452,984 AGAINST; and 74,863
ABSTENTIONS.
The holders of Delta's Common Stock, voting as a separate class, approved
this amendment by a vote of 62,934,275 FOR; 2,252,311 AGAINST; and 38,194
ABSTENTIONS.
There were no broker non-votes on this matter.
4. Defeated a shareowner proposal relating to cumulative voting for directors,
by a vote of 18,772,892 FOR; 44,773,551 AGAINST; and 484,086 ABSTENTIONS.
There were 7,790,889 broker non-votes on this matter.
5. Defeated a shareowner proposal relating to the CERES Principles for Public
Environmental Accountability, by a vote of 3,075,549 FOR; 56,166,759
AGAINST; and 4,788,222 ABSTENTIONS. There were 7,790,889 broker non-votes
on this matter.
17
<PAGE>
Item 5. Other Information
- -------------------------
Year 2000
- ---------
Through September 30, 1998, Delta has recognized $53 million as expense ($13
million of which was incurred in the September 1998 quarter) in the Company's
Statements of Operations to achieve Year 2000 readiness for its internal systems
and equipment. See pages 28-30 of the Company's 1998 Annual Report to
Shareowners for additional information regarding Delta's Year 2000 program.
Euro Currency Issue
- -------------------
For information regarding Delta's euro currency issue, see pages 30-31 of the
Company's 1998 Annual Report to Shareowners.
Broad-Based Stock Option Plans
- ------------------------------
On October 24, 1996, the Company's shareowners approved two plans providing for
the issuance of non-qualified stock options to substantially all of Delta's
non-officer personnel to purchase a total of 49.4 million shares (as restated
for the Stock Split) of Common Stock. One plan is for eligible Delta personnel
who are not pilots (Nonpilot Plan); the other plan covers the Company's eligible
pilots (Pilot Plan).
The Nonpilot and Pilot Plans involve non-qualified stock options to purchase
29.4 million and 20 million shares of Common Stock (as restated for the Stock
Split), respectively. The plans provide for grants in three annual installments
at an exercise price equal to the opening price of the Common Stock on the New
York Stock Exchange on the grant date. Stock options awarded under these plans
are generally exercisable beginning one year and ending ten years after their
grant dates, and are not transferable other than upon the death of the person
granted the stock options. On October 30, 1998, 1997 and 1996, Delta granted
eligible personnel non-qualified stock options to purchase 16.4 million, 16.6
million and 16.4 million shares of Common Stock (as restated for the Stock
Split), respectively, at exercise prices of $ 50.59 per share, $49 per share and
$34.50 per share (as restated for the Stock Split), respectively.
18
<PAGE>
Personnel Matters
- -----------------
On October 16, 1998, the Air Line Pilots Association, International (ALPA)
announced that the Company's pilots had approved an agreement reached on June
23, 1998 between the Company and ALPA regarding pilot rates of pay, rules and
working conditions applicable to the Company's B-737-600/700/800 aircraft and
certain B-737-300 aircraft. The Company expects to begin discussions with ALPA
in January 1999 regarding the rates of pay, rules and working conditions
applicable to the Company's B-777-200 aircraft. The Company is scheduled to
receive the delivery of its first B-777-200 aircraft in March 1999, and to place
that aircraft into service shortly after delivery. For additional information
regarding this subject, see "Personnel Matters" on pages 31-32 of Delta's 1998
Annual Report to Shareowners.
19
<PAGE>
Item 6. Exhibits and Reports on Form 8-K
- ----------------------------------------
(a) Exhibits
3.1. Delta's Certificate of Incorporation.
3.2. Delta's By-Laws (Filed as part of Exhibit 3.1 to this Form 10-Q).
10. Employment Agreement dated as of September 17, 1998 between Delta Air
Lines, Inc. and Robert L. Colman.
12. Statement regarding computation of ratio of earnings to fixed charges.
15. Letter from Arthur Andersen LLP regarding unaudited interim financial
information.
27. Financial Data Schedule (For SEC use only).
(b) Reports on Form 8-K:
During the quarter ended September 30, 1998, Delta did not file any Current
Reports on Form 8-K.
On October 20, 1998, Delta filed a Current Report on Form 8-K dated October
19, 1998 regarding (1) the Company's unaudited financial results for the
September 1998 quarter; (2) its Common Stock repurchases during the
September 1998 quarter; and (3) the approval by the Company's pilots of an
agreement regarding pilot pay rates, rules and working conditions
applicable to the Company's B-737-600/700/800 aircraft and certain
B-737-300 aircraft.
20
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Delta Air Lines, Inc.
---------------------
(Registrant)
By: /s/ Warren C. Jenson
--------------------------
Warren C. Jenson
Executive Vice President and
Chief Financial Officer
November 13, 1998
21
<PAGE>
DELTA AIR LINES, INC.
BY-LAWS
and
CERTIFICATE OF INCORPORATION
As Amended
Through
November 16, 1998
Incorporated
Under the Laws of
Delaware
<PAGE>
TABLE OF CONTENTS
BY-LAWS
<TABLE>
<CAPTION>
Article Section Subject Page
<S> <C> <C>
I Name, Incorporation and Location of Offices.. 3
1.1 Name and Incorporation....................... 3
1.2 Location of Registered Agent and Offices..... 3
II Capital Stock................................ 3
2.1 Amount and Class Authorized.................. 3
2.2 Stock Certificates........................... 3
2.3 Transfer Agents and Registrars............... 4
2.4 Transfers of Stock........................... 4
2.5 Lost or Destroyed Certificates............... 4
2.6 No Preemptive Rights......................... 5
III Meetings of Stockholders..................... 5
3.1 Annual Meeting............................... 5
3.2 Special Meetings............................. 5
3.3 Notices of Meetings.......................... 6
3.4 Record Date.................................. 6
3.5 Quorum and Adjournment....................... 6
3.6 Voting Rights and Proxies.................... 7
3.7 Presiding Officer............................ 7
3.8 List of Stockholders Entitled To Vote........ 7
IV Board of Directors........................... 7
4.1 Power and Authority.......................... 7
4.2 Number, Nomination and Election of Directors. 8
4.2.1 Eligibility, Tenure and Vacancies............ 8
4.3 Regular Meetings of the Board of Directors... 9
4.4 Special Meetings............................. 10
4.5 Committees Appointed by the Board............ 10
4.6 Meetings of Committees Appointed by the Board 10
4.7 Quorum and Voting............................ 11
4.8 Meeting by Conference Telephone.............. 11
4.9 Action Without Meeting....................... 11
4.10 Compensation................................. 11
V Officers..................................... 11
5.1 Election, Qualification, Tenure and
Compensation................................. 11
5.2 Chief Executive Officer...................... 12
5.3 Chairman of the Board........................ 12
5.4 President.................................... 12
5.5 Vice Chairman of the Board................... 13
5.6 Absence or Disability of Chairman and
President.................................... 13
5.7 Secretary.................................... 13
5.8 Assistant Secretaries........................ 13
</TABLE>
1
<PAGE>
<TABLE>
<CAPTION>
Article Section Subject Page
<S> <C> <C>
5.9 Comptroller................................. 13
5.10 Treasurer................................... 14
5.11 Assistant Treasurers........................ 14
5.12 Bonds....................................... 14
VI 6.1 Corporate Seal.............................. 15
VII 7.1 Fiscal Year................................. 15
VIII Dividends................................... 15
8.1 $1.50 Par Value Common Stock................ 15
8.2 Record Date for Payment of Dividends........ 15
IX Financial Transactions and Execution of
Instruments in Writing...................... 16
9.1 Depositories................................ 16
9.2 Withdrawals and Payments.................... 16
9.3 Evidence of Indebtedness and Instruments
under Seal.................................. 16
X Books and Records........................... 16
10.1 Location.................................... 16
10.2 Inspection.................................. 16
XI Transactions with Officers and Directors.... 17
11.1 Validation.................................. 17
XII 12.1 Amendment, Repeal or Alteration............. 17
EMERGENCY BY-LAWS............................................ 17
</TABLE>
CERTIFICATE OF INCORPORATION
<TABLE>
<CAPTION>
Article Subject
<S> <C> <C>
First Name................................................. 19
Second Principal Office and Resident Agent in Delaware...... 19
Third Nature of Business................................... 19
Fourth Number of Shares..................................... 21
Fifth No Preemptive Rights................................. 22
Sixth Names of Delaware Incorporators...................... 22
Seventh Perpetual Existence.................................. 23
Eighth Private Property of Stockholders Not Subject to
Corporate Debts...................................... 23
Ninth Directors: Number, Election, Vacancies and Committees
Officers: Required Officers, Election and Removal.... 23
Tenth Indemnification...................................... 23
Eleventh By-Laws.............................................. 24
Twelfth Stockholders' Meetings; Corporate Records............ 24
Thirteenth Dividends; Issuance of Stock and other Securities.... 24
Fourteenth Directors' Powers in Furtherance, Not Limitation of,
Delaware Law......................................... 24
Fifteenth Reservation of Power To Amend Certificate of
Incorporation........................................ 24
Sixteenth Stockholder Action By Written Consent................ 24
Seventeenth Fair Price Provision................................. 24
Eighteenth Limitation on Director Liability..................... 28
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND
RIGHTS OF SERIES B ESOP CONVERTIBLE PREFERRED
STOCK OF DELTA AIR LINES, INC. ................................... 29
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND
RIGHTS OF SERIES D JUNIOR PARTICIPATING
PREFERRED STOCK OF DELTA AIR LINES, INC. ......................... 46
</TABLE>
2
<PAGE>
BY-LAWS OF
DELTA AIR LINES, INC.
ARTICLE I.
NAME, INCORPORATION AND LOCATION OF OFFICES
SECTION 1.1 Name and Incorporation.
The name of this corporation is DELTA AIR LINES, INC. It is incorporated
under the laws of Delaware in perpetuity.
SECTION 1.2 Location of Registered Agent and Offices.
The name of the registered agent of the corporation is the
Corporation Trust Co., and its address and the address of the corporation's
principal office in Delaware is No. 100 West 10th Street, Wilmington, Delaware
19801. Said registered agent and office may be changed as provided by the
General Corporation law of Delaware, as now or hereafter in effect.
The corporation may also have an office in Atlanta, Georgia, and may have
offices at such other places as the business of the corporation may require.
ARTICLE II.
CAPITAL STOCK
SECTION 2.1 Amount and Class Authorized.
Until otherwise provided by amendment to its Certificate of Incorporation,
the authorized capital stock of the corporation shall consist of 470,000,000
shares, of which 450,000,000 shall be common stock of the par value of $1.50 per
share and 20,000,000 shall be preferred stock of the par value of $1.00 per
share. Shares of such authorized $1.50 par value common stock, in addition to
the shares now outstanding, up to the authorized maximum of 450,000,000 shares,
may be issued at such times, and from time to time, and may be sold for such
considerations, not less than the par value thereof, as shall be fixed and
determined by the board of directors. Shares of such authorized preferred stock
up to the authorized maximum of 20,000,000 shares may be issued at such times,
and from time to time, in such series and with such rights, including voting
rights, preferences, and limitations, and may be sold for such considerations,
not less than the par value thereof, as shall be fixed and determined by the
board of directors.
SECTION 2.2 Stock Certificates.
Certificates evidencing the stock of the corporation shall be in such forms
as shall be authorized and approved by the board of directors. Such certificates
shall be signed by the chairman of the board, the president or a vice president
and by the secretary or an assistant secretary of the corporation, and the seal
of the corporation shall be affixed thereto. The seal of the corporation and any
or
3
<PAGE>
all the signatures on such certificate may be facsimile engraved, stamped or
printed.
If any officer, transfer agent or registrar who has signed, or whose
facsimile signature has been used on, a certificate has ceased to be an officer,
transfer agent or registrar or if any officer who has signed has had a change in
title before the certificate is delivered, such certificate may nevertheless be
issued and delivered by the corporation as though the officer, transfer agent or
registrar who signed or whose facsimile signature shall have been used had not
ceased to be such officer, transfer agent or registrar or such officer had not
had such change in title.
SECTION 2.3 Transfer Agents and Registrars.
The board of directors may appoint transfer agents and co-transfer agents
and registrars and co-registrars for the stock of the corporation and, if it so
elects, may appoint a single agency to serve as both transfer agent and
registrar, and may require all certificates evidencing stock to bear the
signature or signatures of any of them.
SECTION 2.4 Transfers of Stock.
Transfers of stock of the corporation shall be made only on the books of
the corporation by the registered holder thereof in person or by attorney
thereunto duly authorized in writing. Powers of attorney to transfer stock of
the corporation shall be filed with the duly authorized transfer agent of the
corporation, when appointed, and the certificates evidencing the stock to be
transferred shall be surrendered to such transfer agent for cancellation, and
shall be cancelled by it at the time of transfer.
Until transfer shall have been made as provided above, possession of a
certificate evidencing stock of the corporation shall not vest any ownership of
such certificate, or of the stock evidenced thereby, in any person other than
the person in whose name said stock stands registered on the books of the
corporation and the corporation shall be entitled to treat the holder of record
of any share or shares of stock as the holder thereof in fact and shall not be
bound to recognize any equitable or other claim to or interest in any such share
or shares on the part of any other person, whether or not it shall have express
or other notice thereof. Notwithstanding the foregoing, the corporation shall
have the power and is authorized to effect through the duly authorized transfer
agent and registrar or otherwise transfers of stock of the corporation to
various states or appropriate state authorities when applicable state laws of
escheat or abandonment so require.
SECTION 2.5 Lost or Destroyed Certificates.
In case of the loss or destruction of an outstanding certificate of stock,
another certificate for a like number of shares may be issued in place of the
lost or destroyed certificate upon proof satisfactory to the board of
directors or its delegate, and upon payment of the expenses, if any, incident
to the issuance of such new certificate; provided, however, that the board of
directors or its delegate, if it sees fit, may require that such lost or
destroyed certificate be established as by the laws of Delaware in such cases
made and provided, and further provided that, any provision of law to the
contrary notwithstanding, the board of directors or its delegate may require
the owner of such lost or destroyed certificate, or the legal representative
of such owner, to give the corporation a bond sufficient, in the opinion of
the board of directors or its delegate, to indemnify the corporation against
and hold it harmless from any and all loss, damage, liability and claims
(whether or not such claims be meritorious) on account of and with respect to
such lost or destroyed certificate
4
<PAGE>
and the stock evidenced thereby and the issuance or establishment of such new
certificate.
SECTION 2.6 No Preemptive Rights.
No holder of any stock of the corporation which shall at any time be
outstanding shall have any preemptive rights to subscribe for or purchase
additional shares of stock of the corporation of any class which at any time may
be authorized or issued.
ARTICLE III.
MEETINGS OF STOCKHOLDERS
SECTION 3.1 Annual Meeting.
The annual meeting of stockholders shall be held on the fourth Thursday in
October of each year or at such other time as the board of directors shall
specify, at such place, either within or without the State of Delaware, as may
be designated by the board of directors from time to time, for the purpose of
electing directors and for the transaction of only such other business as is
properly brought before the meeting in accordance with these By-Laws.
To be properly brought before the meeting, business must be either (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the board, (b) otherwise properly brought before the meeting by
or at the direction of the board, or (c) otherwise properly brought before the
meeting by a stockholder. In addition to any other applicable requirements, for
business to be properly brought before an annual meeting by a stockholder, 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 or
mailed and received at the principal executive offices of the corporation not
less than 90 days nor more than 120 days prior to the anniversary date of the
immediately preceding annual meeting of stockholders; provided that if the board
calls the annual meeting for a date that is not within 30 days before or after
such anniversary date, notice by the stockholder to be timely must be so
delivered or mailed and received not later than the close of business on the
10th business day following the day on which the board gave such notice or made
such public disclosure of the date of the annual meeting, whichever first
occurs. Such stockholder's notice to the secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (ii) the name
and record address of the stockholder proposing such business, (iii) the class
and number of shares of capital stock of the corporation which are beneficially
owned by the stockholder, and (iv) any material interest of the stockholder in
such business.
Notwithstanding anything in the By-Laws to the contrary, no business shall
be conducted at the annual meeting except in accordance with the procedures set
forth in this Article III, provided, that nothing in this Article III shall be
deemed to preclude discussion by any stockholder of any business properly
brought before the annual meeting.
If business is not properly brought before the meeting in accordance with
the provisions of this Article III, the Presiding Officer at an annual meeting
shall so declare to the meeting and any such business not properly brought
before the meeting shall not be transacted.
5
<PAGE>
SECTION 3.2 Special Meetings.
Special meetings of the stockholders shall be held at such times, and at
such places, either within or without the State of Delaware, as shall be
designated in the notice of call of the meeting, and may be called by the
chairman of the board or the president at any time and must be called by the
chairman of the board or the president whenever requested in writing by a
majority of the board of directors.
SECTION 3.3 Notices of Meetings.
Written or printed notices of every annual or special meeting of the
stockholders shall be mailed to each stockholder of record at the close of
business on the record date hereinafter provided for, at the address shown on
the stock book of the corporation or its transfer agents, not less than ten nor
more than sixty days prior to the date of such meeting. Notices of special
meetings shall briefly state or summarize the purpose or purposes of such
meetings, and no business except that specified in the notice shall be
transacted at any special meeting. It shall not be necessary that notices of
annual meetings specify the business to be transacted at such annual meetings,
and any business of the corporation may be transacted at any annual meeting of
the stockholders to the extent not prohibited by applicable law, the Certificate
of Incorporation or these By-Laws.
SECTION 3.4 Record Date.
It shall not be necessary to close the stock transfer books of the
corporation for the purpose of determining the stockholders entitled to notice
of and to participate in and vote at any meeting of the stockholders. In lieu of
closing the stock transfer books of the corporation, and for all purposes that
might be served by closing the stock transfer books, the board of directors may
fix and declare a date not less than ten days nor more than sixty days prior to
the date of any annual or special meeting as the record date for the
determination of stockholders entitled to notice of and to participate in and
vote at such meeting of the stockholders and any adjournment thereof; and the
corporation and its transfer agents may continue to receive and record transfers
of stock after any record date as so provided. In any such case, such
stockholders, and only such stockholders as shall have been stockholders of
record at the close of business on the record date shall be entitled to notice
and to participate in and vote at any such meeting of the stockholders,
notwithstanding any transfers of stock which may have been made on the books of
the corporation or its transfer agents after such record date.
SECTION 3.5 Quorum and Adjournment.
Except as otherwise provided or required by law, by the Certificate of
Incorporation or by these By-Laws, a quorum at any meeting of the stockholders
shall consist of the holders of shares representing a majority of the number of
votes entitled to be cast by the holders of all shares of stock then outstanding
and entitled to vote, present in person or by proxy. If a quorum is not present
at any duly called meeting, the Presiding Officer or the holders of a majority
of the votes present may adjourn the meeting from day to day, or to a fixed
date, without notice other than announcement at the meeting, but no other
business may be transacted until a quorum is present; provided, however, that
any meeting at which directors are to be elected shall be adjourned only from
day to day until such directors have been elected, and further provided that
those who attend the second of such adjourned meetings, although less than a
quorum as fixed hereinabove, shall nevertheless constitute a quorum for the
purpose of electing directors.
6
<PAGE>
The stockholders present at a duly organized meeting at which a quorum is
present at the outset may continue to do business until adjournment,
notwithstanding the withdrawal of enough stockholders to result in less than a
quorum or the refusal of any stockholder present to vote.
The Presiding Officer may in his discretion defer voting on any proposed
action and adjourn any meeting of the stockholders until a later date, provided
such actions are otherwise permitted by law and are not inconsistent with the
Certificate of Incorporation or other provisions of these By-Laws.
SECTION 3.6 Voting Rights and Proxies.
At all meetings of stockholders, whether annual or special, the holder of
each share of common stock which is then outstanding and entitled to vote shall
be entitled to one vote for each share held and the holder of each share of any
series of preferred stock which is then outstanding shall be entitled to such
voting rights, if any, and such number of votes, as shall be specified in the
resolution or resolutions of the board of directors providing for the issuance
of such series. Stockholders may vote at all such meetings in person or by proxy
duly authorized in writing or by a transmission permitted by law filed in
accordance with the procedures established for the meeting. Any copy, facsimile
telecommunication or other reliable reproduction of the writing or transmission
created pursuant to this section may be substituted or used in lieu of the
original writing or transmission for any and all purposes for which the original
writing or transmission could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the
entire original writing or transmission. Except as otherwise specifically
provided by law, by the Certificate of Incorporation or by these By-Laws, a
majority of the valid votes present shall be necessary and sufficient to decide
any question which shall come before any meeting of the stockholders. In case of
any challenge of the right of a given stockholder to vote in person or by proxy,
the Presiding Officer hereinafter provided for shall be authorized to make the
appropriate determination, and his decision shall be final.
SECTION 3.7 Presiding Officer.
All meetings of the stockholders shall be presided over by the chairman of
the board or, in the absence or disability of the chairman, by the president, or
in his absence or disability, by the vice chairman, if any, or, in his absence
or disability, by the senior director (in terms of length of service on the
board of directors) present.
SECTION 3.8 List of Stockholders Entitled to Vote.
A complete list of the stockholders entitled to vote, arranged in
alphabetical order and indicating the number of shares held by each, shall be
prepared by the secretary and shall be available at the place where any
stockholders' meeting is being held, and shall be open to the examination of any
stockholder for any proper purpose during the whole of such meeting.
ARTICLE IV.
BOARD OF DIRECTORS
SECTION 4.1 Power and Authority.
All of the corporate powers of this corporation shall be vested in and the
business, property and affairs of the corporation shall be managed by, or under
7
<PAGE>
the direction of, the board of directors; and the board of directors shall be,
and hereby is, fully authorized and empowered to exercise all of the powers of
the corporation and to do, and to authorize, direct and regulate the doing of,
any and all things which the corporation has the lawful right to do which are
not by statute, the Certificate of Incorporation or these By-Laws expressly
directed or required to be exercised or done by the stockholders.
SECTION 4.2 Number, Nomination and Election of Directors.
The board of directors shall consist of not less than five nor
more than nineteen directors who shall be stockholders of the corporation. The
members of the board of directors shall be elected by the stockholders at the
annual meeting of stockholders, or at a duly convened adjournment thereof or at
a special meeting of stockholders duly called and convened for that purpose,
provided, however, that only persons who are nominated in accordance with the
following procedures shall be eligible for election as directors. Nominations of
persons for election to the board of the corporation at the annual meeting or a
duly convened adjournment thereof may be made by or at the direction of the
board of directors, by any nominating committee or person appointed by the
board, or by any stockholder of the corporation entitled to vote for the
election of directors at the meeting or a duly convened adjournment thereof who
complies with the notice procedures set forth in this Article IV. Such
nominations, other than those made by or at the direction of the board, or by
any nominating committee or person appointed by the board, shall be made
pursuant to timely notice in writing to the secretary of the corporation. To be
timely, a stockholder's notice shall be delivered to or mailed and received at
the principal executive offices of the corporation not less than 90 days nor
more than 120 days prior to the anniversary date of the immediately preceding
annual meeting of stockholders; provided that if the board calls the annual
meeting for a date that is not within 30 days before or after such anniversary
date, notice by the stockholder to be timely must be so delivered or mailed and
received not later than the close of business on the 10th business day following
the day on which the board gave such notice or made such public disclosure of
the date of the meeting, whichever first occurs. Such stockholder's notice to
the secretary shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or re-election as a director, (i) the name,
age, business address and residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the class and number of shares of
capital stock of the corporation which are beneficially owned by the person and
(iv) any other information relating to the person that is required to be
disclosed in solicitations for proxies for election of directors pursuant to
Rule 14a under the Securities Exchange Act of 1934, as amended; and (b) as to
the stockholder giving the notice, (i) the name and record address of the
stockholder and (ii) the class and number of shares of capital stock of the
corporation which are beneficially owned by the stockholder. The corporation may
require any proposed nominee to furnish such other information as may reasonably
be required by the corporation to determine the qualifications of such proposed
nominee to serve as director of the corporation. No person shall be eligible for
election as a director of the corporation unless nominated in accordance with
the procedures set forth herein.
If a nomination is made that is not in accordance with the foregoing
procedure, the Presiding Officer at an annual meeting shall so declare to the
meeting and the defective nomination shall be disregarded.
SECTION 4.2.1 Eligibility, Tenure and Vacancies.
A nomination to serve as a director shall be accepted and votes cast for a
nominee shall be counted only if the secretary has received, at least thirty
days before the annual or a special meeting of stockholders, a statement signed
by
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the nominee advising that he or she consents to being a nominee and, if elected,
intends to serve as a director, and further provided that:
(a) Directors who are full-time employees of the company shall resign from
the board coincident with their retirement from full-time employment.
(b) The age limit for directors not covered by subparagraph (a), above, or
who, after resigning from the board upon retirement from full-time
employment are re-elected to the board, shall be seventy-two, and such
directors shall retire from the board as of the date and time of the annual
meeting of stockholders which next follows their attainment of age
seventy-two; provided, however, that such directors originally elected to
the board after November 1, 1981, shall retire from the board as of the
date and time of the annual meeting of stockholders which next follows
their attainment of age seventy.
(c) The board may extend the retirement date for one year for any director
who is serving as chairman of a committee of the board who will have
occupied such chairmanship less than two years at the time of his or her
normal retirement date, but this subparagraph (c) shall be effective only
through October 22, 1992 and no extension shall be valid beyond that date.
Each member of the board of directors shall hold office from the time of his
election and qualification until the next annual meeting of the stockholders and
until his successor shall have been elected and qualified; provided, however,
that any member of the board of directors may be removed from such office by the
stockholders at any time, with or without cause, at any meeting of the
stockholders, duly called for such purpose, in which event a successor may be
elected by the stockholders at such meeting or at any subsequent meeting of the
stockholders duly called for such purpose.
The number of members of the board of directors may be increased or
decreased at any time and from time to time to not less than five nor more than
nineteen members by resolution adopted by the board of directors and in such
event, and in the event any vacancy on the board of directors shall occur by
death, resignation, retirement, disqualification or otherwise, additional or
successor members of the board of directors may be elected by majority vote of
the remaining members of the board of directors present in person at any duly
convened meeting of said board.
Any director may resign at any time upon written notice to the corporation.
SECTION 4.3 Regular Meetings of the Board of Directors.
The first organizational meeting of each newly-elected board
shall be held at such time and place, either within or without the State of
Delaware, as shall be fixed by the outgoing board of directors at or before its
last regular meeting preceding the annual meeting of the stockholders, and no
notice of such meeting shall be necessary to the newly-elected directors in
order to constitute the meeting legally, provided that a majority of the whole
board shall be present, and further provided that such newly-elected board may
meet at such other place and time as shall be fixed by the consent in writing of
all of the said directors.
At such organizational meeting the board, by a vote of a majority of all of
the members thereof, shall elect a chairman from among its members. The chairman
shall preside over all meetings of the board of directors, if present, and shall
have such other powers and perform such other duties as may be assigned to him
by the board from time to time. In his capacity as chairman of the board he
shall not necessarily be an officer of the corporation but he shall be eligible
to serve, in addition, as an officer pursuant to Section 5.1 of these By-Laws.
All meetings of the directors shall be presided over by the chairman of the
board or, in his absence or disability, by the chief executive officer of the
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corporation if he is a member of the Board or, in his absence or disability, by
the president if he is a member of the Board or, in his absence or disability,
by the vice chairman, if any, or, in his absence or disability, by the senior
director (in terms of length of service on the board of directors) present.
Regular meetings of the board of directors shall be held during the months
of January, April, June, July and September, on such dates and at such places as
the board by resolution or, failing such resolution, as the chairman of the
board or, during his absence or disability, the president or the secretary of
the corporation may determine, and if not previously specified in a board
resolution, each director shall be advised in writing of the date, place and
time of each such meeting at least two days in advance, unless such notice be
waived in writing.
SECTION 4.4 Special Meetings.
Special meetings of the board of directors shall be held at such time and
place, within or without the State of Delaware, as shall be designated in the
call and notice of the meeting; and may be called by the chairman of the board,
or in his absence or disability by the president or the secretary of the
company, at any time, and must be called by the chairman, or in his absence or
disability by the president or the secretary of the corporation, whenever so
requested in writing by three or more members of the board. Notices of special
meetings shall be given to each member of the board not less than twenty-four
hours before the time at which each such meeting is to convene. Such notices may
be given by telephone or by any other form of written or verbal communication.
It shall not be necessary that notices of special meetings state the purposes or
the objects of the meetings, and any business which may come before any duly
called and convened special meeting of the board may be transacted at such
meeting.
The members of the board of directors, before or after any meeting of the
board, may waive notice thereof and, if all members of the board be present in
person at any meeting or waive notice of the meeting, the fact that proper
notice of the meeting was not given shall not in any way affect the validity of
the meeting or the business transacted at the meeting.
SECTION 4.5 Committees Appointed by the Board.
A majority of the whole board may from time to time appoint (a) committees
of the board, the membership of which shall consist entirely of board members
and (b) other committees, the membership of which may be either a mixture of
board and non-board members or entirely non-members of the board. All committees
so appointed shall elect a chairman and keep regular minutes of their meetings
and transactions and such minutes shall be accessible to all members of the
board at all reasonable times.
No such committee shall have the power or authority to amend the
Certificate of Incorporation (except that a committee may, to the extent
authorized in a resolution of the board of directors providing for the issuance
of shares of stock, fix the designations and 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 or fix the number of shares
of any series of stock or authorize the increase or decrease of the shares of
any series); to adopt an agreement of merger or consolidation; to recommend to
the stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets; to recommend to the stockholders a
dissolution of the corporation or a revocation of a dissolution; to amend the
By-Laws of the corporation; or, unless a resolution of the board of directors,
the
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By-Laws or the Certificate of Incorporation expressly so provides, to declare a
dividend or authorize the issuance of stock.
SECTION 4.6 Meetings of Committees Appointed by the Board.
Meetings of any committee appointed by the Board shall be called
by the secretary or any assistant secretary of the corporation (or, in the case
of committees appointed by the board whose membership does not consist
exclusively of board members, by such employee of the corporation as has been
designated pursuant to By-Law 5.7 to record the votes and the minutes of such
committee) upon the request of the chairman of the committee, the chairman of
the Board, the chief executive officer of the corporation, or any two members of
the committee. Notice of each such meeting shall be given in the same manner
specified in Section 4.4 for special meetings of the board of directors.
SECTION 4.7 Quorum and Voting.
A majority of the members of the board of directors or of any committee
appointed by the board shall be present at any meeting of the board or such
committee in order to constitute a quorum, and a majority of the members present
at any duly constituted meeting of the board or such committee may decide any
question which properly may come before the meeting, unless a different vote is
specifically required by these By-Laws, the Certificate of Incorporation or
applicable law.
SECTION 4.8 Meeting by Conference Telephone.
Members of the board of directors or any committee appointed by the board
may participate in a meeting by means of conference telephone or similar
communications equipment whereby all persons participating in the meeting can
hear each other, and participation in such meeting in such manner shall
constitute presence in person at such meeting.
Notwithstanding the notice provisions of Sections 4.3, 4.4 and 4.6 above,
participation in a meeting by means of conference telephone by a member of the
board of directors or a committee appointed by the board shall constitute waiver
of notice of the meeting by such director.
SECTION 4.9 Action Without Meeting.
Any action required or permitted to be taken at any meeting of the board of
directors or any committee appointed by the board may be taken without a meeting
if all of the directors or all of the members of such a committee, as the case
may be, consent thereto in writing and the writing or writings are filed with
the minutes of proceedings of the board of directors or of such committee.
SECTION 4.10 Compensation.
A director shall receive such reasonable compensation for his services as a
director or as a member of a committee appointed by the board of directors
(including service as chairman of the board or as chairman of a committee of the
board) as may be fixed from time to time by the board of directors and shall be
reimbursed for his reasonable expenses, if any, in attending any meeting of the
board of directors or such a committee. A director shall not be barred from also
serving the corporation in any other capacity and receiving reasonable
compensation therefor.
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ARTICLE V.
OFFICERS
SECTION 5.1 Election, Qualification, Tenure and Compensation.
The officers of the corporation shall be elected by the board of
directors and shall include a president, one or more vice presidents (one or
more of whom may be designated as an executive vice president or senior vice
president), a secretary, a comptroller, a treasurer and such other officers,
including a vice chairman, as from time to time the board of directors shall
deem necessary or desirable. At the discretion of the board, the chairman of the
board may also be elected under the same title as an officer of the corporation.
The chairman of the board and president (and the vice chairman, if any)
shall be, and the other officers may be but need not be, members of the board of
directors and stockholders.
Unless otherwise provided by the board of directors, each officer shall
hold office from the time of his election until his successor shall have been
elected and qualified, provided, however (except as otherwise provided in a
contract duly authorized by the board of directors), any officer may be removed
from office by the board of directors at any time, with or without cause, and
any officer may resign at any time upon written notice to the corporation. Any
two offices may be united in any one person, provided that no person shall act
in more than one capacity in any one transaction.
The compensation of all officers shall be fixed and determined by the board
of directors or pursuant to its delegated authority.
From time to time the board of directors, or its delegates, may appoint
such other agents, for such terms and with such rights, powers and authorities,
on such conditions, subject to such limitations and restrictions and at such
compensation as shall seem right and proper to it or them, and any such agent
may be removed from office by the board of directors or its delegates at any
time, with or without cause.
SECTION 5.2 Chief Executive Officer.
From time to time the board of directors shall designate by resolution
either the chairman of the board, if elected as an officer of the corporation,
or the president to act as the chief executive officer of the corporation. The
chief executive officer shall have responsibility for the active and general
management of the corporation and such authorities and duties as are usually
incident to the office of chief executive officer and as from time to time shall
be specified by the board of directors. He shall prescribe the duties of all
subordinate officers, agents and employees of the company to the extent not
otherwise prescribed by the Certificate of Incorporation, the By-Laws or the
board of directors. Such designation shall continue in full force and effect
until modified or rescinded by further resolution of the board.
SECTION 5.3 Chairman of the Board.
The chairman of the board shall preside over all meetings of the board of
directors and the stockholders of the corporation. He shall have such other
authorities and duties as are usually incident to the office of chairman of the
board and as from time to time shall be specifically directed by the board of
directors. Except where by law the signature of the president is required, the
chairman of the board shall possess the same power as the president to sign all
certificates, contracts and other instruments of the corporation which may be
authorized by the board of directors. During the absence or disability of the
president, if the chairman has been elected as an officer of the corporation he
shall exercise all of the powers and discharge all of the duties of the
president.
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If the chairman has not been elected as an officer of the corporation, then the
provisions of Section 5.6 shall apply.
SECTION 5.4 President.
Subject to the powers and duties hereinbefore delegated to the chairman of
the board, and to the powers and duties hereinbefore delegated to the chief
executive officer if the chairman of the board is designated by the board of
directors to act as chief executive officer, the president shall direct the
operations of the company. He shall have such other authorities and duties as
are usually incident to the office of president and as, from time to time, shall
be specifically directed by the board of directors. During the absence or
disability of the chairman, the president shall exercise all of the powers and
discharge all of the duties of the chairman.
SECTION 5.5 Vice Chairman of the Board.
The vice chairman of the board, if any, who shall be an officer of the
corporation, shall have such specific powers, duties and authority, and shall
perform such administrative and executive duties as, from time to time, may be
assigned by the board of directors, or the chief executive officer.
SECTION 5.6 Absence or Disability of Chairman and President.
In the absence or disability of both the chairman of the board if
he has been elected an officer of the corporation, and the president, or in the
absence or disability of the president if the chairman has not been elected as
an officer of the corporation, the vice chairman, if any, or if there is no vice
chairman, an officer previously designated in writing by the chief executive
officer or, in the absence of such designation, an officer designated by the
board of directors, shall exercise all of the powers and discharge all of the
duties of the said officer or officers until one or both return to active duty
or until the board of directors authorizes another person or persons to act in
their capacities.
SECTION 5.7 Secretary.
The secretary or an assistant secretary shall record the votes and the
minutes, in books to be kept for that purpose, of all meetings of the
stockholders, of the board of directors, and of those committees of the board of
directors whose membership is confined to members of the board, provided,
however, that in the absence of the secretary and the assistant secretaries the
chairman of any such meeting may designate another officer of the company to act
as secretary of that meeting. Any employee of the corporation may be designated
by committees which are appointed by the board, but whose membership is not
confined to members of the board, to record the votes and minutes of the
proceedings of such committees in books to be kept for that purpose. The
secretary or an assistant secretary shall give or cause to be given, notice of
all meetings of the stockholders, the board of directors and committees of the
board of directors. The secretary and assistant secretaries shall keep in safe
custody the seal of the corporation and shall affix the same to any instrument
requiring it and, when required, it shall be attested by his signature or by the
signature of an assistant secretary. In the absence or disability of the
secretary and all assistant secretaries, the seal may be affixed and the
instrument attested by any vice president. The secretary also shall perform such
other duties as may be assigned to him by the board of directors, or the chief
executive officer.
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SECTION 5.8 Assistant Secretaries.
In the absence or disability of the secretary, an assistant secretary, if
specifically designated and directed by the chairman of the board or the
president, shall perform the prescribed duties and functions of the secretary.
The assistant secretaries also shall have such specific powers and authorities
and shall perform such other duties and functions as from time to time may be
assigned by the board of directors, or the chief executive officer.
SECTION 5.9 Comptroller.
The comptroller shall cause to be kept full and accurate books and accounts
of all assets, liabilities and transactions of the corporation. The comptroller
shall establish and administer an adequate plan for the control of operations,
including systems and procedures required to properly maintain internal controls
on all financial transactions of the corporation. The comptroller shall prepare,
or cause to be prepared, statements of the financial condition of the
corporation and proper profit and loss statements covering the operations of the
corporation and such other and additional financial statements, if any, as the
chief executive officer or the board of directors from time to time shall
require. The comptroller also shall perform such other duties as may be assigned
to him by the board of directors, or the chief executive officer.
SECTION 5.10 Treasurer.
The treasurer shall be responsible for the custody and care of all the
funds and securities of the corporation and shall cause to be kept full and
accurate books and records of account of all receipts and disbursements of the
corporation. The treasurer shall cause all money and other valuable effects of
the corporation to be deposited in the name and to the credit of the corporation
in such depositories as shall be designated from time to time by the board of
directors. He shall disburse the funds of the corporation as may be ordered by
the board of directors, or the chief executive officer. The treasurer also shall
perform such other duties as may be assigned to him by the board of directors,
or the chief executive officer.
SECTION 5.11 Assistant Treasurers.
In the absence or disability of the treasurer, an assistant treasurer, if
any, or any other officer of the corporation, if specifically designated and
directed by the chairman of the board or the president, shall perform the
prescribed duties and functions of the treasurer. Any such assistant treasurer
also shall have such specific powers and authorities and shall perform such
other duties and functions as from time to time shall be assigned by the board
of directors, or the chief executive officer of the corporation.
SECTION 5.12 Bonds.
Any officer or agent of the corporation shall furnish to the corporation
such bond or bonds, with security for the faithful performance of his duties, as
from time to time may be required by the board of directors.
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ARTICLE VI.
CORPORATE SEAL
SECTION 6.1 Corporate Seal.
The corporate seal shall have inscribed thereon the name of the
corporation, the word "SEAL" and the word "Delaware". Said seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE VII.
FISCAL YEAR
SECTION 7.1 Fiscal Year.
The fiscal year of the corporation shall commence on the first day of July
of each year and shall end on the thirtieth day of June of the next following
year.
ARTICLE VIII.
DIVIDENDS
SECTION 8.1 $1.50 Par Value Common Stock.
Dividends may be paid on the $1.50 par value common stock of the
corporation in such amounts and at such times as the board of directors shall
determine.
SECTION 8.2 Record Date for Payment of Dividends.
It shall not be necessary to close the stock transfer books of the
corporation for the purpose of determining the stockholders entitled to receive
payment of any dividend on the stock of the corporation; but in lieu of closing
the stock transfer books, and for all purposes that might be served by closing
the stock transfer books, the board of directors, in declaring any dividend on
the common stock, shall fix either the date on which the dividend is declared or
a date between that date and the date on which the dividend is to be paid as the
record date for determining stockholders entitled to receive payment of said
dividend; and the corporation and its transfer agents may continue to receive
and record transfers of stock after the record date so fixed and determined but,
in any such case, such stockholders and only such stockholders as shall have
been stockholders of record at the close of business on the record date so fixed
and determined by the board of directors shall be entitled to receive payment of
said dividend, notwithstanding any transfer of any stock which may have been
made on the books of the corporation or its transfer agents after said record
date.
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ARTICLE IX.
FINANCIAL TRANSACTIONS AND EXECUTION OF
INSTRUMENTS IN WRITING
SECTION 9.1 Depositories.
The funds and securities of the corporation shall be deposited, in the name
of and to the credit of the corporation, in such banks, trust companies and
other financial institutions as shall from time to time be determined and
designated by the board of directors or its delegate.
SECTION 9.2 Withdrawals and Payments.
All checks and orders for the withdrawal or payment of funds of the
corporation, shall be signed in the name of the corporation in such manner and
form and by such officer, officers or other employees as from time to time may
be authorized and provided by the board of directors or its delegate. Facsimile
signatures may be used when authorized by the board or its delegate.
It shall be the duty of the secretary, an assistant secretary or the
corporation's official in charge of internal auditing to certify to the
designated depositories of the funds and securities of the corporation the names
and signatures of the officers and other employees of the corporation who, from
time to time, are authorized to sign checks, drafts or orders for the withdrawal
of funds and/or securities. No check, drafts or order for the withdrawal or
payment of funds of the corporation shall be signed in blank.
SECTION 9.3 Evidence of Indebtedness and Instruments Under Seal.
Unless otherwise authorized by the board of directors, all notes,
bonds, and other evidences of indebtedness of the corporation, and all deeds,
indentures, contracts and other instruments in writing required to be executed
under the seal of the corporation, shall be signed in the name and on behalf of
the corporation by the chairman of the board, the president, the vice chairman,
if any, or a vice president of the corporation and shall be attested by the
secretary or an assistant secretary.
ARTICLE X.
BOOKS AND RECORDS
SECTION 10.1 Location.
The books, accounts and records of the corporation, except as may be
otherwise required by the laws of the State of Delaware, may be kept outside of
the State of Delaware, at such place or places as the board of directors may
from time to time appoint.
SECTION 10.2 Inspection.
Except as otherwise required by law, the board of directors or its delegate
shall determine whether and to what extent the books, accounts and records of
the corporation, or any of them other than the stock books, shall be open to the
inspection of the stockholders.
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ARTICLE XI.
TRANSACTIONS WITH OFFICERS AND DIRECTORS
SECTION 11.1 Validation.
Contracts and all other transactions, including but not limited to
purchases and sales, by and between this corporation and one or more of its
officers or directors, or by and between this corporation and any firm,
partnership, association or corporation of which one or more of the officers or
directors of this corporation shall be members, partners, officers or directors
or in which one or more of the officers or directors of this corporation shall
be interested, shall be valid, binding and enforceable, and shall not be
voidable by this corporation or its stockholders notwithstanding the
participation of any such interested director in any meeting of the board of
directors of this corporation at which such contract or other transaction shall
be considered, acted upon or authorized, and notwithstanding the participation
of any such interested officer or director in the making or performance of such
contract or transaction, if the material facts of such interest shall be
disclosed to or be known by the members of the board of directors of this
corporation who shall be present at the meeting of said board at which such
contract or transaction, and such participation therein, shall be authorized or
approved and if the board in good faith authorizes the contract or transaction
by the affirmative votes of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum.
ARTICLE XII.
AMENDMENT, REPEAL OR ALTERATION
SECTION 12.1 Amendment, Repeal or Alteration.
These By-Laws may be amended, repealed or altered, in whole or in part, by
a majority of the valid votes cast at any duly convened regular annual meeting
of the stockholders or at any duly convened special meeting of stockholders when
such object shall have been announced in the call and notice of the meeting.
These By-Laws also may be amended, repealed or altered by vote of a majority of
the whole board of directors at any duly convened meeting of the board of
directors; provided, however, that any such action of the board of directors may
be repealed by the stockholders. The repeal of any such action of the board of
directors by the stockholders, however, shall not invalidate or in anywise
affect the validity of any act or thing done in reliance upon said action of the
board of directors.
EMERGENCY BY-LAWS
Adopted October 27, 1967
Subject to repeal or change by the stockholders, and notwithstanding any
different provision contained in the Delaware Corporation Law or in the
Certificate of Incorporation or By-Laws of this corporation, the following
emergency by-laws shall be operative in any emergency arising from an attack on
the United States or on a locality in which the corporation conducts its
business or customarily holds meetings of its board of directors or
stockholders,
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or during any atomic or nuclear disaster or during the existence of any
catastrophe or other similar emergency condition as a result of which a quorum
of the board of directors cannot readily be convened for action.
1. In the event of emergency or disaster as described above, an
emergency board of directors shall forthwith assume direction and control
of the affairs of the corporation.
2. Such emergency board of directors shall consist of all living
directors, and meetings of the emergency board may be called by the
chairman of the board, the president, the vice chairman or the secretary
or, in the event of the death or inability of any of the four to act, by
any surviving director with the capacity and ability to act.
3. To the extent possible, notice of emergency board meetings shall be
given in each instance to each known living member of the board at his last
known business address, either orally or in writing delivered personally or
by mail, telegraph, telephone or radio, or by publication; provided
however, that if notice by such means is impossible insofar as specific
individual directors are concerned, then the person calling the meeting
shall give such directors such notice as is reasonably possible under the
circumstances.
4. At any properly called meeting of the emergency board a quorum shall
not be necessary, and the acts of a majority of the members of the
emergency board present shall be and shall constitute the acts of the
emergency board.
5. During its existence, the emergency board shall have the following
powers:
(a) To appoint officers and agents of the corporation and to determine
their compensation and duties;
(b) To borrow money and to issue bonds, notes or other obligations and
evidence of indebtedness therefor;
(c) To determine questions of general policy with respect to the business
of the corporation;
(d) To call stockholders' meetings; and
(e) To take all actions and to do all things necessary to preserve the
corporation as an operating entity, and to direct and control its affairs
and operations, until the regular board of directors has been
reconstituted, either by the passage of time, by action of the
stockholders, or otherwise in accordance with law.
6. No officer, director or employee acting in accordance with these
emergency by-laws shall be liable to the corporation or its stockholders
with respect to action taken under power granted herein except for willful
misconduct.
7. As soon as reasonably possible following the creation of an
emergency board of directors, if it appears clear that such action is
required because of the number of directors killed or indefinitely
incapacitated, the emergency board shall call a regular or special meeting
of the stockholders of the corporation for the election of a new board of
directors, or otherwise to reconstitute the board, and upon the election
and qualification or reconstitution of such board, the emergency board
established pursuant to these emergency by-laws shall cease and terminate
and the direction and control of the affairs of the corporation shall vest
in such new or reconstituted board of directors.
8. To the extent not inconsistent with these emergency by-laws, the
regular by-laws of the corporation shall remain in effect during the
emergency.
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CERTIFICATE OF INCORPORATION
OF
DELTA AIR LINES, INC.
First: The name of the corporation (which is hereinafter referred to as
the "Corporation") is Delta Air Lines, Inc.
Second: The principal office of the Corporation in the State of Delaware
is located at No. 100 West Tenth Street in the City of Wilmington, County of
Newcastle. The name and address of its resident agent is The Corporation
Trust Company, No. 100 West Tenth Street, Wilmington, Delaware.
Third: The nature of the business and the objects and purposes to
be transacted, promoted or carried on by the Corporation are:
(1) To invent, make, manufacture, purchase or otherwise acquire, buy, sell,
hire, lease, import, export, deal in or with, operate or otherwise use at
any place or places within or without the United States, aircraft,
airplanes, airships, machines, rockets, spacecraft, flying apparatus and
other contrivances or devices for aerial or space operation or navigation
of any and every kind and description and any future improvements or
developments of the same (all of the aforesaid contrivances or devices
hereinafter described as "aircraft").
(2) To manufacture, buy, sell, hire, lease, import, export, deal in or
with, operate or otherwise use motors, engines or other machinery or
devices, of every kind and description, for the generation of power for
the operation of said aircraft, and all machinery, appliances, tools,
supplies or other equipment or paraphernalia used or capable of being
used in the construction, maintenance, repair and operation of same.
(3) To operate, use or navigate for profit or otherwise any and all of
the said aircraft, machines and motors previously described for the
carriage and transportation of persons, property, express, freight and
mail for all kinds of private, commercial or governmental purposes, at
any place within or without the United States.
(4) To apply for, obtain, register, purchase, lease or otherwise
acquire, and to hold, use, own and operate under, and to sell, assign
and otherwise deal in and dispose of, any trade-marks, trade-names,
patents and applications for patent, copyrights, licenses, improvements,
processes and secret formulae used in connection with, or secured under,
letters patent of the United States or of other jurisdictions or
countries, and whether or not in any way relating to any of the
businesses aforesaid, to use, exercise, grant licenses in respect of or
otherwise turn to account any such trade-marks, patents, copyrights,
licenses, processes and the like.
(5) To acquire, buy, purchase, lease, own, hold, sell, mortgage and
encumber improved and unimproved real estate wherever situate, and to
construct and erect thereon and to operate and carry on the business of
factories, works, plants, stores, mills, hotels, houses and buildings.
(6) To purchase or otherwise acquire and to hold, sell, pledge or
otherwise dispose of all forms of securities, including stocks, bonds,
debentures, notes, certificates of indebtedness, certificates of
interest, mortgages and other similar instruments and rights however
issued or created, and to deal in and with the same and to issue in
exchange therefor or in payment therefor its own stock, bonds or other
obligations or securities, and to exercise in respect thereof any and
all rights, powers and privileges of individual ownership or interest
therein, including the right to vote thereon and to consent or otherwise
act with respect thereto; to do any and all acts and things for the
preservation, protection, improvement and enhancement in value thereof,
or designed to accomplish any such purpose, and to aid by loan, subsidy,
guaranty or in any other manner
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those issuing, creating or responsible for any such securities; to acquire
or become interested in any such securities as aforesaid by original
subscription, underwriting, participation in syndicates or otherwise, and
to make payments thereon as called for and to underwrite or subscribe for
the same conditionally or otherwise and either with a view to investment or
for resale or for any other lawful purpose.
(7) To purchase or otherwise acquire, sell or otherwise dispose of, realize
upon or otherwise turn to account, manage, liquidate or reorganize the
properties, assets, business undertakings, enterprises or ventures or any
part thereof of corporations, associations, firms, individuals, syndicates
and others; to act as financial, commercial or general agent or
representative of any corporation, association, firm, syndicate or
individual, and as such to develop, improve and extend the property, trade
and business interest thereof and to aid in any lawful enterprise in
connection therewith, and in connection with acting as agent or broker for
any principal to give any other aid or assistance.
(8) To borrow money and for monies borrowed or in payment for property
acquired, or for any other objects and purposes of the corporation or
otherwise in connection with the transaction of any part of its
business, to issue bonds, debentures, notes and other obligations
secured or unsecured and to mortgage, pledge or hypothecate any and all
of its properties or assets as security therefor; to make, accept,
endorse, guarantee, execute and issue notes, bills of exchange and other
obligations; to mortgage, pledge or hypothecate any stocks, bonds, other
evidences of indebtedness or securities and any other property held by
it or in which it may be interested, and to loan money with or without
collateral or other security; to guarantee the payment of dividends upon
stocks or the principal of and/or interest upon bonds, notes or other
evidences of indebtedness or obligations or the performance of the
contracts or other undertakings of any corporation, partnership,
syndicate or individual; to enter into, make and perform, contracts of
every kind and for any lawful purpose with any person, firm, corporation
or syndicate.
(9) To purchase or otherwise acquire all or any part of the business,
goodwill, rights, property and assets and to assume or otherwise provide
for all or any part of the liabilities of any corporation, association,
partnership or individual; to take over as a going concern and continue
any business so acquired; and to pay for any such business or properties
in cash, stock, bonds, debentures or obligations of this corporation or
otherwise.
(10) To manufacture, buy or otherwise acquire and to sell or otherwise
dispose of, distribute, deal in and with, either as principal, agent,
dealer or broker, goods, wares and merchandise of every kind and
description, including all materials or substances now known or
hereafter to be discovered or invented; to purchase or otherwise acquire
and to sell or otherwise dispose of, distribute, deal in and with,
either as principal, agent, dealer or broker, all kind of personal
property of every sort and description wheresoever situate and all
interest therein which this corporation may deem necessary or convenient
in connection with any part of its business.
(11) To conduct any and all of its business in the State of Delaware and
any other states, the District of Columbia, the territories, colonies
and dependencies of the United States, and in foreign countries and
places, and to have one or more offices outside of the State of
Delaware, and to purchase or otherwise acquire, hold, mortgage, convey,
transfer, or otherwise dispose of, both within and without the State of
Delaware, real and personal property.
(12) To do all and everything necessary, suitable, convenient or proper
for the accomplishment of any of the purposes or the attainment of any
or all of the objects hereinbefore enumerated or incidental to the
powers herein
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named, or which shall at any time appear conducive to or expedient for the
protection or benefit of the corporation, either as holder of or as
interested in any property or otherwise; and to have all of the rights,
power and privileges now or hereafter converted by the General Corporation
Laws of the State of Delaware.
The foregoing clauses shall be construed both as objects and powers, and it
is hereby expressly provided that the enumeration herein of specific objects
and powers shall not be held to limit or restrict in any manner the general
powers of this corporation, and all the powers and purposes hereinbefore
enumerated shall be exercised, carried on and enjoyed by this corporation
within and without the State of Delaware to such extent and in such manner as
corporations organized under the General Corporation Laws of the State of
Delaware may properly and legally exercise, carry on and enjoy.
Fourth: A. The total number of shares of capital stock which the
corporation shall have authority to issue is Four Hundred Seventy Million
(470,000,000), of which Four Hundred Fifty Million (450,000,000) shall be common
stock of the par value of One Dollar and Fifty Cents ($1.50) per share
(hereinafter called the "common stock") and Twenty Million (20,000,000) shall be
preferred stock of the par value of One Dollar ($1.00) per share (hereinafter
called the "preferred stock").
Each share of common stock, par value $3.00 per share, of the corporation
issued and outstanding or held in treasury of the corporation immediately prior
to 5:00 p.m., eastern standard time, on November 2, 1998 (the "Effective Time"),
that being the time when the amendment of this Article Fourth of the Certificate
of Incorporation shall have become effective, shall be changed into and
reclassified into two fully paid and nonassessable shares of common stock, par
value $1.50 per share, such that at the Effective Time: (1) each holder of
record of common stock, par value $3.00 per share, shall, without further
action, be and become the holder of one additional share of common stock, par
value $1.50 per share, for each share of common stock, par value $3.00 per
share, held of record immediately prior to the Effective Time; and (2) each
certificate representing shares of common stock, par value $3.00 per share,
outstanding or held in treasury immediately prior to the Effective Time shall
continue to represent the same number of shares of common stock, par value $1.50
per share. The corporation shall issue and cause to be distributed to each
holder of record of shares of common stock, par value $3.00 per share,
immediately prior to the Effective Time, as promptly as practicable thereafter,
one additional share of common stock, par value $1.50 per share, for each share
of common stock, par value $3.00 per share, held of record immediately prior to
the Effective Time.
B. The preferred stock may be issued from time to time by the corporation
in one or more series, with such voting powers, full or limited, or no voting
powers, and such designations, preferences and relative, participating, optional
or other special rights, and qualifications, limitations or restrictions
thereof, as shall be stated and expressed in the resolution or resolutions
providing for the issue of such stock adopted by the board of directors of the
corporation pursuant to authority to do so which is hereby vested in the board
of directors. Each such series of preferred stock shall be distinctly
designated. Except in respect of the particulars fixed by the board of directors
for each series as permitted hereby, all shares of preferred stock shall be of
equal rank and shall be identical. All shares of any one series of preferred
stock so designated by the board of directors shall be alike in every
particular, except that shares of any one series issued at different times may
differ as to the dates from which dividends thereon shall be cumulative. The
voting rights, if any, of each such series and the preferences and relative,
participating, optional and other special rights of each such series and the
qualifications, limitations and restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding; and the board of
directors of the corporation is hereby expressly granted authority to fix, by
resolutions duly adopted prior to the issuance of any
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shares of a particular series of preferred stock so designated by the board of
directors, the voting powers of stock of such series, if any, and the
designations, preferences and relative, participating, optional and other
special rights and the qualifications, limitations and restrictions thereof, if
any, for such series, including without limitation the following:
(1) The distinctive designation of and the number of shares of
preferred stock which shall constitute such series; provided that such
number may be increased (except where otherwise provided by the board of
directors) or decreased (but not below the number of shares thereof then
outstanding) from time to time by like action of the board of directors;
(2) The rate and time at which, and the terms and conditions upon
which, dividends, if any, on preferred stock of such series shall be paid,
the extent of the preference or relation, if any, of such dividends to the
dividends payable on any other series of preferred stock or any other class
of stock of the corporation and whether such dividends shall be cumulative
or non-cumulative;
(3) The right, if any, of the holders of preferred stock of such series
to convert the same into, or exchange the same for, shares of any other
class of stock or any series of any class of stock of the corporation and
the terms and conditions of such conversion or exchange;
(4) Whether or not preferred stock of such series shall be subject to
redemption, and the redemption price or prices and the time or times at
which, and the terms and conditions upon which, preferred stock of such
series may be redeemed;
(5) The rights, if any, of the holders of preferred stock of such
series upon the voluntary or involuntary liquidation of the corporation;
(6) The terms of the sinking fund or redemption or purchase account, if
any, to be provided for the preferred stock of such series; and
(7) The voting powers, if any, of the holders of such series of
preferred stock which may, without limiting the generality of the
foregoing, include the right, voting as a series by itself or together with
any other series of the preferred stock as a class, (i) to vote more or
less than one vote per share on any or all matters voted upon by the
stockholders and (ii) to elect one or more directors of the corporation if
there has been a default in the payment of dividends on any one or more
series of the preferred stock or under such other circumstances and upon
such other conditions as the board of directors may fix.
C. Except as otherwise provided in this Certificate of Incorporation, and
in addition to the powers conferred on the board of directors by Article
Thirteenth of this Certificate of Incorporation, the board of directors shall
have authority to authorize the issuance, from time to time, without any vote or
other action by the stockholders, of any or all shares of stock of the
corporation of any class or series at any time authorized, and any securities
convertible into or exchangeable for any such shares, and any options, rights or
warrants to purchase or acquire any such shares, in each case to such persons
and on such terms (including as a dividend or distribution on or with respect
to, or in connection with a split or combination of, the outstanding shares of
stock of the same or any other class or series) as the board of directors from
time to time in its discretion lawfully may determine; provided, that the
consideration for the issuance of shares of stock of the corporation (unless
issued as such a dividend or distribution or in connection with such a split or
combination) shall not be less than the par value of such shares. Shares so
issued shall be fully paid stock, and the holders of such stock shall not be
liable to any further call or assessments thereon.
Fifth: No holder of the capital stock of this corporation shall have any
preemptive or preferential right of subscription to any shares of stock of the
corporation now or hereafter authorized or issued.
Sixth: The names and places of residence of the incorporators are
as follows:
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<TABLE>
<CAPTION>
Name Place of Residence
<S> <C>
B. J. Consono Wilmington, Delaware
F. J. Obara, Jr. Wilmington, Delaware
A. D. Grier Wilmington, Delaware
</TABLE>
Seventh: The existence of the corporation is to be perpetual.
Eighth: The private property of the stockholders shall not be
subject to the payment of corporate debts to any extent whatever.
Ninth: The number of directors of the corporation shall be fixed
from time to time by, and in the manner provided in, its By-Laws and may be
increased or decreased as therein provided; but the number thereof shall consist
of not less than five nor more than nineteen directors who shall be stockholders
of the corporation.
The directors of the corporation shall be elected annually by the
stockholders and shall hold office until the next annual meeting of stockholders
and until their respective successors are duly elected and qualified.
In the case of any increase in the number of directors of the corporation,
the additional directors shall be elected as shall be provided in said By-Laws
by the board of directors or by the holders of shares of stock of the
corporation entitled to vote in respect thereof at an annual or special meeting
of said holders.
In case of any vacancy in the board of directors, however occasioned, a
successor to fill the vacancy shall be elected in the manner provided in the
By-Laws of the corporation.
A majority of the whole board of directors may appoint from the directors
an executive committee; and to such extent as shall be provided in a resolution
of the said board or in the By-Laws, such committee shall have and may exercise
all or any of the powers of the board of directors, including power to cause the
seal of the corporation to be affixed to all the papers that may require it.
A majority of the whole board of directors may appoint a finance committee
and any other standing committees, and any such committee shall have and may
exercise such powers as shall be conferred or authorized by the By-Laws or by
the board of directors.
The By-Laws of the corporation shall designate the officers of the
corporation, which shall include, but not necessarily be limited to, a
president, a secretary and a treasurer, to be elected by the directors or the
stockholders, and the manner in which the officers of the corporation shall be
elected or appointed.
Any officer elected by the board of directors may be removed at any time by
the board of directors. Any other officer or employee of the corporation may be
removed at any time by the board of directors, or by any committee or superior
officer upon whom such power of removal may be conferred by the By-Laws or by
the board of directors.
The board of directors, irrespective of any personal interest of any
members of the board, shall have authority, by resolution passed by a majority
of the whole board, to establish reasonable compensation of directors for
service to the corporation as directors, officers or otherwise.
Tenth: The corporation shall to the full extent permitted by law indemnify,
reimburse, or pay any person (including such person's executor, administrator,
or other personal representatives) for all liabilities (including, but not
limited to, reasonable costs, expenses, attorneys' fees, and obligations for
payment in settlement and final judgment) incurred by or imposed upon him in the
preparation, conduct or compromise, or as a result, of any actual or threatened
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, including any appeals therefrom and any collateral proceedings,
in which he shall be involved by reason of the fact that he is or was serving as
a director, officer, or employee of the corporation, or, that such director,
officer,
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or employee, at the request of the corporation, is or was serving any other
corporation, partnership, joint venture, trust, employee benefit plan, or other
enterprise, in any capacity.
Eleventh: The board of directors may adopt By-Laws and, from time to time,
may amend or repeal any By-Laws; but any By-Law adopted or amended by the board
of directors may be amended or repealed by the stockholders at any annual
meeting or at any special meeting, provided that notice of such proposed
amendment or repeal be included in the notice of the meeting.
Twelfth: Meetings of the stockholders may be held outside the State of
Delaware if the By-Laws so provide. The books of the corporation may be kept
(subject to any provision contained in the statutes) 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.
The board of directors from time to time shall determine whether and to
what extent, and at what times and places and under what conditions and
regulations the accounts and books of the corporation, or any of them shall be
open to the inspection of the stockholders, and no stockholders shall have the
right to inspect any account or book or document of the corporation except as
conferred by law or authorized by the board of directors or by the stockholders.
Thirteenth: The directors may from time to time declare and pay such
dividends as they shall deem advisable and proper, subject to such restrictions
as may be imposed by law.
The board of directors is hereby specifically empowered to authorize the
issuance of and to issue in any lawful manner, without limitation and from time
to time within the total number of shares authorized by these Articles, shares
of its stock for such considerations, not less than the par value thereof, as
the board of directors may deem advisable.
The board of directors shall have power to issue bonds, debentures or other
obligations, whether nonconvertible or convertible into the corporation's stock,
upon such terms, in such manner and under such conditions in conformity with law
as may be fixed by the board of directors prior to the issuance of such bonds,
debentures or other obligations.
Fourteenth: The powers and authorities hereinbefore conferred
upon the board of directors are in furtherance of, and not in
limitation of, those conferred by the laws of the State of Delaware.
Fifteenth: The corporation reserves the right at any time and from time to
time to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation in the manner now or hereafter prescribed by law;
and all rights, preferences and privileges of whatsoever nature conferred upon
stockholders, directors or any other persons whomsoever by and pursuant to this
Certificate of Incorporation in its present form or as hereafter amended are
granted subject to the rights reserved in this Article.
Sixteenth: The stockholders of the corporation may take action by written
consent only if such consent is unanimous. Notwithstanding anything contained in
this Certificate of Incorporation to the contrary, the affirmative vote of the
holders of at least 75% of the votes entitled to be cast by the holders of all
the then outstanding shares of the corporation entitled to vote generally on the
election of directors, voting together as a single class, shall be required to
alter, amend or repeal this Article Sixteenth or to adopt any provision
inconsistent herewith.
Seventeenth: A. Any "Business Combination" (as hereafter defined) with, or
proposed by or on behalf of, any "Related Person" (as hereafter defined) shall
require approval by the affirmative vote of both (i) not less than 75% of the
votes entitled to be cast by the holders of all the then outstanding shares of
"Voting Stock" (as hereafter defined), voting together as a single class, and
(ii) a majority of the votes entitled to be cast by the holders of all the then
outstanding shares of Voting Stock, voting together as a single class, excluding
Voting Stock that is beneficially owned by such Related Person. Such affirmative
vote shall be required in addition to any other vote that may be
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<PAGE>
required, and notwithstanding the fact that no vote may be required, or that a
lesser percentage or separate class vote may be specified, by law, this
Certificate of Incorporation, the By-Laws of the corporation, or in any
agreement with any national securities exchange or otherwise. Notwithstanding
the foregoing, the voting requirements of this paragraph A shall not be
applicable if:
1. The "Continuing Directors" (as hereafter defined) by a majority vote
shall have expressly approved the Business Combination; or
2. The Business Combination involves the payment of consideration to the
stockholders of the corporation, and all of the following conditions are met:
(a) The consideration to be received per share by holders of each class
or series of "Capital Stock" (as hereafter defined) shall be in the form of
"Fair Consideration" (as hereafter defined) and the aggregate amount of the
"Fair Market Value" (as hereafter defined), as of the date of the
consummation of the Business Combination, of such consideration to be
received per share shall be in an amount not less than the highest of:
(i) the Fair Market Value of the highest per share consideration
(with appropriate adjustments for recapitalizations, stock splits,
stock dividends and like distributions) paid by or on behalf of the
Related Person in acquiring beneficial ownership of any shares of such
class or series of Capital Stock during the two-year period prior to
the date of the first public announcement of the proposed Business
Combination (the "Announcement Date") or, if higher, in the transaction
in which it became a Related Person;
(ii) the "Market Price" (as hereafter defined) per share (with
appropriate adjustments for recapitalizations, stock splits, stock
dividends and like distributions) of such class or series of Capital
Stock on the Announcement Date or on the date on which the Related
Person became a Related Person, whichever is higher; and
(iii) if applicable, the highest preferential amount per share to
which the holders of shares of such class or series of Capital Stock
would be entitled in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the
corporation, regardless of whether the proposed Business Combination
constitutes such an event.
(b) After the date on which the Related Person became a Related Person
and prior to the consummation of the proposed Business Combination, except
as approved by a majority of the Continuing Directors, there shall not have
been (i) any failure to declare and pay at the regular date therefor any
full quarterly dividends (whether or not cumulative) payable in accordance
with the terms of any outstanding Capital Stock; (ii) any reduction in the
annual rate of dividends paid on the common stock (except as necessary to
reflect any stock split, stock dividend or subdivision of the common
stock); (iii) any failure to increase the annual rate of dividends paid on
the common stock as necessary to reflect any reclassification (including
any reverse stock split), recapitalization, reorganization or similar
transaction that has the effect of reducing the number of outstanding
shares of common stock; or (iv) any increase in the number of shares of any
class or series of Capital Stock beneficially owned by the Related Person
except as part of the transaction that resulted in such Related Person
becoming a Related Person and except in a transaction that, after giving
effect thereto, would not result in any increase in the Related Person's
percentage beneficial ownership of any class or series of Capital Stock.
(c) A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities Exchange
Act of 1934 and the rules and regulations thereunder or any subsequent
provisions replacing or amending such act, rules or regulations (the "Act")
shall be mailed to all stockholders of the corporation at least 30 days
prior to the consummation of such Business
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Combination (whether or not such mailing is required pursuant to the Act).
The proxy or information statement shall contain on the first page thereof,
in a prominent place, any statement as to the advisability (or
inadvisability) of the Business Combination that the Continuing Directors,
or any of them may choose to make and, if deemed advisable by a majority of
the Continuing Directors, the opinion of an investment banking firm
selected by a majority of the Continuing Directors as to the fairness (or
not) of the terms of the Business Combination from a financial point of
view to the holders of the outstanding shares of Capital Stock other than
the Related Person, such investment banking firm to be paid a reasonable
fee for its services by the corporation.
(d) After the date on which the Related Person became a Related Person
and prior to the consummation of the proposed Business Combination, such
Related Person shall not have made or caused any major change in the
corporation's business or equity capital structure without the approval of
a majority of the Continuing Directors.
B. For the purpose of this Article SEVENTEENTH:
1. The term "Business Combination" shall mean:
(a) any merger or consolidation of the corporation or any "Subsidiary"
(as hereafter defined) with, into, or for the benefit of any Related
Person;
(b) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition or security arrangement, investment, loan, advance, guarantee,
agreement to purchase, agreement to pay, extension of credit, joint venture
participation or other arrangement (in one transaction or a series of
transactions) involving the corporation or a Subsidiary which is with or
for the benefit of any Related Person and which involves a "Substantial
Part" (as hereafter defined) or all of the assets, securities or
commitments of the corporation, any Subsidiary or any Related Person;
(c) any recapitalization of the corporation or reclassification of its
securities (including any reverse stock split), or any merger or
consolidation of the corporation with any Subsidiary, or any other
transaction (whether or not with or otherwise involving a Related Person)
that would have the effect of increasing the proportionate share of any
class or series of Capital Stock, or any securities convertible into
Capital Stock or into equity securities of any Subsidiary, beneficially
owned by any Related Person;
(d) the adoption of any plan or proposal for the liquidation or
dissolution of the corporation; and
(e) any agreement, contract or other arrangement providing for any of
the transactions described in the foregoing subparagraphs (a) to (d).
2. The term "Market Price" shall mean the closing sale price on the date in
question of a share of the class or series of stock in question on the Composite
Tape for New York Stock Exchange--Listed Stocks, or, if such stock is not quoted
on the Composite Tape, on the New York Stock Exchange, or, if such stock is not
listed on such Exchange, on the principal United States securities exchange
registered under the Act on which such stock is listed, or, if such stock is not
listed on any such exchange, the closing sale (or if sale prices are not
available, bid) quotation with respect to a share of such stock on the National
Association of Securities Dealers, Inc. Automated Quotations System or any
similar system then in use, or, if such quotation is not available, the fair
market value on the date in question of a share of such stock as determined in
good faith by a majority of the Continuing Directors.
3. The term "Fair Market Value" shall mean (a) in the case of cash, the
amount of such cash, (b) in the case of stock, the Market Price thereof, and (c)
in the case of property other than cash or stock, the fair market value of such
property on the date in question as determined in good faith by a majority of
the Continuing Directors.
4. The term "person" shall mean any individual, firm, company or other
entity.
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5. The term "Related Person" shall mean and include any person which, by
itself or together with any other person pursuant to any agreement, arrangement
or understanding, either directly or indirectly, and/or together with its or
their "Affiliates" or "Associates" (as defined in Rule 12b-2 under the Act as
such Rule is in effect on July 25, 1985), (a) is or has announced or publicly
disclosed a plan or intention to become the beneficial owner of, in the
aggregate, shares representing 10% or more of the votes entitled to be cast by
the holders of all the then outstanding shares of Voting Stock, or (b) is an
assignee of the beneficial ownership of any shares of Voting Stock of which a
person described in subparagraph (a) hereof was the beneficial owner at any time
within the two-year period immediately preceding the date a Business Combination
is proposed; and any Affiliate or Associate of any such Related Person. The term
"Related Person" shall not include the corporation or any Subsidiary or any
profit sharing, employee stock ownership or other employee benefit plan of the
corporation or any Subsidiary or any trustee or fiduciary with respect to any
such Plan when acting in such capacity. The date on which any person or any
Affiliate or Associate of such person became a Related Person shall be deemed to
be the earliest date on which such person or any of its Affiliates or Associates
became a Related Person.
6. For purposes of this Article SEVENTEENTH, a person shall be deemed to
beneficially own any Capital Stock:
(a) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(b) which such person or any of its Affiliates or Associates has,
directly or indirectly, (i) the right to acquire (whether such right is
exercisable immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise, or (ii) the
right, alone or together with any other person, to vote pursuant to any
agreement, arrangement or understanding; or
(c) which is beneficially owned, directly or indirectly, by any other
person with which such person or any of its Affiliates or Associates has
any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of Capital Stock.
For the purpose of determining whether a person is a Related Person, the
number of shares of Capital Stock deemed to be outstanding shall include
shares deemed beneficially owned by such person through application of this
paragraph 6, but shall not include any other shares of Capital Stock that may
be issuable pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.
Any person shall be deemed to have become the beneficial owner of shares of
Capital Stock on the date on which it or any of its Affiliates or Associates
became the beneficial owner of such shares of Capital Stock.
7. The term "Substantial Part" shall mean any aggregate of assets,
securities and commitments having a Fair Market Value equal to or greater than
the lesser of (a) $15,000,000, or (b) (in the case of any transaction involving
assets, securities or commitments other than stock) 5% of the book value of the
total assets of the entity in question, or (c) (in the case of transactions
involving stock) 5% of the stockholders' equity of the entity in question, in
either case as of the end of the entity's most recent fiscal year ending prior
to the time the determination is being made.
8. The term "Fair Consideration" as applied to the consideration to be
received by holders of shares of a particular class or series of outstanding
Capital Stock means consideration in cash or in the same form as was paid by
or on behalf of the Related Person to acquire beneficial ownership of shares
of such class or series of Capital Stock within the two-year period ending on
and including the date on which the Related Person became a Related Person.
If, within such two-year period, the consideration so paid for shares of any
class or series of Capital Stock varied as to form, then Fair Consideration
shall mean either cash or the form of consideration used to acquire
beneficial ownership of
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<PAGE>
the largest number of shares of such class or series of Capital Stock
acquired by or on behalf of the Related Person within such two-year period.
9. The term "Subsidiary" shall mean any company in which the corporation
owns shares of stock representing a majority of the voting power of shares
entitled to vote generally on the election of directors.
10. The term "Capital Stock" shall mean the capital stock of the
corporation authorized to be issued from time to time under Article FOURTH of
this Certificate of Incorporation.
11. The term "Voting Stock" shall mean Capital Stock entitled to vote
generally on the election of directors.
12. The term "Continuing Director" shall mean (a) a director who was a
member of the board of directors of the corporation either on July 25, 1985, or
immediately prior to the time that the Related Person became a Related Person,
and (b) any person becoming a director whose election, or nomination for
election by the corporation's stockholders, was approved by a vote of a majority
of the Continuing Directors referred to in subparagraph (a); provided, however,
that in no event shall a Related Person involved in a Business Combination or
any of its representatives be deemed to be a Continuing Director.
C. For the purposes of this Article SEVENTEENTH, the Continuing Directors
by a majority vote shall have the power and the duty to make a good faith
determination, on the basis of information known to them, of: (i) whether any
person is a Related Person; (ii) the number of shares of Capital Stock of which
any person is the beneficial owner; (iii) whether a person is an Affiliate or
Associate of another; (iv) whether the assets, securities or commitments that
are the subject of any Business Combination constitute a Substantial Part; (v)
whether any business transaction is a Business Combination with, or proposed by
or on behalf of, a Related Person; (vi) whether the cash or other consideration
to be received per share by holders of Capital Stock other than the Related
Person in a Business Combination is an amount at least equal to the highest
price required to be paid under paragraph A of this Article SEVENTEENTH and
constitutes Fair Consideration; (vii) what is the Market Price or Fair Market
Value and whether a price is above the Market Price or Fair Market Value; and
(viii) any other matters with respect to which a determination is required under
this Article SEVENTEENTH. Any such determination made in good faith shall be
binding and conclusive on all parties.
D. Nothing contained in this Article SEVENTEENTH shall be construed to
relieve any Related Person from any fiduciary obligation imposed by law.
E. The fact that any proposed Business Combination complies with the
provisions of paragraph A of this Article SEVENTEENTH shall not be construed to
impose any fiduciary duty, obligation or responsibility on the board of
directors or any member thereof to approve such Business Combination or
recommend its adoption or approval to the stockholders of the corporation, nor
shall such compliance limit, prohibit or otherwise restrict in any manner the
board of directors or any member thereof with respect to evaluations or actions
and responses taken with respect to such Business Combination.
F. Any other provision of this Certificate of Incorporation or the By-Laws
of the corporation notwithstanding, and notwithstanding the fact that a lesser
percentage or separate class vote may be specified by law, this Certificate of
Incorporation or the By-Laws of the corporation, any proposal to amend or repeal
any provision of this Article SEVENTEENTH and any other proposal to amend this
Certificate of Incorporation which is inconsistent with any of the provisions
set forth in this Article SEVENTEENTH shall require approval by the affirmative
vote of not less than 75% of the votes entitled to be cast by the holders of all
the then outstanding shares of Voting Stock, voting together as a single class,
and, if such proposal is made by or on behalf of a Related Person, the
affirmative vote of a majority of the votes entitled to be cast by the holders
of all the then outstanding shares of Voting Stock, voting together as a single
class, excluding Voting Stock that is beneficially owned by such Related Person;
provided, however, that the vote referred to in this paragraph F shall
28
<PAGE>
not be required for any amendment, repeal or adoption unanimously recommended by
the board of directors and, if such proposal is made by or on behalf of a
Related Person, such recommendation by the board of directors is made at a time
when a majority of the directors are Continuing Directors.
Eighteenth. No director shall be personally liable to the corporation or
its stockholders for monetary damages for any breach of fiduciary duty by such
director as a director, except (i) for 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) pursuant to Section 174 of the Delaware General Corporation Law, or (iv)
for any transaction from which the director derived an improper personal
benefit. No amendment to or repeal of this Article Eighteenth shall apply to or
have any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
CERTIFICATE OF DESIGNATIONS, PREFERENCES
AND RIGHTS OF SERIES B ESOP
CONVERTIBLE PREFERRED STOCK
of
DELTA AIR LINES, INC.
Pursuant to Section 151 of the General Corporation
Law of the State of Delaware
We, Ronald W. Allen, Chairman of the Board and Chief Executive Officer, and
James W. Callison, Secretary, of Delta Air Lines, Inc., a corporation organized
and existing under the General Corporation Law of the State of Delaware (the
"Corporation"), in accordance with the provisions of Section 103 thereof,
DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by the
Certificate of Incorporation of the said Corporation, the said Board of
Directors on July 10, 1989, has adopted the following resolution creating a
series of 6,944,450 shares of Preferred Stock, par value $1.00 per share,
designated as Series B ESOP Convertible Preferred Stock:
RESOLVED, that pursuant to the authority expressly vested in the Board of
Directors of this Corporation in accordance with the provisions of its
Certificate of Incorporation, a series of Preferred Stock of the Corporation,
par value $1.00 per share, be and it hereby is, created and classified, and that
the designation and amount thereof and the voting powers, preferences and
relative, participating, optional and other special rights of the shares of such
series, and the qualifications, limitations or restrictions thereof are as
follows:
SECTION 1. Designation, Amount and Stated Value; Special Purpose
Restricted Transfer Issue.
(A) The shares of such series shall be designated as "Series B ESOP
Convertible Preferred Stock" (such series being hereinafter sometimes called the
"Series B Preferred Stock"), the number of shares constituting such series shall
initially be 6,944,450 and the stated value of each share of Series B Preferred
Stock shall be $72.00.
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<PAGE>
(B) Shares of Series B Preferred Stock shall be issued only to Harris Trust
and Savings Bank, as trustee, or any successor trustee (the "Trustee"), of the
Delta Family-Care Savings Plan of the Corporation, as amended from time to time,
or any successor or replacement plan (the "Plan"). In the event of any transfer
of shares of Series B Preferred Stock to any person other than the Trustee, the
shares of Series B Preferred Stock so transferred, upon such transfer and
without any further action by the Corporation or the holder thereof, shall be
automatically converted into shares of Common Stock (as defined in paragraph (B)
of Section 10 hereof) on the terms otherwise provided for the conversion of
shares of Series B Preferred Stock into shares of Common Stock pursuant to
Section 5 hereof and no such transferee shall have any of the voting powers,
preferences and relative, participating, optional or special rights ascribed to
shares of Series B Preferred Stock hereunder but, rather, only the powers and
rights pertaining to the Common Stock into which such shares of Series B
Preferred Stock shall have been so converted. In the event of such a conversion,
the transferee of the shares of Series B Preferred Stock shall be treated for
all purposes as the record holder of the shares of Common Stock into which such
shares of Series B Preferred Stock have been automatically converted as of the
date of such transfer. Certificates representing shares of Series B Preferred
Stock shall bear a legend to reflect the foregoing provisions. Notwithstanding
the foregoing provisions of this paragraph 1(B), shares of Series B Preferred
Stock (i) may be converted into shares of Common Stock as provided by Section 5
hereof and the shares of Common Stock issued upon such conversion may be
transferred by the holder thereof as permitted by law and (ii) shall be
redeemable by the Corporation upon the terms and conditions provided by Sections
6 and 7 hereof.
SECTION 2. Dividends and Distributions.
(A) Subject to the provisions for adjustment hereinafter set forth, the
holders of shares of Series B Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available therefor, dividends payable in cash ("Preferred Dividends") at the
rate per share of 6% per annum of the stated value of such shares. Preferred
Dividends will be payable semi-annually on the 28th day of June and December in
each year (each a "Dividend Payment Date") commencing on December 28, 1989, to
holders of record on the tenth Business Day (as defined in the paragraph (H) of
Section 8 hereof) preceding such Dividend Payment Date (the "Dividend Record
Date"). In the event that any Dividend Payment Date shall fall on any day other
than a Business Day, the dividend payment due on such Dividend Payment Date
shall be paid on the Business Day immediately following such Dividend Payment
Date. Preferred Dividends shall begin to accrue on outstanding shares of Series
B Preferred Stock from the date of issuance of such shares of Series B Preferred
Stock. Preferred Dividends shall accrue on a daily basis whether or not during
such semi-annual period there shall be funds legally available therefor, but
Preferred Dividends accrued on the shares of Series B Preferred Stock for any
period less than a full semi-annual period between Dividend Payment Dates (or,
in the case of the first dividend payment, from the date of issuance of the
shares of Series B Preferred Stock through the first Dividend Payment Date)
shall be computed on the basis of a 360-day year of 30-day months. Accrued but
unpaid Preferred Dividends shall cumulate as of the Dividend Payment Date on
which they first become payable, but no interest shall accrue on accumulated but
unpaid Preferred Dividends. Dividends paid on the shares of Series B Preferred
Stock in an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding.
(B) So long as any shares of Series B Preferred Stock shall be outstanding,
no dividend shall be declared or paid or set apart for payment on any other
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<PAGE>
series of stock ranking on a parity with the Series B Preferred Stock as to
dividends, unless there shall also be or have been declared and paid or set
apart for payment on the Series B Preferred Stock dividends for all dividend
payment periods of the Series B Preferred Stock ending on or before the dividend
payment date of such parity stock, ratably in proportion to the respective
amounts of dividends accumulated and unpaid through such dividend period on the
Series B Preferred Stock and accumulated and unpaid on such parity stock through
the dividend payment period on such parity stock next preceding such dividend
payment date. In the event that full cumulative dividends on the Series B
Preferred Stock have not been declared and paid or set apart for payment when
due, the Corporation shall not declare or pay or set apart for payment any
dividends or make any other distributions on, or make any payment on account of
the purchase, redemption or other retirement of any other class of stock or
series thereof of the Corporation ranking, as to dividends or as to
distributions in the event of a liquidation, dissolution or winding up of the
Corporation, junior to the Series B Preferred Stock until full cumulative
dividends on the Series B Preferred Stock shall have been paid or declared and
set apart for payment; provided, however, that the foregoing shall not apply to
(i) any dividend payable solely in any shares of any stock ranking, as to
dividends and as to distributions in the event of a liquidation, dissolution or
winding-up of the Corporation, junior to the Series B Preferred Stock or (ii)
the acquisition of shares of any stock ranking, as to dividends or as to
distributions in the event of a liquidation, dissolution or winding up of the
Corporation, junior to the Series B Preferred Stock in exchange solely for
shares of any other stock ranking, as to dividends and as to distributions in
the event of a liquidation, dissolution or winding-up of the Corporation, junior
to the Series B Preferred Stock.
SECTION 3. Voting Rights.
(A) The holders of shares of Series B Preferred Stock shall be entitled to
vote on all matters submitted to a vote of the stockholders of the Company,
voting together with the holders of Common Stock as one class. The holder of
each share of Series B Preferred Stock shall be entitled to one vote for each
share of Series B Preferred Stock held by such holder; provided, however, that
if such number of votes per share of Series B Preferred Stock would violate
applicable rules and regulations of the Securities and Exchange Commission (the
"SEC") or the New York Stock Exchange, Inc. (the "NYSE"), then the number of
votes per share of Series B Preferred Stock shall be the highest vote then
permitted by such rules and regulations; it being understood that whenever the
"Conversion Price" (as defined in Section 5 hereof) is adjusted as provided in
Section 8 hereof (other than an adjustment pursuant to paragraph 8(A)), the
number of votes per share of Series B Preferred Stock shall be adjusted in
inverse proportion to the adjustment to the Conversion Price. Notwithstanding
the foregoing, no adjustment in the number of votes per share of Series B
Preferred Stock shall be made to the extent that such adjustment would result in
voting rights per share of Series B Preferred Stock which would violate the
applicable rules and regulations of the SEC or the NYSE.
(B) Except as otherwise required by law or set forth herein, holders of
Series B Preferred Stock shall have no special voting rights and their consent
shall not be required (except to the extent they are entitled to vote with
holders of Common Stock as set forth herein) for the taking of any corporate
action; provided, however, that the vote of at least 66 2/3% of the outstanding
shares of Series B Preferred Stock, voting separately as a series, shall be
necessary to adopt any alteration, amendment or repeal of any provision of the
Certificate of Incorporation of the Corporation, as amended or this Resolution
(including any such alteration, amendment or repeal effected by any merger or
consolidation in which the Corporation is the surviving or resulting
corporation), if such amendment, alteration or repeal would alter or change the
powers, preferences,
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<PAGE>
or special rights of the shares of Series B Preferred Stock so as to affect them
adversely.
SECTION 4. Liquidation, Dissolution or Winding Up.
(A) In the event of any liquidation, dissolution or winding up of the
Corporation, voluntary or involuntary, the holders of Series B Preferred Stock
shall be entitled to receive out of assets of the Corporation which remain after
satisfaction in full of all valid claims of creditors of the Corporation and
which are available for payment to stockholders, and subject to the rights of
the holders of any stock of the Corporation ranking senior to or on a parity
with the Series B Preferred Stock in respect of distributions upon liquidation,
dissolution or winding up of the Corporation, before any amount shall be paid to
or distributed among the holders of Common Stock or any other shares ranking
junior to the Series B Preferred Stock in respect of distributions upon
liquidation, dissolution or winding up of the Corporation, liquidating
distributions in the amount of $72.00 per share, plus an amount equal to all
accrued and unpaid dividends thereon to the date fixed for distribution, and no
more. If upon any liquidation, dissolution or winding up of the Corporation, the
amounts payable with respect to the Series B Preferred Stock and any other stock
ranking as to any such distribution on a parity with the Series B Preferred
Stock are not paid in full, the holders of Series B Preferred Stock and such
other stock shall share ratably in any distribution of assets in proportion to
the full respective preferential amounts to which they are entitled. After
payment of the full amount to which they are entitled as provided by the
foregoing provisions of this paragraph 4(A), the holders of Series B Preferred
Stock shall not be entitled to any further right or claim to any of the
remaining assets of the Corporation.
(B) Neither the merger or consolidation of the Corporation with or into any
other corporation, nor the merger or consolidation of any other corporation with
or into the Corporation, nor the sale, lease, exchange or other transfer of all
or substantially all of the assets of the Corporation, shall be deemed to be a
dissolution, liquidation or winding up of the affairs of the Corporation for
purposes of this Section 4, but the holders of Series B Preferred Stock shall
nevertheless be entitled in the event of any such merger or consolidation to the
rights provided by Section 7 hereof.
(C) Written notice of any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, stating the payment date or dates when, and
the place or places where, the amounts distributable to holders of Series B
Preferred Stock in such circumstances shall be payable, shall be given by hand
delivery, by courier, by standard form of telecommunication or by first class
mail (postage prepaid), delivered, sent or mailed, as the case may be, not less
than twenty (20) days prior to any payment date stated therein, to the holders
of Series B Preferred Stock, at the address shown on the books of the
Corporation or any transfer agent for the Series B Preferred Stock.
SECTION 5. Conversion into Common Stock.
(A) A holder of shares of Series B Preferred Stock shall be entitled, at
any time prior to the close of business on the date fixed for redemption of
such shares pursuant to Section 6 or 7 hereof, to cause any or all of such
shares to be converted into shares of Common Stock, initially at a conversion
price equal to $86.40 per share of Common Stock, and which price shall be
adjusted as provided in Section 8 hereof (and, as so adjusted, is hereinafter
sometimes referred to as the "Conversion Price"), with each share of Series B
Preferred Stock being valued at $72.00 for such purpose (that is, a
conversion rate initially equivalent to 0.8333 shares of Common Stock for
each share of Series B Preferred Stock so converted, which is subject to
adjustment (to the fourth decimal place) as the Conversion Price is adjusted
as provided in Section 8
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<PAGE>
hereof); provided, however, that in no event shall the Conversion Price be
lower than the par value, if any, of the Common Stock.
(B) Any holder of shares of Series B Preferred Stock desiring to convert
such shares into shares of Common Stock shall surrender the certificate or
certificates representing the shares of Series B Preferred Stock being
converted, duly assigned or endorsed for transfer to the Corporation (or
accompanied by duly executed stock powers relating thereto), at the principal
executive office of the Corporation or the offices of the transfer agent for the
Series B Preferred Stock or such office or offices in the continental United
States of an agent for conversion as may from time to time be designated by
notice to the holders of the Series B Preferred Stock by the Corporation or the
transfer agent for the Series B Preferred Stock, accompanied by written notice
of conversion. Such notice of conversion shall specify (i) the number of shares
of Series B Preferred Stock to be converted and the name or names in which such
holder wishes the certificate or certificates for Common Stock and for any
shares of Series B Preferred Stock not to be so converted to be issued and (ii)
the address to which such holder wishes new certificates issued upon such
conversion to be delivered.
(C) Upon surrender of a certificate representing a share or shares of
Series B Preferred Stock for conversion, the Corporation shall issue and send by
hand delivery, by courier or by first class mail (postage prepaid), to the
holder thereof or to such holder's designee, at the address designated by such
holder, a certificate or certificates for the number of shares of Common Stock
to which such holder shall be entitled upon conversion. In the event that there
shall have been surrendered a certificate or certificates representing shares of
Series B Preferred Stock, only part of which are to be converted, the
Corporation shall issue and send to such holder or such holder's designee, in
the manner set forth in the preceding sentence, a new certificate or
certificates representing the number of shares of Series B Preferred Stock which
shall not have been converted.
(D) The issuance by the Corporation of shares of Common Stock upon a
conversion of shares of Series B Preferred Stock into shares of Common Stock
made at the option of the holder thereof shall be effective as of the earlier of
(i) the delivery to such holder or such holder's designee of the certificates
representing the shares of Common Stock issued upon conversion thereof or (ii)
the commencement of business on the second Business Day after the surrender of
the certificate or certificates for the shares of Series B Preferred Stock to be
converted, duly assigned or endorsed for transfer to the Corporation (or
accompanied by duly executed stock powers relating thereto) and accompanied by
all documentation required to effect the conversion, as herein provided. On and
after the effective date of conversion, the person or persons entitled to
receive the Common Stock issuable upon such conversion shall be treated for all
purposes as the record holder or holders of such shares of Common Stock, but no
allowance or adjustment shall be made in respect of dividends payable to holders
of record of Common Stock as of any period prior to such effective date. The
Corporation shall not be obligated to pay any dividends which shall have been
declared and shall be payable to holders of shares of Series B Preferred Stock
on a Dividend Payment Date if the Dividend Record Date for such dividend is
subsequent to the effective date of conversion of such shares.
(E) The Corporation shall not be obligated to deliver to holders of Series
B Preferred Stock any fractional share or shares of Common Stock issuable upon
any conversion of such shares of Series B Preferred Stock, but in lieu thereof
may make a cash payment in respect thereof in any manner permitted by law.
(F) The Corporation shall at all times reserve and keep available out of
its authorized and unissued Common Stock, solely for issuance upon the
conversion of shares of Series B Preferred Stock as herein provided, free from
any preemptive rights, such number of shares of Common Stock as shall from time
to time be issuable upon the conversion of all the shares of Series B
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<PAGE>
Preferred Stock then outstanding. Nothing contained herein shall preclude the
Corporation from issuing shares of Common Stock held in its treasury upon the
conversion of shares of Series B Preferred Stock into Common Stock pursuant to
the terms hereof. The Corporation shall prepare and shall use its best efforts
to obtain and keep in force such governmental or regulatory permits or other
authorizations as may be required by law, and shall comply with all requirements
as to registration or qualification of the Common Stock, in order to enable the
Corporation lawfully to issue and deliver to each holder of record of Series B
Preferred Stock such number of shares of its Common Stock as shall from time to
time be sufficient to effect the conversion of all shares of Series B Preferred
Stock then outstanding and convertible into shares of Common Stock.
SECTION 6. Redemption At the Option of the Corporation.
(A) The Series B Preferred Stock shall be redeemable, (i) in
whole or in part, at the option of the Corporation at any time after July 10,
1992, or (ii) at any time after the date of issuance as provided by paragraph
(E) of this Section 6, at the following redemption prices per share:
<TABLE>
<CAPTION>
During the
Twelve-Month Period Price
Beginning July 10, Per
Share
<S> <C>
1989................... $ 76.32
1990................... 75.89
1991................... 75.46
1992................... 75.02
1993................... 74.59
1994................... 74.16
1995................... 73.73
1996................... 73.30
1997................... 72.86
1998................... 72.43
</TABLE>
and thereafter at $72.00 per share, plus, in each case, an amount equal to all
accrued and unpaid dividends thereon to the date fixed for redemption. Payment
of the redemption price shall be made by the Corporation in cash or shares of
Common Stock, or a combination thereof, as permitted by paragraph (H) of this
Section 6. From and after the date fixed for redemption, dividends on shares of
Series B Preferred Stock called for redemption will cease to accrue, such shares
of Series B Preferred Stock will no longer be deemed to be outstanding and all
rights in respect of such shares of Series B Preferred Stock shall cease, except
the right to receive the redemption price. If less than all of the outstanding
shares of Series B Preferred Stock are to be redeemed, the Corporation shall
either redeem a portion of the shares of Series B Preferred Stock of each holder
determined pro rata based on the number of shares of Series B Preferred Stock
held by each holder or shall select the shares of Series B Preferred Stock to be
redeemed by lot, as may be determined by the Board of Directors of the
Corporation.
(B) In the event shares of Series B Preferred Stock are called for
redemption as provided in this Section 6 (other than paragraph (G) of this
Section 6), unless otherwise required by law, notice of redemption will be sent
to the holders of Series B Preferred Stock at the address shown on the books of
the Corporation or any transfer agent for the Series B Preferred Stock by hand
delivery, by courier, by standard form of telecommunication or by first class
mail (postage prepaid) delivered, sent or mailed, as the case may be, not less
than fifteen (15) days nor more than sixty (60) days prior to the date fixed for
redemption. Each such notice shall state: (i) the date fixed for redemption;
(ii) the total number of shares of Series B Preferred Stock to be redeemed and,
if fewer than all the shares held by such holder are to be redeemed, the number
of
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<PAGE>
such shares of Series B Preferred Stock to be redeemed from such holder; (iii)
the redemption price; (iv) the place or places where certificates for such
shares of Series B Preferred Stock are to be surrendered for payment of the
redemption price; (v) that dividends on the shares of Series B Preferred Stock
to be redeemed will cease to accrue on such date fixed for redemption; and (vi)
the conversion rights of the shares of Series B Preferred Stock to be redeemed,
the period within which conversion rights may be exercised, and the Conversion
Price and number of shares of Common Stock issuable upon conversion of a share
of Series B Preferred Stock at the time. Upon surrender of a certificate for
shares of Series B Preferred Stock so called for redemption (or redeemed
pursuant to paragraph (G) of this Section 6) and not previously converted
(properly endorsed or assigned for transfer, if the Board of Directors of the
Corporation shall so require and the notice shall so state), such shares shall
be redeemed by the Corporation at the date fixed for redemption and at the
applicable redemption price set forth in this Section 6.
(C) Within thirty (30) days after the later of (i) the effective date, (ii)
the enactment date or (iii) if the Corporation contests in good faith in a
judicial or administrative proceeding the legality of the change referred to in
this paragraph 6(C), the date such matter is finally determined (the time for
appeal having expired and no appeal having been filed) against the Corporation,
of a change in any statute, rule or regulation of the United States of America
which has the effect of limiting or making unavailable to the Corporation all or
any of the tax deductions for amounts paid (including dividends) on the shares
of Series B Preferred Stock when such amounts are used as provided under Section
404(k)(2) of the Internal Revenue Code of 1986, as amended (the "Code") and in
effect on the date shares of Series B Preferred Stock are initially issued, the
Corporation may, in its sole discretion and notwithstanding anything to the
contrary in paragraph (A) of this Section 6, elect to redeem any or all of such
shares of Series B Preferred Stock for the amount payable in respect of such
shares upon liquidation of the Corporation pursuant to
Section 4 hereof.
(D) In the event that shares of Series B Preferred Stock are held by an
employee benefit plan intended to qualify as an employee stock ownership plan
within the meaning of Section 4975 of the Internal Revenue Code of 1986, as
amended, and such plan does not so qualify, the Corporation may in its sole
discretion and notwithstanding anything to the contrary in paragraph (A) of this
Section 6, elect to redeem any or all of such shares of Series B Preferred Stock
at a redemption price equal to the higher of (i) the amount payable in respect
of the shares of Series B Preferred Stock being redeemed upon liquidation of the
Corporation pursuant to Section 4 hereof and (ii) the Fair Market Value (as
defined in paragraph (H) of Section 8 hereof) of the shares of Common Stock
which would be issuable upon the conversion of the shares of Series B Preferred
Stock being redeemed, plus accrued and unpaid dividends on such shares of Series
B Preferred Stock (the "Consideration Price").
(E) In the event that the Plan is terminated or the employee stock
ownership plan component of the Plan pursuant to which the shares of Series B
Preferred Stock are then held by the Trustee is eliminated from the Plan in
accordance with its terms and notwithstanding anything to the contrary in
paragraph (A) of this Section 6, the Corporation shall, as soon thereafter as
practicable, call for redemption on the terms and conditions set forth in
paragraphs (A) and (B) of this Section 6 all then outstanding shares of Series B
Preferred Stock.
(F) Notwithstanding anything to the contrary in paragraph (A) of this
Section 6, upon the termination of a Plan participant's employment with the
Corporation, the Corporation may elect to redeem any or all shares of Series B
Preferred Stock held for the account of such participant at a redemption price
equal to the higher of (i) the amount payable in respect of the shares of Series
B Preferred Stock being redeemed upon liquidation of the Corporation pursuant to
Section 4 hereof and (ii) the Consideration Price.
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<PAGE>
(G) At any time and from time to time upon notice to the Corporation given
not less than five (5) Business Days prior to the date fixed by the holder in
such notice for the redemption pursuant to this paragraph 6(G), upon
certification by such holder to the Corporation that the holder must provide for
distributions to participants under, or must satisfy an investment election
provided to participants in accordance with, the Plan, then shares of Series B
Preferred Stock shall be redeemed by the Corporation, to the extent necessary
for the holder to provide for such distributions or to satisfy such investment
elections, at a redemption price equal to the higher of (i) the amount payable
in respect of the Series B Preferred Stock being redeemed upon liquidation of
the Corporation pursuant to Section 4 hereof and (ii) the Consideration Price.
(H) The Corporation, at its option, may make payment of the redemption
price required upon redemption of shares of Series B Preferred Stock in cash or
in shares of Common Stock, or in a combination of such shares and cash, any such
shares of Common Stock to be valued for such purposes at their Fair Market
Value.
SECTION 7. Consolidation, Merger, etc.
(A) In the event that the Corporation shall consummate any consolidation or
merger or similar business combination, pursuant to which the outstanding shares
of Common Stock are by operation of law exchanged solely for or changed,
reclassified or converted solely into stock of any successor or resulting
corporation (including the Corporation) that constitutes "qualifying employer
securities" with respect to a holder of Series B Preferred Stock within the
meaning of Section 409(l) of the Code, and Section 407(d)(5) of the Employee
Retirement Income Security Act of 1974, as amended, or any successor provisions
of law, and, if applicable, for a cash payment in lieu of fractional shares, if
any, the shares of Series B Preferred Stock of such holder shall, in connection
with such consolidation, merger or similar business combination, be assumed by
and shall become preferred stock of such successor or resulting corporation,
having in respect of such corporation, insofar as possible, the same powers,
preferences and relative, participating, optional or other special rights
(including the redemption rights provided by Sections 6 and 7 hereof), and the
qualifications, limitations or restrictions thereon, that the Series B Preferred
Stock had immediately prior to such transaction, except that after such
transaction each share of Series B Preferred Stock shall be convertible,
otherwise on the terms and conditions provided by Section 5 hereof, into the
number and kind of qualifying employer securities so receivable by a holder of
the number of shares of Common Stock into which such shares of Series B
Preferred Stock could have been converted immediately prior to such transaction;
provided, however, that if by virtue of the structure of such transaction, a
holder of Common Stock is required to make an election with respect to the
nature and kind of consideration to be received in such transaction, which
election cannot practicably be made by the holder of the shares of Series B
Preferred Stock, then, unless by virtue of such transaction a holder of Common
Stock who failed to exercise any rights of election would be entitled to receive
only qualifying employer securities and a cash payment, if applicable, in lieu
of fractional shares, the shares of Series B Preferred Stock shall, by virtue of
such transaction and on the same terms as apply to the holders of Common Stock,
be converted into or exchanged for the aggregate amount of stock, securities,
cash or other property (payable in kind) receivable by a holder of the number of
shares of Common Stock into which such shares of Series B Preferred Stock could
have been converted immediately prior to such transaction if such holder of
Common Stock failed to exercise any rights of election (however, if the kind or
amount of qualifying employer securities receivable upon such transaction is not
the same for each non-electing share, then the kind and amount so receivable
upon such transaction for each non-electing share shall be the kind and amount
so receivable per share by the
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plurality of the non-electing shares); and provided further that in the event
the consideration receivable by such a holder of Common Stock into which such
shares of Series B Preferred Stock could have been converted immediately prior
to such transaction if such holder of Common Stock failed to exercise any such
rights of election consists solely of such qualifying employer securities and a
cash payment, if applicable, in lieu of fractional shares, then the shares of
Series B Preferred Stock shall be assumed by and become preferred stock of the
successor or resulting corporation and shall be convertible after such
transaction, all as provided in the portion of this paragraph 7(A) prior to the
first proviso hereof. The rights of the Series B Preferred Stock as preferred
stock of such successor or resulting corporation shall successively be subject
to adjustments pursuant to Sections 3 and 8 hereof after any such transaction as
nearly equivalent as practicable to the adjustment provided for by such sections
prior to such transaction. The Corporation shall not consummate any such merger,
consolidation or similar transaction unless all then outstanding shares of
Series B Preferred Stock shall be assumed and authorized by the successor or
resulting corporation as aforesaid.
(B) In the event that the Corporation shall consummate any consolidation or
merger or similar business combination, pursuant to which the outstanding shares
of Common Stock are by operation of law exchanged for or changed, reclassified
or converted into other stock or securities or cash or any other property, or
any combination thereof, other than any such consideration which is constituted
solely of "qualifying employer securities" (as referred to in paragraph (A) of
this Section 7) and cash payments, if applicable, in lieu of fractional shares,
outstanding shares of Series B Preferred Stock shall, without any action on the
part of the Corporation or any holder thereof (but subject to paragraph (C) of
this Section 7), be automatically converted by virtue of such merger,
consolidation or similar transaction immediately prior to such consummation into
the number of shares of Common Stock into which such shares of Series B
Preferred Stock are convertible at such time so that each share of Series B
Preferred Stock shall by virtue of such transaction and on the same terms as
apply to the holders of Common Stock, be converted into or exchanged for the
aggregate amount of stock, securities, cash or other property (payable in like
kind) receivable by a holder of the number of shares of Common Stock into which
such shares of Series B Preferred Stock are convertible immediately prior to
such transaction; provided, however, that if by virtue of the structure of such
transaction, a holder of Common Stock is required to make an election with
respect to the nature and kind of consideration to be received in such
transaction, which election cannot practicably be made by the holder of the
shares of Series B Preferred Stock, then the shares of Series B Preferred Stock
shall, by virtue of such transaction and on the same terms as apply to the
holders of Common Stock, be converted into or exchanged for the aggregate amount
of stock, securities, cash or other property (payable in kind) receivable by a
holder of the number of shares of Common Stock into which such shares of Series
B Preferred Stock could have been converted immediately prior to such
transaction if such holder of Common Stock failed to exercise any rights of
election as to the kind or amount of stock, securities, cash or other property
receivable upon such transaction (provided that, if the kind or amount of stock,
securities, cash or other property receivable upon such transaction is not the
same for each non-electing share, then the kind and amount of stock, securities,
cash or other property receivable upon such transaction for each non-electing
share shall be the kind and amount so receivable per share by a plurality of the
non-electing shares).
(C) In the event the Corporation shall enter into any agreement providing
for any consolidation or merger or similar business combination described in
paragraph (B) of this Section 7, or described in the first proviso in paragraph
(A) of this Section 7 if by virtue of such transaction a holder of Common Stock
who failed to exercise any rights of election would be entitled to receive
consideration consisting of other than qualifying employer securities and a cash
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payment, if applicable in lieu of fractional shares, then the Corporation shall
as soon as practicable thereafter (and in any event at least thirteen (13)
Business Days before consummation of such transaction) give notice of such
agreement and the material terms thereof to each holder of shares of Series B
Preferred Stock and each such holder shall have the right to elect, by written
notice to the Corporation, to receive, upon consummation of such transaction (if
and when such transaction is consummated), from the Corporation or the successor
of the Corporation, in redemption and retirement of such Series B Preferred
Stock, a cash payment equal to the higher of (i) the amount payable in respect
of the shares of Series B Preferred Stock being redeemed pursuant to paragraph
(A) of Section 6 hereof and (ii) the Consideration Price. No such notice of
redemption shall be effective unless given to the Corporation prior to the close
of business on the fifth Business Day prior to consummation of such transaction,
unless the Corporation or the successor of the Corporation shall waive such
prior notice, but any notice of redemption so given prior to such time may be
withdrawn by notice of withdrawal given to the Corporation prior to the close of
business on the fifth Business Day prior to consummation of such transaction.
SECTION 8. Initial Adjustment; Anti-dilution Adjustments.
(A) If the average of the last reported sales prices, regular
way, per share of the Common Stock, as reported on the New York Stock Exchange
Composite Tape for the five (5) consecutive NYSE trading days commencing on July
11, 1989 and ending on (and including) July 17, 1989 (the "Adjusted Price") is
less than $72.00 (the "Closing Price"), then the Conversion Price in effect on
July 17, 1989 shall be adjusted by multiplying such Conversion Price by a
fraction, the numerator of which is the Adjusted Price and the denominator of
which is the Closing Price; provided, however, in no event shall the Adjusted
Price be less than $67. If the Conversion Price is otherwise adjusted prior to
the adjustment provided for by this paragraph 8(A), the amounts of the Closing
Price and $67 specified above shall also be adjusted immediately prior to
calculating any adjustment pursuant to this paragraph 8(A) by multiplying each
such amount by a fraction, the numerator of which is the Conversion Price as of
the close of business on July 17, 1989 (giving effect to such other
adjustment(s)) and the denominator of which is the Conversion Price prior to
such other adjustment(s).
(B) In the event the Corporation shall, at any time or from time to time
while any of the shares of Series B Preferred Stock are outstanding, (i) pay a
dividend or make a distribution in respect of the Common Stock in shares of
Common Stock, (ii) subdivide the outstanding shares of Common Stock, or (iii)
combine the outstanding shares of Common Stock into a smaller number of shares,
in each case whether by reclassification of shares, recapitalization of the
Corporation (including a recapitalization effected by a merger or consolidation
to which Section 7 hereof does not apply) or otherwise, subject to paragraphs
(F) and (G) of this Section 8, the Conversion Price in effect immediately prior
to such action shall be adjusted by multiplying such Conversion Price by a
fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately before such event, and the denominator of which is the
number of shares of Common Stock outstanding immediately after such event. An
adjustment made pursuant to this paragraph 8(B) shall be given effect, upon
payment of such a dividend or distribution, as of the record date for the
determination of stockholders entitled to receive such dividend or distribution
(on a retroactive basis) and in the case of a subdivision or combination shall
become effective immediately as of the effective date thereof.
(C) In the event that the Corporation shall, at any time or from time to
time while any of the shares of Series B Preferred Stock are outstanding, issue
to holders of shares of Common Stock as a dividend or distribution, including
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by way of a reclassification of shares or a recapitalization of the Corporation,
any right or warrant to purchase shares of Common Stock (but not including as
such a right or warrant any security convertible into or exchangeable for shares
of Common Stock) at a purchase price per share less than the Fair Market Value
of a share of Common Stock on the date of issuance of such right or warrant,
then, subject to paragraphs (F) and (G) of this Section 8, the Conversion Price
shall be adjusted by multiplying such Conversion Price by a fraction, the
numerator of which shall be the number of shares of Common Stock outstanding
immediately before such issuance of rights or warrants plus the number of shares
of Common Stock which could be purchased at the Fair Market Value of a share of
Common Stock at the time of such issuance for the maximum aggregate
consideration payable upon exercise in full of all such rights or warrants, and
the denominator of which shall be the number of shares of Common Stock
outstanding immediately before such issuance of rights or warrants plus the
maximum number of shares of Common Stock that could be acquired upon exercise in
full of all such rights and warrants.
(D) In the event the Corporation shall, at any time or from time to time
while any of the shares of Series B Preferred Stock are outstanding, issue, sell
or exchange shares of Common Stock (other than (i) pursuant to any right or
warrant to purchase or acquire shares of Common Stock (including as such a right
or warrant any security convertible into or exchangeable for shares of Common
Stock), (ii) any such issuance to holders of shares of Common Stock as a
dividend or distribution (including by way of a reclassification of shares or a
recapitalization of the Corporation), (iii) pursuant to any employee or director
incentive or benefit plan or arrangement, including any employment, severance or
consulting agreement, or stockholder dividend reinvestment or stock purchase
plan, of the Corporation or any subsidiary of the Corporation heretofore or
hereafter adopted or (iv) pursuant to an agreement to issue, sell or exchange
shares of Common Stock at a price per share at or above the Fair Market Value
per share of Common Stock on the date such agreement was executed) for a
consideration having a Fair Market Value, on the date of such issuance, sale or
exchange, less than the Fair Market Value of such shares on the date of
issuance, sale or exchange, then, subject to paragraphs (F) and (G) of this
Section 8, the Conversion Price shall be adjusted by multiplying such Conversion
Price by a fraction, the numerator of which shall be the sum of (a) the Fair
Market Value of all the shares of Common Stock outstanding on the day
immediately preceding the first public announcement of such issuance, sale or
exchange plus (b) the Fair Market Value of the consideration received by the
Corporation in respect of such issuance, sale or exchange of shares of Common
Stock, and the denominator of which shall be the product of (x) the Fair Market
Value of a share of Common Stock on the day immediately preceding the first
public announcement of such issuance, sale or exchange multiplied by (y) the sum
of the number of shares of Common Stock outstanding on such day plus the number
of shares of Common Stock so issued, sold or exchanged by the Corporation. In
the event the Corporation shall, at any time or from time to time while any
shares of Series B Preferred Stock are outstanding, issue, sell or exchange any
right or warrant to purchase or acquire shares of Common Stock (including as
such a right or warrant any security issued after the date hereof which is
convertible into or exchangeable for shares of Common Stock), other than any
such issuance to holders of shares of Common Stock as a dividend or distribution
(including by way of a reclassification of shares or a recapitalization of the
Corporation), other than pursuant to any employee or director incentive or
benefit plan or arrangement (including any employment, severance or consulting
agreement) or stockholder dividend reinvestment or stock purchase plan of the
Corporation or any subsidiary of the Corporation heretofore or hereafter adopted
and other than an agreement to issue, sell or exchange shares of Common Stock at
a price per share at or above the Fair Market Value per share of Common Stock on
the date such agreement was executed, for a consideration having a Fair Market
Value, on the date of such
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issuance, sale or exchange, less than the Non-Dilutive Amount (as hereinafter
defined), then, subject to paragraphs (F) and (G) of this Section 8, the
Conversion Price shall be adjusted by multiplying such Conversion Price by a
fraction the numerator of which shall be the sum of (I) the Fair Market Value of
all the shares of Common Stock outstanding on the day immediately preceding the
first public announcement of such issuance, sale or exchange plus (II) the Fair
Market Value of the consideration received by the Corporation in respect of such
issuance, sale or exchange of such right or warrant plus (III) the Fair Market
Value at the time of such issuance of the consideration which the Corporation
would receive upon exercise in full of all such rights or warrants, and the
denominator of which shall be the product of (i) the Fair Market Value of a
share of Common Stock on the day immediately preceding the first public
announcement of such issuance, sale or exchange multiplied by (ii) the sum of
the number of shares of Common Stock outstanding on such day plus the maximum
number of shares of Common Stock which could be acquired pursuant to such right
or warrant at the time of the issuance, sale or exchange of such right or
warrant (assuming shares of Common Stock could be acquired pursuant to such
right or warrant at such time).
(E) In the event the Corporation shall, at any time or from time to time
while any of the shares of Series B Preferred Stock are outstanding, make an
Extraordinary Distribution (as hereinafter defined) in respect of the Common
Stock, whether by dividend, distribution, reclassification of shares or
recapitalization of the Corporation (including a recapitalization or
reclassification effected by a merger or consolidation to which Section 7 hereof
does not apply) or effect a Pro Rata Repurchase (as hereinafter defined) of
Common Stock, the Conversion Price in effect immediately prior to such
Extraordinary Distribution or Pro Rata Repurchase shall, subject to paragraphs
(F) and (G) of this Section 8, be adjusted by multiplying such Conversion Price
by the fraction the numerator of which is the difference between (i) the product
of (x) the number of shares of Common Stock outstanding immediately before such
Extraordinary Distribution or Pro Rata Repurchase multiplied by (y) the Fair
Market Value of a share of Common Stock on the day before the ex-dividend date
with respect to an Extraordinary Distribution which is paid in cash and on the
distribution date with respect to an Extraordinary Distribution which is paid
other than in cash, or the earlier of the ex-dividend date and the distribution
date in the event of an Extraordinary Distribution, a portion of which is paid
in cash and a portion of which is paid other than in cash, or on the applicable
expiration date (including all extensions thereof) of any tender or exchange
offer which is a Pro Rata Repurchase, or on the date of purchase with respect to
any Pro Rata Repurchase which is not a tender or exchange offer, as the case may
be, and (ii) the Fair Market Value of the Extraordinary Distribution or the
aggregate purchase price of the Pro Rata Repurchase, as the case may be, and the
denominator of which shall be the product of (a) the number of shares of Common
Stock outstanding immediately before such Extraordinary Dividend or Pro Rata
Repurchase minus, in the case of a Pro Rata Repurchase, the number of shares of
Common Stock repurchased by the Corporation multiplied by (b) the Fair Market
Value of a share of Common Stock on the day before the ex-dividend date with
respect to an Extraordinary Distribution which is paid in cash and on the
distribution date with respect to an Extraordinary Distribution which is paid
other than in cash, or the earlier of the ex-dividend date and the distribution
date in the event of an Extraordinary Distribution, a portion of which is paid
in cash and a portion of which is paid other than in cash, or on the applicable
expiration date (including all extensions thereof) of any tender offer which is
a Pro Rata Repurchase or on the date of purchase with respect to any Pro Rata
Repurchase which is not a tender offer, as the case may be. The Corporation
shall send each holder of Series B Preferred Stock (i) notice of its intent to
make any dividend or distribution and (ii) notice of any offer by the
Corporation to make a Pro Rata Repurchase, in each case at the same time as, or
as soon as practicable after,
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such offer is first communicated (including by announcement of a record date in
accordance with the rules of any stock exchange on which the Common Stock is
listed or admitted to trading) to holders of Common Stock. Such notice shall
indicate the intended record date and the amount and nature of such dividend or
distribution, or the number of shares subject to such offer for a Pro Rata
Repurchase and the purchase price payable by the Corporation pursuant to such
offer, as well as the Conversion Price and the number of shares of Common Stock
into which a share of Series B Preferred Stock may be converted at such time.
(F) Notwithstanding any other provisions of this Section 8, the Corporation
shall not be required to make any adjustment to the Conversion Price unless such
adjustment would require an increase or decrease of at least one percent (1%) in
the Conversion Price. Any lesser adjustment shall be carried forward and shall
be made no later than the time of, and together with, the next subsequent
adjustment which, together with any adjustment or adjustments so carried
forward, shall amount to an increase or decrease of at least one percent (1%) in
the Conversion Price.
(G) If the Corporation shall make any dividend or distribution on the
Common Stock or issue any Common Stock, other capital stock or other security of
the Corporation or any rights or warrants to purchase or acquire any such
security, which transaction does not result in an adjustment to the Conversion
Price pursuant to the foregoing provisions of this Section 8, the Board of
Directors of the Corporation may consider whether such action is of such a
nature that an adjustment to the Conversion Price should equitably be made in
respect of such transaction. If the Board of Directors of the Corporation
determines that an adjustment to the Conversion Price should be made, an
adjustment shall be made effective as of such date, as determined by the Board
of Directors of the Corporation. The determination of the Board of Directors of
the Corporation as to whether an adjustment to the Conversion Price should be
made pursuant to the foregoing provisions of this paragraph 8(G), and, if so, as
to what adjustment should be made and when, shall be final and binding on the
Corporation and all stockholders of the Corporation. The Corporation shall be
entitled to make such additional adjustments in the Conversion Price, in
addition to those required by the foregoing provisions of this Section 8, as
shall be necessary in order that any dividend or distribution in shares of
capital stock of the Corporation, subdivision, reclassification or combination
of shares of stock of the Corporation or any recapitalization of the Corporation
shall not be taxable to the holders of the Common Stock.
(H) For purposes of this Resolution, the following definitions shall apply:
"Adjustment Period" shall mean the period of five (5) consecutive
trading days preceding the date as of which the Fair Market Value of a
security is to be determined.
"Business Day" shall mean each day that is not a Saturday, Sunday or a
day on which state or federally chartered banking institutions in New York,
New York are not required to be open.
"Current Market Price" of publicly traded shares of Common Stock or any
other class of capital stock or other security of the Corporation or any
other issuer for any day shall mean the last reported sales price, regular
way on such day, or, in the event that no sale takes place on such day, the
average of the reported closing bid and asked prices on such day, regular
way, in either case as reported on the New York Stock Exchange Composite
Tape or, if such security is not listed or admitted to trading on the NYSE,
on the principal national securities exchange on which such security is
listed or admitted to trading or, if not listed or admitted to trading on
any national securities exchange, on the National Market System of the
National Association of Securities Dealers, Inc. Automated Quotations
System ("NASDAQ") or, if such security is not quoted on such National
Market System, the average of the closing bid and asked prices on such day
in the over-the-counter market as reported by NASDAQ or, if bid and asked
prices for such security on such day shall not have been
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reported through NASDAQ, the average of the bid and asked prices on such
day as furnished by any NYSE member firm regularly making a market in such
security selected for such purpose by the Board of Directors of the
Corporation or a committee thereof.
"Extraordinary Distribution" shall mean any dividend or other
distribution to holders of Common Stock (effected while any of the shares
of the Series B Preferred Stock are outstanding) (i) of cash (other than a
regularly scheduled quarterly dividend not exceeding 125% of the average
quarterly dividend for the preceding period of 12 months), where the
aggregate amount of such cash dividend or distribution together with the
amount of all cash dividends and distributions made during the preceding
period of 12 months (other than regularly scheduled quarterly dividends not
exceeding 125% of the aggregate quarterly dividends for the preceding
period of 12 months), when combined with the aggregate amount of all Pro
Rata Repurchases (for this purpose, including only that portion of the
aggregate purchase price of such Pro Rata Repurchase which is in excess of
the Fair Market Value of the Common Stock repurchased as determined on the
applicable expiration date (including all extensions thereof) of any tender
offer or exchange offer which is a Pro Rata Repurchase, or the date of
purchase with respect to any other Pro Rata Repurchase which is not a
tender offer or exchange offer made during such period), exceeds nine
percent (9%) of the aggregate Fair Market Value of all shares of Common
Stock outstanding on the day before the ex-dividend date with respect to
such Extraordinary Distribution which is paid in cash and on the
distribution date with respect to an Extraordinary Distribution which is
paid other than in cash, and the earlier of the ex-dividend date and the
distribution date in the event of an Extraordinary Distribution, a portion
of which is paid in cash and a portion of which is paid other than in cash,
and (ii) of any shares of capital stock of the Corporation (other than
shares of Common Stock), other securities of the Corporation (other than
securities of the type referred to in paragraph (C) or (D) of this Section
8), evidences of indebtedness of the Corporation or any other person or any
other property (including shares of any subsidiary of the Corporation) or
any combination thereof. The Fair Market Value of an Extraordinary
Distribution for purposes of paragraph (E) of this Section 8 shall be equal
to the sum of the Fair Market Value of such Extraordinary Distribution plus
the amount of any cash dividends (other than regularly scheduled quarterly
dividends not exceeding 125% of the aggregate quarterly dividends for the
preceding period of 12 months) which are not Extraordinary Distributions
made during such 12-month period and not previously included in the
calculation of an adjustment pursuant to paragraph (E) of this Section 8.
"Fair Market Value" shall mean, as to shares of Common Stock or any
other class of capital stock or securities of the Corporation or any other
issuer which are publicly traded, (i) for purposes of Section 6 hereof, the
Current Market Price on the date as of which the Fair Market Value is to be
determined, and (ii) for all other purposes hereof, the average of the
Current Market Prices of such shares or securities for each day of the
Adjustment Period. The Fair Market Value of any security which is not
publicly traded (other than the Series B Preferred Stock) or of any other
property shall mean the fair value thereof as determined by an independent
investment banking or appraisal firm experienced in the valuation of such
securities or property selected in good faith by the Board of Directors of
the Corporation or a committee thereof, or, if no such investment banking
or appraisal firm is in the good faith judgment of the Board of Directors
or such committee available to make such determination, as determined in
good faith by the Board of Directors of the Corporation or such committee.
"Non-Dilutive Amount" in respect of an issuance, sale or exchange by
the Corporation of any right or warrant to purchase or acquire shares of
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Common Stock (including any security convertible into or exchangeable for
shares of Common Stock) shall mean the difference between (i) the product
of the Fair Market Value of a share of Common Stock on the day preceding
the first public announcement of such issuance, sale or exchange multiplied
by the maximum number of shares of Common Stock which could be acquired on
such date upon the exercise in full of such right or warrant (including
upon the conversion or exchange of any such convertible or exchangeable
security), whether or not exercisable (or convertible or exchangeable) at
such date, and (ii) the aggregate amount payable pursuant to such right or
warrant to purchase or acquire such maximum number of shares of Common
Stock; provided, however, that in no event shall the Non-Dilutive Amount be
less than zero. For purposes of the foregoing sentence, in the case of a
security convertible into or exchangeable for shares of Common Stock, the
amount payable pursuant to a right or warrant to purchase or acquire shares
of Common Stock shall be the Fair Market Value of such security on the date
of the issuance, sale or exchange of such security by the Corporation.
"Pro Rata Repurchase" shall mean any purchase of shares of Common Stock
by the Corporation or any subsidiary thereof, whether for cash, shares of
capital stock of the Corporation, other securities of the Corporation,
evidences of indebtedness of the Corporation or any other person or any
other property (including shares of a subsidiary of the Corporation), or
any combination thereof, effected while any of the shares of Series B
Preferred Stock are outstanding, pursuant to any tender offer or exchange
offer subject to Section 13(e) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or any successor provision of law, or
pursuant to any other offer available to substantially all holders of
Common Stock; provided, however, that no purchase of shares by the
Corporation or any subsidiary thereof made in open market transactions
shall be deemed a Pro Rata Repurchase. For purposes of this paragraph 8 (H)
shares shall be deemed to have been purchased by the Corporation or any
subsidiary thereof "in open market transactions" only if they have been
purchased substantially in accordance with the requirements of Rule 10b-18
as in effect under the Exchange Act, on the date shares of Series B
Preferred Stock are initially issued by the Corporation or on such other
terms and conditions as the Board of Directors of the Corporation or a
committee thereof shall have determined are reasonably designed to prevent
such purchases from having a material effect on the trading market for the
Common Stock.
(I) Whenever an adjustment to the Conversion Price and the voting rights
of the Series B Preferred Stock is required hereby, the Corporation shall
forthwith place on file with the transfer agent for the Common Stock and the
Series B Preferred Stock, and with the Secretary of the Corporation, a
statement signed by two officers of the Corporation stating the adjusted
Conversion Price determined as provided herein and the resulting conversion
ratio, and the adjusted voting rights determined as provided herein, of the
Series B Preferred Stock. Such statement shall set forth in reasonable detail
such facts as shall be necessary to show the reason and the manner of
computing such adjustment, including any determination of Fair Market Value
involved in such computation. Promptly after each adjustment to the
Conversion Price and the voting rights of the shares of the Series B
Preferred Stock, the Corporation shall mail a notice thereof and of the then
prevailing conversion ratio to each holder of shares of Series B Preferred
Stock.
SECTION 9. Ranking; Attributable Capital and Adequacy of Surplus;
Retirement of Shares.
(A) The Series B Preferred Stock shall rank senior to the Common Stock as
to the payment of dividends and the distribution of assets on liquidation,
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dissolution and winding up of the Corporation and, unless otherwise provided in
the Certificate of Incorporation of the Corporation, as the same may be amended,
or a Certificate of Designation relating to a subsequent series of Preferred
Stock of the Corporation, the Series B Preferred Stock shall rank senior to all
series of the Corporation's Preferred Stock as to the payment of dividends and
the distribution of assets on liquidation, dissolution or winding up.
(B) In addition to any vote of stockholders required by law, the vote of
the holders of a majority of the outstanding shares of Series B Preferred Stock,
voting as a single class, shall be required to increase the par value of the
Common Stock or otherwise increase the capital of the Corporation allocable to
the Common Stock for the purpose of the Delaware General Corporation Law
("DGCL") if, as a result thereof, the surplus of the Corporation for purposes of
the DGCL would be less than the amount of Preferred Dividends that would accrue
on the then outstanding shares of Series B Preferred Stock during the following
three years.
(C) Any shares of Series B Preferred Stock acquired by the Corporation by
reason of the conversion or redemption of such shares as herein provided, or
otherwise so acquired, shall be retired as shares of Series B Preferred Stock
and restored to the status of authorized but unissued shares of Preferred Stock
of the Corporation, undesignated as to series, and may thereafter be reissued as
part of a new series of such Preferred Stock as permitted by law.
SECTION 10. Miscellaneous.
(A) All notices referred to herein shall be in writing, and all notices
hereunder shall be deemed to have been given upon the earlier of delivery
thereof if by hand delivery, by courier or by standard form of telecommunication
or three (3) Business Days after the mailing thereof if sent by registered mail
(unless first class mail shall be specifically permitted for such notice under
the terms hereof) with postage prepaid, addressed: (i) if to the Corporation, to
its office at 1030 Delta Boulevard, Hartsfield Atlanta International Airport,
Atlanta, Georgia 30320 (Attention: Secretary) or to the transfer agent for the
Series B Preferred Stock, or other agent of the Corporation designated as
permitted hereby or (ii) if to any holder of the Series B Preferred Stock or
Common Stock, as the case may be, to such holder at the address of such holder
as listed in the stock record books of the Corporation (which may include the
records of any transfer agent for the Series B Preferred Stock or Common Stock,
as the case may be) or (iii) to such other address as the Corporation or any
such holder, as the case may be, shall have designated by notice similarly
given.
(B) The term "Common Stock" as used in this Resolution means the
Corporation's Common Stock, par value $3.00 per share, as the same exists at the
date of filing of a Certificate of Designation relating to the Series B
Preferred Stock or any other class of stock resulting from successive changes or
reclassifications of such Common Stock consisting solely of changes in par
value, or from par value to no par value, or from no par value to par value. In
the event that, at any time as a result of an adjustment made pursuant to
Section 8 hereof, the holder of any share of Series B Preferred Stock upon
thereafter surrendering such shares for conversion, shall become entitled to
receive any shares or other securities of the Corporation other than shares of
Common Stock, the Conversion Price in respect of such other shares or securities
so receivable upon conversion of Series B Preferred Stock shall thereafter be
adjusted, and shall be subject to further adjustment from time to time, in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to Common Stock contained in Section 8 hereof, and the provisions of
Sections 1 through 7, 9 and 10 hereof with respect to the Common Stock shall
apply on like or similar terms to any such other shares or securities.
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(C) The Corporation shall pay any and all stock transfer and documentary
stamp taxes that may be payable in respect of any issuance or delivery of shares
of Series B Preferred Stock or shares of Common Stock or other securities issued
on account of Series B Preferred Stock pursuant hereto or certificates
representing such shares or securities. The Corporation shall not, however, be
required to pay any such tax which may be payable in respect of any transfer
involved in the issuance or delivery of shares of Series B Preferred Stock or
Common Stock or other securities in a name other than that in which the shares
of Series B Preferred Stock with respect to which such shares or other
securities are issued or delivered were registered, or in respect of any payment
to any person with respect to any such shares or securities other than a
payment, to the registered holder thereof, and shall not be required to make any
such issuance, delivery or payment unless and until the person otherwise
entitled to such issuance, delivery or payment has paid to the Corporation the
amount of any such tax or has established, to the satisfaction of the
Corporation, that such tax has been paid or is not payable.
(D) In the event that a holder of shares of Series B Preferred Stock shall
not by written notice designate the name in which shares of Common Stock to be
issued upon conversion of such shares should be registered or to whom payment
upon redemption of shares of Series B Preferred Stock should be made or the
address to which the certificate or certificates representing such shares, or
such payment, should be sent, the Corporation shall be entitled to register such
shares, and make such payment, in the name of the holder of such Series B
Preferred Stock as shown on the records of the Corporation and to send the
certificate or certificates representing such shares, or such payment, to the
address of such holder shown on the records of the Corporation.
(E) Unless otherwise provided in the Certificate of Incorporation, as the
same may be amended, of the Corporation, all payments in the form of dividends,
distributions on voluntary or involuntary dissolution, liquidation or winding up
or otherwise made upon the Series B Preferred Stock and any other stock ranking
on a parity with the Series B Preferred Stock with respect to such dividend or
distribution shall be pro rata, so that amounts paid per share of Series B
Preferred Stock and such other stock shall in all cases bear to each other the
same ratio that the required dividends, distributions or payments, as the case
may be, then payable per share on the Series B Preferred Stock and such other
stock bear to each other.
(F) Any determination required or permitted to be made by the Corporation's
Board of Directors hereunder may be made by a committee appointed by the
Corporation's Board of Directors which need not include members of the
Corporation's Board of Directors.
(G) The Corporation may appoint, and from time to time discharge and
change, a transfer agent for the Series B Preferred Stock. Upon any such
appointment or discharge of a transfer agent, the Corporation shall send notice
thereof by hand delivery, by courier, by standard form of telecommunication or
by first class mail, (postage prepaid), to each holder of record of Series B
Preferred Stock.
IN WITNESS WHEREOF, this certificate has been executed and attested by the
undersigned this 10th day of July, 1989.
/S/ RONALD W. ALLEN
------------------------------------
Name: Ronald W. Allen
Title: Chairman of the Board and
Chief Executive Officer
ATTEST:
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/S/ JAMES W. CALLISON
- ---------------------------
Name: James W. Callison
Title: Secretary
46
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AMENDED
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS
OF SERIES D JUNIOR PARTICIPATING PREFERRED STOCK
OF
DELTA AIR LINES, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, Leo F. Mullin, President and Chief Executive Officer, and Robert S.
Harkey, Corporate Secretary, of Delta Air Lines, Inc., a corporation organized
and existing under the General Corporation Law of the State of Delaware (the
"Company"), in accordance with the provisions thereof, do hereby make this
Amended Certificate of Designations, amending and restating in its entirety the
Certificate of Designations of the Company originally filed on November 1, 1996
and do hereby state and certify that pursuant to the authority conferred upon
the Board of Directors by the Certificate of Incorporation of the Company, the
Board of Directors on July 13, 1998 duly adopted the following resolution:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Company in accordance with the provisions of its Certificate
of Incorporation (the "Charter"), a series of Preferred Stock of the Company be,
and it hereby is, created and classified, and that the designation and amount
thereof and the voting powers, preferences and relative, participating, optional
and other special rights of the shares of such series, and the qualifications,
limitations or restrictions thereof are as follows:
Section 1. Designation and Number of Shares. The shares of such series
shall be designated as "Series D Junior Participating Preferred Stock" (the
"Series D Preferred Stock"), and the number of shares constituting such series
shall be 2,250,000. Such number of shares of the Series D Preferred Stock may be
increased or decreased by resolution of the Board of Directors; provided that no
decrease shall reduce the number of shares of Series D Preferred Stock to a
number less than the number of shares then outstanding plus the number of shares
issuable upon exercise or conversion of outstanding rights, options or other
securities issued by the Company.
Section 2. Dividends and Distributions.
(A) The holders of shares of Series D Preferred Stock shall be entitled
to receive, when, as and if declared by the Board of Directors out of funds
legally available for the purpose, quarterly dividends payable on the first day
of March, June, September and December of each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on the
first Quarterly Dividend Payment Date after the first issuance of any share or
fraction of a share of Series D Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $1.00 and (b) subject to the
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provision for adjustment hereinafter set forth, 100 times the aggregate per
share amount of all cash dividends or other cash distributions and 100 times the
aggregate per share amount of all non-cash dividends or other non-cash
distributions (other than (i) a dividend payable in shares of Common Stock, par
value $1.50 per share, of the Company (the "Common Stock") or (ii) a subdivision
of the outstanding shares of Common Stock (by reclassification or otherwise)),
declared on the Common Stock since the immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share of Series D
Preferred Stock. If the Company shall at any time after November 4, 1996 (the
"Rights Declaration Date") pay any dividend on Common Stock payable in shares of
Common Stock or effect a subdivision or combination of the outstanding shares of
Common Stock (by reclassification or otherwise) into a greater or lesser number
of shares of Common Stock, then in each such case the amount to which holders of
shares of Series D Preferred Stock were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
(B) The Company shall declare a dividend or distribution on the Series
D Preferred Stock as provided in paragraph (A) above immediately after it
declares a dividend or distribution on the Common Stock (other than as described
in clauses (i) and (ii) of the first sentence of paragraph (A)); provided that
if no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date (or, with respect to the first
Quarterly Dividend Payment Date, the period between the first issuance of any
share or fraction of a share of Series D Preferred Stock and such first
Quarterly Dividend Payment Date), a dividend of $1.00 per share on the Series D
Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series D Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series D Preferred Stock, unless
the date of issue of such shares is on or before the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue and be cumulative from the date of issue of such shares, or
unless the date of issue is a date after the record date for the determination
of holders of shares of Series D Preferred Stock entitled to receive a quarterly
dividend and on or before such Quarterly Dividend Payment Date, in which case
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends
paid on shares of Series D Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Series D
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Preferred Stock entitled to receive payment of a dividend or distribution
declared thereon, which record date shall not be more than 60 days prior to the
date fixed for the payment thereof.
Section 3. Voting Rights. In addition to any other voting rights
required by law, the holders of shares of Series D Preferred Stock shall have
the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series D Preferred Stock shall entitle the holder thereof to 100 votes
on all matters submitted to a vote of stockholders of the Company. If the
Company shall at any time after the Rights Declaration Date pay any dividend on
Common Stock payable in shares of Common Stock or effect a subdivision or
combination of the outstanding shares of Common Stock (by reclassification or
otherwise) into a greater or lesser number of shares of Common Stock, then in
each such case the number of votes per share to which holders of shares of
Series D Preferred Stock were entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series D Preferred Stock and the holders of shares of Common Stock
shall vote together as a single class on all matters submitted to a vote of
stockholders of the Company.
(C) (i) If at any time dividends on any Series D Preferred Stock shall
be in arrears in an amount equal to six quarterly dividends thereon, the
occurrence of such contingency shall mark the beginning of a period (herein
called a "default period") which shall extend until such time when all accrued
and unpaid dividends for all previous quarterly dividend periods and for the
current quarterly dividend period on all shares of Series D Preferred Stock then
outstanding shall have been declared and paid or set apart for payment. During
each default period, all holders of Preferred Stock (including holders of the
Series D Preferred Stock) with dividends in arrears in an amount equal to six
quarterly dividends thereon, voting together as a single class, irrespective of
series, shall have the right to elect two Directors and, to the extent necessary
to permit the election of such Directors, the number of Directors constituting
the Board of Directors of the Company shall be increased to the maximum number
of Directors then permitted by the Company's Charter. In the event that such
increase does not result in a sufficient number of vacancies to allow the
election of two Directors by the holders of the Series D Preferred Stock, then,
at the next annual meeting, the Board of Directors of the Company shall take
such action as is necessary to allow such holders to elect a number of Directors
so that the number of Directors elected by such holders at all times equals two.
(ii) During any default period, such voting right of the holders of
Series D Preferred Stock may be exercised initially at a special meeting called
pursuant to subparagraph (iii) of this Section 3(C) or at any annual meeting of
stockholders, and
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thereafter at annual meetings of stockholders, provided that neither such voting
right nor the right of the holders of any other series of Preferred Stock, if
any, to increase, in certain cases, the authorized number of Directors shall be
exercised unless the holders of 10% in number of shares of Preferred Stock
outstanding shall be present in person or by proxy. The absence of a quorum of
holders of Common Stock shall not affect the exercise by holders of Preferred
Stock of such voting right. At any meeting at which holders of Preferred Stock
shall exercise such voting right initially during an existing default period,
they shall have the right, voting as a class, to elect Directors to fill such
vacancies, if any, in the Board of Directors as may then exist up to two
Directors or, if such right is exercised at an annual meeting, to elect two
Directors. If the number which may be so elected at any special meeting does not
equal two, the holders of the Preferred Stock shall have the right at the next
annual meeting to elect a number of Directors as shall be necessary to permit
the election by them of two Directors. After the holders of the Preferred Stock
shall have exercised their right to elect Directors in any default period and
during the continuance of such period, the number of Directors shall not be
increased or decreased except by vote of the holders of Preferred Stock as
herein provided or pursuant to the rights of any equity securities ranking
senior to or pari passu with the Series D Preferred Stock.
(iii) Unless the holders of Preferred Stock shall, during an existing
default period, have previously exercised their right to elect Directors, the
Board of Directors may order, or any stockholder or stockholders owning in the
aggregate not less than 10% of the total number of shares of Preferred Stock
outstanding, irrespective of series, may request, the calling of special meeting
of holders of Preferred Stock, which meeting shall thereupon be called by the
President, a Vice President or the Secretary of the Company. Notice of such
meeting and of any annual meeting at which holders of Preferred Stock are
entitled to vote pursuant to this paragraph (C) (iii) shall be given to each
holder of record of Preferred Stock by mailing a copy of such notice to him at
his last address as the same appears on the books of the Company. Such meeting
shall be called for a time not earlier than 20 days and not later than 60 days
after such order or request or in default of the calling of such meeting within
60 days after such order or request, such meeting may be called on similar
notice by any stockholder or stockholders owning in the aggregate not less than
10% of the total number of shares of Preferred Stock outstanding, irrespective
of series. Notwithstanding the provisions of this paragraph (C) (iii), no such
special meeting shall be called during the period within 60 days immediately
preceding the date fixed for the next annual meeting of stockholders.
(iv) In any default period, the holders of Common Stock, and other
classes of stock of the Company if applicable, shall continue to be entitled to
elect the whole number of Directors until the holders of Preferred Stock shall
have exercised their right to elect two Directors voting as a class, after the
exercise of which right (x) the Directors so elected by the holders of Preferred
Stock shall continue in office until their successors shall have been elected by
such holders or until the expiration of the default period, and (y) any vacancy
in the Board of Directors may (except as provided in paragraph (C) (ii) of this
Section 3) be filled by vote of a majority of the remaining Directors
theretofore
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elected by the holders of the class of stock which elected the Director whose
office shall have become vacant. References in this paragraph (C) to Directors
elected by the holders of a particular class of stock shall include Directors
elected by such Directors to fill vacancies as provided in clause (y) of the
foregoing sentence.
(v) Immediately upon the expiration of a default period, (x) the right
of the holders of Preferred Stock as a class to elect Directors shall cease, (y)
the term of any Directors elected by the holders of Preferred Stock as a class
shall terminate, and (z) the number of Directors shall be such number as may be
provided for in the Charter or bylaws irrespective of any increase made pursuant
to the provisions of paragraph (C) (ii) of this Section 3 (such number being
subject, however, to change thereafter in any manner provided by law or in the
Charter or bylaws). Any vacancies in the Board of Directors effected by the
provisions of classes (y) and (z) in the preceding sentence may be filled by a
majority of the remaining Directors.
(D) The Charter of the Company shall not be amended in any manner
(whether by merger or otherwise) so as to adversely affect the powers,
preferences or special rights of the Series D Preferred Stock without the
affirmative vote of the holders of a majority of the outstanding shares of
Series D Preferred Stock, voting separately as a class.
(E) Except as otherwise provided herein, holders of Series D Preferred
Stock shall have no special voting rights, and their consent shall not be
required for taking any corporate action. As used in this Section 3, "Preferred
Stock" shall not include or be construed to encompass any other class or series
of preferred stock of the Company unless the certificate of designations,
preferences and rights of such other class or series expressly so states.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series D Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and distributions, whether
or not declared, on outstanding shares of Series D Preferred Stock shall have
been paid in full, the Company shall not:
(i) declare or pay dividends on, or make any other
distributions on, any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series
D Preferred Stock;
(ii) declare or pay dividends on, or make any other
distributions on, any shares of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series D Preferred Stock, except dividends paid ratably on the Series D
Preferred Stock and all such other parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
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(iii) redeem, purchase or otherwise acquire for value any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series D Preferred
Stock; provided that the Company may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in exchange for
shares of stock of the Company ranking junior (as to dividends and upon
dissolution, liquidation or winding up) to the Series D Preferred
Stock; or
(iv) redeem, purchase or otherwise acquire for value any
shares of Series D Preferred Stock, or any shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series D Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as determined
by the Board of Directors) to all holders of Series D Preferred Stock
and all such other parity stock upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates
and other relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for value any shares of stock of the Company
unless the Company could, under paragraph (A) of this Section 4, purchase or
otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series D Preferred Stock
redeemed, purchased or otherwise acquired by the Company in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but unissued
shares of Preferred Stock without designation as to series and may be reissued
as part of a new series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors as permitted by the Charter or as
otherwise permitted under the General Corporation Law of the State of Delaware.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Company, no distribution shall be
made (1) to the holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series D
Preferred Stock unless, prior thereto, the holders of shares of Series D
Preferred Stock shall have received $1.00 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment; provided that the holders of shares of Series D
Preferred Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to 100
times the aggregate amount to be distributed per share to holders of Common
Stock, or (2) to the holders of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the Series D
Preferred Stock, except distributions made ratably on the Series D
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Preferred Stock and all such other parity stock in proportion to the total
amounts to which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up. If the Company shall at any time after
the Rights Declaration Date pay any dividend on Common Stock payable in shares
of Common Stock or effect a subdivision or combination of the outstanding shares
of Common Stock (by reclassification or otherwise) into a greater or lesser
number of shares of Common Stock, then in each such case the aggregate amount to
which holders of shares of Series D Preferred Stock were entitled immediately
prior to such event under the proviso in clause (1) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. If the Company shall enter into
any consolidation, merger, combination or other transaction in which the shares
of Common Stock are exchanged for or changed into other stock or securities,
cash or any other property, then in any such case the shares of Series D
Preferred Stock shall at the same time be similarly exchanged for or changed
into an amount per share, subject to the provision for adjustment hereinafter
set forth, equal to 100 times the aggregate amount of stock, securities, cash or
any other property, as the case may be, into which or for which each share of
Common Stock is changed or exchanged. If the Company shall at any time after the
Rights Declaration Date pay any dividend on Common Stock payable in shares of
Common Stock or effect a subdivision or combination of the outstanding shares of
Common Stock (by reclassification or otherwise) into a greater or lesser number
of shares of Common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of Series D
Preferred Stock shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
Section 8. No Redemption. The Series D Preferred Stock shall not be
redeemable.
Section 9. Rank. The Series D Preferred Stock shall rank junior (as to
dividends and upon liquidation, dissolution and winding up) to all other series
of the Company's Preferred Stock except any series that specifically provides
that such series shall rank pari passu with or junior to the Series D Preferred
Stock.
Section 10. Fractional Shares. Series D Preferred Stock may be issued
in fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series D Preferred Stock.
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IN WITNESS WHEREOF, we have executed and attested this Certificate this
11th day of November, 1998.
DELTA AIR LINES, INC.
/s/ Leo F. Mullin
-------------------------------------
Leo F. Mullin
President and Chief Executive Officer
ATTEST:
/s/ Robert S. Harkey
- --------------------
Robert S. Harkey
Corporate Secretary
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September 17, 1998
[Delta Letterhead]
Mr. Robert L. Colman
7535 Legends Lane
Cincinnati, OH 45244
Dear Bob:
I am pleased to confirm my verbal offer of employment for the position of
Executive Vice President - Human Resources for Delta Air Lines, Inc. (Delta or
the Company). In this assignment, you will report directly to me. The date for
commencement of your active employment will be as you and the Company agree, but
in any event not later than October 14, 1998 (the commencement date being
referred to as the Starting Date).
Your initial and minimum base salary will be $400,000 per annum, payable in
accordance with the usual payment practices of the Company.
With respect to each fiscal year beginning with the fiscal year ending June 30,
1999 during which you are employed by the Company, you will be eligible to
receive in addition to your base salary an annual incentive compensation award
(Annual Award) for services rendered during such fiscal year, subject to the
terms and conditions of the Company's annual incentive compensation plan as in
effect from time to time. Except as provided in the immediately following
paragraph, the amount of the Annual Award, if any, with respect to any fiscal
year will be based upon performance targets and award levels determined by the
Personnel & Compensation Committee of the Board of Directors (or any successor
committee designated by the Board) in its sole discretion, in accordance with
the Company's annual incentive compensation plan as in effect from time to time;
provided that for each fiscal year beginning with the fiscal year ending June
30, 1999, your target award level shall be established in such a manner as to
provide you with the opportunity to earn an award of at least 57.5% of your base
salary for such fiscal year, assuming performance at the target level.
<PAGE>
Notwithstanding the preceding paragraph, you will receive an Annual Award of not
less than (1) $225,000 with respect to fiscal year 1999 and (2) $115,000 with
respect to fiscal year 2000, unless your employment is terminated by the Company
for Cause prior to June 30, 1999 or June 30, 2000, respectively; provided, that
if your employment terminates for any reason other than Cause prior to June 30,
1999 or June 30, 2000, respectively, the applicable minimum amount shall be
prorated by multiplication by a fraction determined as follows: (1) with respect
to fiscal year 1999, the numerator of which is the number of days from the
Starting Date through the date of termination of your employment, and the
denominator of which is the number of days from the Starting Date through June
30, 1999 and (2) with respect to fiscal year 2000, the numerator of which is the
number of days from July 1, 1999 through the date of termination of your
employment, and the denominator of which is 365.
You will also be a participant in the 1989 Stock Incentive Plan in accordance
with the terms of that Plan. You will be granted an initial award with
non-qualified stock options on 150,000 shares of Delta common stock. The award
date will be the Starting Date, and the exercise price will be the closing price
of Delta common stock on the New York Stock Exchange on that date. These options
will vest according to the following schedule: 78,000 of these options will vest
immediately; 72,000 of these options will vest in 20% increments on each of the
first five anniversaries of the award date, and all of the options will be
exercisable in accordance with, and otherwise subject to, the terms and
conditions set forth in the award agreement attached as Exhibit A. Future
grants, if any, will be in accordance with the Plan.
To compensate you for benefits which you are forfeiting by resigning from GE to
accept a position with the Company, (1) you will be granted 20,000 shares of
restricted stock, which will vest in equal amounts (33 1/3% each year) on each
of the first, second, and third anniversaries of the Starting Date; and (2) you
will be paid a signing bonus in the amount of $718,885, payable promptly after
the Starting Date, which signing bonus you will promptly refund to Delta if,
within six (6) months after the Starting Date, your employment with Delta is
terminated by the Company for Cause or by you other than for Good Reason;
provided, however, that the amount of that signing bonus will not constitute
earnings for purposes of determining your benefits under any employee benefit
plan, program or policy of Delta. The
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restricted stock award is subject to the terms and conditions set forth in the
award agreement attached as Exhibit B.
Delta will provide reimbursement for the reasonable cost of your legal counsel
in connection with the negotiation and preparation of this agreement. While
employed by the Company, you will be entitled to such fringe benefits as are
provided to Executive Vice Presidents of the Company, including free and
reduced-rate travel, automobile allowance, initiation fees and monthly dues for
one country club membership, and similar programs as in effect from time to
time.
Except as otherwise provided in this letter agreement, your employment with
Delta will be subject to Delta's standard policies and will be governed by the
terms and conditions of the Personnel Practices Manual, as may be amended from
time to time hereafter. You will be provided with vacation, sick leave, and paid
holidays in accordance with Delta's standard policy regarding these benefits for
Executive Vice Presidents of the Company.
You will also be eligible to participate in Delta's standard benefit programs,
as amended from time to time, including the following:
1. DeltaFlex, our flexible benefits plan, which provides you with a menu
of choices for medical, dental, life insurance, and disability
benefits.
2. The Officer Life Insurance program.
3. The Delta Family-Care Disability and Survivorship Plan, which provides
certain disability benefits to you and certain benefits in the event of
your death.
4. The Delta Family-Care Retirement Plan benefit will accrue from the date
you join Delta. In addition, Delta has a nonqualified plan which will
cover any excess benefits not payable by the Delta Family-Care
Retirement Plan (due to Section 415 or 401(a)(17) limitations). For
purposes of both vesting and benefit accrual under the nonqualified
plan, you will be deemed to have eighteen (18) additional years of
service with Delta, provided that you complete at least two (2) years
of actual service as an employee with Delta. In addition, if your
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employment is terminated by the Company without Cause or by you for
Good Reason before your earnings history for retirement benefit
purposes has been credited with your Annual Awards for both fiscal
years 1999 and 2000, your final average earnings for purposes of
determining your benefits under the nonqualified plan will be
calculated as if your employment had continued through fiscal year 2000
and you had received your minimum Annual Awards of $225,000 for fiscal
year 1999 and $115,000 for fiscal year 2000; provided, however, that if
your actual Annual Award for fiscal year 1999 exceeds $225,000, that
actual amount will be used instead of $225,000 in determining your
retirement benefits. However, the benefit under the nonqualified plan
will be reduced by the amount of any retirement benefits which you
receive under any qualified or nonqualified defined benefit retirement
plan of General Electric Company.
5. After one year of service, the Delta Family-Care Savings Plan, which
currently features pre-tax or post-tax employee contributions of up to
12% (up to the limits of the Internal Revenue Code), and a 50% match of
your contributions on the first 4% of salary, with Delta's maximum
contribution equal to 2% of your salary.
The Company will pay all costs of relocation of you and your family to the
Atlanta metropolitan area in accordance with the Company's relocation policy
supplemented as follows:
a) Reasonable temporary living expenses for you and your family
in the Atlanta metropolitan area for a period not to exceed
six months from the Starting Date;
b) If you so elect prior to the first anniversary of the Starting
Date, the Company will purchase from you your primary
residence as of the date hereof. The purchase price will be
equal to the average of the estimates of the fair market value
of the residence as determined, within 30 days of such
election, by two reputable and independent professional real
estate appraisers, one of which will be selected by you and
one of which will be selected by the Company;
4
<PAGE>
c) The weight limitation for movement of your household effects
will be waived;
d) The Company will pay up to two discount points with respect to
one mortgage financing of your initial new residence in the
Atlanta metropolitan area; and
e) The Company will absorb any income tax liability resulting
from relocation benefits provided on your behalf.
Your eligibility for severance benefits is summarized below:
Change in Control*
- ------------------
Your eligibility for benefits in conjunction with a Change in Control will be
governed by Delta's Retention Protection Agreement applicable to Executive Vice
Presidents of the Company.
Termination for Cause or Without Good Reason
- --------------------------------------------
No severance benefit provided, except as specifically provided below under the
heading "Other Separation Compensation."
Termination Without Cause or For Good Reason*
- ---------------------------------------------
If your employment is terminated prior to the third anniversary of the Starting
Date (other than by reason of death or disability) by the Company without Cause
or by you for Good Reason, you will receive: (1) the balance of your then
current base salary and then current target incentive compensation Annual Award
through the end of the month in which the third anniversary of the Starting Date
occurs (subject to a minimum of
- --------
* In the event a Qualifying Event (as defined in your Retention Protection
Agreement) occurs during the term of your Retention Protection Agreement, the
Retention Protection Agreement shall apply instead of these provisions, it being
understood that the Retention Protection Agreement will be appropriately amended
to preserve the retirement benefits and "Other Separation Compensation"
described in this letter agreement.
5
<PAGE>
twelve (12) months of such salary and Annual Award), (2) immediate vesting of
any unvested stock option and restricted stock awards which you have been
granted on the Starting Date, and (3) immediate vesting of all accrued
retirement plan benefits, including your eighteen (18) additional years of
service credit, reduced by the above-referenced offset for GE retirement
benefits. For purposes of this letter agreement, the terms "Cause" and "Good
Reason" (and related terms) shall have the meanings set forth in Exhibit C
accompanying this letter agreement.
Termination After Death or Disability*
- --------------------------------------
If your employment is terminated due to death or disability prior to the third
anniversary of the Starting Date, you will receive: (1) such death or disability
benefits as shall then be maintained by the Company for which you or your
survivors are eligible; (2) immediate vesting of any unvested stock option and
restricted stock awards which you have been granted on the Starting Date, and
(3) immediate vesting of all accrued retirement plan benefits, including your
eighteen (18) additional years of service credit, reduced by the
above-referenced offset for GE retirement benefits.
Other Separation Compensation*
- ------------------------------
If your employment is terminated prior to June 1, 2005 by the Company without
Cause or by you for Good Reason, or if your employment terminates for any reason
after May 31, 2005, you will be treated as a retiree for purposes of Delta's
Family-Care benefit plans and will receive (in addition to any other benefits
which may be payable to you) a lump sum payment determined pursuant to the table
set forth in Exhibit D accompanying this letter agreement.
- --------------
* In the event a Qualifying Event (as defined in your Retention Protection
Agreement) occurs during the term of your Retention Protection Agreement, the
Retention Protection Agreement shall apply instead of these provisions, it being
understood that the Retention Protection Agreement will be appropriately amended
to preserve the retirement benefits and "Other Separation Compensation"
described in this letter agreement.
6
<PAGE>
In the event of any conflict between the terms of this letter agreement and the
terms of any other agreement, award or arrangement contemplated hereby, the
terms of this letter agreement shall control. This letter agreement supersedes
all prior discussions and documentation concerning your compensation
arrangements with the Company.
If the terms outlined above reflect your understanding of our offer and you
accept employment based on these terms, please indicate your acceptance by
signing the two original letters provided. Please keep one letter for your
records and return the other to me.
Bob, we are extremely pleased to have you join the Delta team, and I look
forward with great pleasure to our association with you in this important role
at Delta. I anticipate benefiting from your expertise, and I believe you will
help us establish a winning formula for success in the future.
Sincerely,
/s/ Leo F. Mullin
Leo F. Mullin
Agreed and accepted to this 17th day of
September, 1998
/s/ Robert L. Colman
---------------------------------------
Robert L. Colman
7
<PAGE>
Exhibit A
---------
NONQUALIFIED STOCK OPTION AWARD AGREEMENT
UNDER THE 1989 STOCK INCENTIVE PLAN
September 17, 1998
Robert L. Colman
Executive Vice President - Human Resources
The 1989 Stock Incentive Plan of Delta Air Lines, Inc., as amended
("Plan"), is intended as an inducement for officers, executives and key
employees of Delta Air Lines, Inc. (the "Company") to continue in the employment
of the Company, and to provide a greater incentive to such employees to make
material contributions to the Company's success by increasing their proprietary
interest in the Company through increased direct stock ownership. The Plan,
which provides for certain awards to eligible employees, is administered by the
Personnel & Compensation Committee of the Board of Directors (the "Committee").
Pursuant to the Plan, the Committee selected you to receive an award of a
Nonqualified Stock Option under the Plan, effective as of the close of business
on the date you begin active employment with the Company (the "Starting Date"),
which date will be mutually agreed upon by you and the Company, but which will
be no later than October 14, 1998. The Committee has instructed me, on behalf of
the Company, to provide this Agreement to you.
In consideration of the mutual covenants herein contained and for other
good and valuable consideration, the Company and you as an employee of the
Company (hereinafter called "Employee"), do hereby agree as follows:
1. The Company hereby grants to Employee a Nonqualified Stock Option
("Stock Option") covering 150,000 shares of Stock, as defined in the Plan, a
copy of which has been furnished to Employee. This award is in all respects made
subject to the terms and conditions of the Plan and, by signing and returning a
copy of this Agreement to the Secretary of the Company, Employee acknowledges
that he has read this Agreement and the Plan and agrees to all of the terms and
conditions thereof for himself, any designated beneficiary and his heirs,
executors, administrators or personal representatives. Terms used in this
Agreement which are defined in the Plan shall have the meanings set forth in the
Plan. In the event of any conflict between the Plan and this Agreement, the Plan
shall control. Employee also acknowledges receipt of the Prospectus dated
October 23, 1997, relating to the Plan.
2. The Option Price of the Stock Option covered by this award shall be
the closing price of the Stock on the New York Stock Exchange (the "NYSE") on
the Starting Date, the date of this award.
<PAGE>
3. Subject to the terms and conditions of the Plan and the other
provisions of this Agreement, the Stock Option shall become exercisable in
installments as follows, provided Employee continues to be employed by the
Company on the dates indicated:
<TABLE>
<CAPTION>
Number of Shares of Stock with
Respect to which Stock Option
First Becomes Exercisable Date
------------------------- ----
<S> <C>
92,400 The first anniversary of the Starting Date
14,400 The second anniversary of the Starting Date
14,400 The third anniversary of the Starting Date
14,400 The fourth anniversary of the Starting Date
14,400 The fifth anniversary of the Starting Date
</TABLE>
If, prior to the fifth anniversary of the Starting Date, Employee's employment
with the Company is terminated (i) by the Company without Cause, (ii) by
Employee with Good Reason or (iii) due to Employee's death or Disability
(collectively, a "Termination Event"), then (x) the Stock Option shall
immediately become fully exercisable; and (y) the termination of Employee's
employment will be treated, for purposes of determining the terms of exercise of
the Stock Option, as having occurred because of Employee's Retirement under
Section 10(b) of the Plan (other than the first sentence of such Section 10(b)).
For purposes of this Agreement, the terms "Cause" and "Good Reason" shall have
the respective meanings assigned such terms in Annex A attached hereto.
If Employee's employment with the Company terminates (i) for any reason, other
than a Termination Event, prior to the fifth anniversary of the Starting Date,
or (ii) for any reason on or after the fifth anniversary of the Starting Date,
then (x) subject to the next paragraph of this Paragraph 3, the termination of
Employee's employment will be treated, for purposes of determining the terms of
exercise of the then exercisable portion of the Stock Option, as having occurred
because of Employee's Retirement under Section 10(b) of the Plan (other than the
first sentence of such Section 10(b)); and (y) Employee shall immediately
forfeit that portion of the Stock Option not then exercisable; provided,
however, that, only for purposes of determining whether a forfeiture shall occur
in accordance with this sentence, the portion of the Stock Option attributable
to 78,000 shares of Stock which becomes exercisable on the first anniversary of
the Starting Date shall be deemed to become exercisable six months after the
Starting Date.
Notwithstanding anything in this Paragraph 3 to the contrary, if Employee's
employment with the Company is terminated by the Company at any time for Cause,
Employee shall immediately forfeit the then outstanding Stock Option, whether or
not then exercisable.
4. Subject to the terms and conditions of the Plan and the other
provisions of this Agreement, including Paragraph 8 below, the Stock Option
granted to Employee herein may be exercised during the period beginning as set
forth in Paragraph 3 above and ending on the business day immediately preceding
the tenth anniversary of the Starting Date. Subject to the terms and conditions
of the Plan, Employee (or, if Employee is deceased, a party acting on his behalf
pursuant
<PAGE>
to Section 10 of the Plan) may exercise the Stock Option granted herein in whole
or, from time to time, in part by way of a written notice delivered to the
Secretary of the Company which includes the following: (i) name, mailing address
and social security number of Employee and the date, which shall be the actual
date of the notice; (ii) the number of shares of Stock with respect to which the
Stock Option is being exercised; (iii) the date of grant and the Option Price
with respect to the Stock Option being exercised; and (iv) the signature of
Employee or a party acting on behalf of a deceased employee. Payment of the full
purchase price of the shares of Stock covered by the exercise shall be made in
the manner prescribed by the Committee from time to time. If the Committee, in
its sole discretion, shall determine that it is appropriate to do so, such
payment may be made in whole or in part by tender of shares of unrestricted
Stock, as set forth in Section 5 of the Plan, subject to such requirements or
procedures as the Committee may specify.
5. When the Stock Option is exercised, the Company shall make the
appropriate calculations under the Plan and deliver to Employee, as soon as
practicable, a certificate or certificates representing the net number of shares
of Stock due to Employee pursuant to such exercise, calculated in accordance
with this paragraph. Unless other tax withholding arrangements are made by
Employee and the Company, the Company shall withhold from the shares of Stock
issued to Employee a sufficient number of shares of Stock based on its fair
market value on the date of exercise to cover any amounts which the Company is
required to withhold to comply with withholding requirements of federal, state
or local tax laws, rules or regulations. The fair market value for purposes of
the second sentence of this paragraph shall be as reasonably determined by the
Committee.
6. The Stock Option granted herein is not transferable otherwise than
by will, by the laws of descent and distribution, or by a written designation
referred to in Section 10(c) of the Plan, and is exercisable during Employee's
lifetime only by Employee. In the event that the Stock Option is exercised
pursuant to Section 10 of the Plan by any person other than Employee, such
notice shall be accompanied by appropriate proof of the right of such person to
exercise the Stock Option.
7. The Stock Option granted herein is subject to all terms of the Plan,
including but not limited to Section 10(b), which provides for the forfeiture of
certain benefits in certain circumstances in the event of Employee's Retirement
prior to his normal retirement date.
8. Employee acknowledges that the federal securities laws and/or the
Company's policies regarding trading in its securities may limit or restrict
Employee's right to buy or sell shares of Stock, including, without limitation,
sales of Stock to exercise the Stock Option or sales of Stock acquired pursuant
to the exercise of the Stock Option. Employee agrees to comply with such federal
securities law requirements and Company policies, as such laws and policies are
amended from time to time.
This Agreement has been prepared in duplicate. Please note your
acceptance in the space provided therefor and return the original for the
Company's records.
<PAGE>
IN WITNESS WHEREOF, the Company, acting through its duly authorized
officer, has caused this Agreement to be duly executed, and Employee has
hereunto set his hand, all as of the day and year first written above.
DELTA AIR LINES, INC.
BY
-----------------------------------
Leo F. Mullin
President and Chief Executive Officer
EMPLOYEE
-----------------------------------
Robert L. Colman
<PAGE>
ANNEX A
"Cause" means the occurrence of any one or more of the following:
(a) A demonstrably willful and deliberate act or failure to act by you
(other than as a result of incapacity due to physical or mental illness) which
is committed in bad faith, without reasonable belief that such action or
inaction is in the best interests of the Company, and which action or inaction
is not remedied within fifteen business days of written notice from the Company;
or
(b) Your conviction for committing an act of fraud, embezzlement,
theft, or any other act constituting a felony involving moral turpitude.
Notwithstanding the foregoing, you shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to you a
copy of a resolution duly adopted by the affirmative vote (which cannot be
delegated) of not less than three-quarters of the entire membership of the Board
of Directors at a meeting of the Board called and held for such purpose (after
reasonable notice to you and an opportunity for you, together with your counsel,
to be heard before the Board), finding that, in the good faith opinion of the
Board, you are guilty of conduct set forth above in clauses (a) or (b) of this
definition and specifying the particulars thereof in detail.
"Effective Date" means the Starting Date.
"Good Reason" means the occurrence of any one or more of the following, unless
you have expressly consented in writing thereto:
(a) The assignment to you of duties inconsistent with your authorities,
duties, titles, responsibilities and status as an officer of the Company, or a
reduction or alteration in the nature or status of your authorities, duties,
titles or responsibilities, from those in effect as of the Effective Date, other
than an insubstantial and inadvertent act that is remedied by the Company
promptly after receipt of notice thereof given by you;
(b) The Company's requiring you to be based at a location in excess of
50 miles from your principal job location or office on the later of (i) the
Effective Date or (ii) immediately prior to the Reference Date; except for
required travel on the Company's business to an extent consistent with your
business travel obligations on the later of (i) the Effective Date or (ii)
immediately prior to the Reference Date;
(c) A reduction by the Company of your base salary as in effect on the
later of (i) the Effective Date or (ii) the Reference Date (other than pursuant
to a reduction by a uniform percentage of the salary of all full-time domestic
employees of the Company who are not subject to a collective bargaining
agreement); or a reduction in your short-term or long-term incentive
compensation opportunities under the executive incentive compensation plans of
the Company for which you are eligible as in effect on the later of (i) the
Effective Date or (ii) the Reference Date;
<PAGE>
(d) The failure by the Company to keep in effect compensation,
retirement, health and welfare benefits, or perquisite programs under which you
receive benefits substantially similar, in the aggregate, to the benefits under
such programs as exist on the later of (i) the Effective Date or (ii)
immediately prior to the Reference Date (other than pursuant to an equivalent
reduction in such benefits of all full-time domestic employees of the Company
who are not subject to a collective bargaining agreement); or the failure of the
Company to meet the funding requirements, if any, of any of such programs; or
(e) Any material breach by the Company of its obligations under the
letter agreement to which this Annex A relates or any failure of a successor of
the Company to assume and agree to perform the Company's entire obligations
under that letter agreement, provided that such successor has received at least
ten days written notice from the Company or you of the requirement to assume
those obligations.
"Reference Date" means the date 90 days prior to the termination of your
employment.
<PAGE>
Exhibit B
---------
RESTRICTED STOCK AWARD AGREEMENT
UNDER THE 1989 STOCK INCENTIVE PLAN
September 17, 1998
Robert L. Colman
Executive Vice President - Human Resources
The 1989 Stock Incentive Plan of Delta Air Lines, Inc., as amended
("Plan"), is intended as an inducement for officers, executives and key
employees of Delta Air Lines, Inc. (the "Company") to continue in the employment
of the Company, and to provide a greater incentive to such employees to make
material contributions to the Company's success by increasing their proprietary
interest in the Company through increased direct stock ownership. The Plan,
which provides for certain awards to eligible employees, is administered by the
Personnel & Compensation Committee of the Board of Directors (the "Committee").
Pursuant to the Plan, the Committee has selected you to receive an award of
Restricted Stock (as defined in the Plan) effective as of the close of business
on the date you begin active employment with the Company (the "Starting Date"),
which date will be mutually agreed upon by you and the Company, but which will
be no later than October 14, 1998. The Committee has instructed me to direct
this letter to you.
In consideration of the mutual covenants herein contained and for other
good and valuable consideration, the Company and you as an employee of the
Company (hereinafter called "Employee"), do hereby agree as follows:
1. Grant of Shares. Pursuant to action of the Committee, the Company
hereby grants to Employee 20,000 shares of Restricted Stock (the "Shares"). This
award is in all respects made subject to the terms and conditions of the Plan, a
copy of which has been provided to Employee, and by signing and returning a copy
of this Agreement to the Secretary of the Company, Employee acknowledges that he
has read the Plan and agrees to all of the terms and conditions thereof for
himself, any designated beneficiary and his heirs, executors, administrators or
personal representatives. Terms used in this Agreement which are defined in the
Plan shall have the meanings set forth in the Plan. In the event of any conflict
between the Plan and this Agreement, the Plan shall control. Employee also
acknowledges receipt of the Prospectus dated October 23, 1997, relating to the
Plan.
As soon as practicable following Employee's execution of this Agreement and
the stock power described below in Section 6, a certificate or certificates
representing the Shares and bearing the legend described below in Section 6
shall be issued to Employee. Upon issuance of the certificates representing the
Shares, Employee shall have all rights of a stockholder with respect to the
Shares, including the right to vote and, subject to Section 10 of this
Agreement, to receive all dividends or other distributions paid or made with
respect to the Shares; provided, however, that the Shares (and any securities of
the Company which may be issued with respect to the Shares by virtue of any
dividend reinvestment, stock split, combination, stock dividend or
recapitalization, which securities shall be deemed to be "Shares" hereunder)
shall be subject to the terms and all of the restrictions set forth in this
Agreement.
<PAGE>
2. Restriction. Until the restriction imposed by this Section 2 (the
"Restriction") has lapsed pursuant to Section 3 or 4 below, Employee shall not
be permitted to sell, exchange, assign, transfer, pledge or otherwise dispose of
the Shares and the Shares shall be subject to forfeiture as set forth in Section
5 below.
3. Lapse of Restriction by Passage of Time. The Restriction shall lapse
and have no further force or effect as to 33-1/3% of such Shares (including
33-1/3% of any additional Shares which at the time have been purchased with
dividends on such Shares) on each of the first, second and third anniversaries
of the Starting Date, provided Employee remains employed by the Company on such
dates.
4. Lapse of Restriction in Certain Cases. The Restriction shall lapse
and have no further force or effect with respect to all Shares hereunder upon
the occurrence prior to the third anniversary of the Starting Date of the
termination of Employee's employment (i) by the Company without Cause, (ii) by
Employee with Good Reason or (iii) by reason of Employee's death or Disability
(as defined in the Plan). For purposes of this Agreement, the terms "Cause" and
"Good Reason" shall have the respective meanings assigned such terms in Annex A
attached hereto. Employee may provide to the Company written designation naming
a person or persons who shall receive the Shares in the event of Employee's
death, and such designation must be in a form approved by counsel for the
Company. If there is no such approved designation, Shares shall be distributed
upon Employee's death pursuant to Employee's last will and testament or as
provided by law.
5. Forfeiture of Shares. In the event of termination of Employee's
employment with the Company other than in the circumstances described in clauses
(i), (ii) or (iii) of Section 4 and prior to lapse of the Restriction under
Section 3, Employee shall immediately forfeit all right, title and interest to
the Shares which are still subject to the Restriction, and such Shares shall be
canceled or transferred to the Company by Employee, without consideration to
Employee or his heirs, executors, administrators or personal representatives.
6. Endorsement and Retention of Certificates. All certificates
representing the Shares shall be endorsed on the face thereof with the following
legend:
"The shares of stock represented by this certificate and the sale,
transfer or other disposition of such shares are restricted by and
subject to a Restricted Stock Award Agreement dated September 17, 1998
between Robert L. Colman and the Company, a copy of which is on file
with the Secretary of the Company."
All certificates for Shares shall be held by the Company until the
restrictions thereon shall have lapsed and, as a condition to this award,
Employee shall execute and deliver to the Company a stock power, endorsed in
blank and approved by counsel for the Company, relating to the Shares, as set
forth in the Plan.
Upon lapse of the Restriction pursuant to Section 3 or 4 of this
Agreement without a prior forfeiture of the Shares, a certificate or
certificates for an appropriate number of unrestricted Shares shall be delivered
to Employee and the certificate with the legend indicated above shall be
canceled.
<PAGE>
7. Withholding Taxes. Upon lapse of the Restriction on the Shares
pursuant to Section 3 or 4 above, unless other tax withholding arrangements are
made by Employee and the Company, sufficient Shares shall be transferred to the
Company to provide for the payment of any taxes required to be withheld by
federal, state, or local law with respect to income resulting from such lapse.
The value of the Shares so transferred shall be the closing price of the Common
Stock on the NYSE on the date the Restriction lapses (or, in the event that no
sale of the Common Stock takes place on the NYSE on such date, the closing price
of the Common Stock on the NYSE on the immediately preceding date on which such
a sale occurred).
8. Rights Not Enlarged. Nothing herein confers on Employee any right to
continue in the employ of the Company or any of its subsidiaries.
9. Succession. This Agreement shall be binding upon and operate for the
benefit of the Company and its successors and assigns, and Employee and his
heirs, executors, administrators or personal representatives.
10. Dividends. Any cash dividends which may become payable on the
Shares shall be reinvested by the Company in shares of Common Stock, to the
extent Shares are available under the Plan. If shares are not so available,
dividends shall be paid in cash and held by the Company for the account of
Employee until the Restriction lapses. In such event the Company shall pay
interest on the amount so held as determined by the Committee, and the
accumulated amount of such dividends and interest shall be payable to Employee
upon the lapse of the Restriction. Those Shares and any cash held for the
account of the Employee shall be governed by the Restriction set forth in the
Agreement; the Restriction with respect to such Shares and such cash shall lapse
as provided in Sections 3 and 4 of this Agreement; and such shares and such cash
shall be forfeited pursuant to Section 5 to the extent that the Shares on which
such dividends were paid shall be so forfeited.
11. Fractional Shares. Upon lapse of the Restriction, certificates for
fractional Shares shall not be delivered to Employee, and the value of any
fractional Shares which may result from the application of Section 3 or 4 of
this Agreement shall be paid in cash to Employee, as determined in the last
sentence of Section 7 above.
This Agreement has been prepared in duplicate. Please note your
acceptance in the space provided therefor and return the original for the
Company's records.
IN WITNESS WHEREOF, the Company, acting through its duly authorized
officer, has caused this Agreement to be duly executed, and Employee has
hereunto set his hand, all as of the day and year first written above.
DELTA AIR LINES, INC.
BY
-----------------------------------
Leo F. Mullin
President and Chief Executive Officer
EMPLOYEE
-----------------------------------
Robert L. Colman
<PAGE>
ANNEX A
"Cause" means the occurrence of any one or more of the following:
(a) A demonstrably willful and deliberate act or failure to act by you
(other than as a result of incapacity due to physical or mental illness) which
is committed in bad faith, without reasonable belief that such action or
inaction is in the best interests of the Company, and which action or inaction
is not remedied within fifteen business days of written notice from the Company;
or
(b) Your conviction for committing an act of fraud, embezzlement,
theft, or any other act constituting a felony involving moral turpitude.
Notwithstanding the foregoing, you shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to you a
copy of a resolution duly adopted by the affirmative vote (which cannot be
delegated) of not less than three-quarters of the entire membership of the Board
of Directors at a meeting of the Board called and held for such purpose (after
reasonable notice to you and an opportunity for you, together with your counsel,
to be heard before the Board), finding that, in the good faith opinion of the
Board, you are guilty of conduct set forth above in clauses (a) or (b) of this
definition and specifying the particulars thereof in detail.
"Effective Date" means the Starting Date.
"Good Reason" means the occurrence of any one or more of the following, unless
you have expressly consented in writing thereto:
(a) The assignment to you of duties inconsistent with your authorities,
duties, titles, responsibilities and status as an officer of the Company, or a
reduction or alteration in the nature or status of your authorities, duties,
titles or responsibilities, from those in effect as of the Effective Date, other
than an insubstantial and inadvertent act that is remedied by the Company
promptly after receipt of notice thereof given by you;
(b) The Company's requiring you to be based at a location in excess of
50 miles from your principal job location or office on the later of (i) the
Effective Date or (ii) immediately prior to the Reference Date; except for
required travel on the Company's business to an extent consistent with your
business travel obligations on the later of (i) the Effective Date or (ii)
immediately prior to the Reference Date;
(c) A reduction by the Company of your base salary as in effect on the
later of (i) the Effective Date or (ii) the Reference Date (other than pursuant
to a reduction by a uniform percentage of the salary of all full-time domestic
employees of the Company who are not subject to a collective bargaining
agreement); or a reduction in your short-term or long-term incentive
compensation opportunities under the executive incentive compensation plans of
the Company for which you are eligible as in effect on the later of (i) the
Effective Date or (ii) the Reference Date;
<PAGE>
(d) The failure by the Company to keep in effect compensation,
retirement, health and welfare benefits, or perquisite programs under which you
receive benefits substantially similar, in the aggregate, to the benefits under
such programs as exist on the later of (i) the Effective Date or (ii)
immediately prior to the Reference Date (other than pursuant to an equivalent
reduction in such benefits of all full-time domestic employees of the Company
who are not subject to a collective bargaining agreement); or the failure of the
Company to meet the funding requirements, if any, of any of such programs; or
(e) Any material breach by the Company of its obligations under the
letter agreement to which this Annex A relates or any failure of a successor of
the Company to assume and agree to perform the Company's entire obligations
under that letter agreement, provided that such successor has received at least
ten days written notice from the Company or you of the requirement to assume
those obligations.
"Reference Date" means the date 90 days prior to the termination of your
employment.
<PAGE>
IRREVOCABLE STOCK POWER
The undersigned, Robert L. Colman, does hereby assign, transfer and
deliver unto _____________________________________ all of those shares of common
stock of Delta Air Lines, Inc. (the "Company") granted as restricted stock (the
"Restricted Stock") pursuant to the Restricted Stock Award Agreement Under The
1989 Stock Incentive Plan dated as of September 17, 1998, between the Company
and Robert L. Colman, as well as all of those shares of common stock of the
Company purchased for the undersigned with reinvested dividends from the
Restricted Stock (collectively, the "Shares").
The undersigned does hereby irrevocably constitute and appoint
_______________________________________ attorney-in-fact, with full power of
substitution, to transfer the Shares on the books of the Company, or to direct
the Transfer Agent of the Company to so transfer the Shares.
Signature:
-----------------------------
Printed Name:
-----------------------------
Date:
-----------------------------
Witness:
- -------------------------------
<PAGE>
Exhibit C
---------
"Cause" means the occurrence of any one or more of the following:
(a) A demonstrably willful and deliberate act or failure to act by you
(other than as a result of incapacity due to physical or mental illness) which
is committed in bad faith, without reasonable belief that such action or
inaction is in the best interests of the Company, and which action or inaction
is not remedied within fifteen business days of written notice from the Company;
or
(b) Your conviction for committing an act of fraud, embezzlement,
theft, or any other act constituting a felony involving moral turpitude.
Notwithstanding the foregoing, you shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to you a
copy of a resolution duly adopted by the affirmative vote (which cannot be
delegated) of not less than three-quarters of the entire membership of the Board
of Directors at a meeting of the Board called and held for such purpose (after
reasonable notice to you and an opportunity for you, together with your counsel,
to be heard before the Board), finding that, in the good faith opinion of the
Board, you are guilty of conduct set forth above in clauses (a) or (b) of this
definition and specifying the particulars thereof in detail.
"Effective Date" means the Starting Date under the letter agreement to which
this Exhibit C is attached.
"Good Reason" means the occurrence of any one or more of the following, unless
you have expressly consented in writing thereto:
(a) The assignment to you of duties inconsistent with your authorities,
duties, titles, responsibilities and status as an officer of the Company, or a
reduction or alteration in the nature or status of your authorities, duties,
titles or responsibilities, from those in effect as of the Effective Date, other
than an insubstantial and inadvertent act that is remedied by the Company
promptly after receipt of notice thereof given by you;
(b) The Company's requiring you to be based at a location in excess of
50 miles from your principal job location or office on the later of (i) the
Effective Date or (ii) immediately prior to the Reference Date; except for
required travel on the Company's business to an extent consistent with your
business travel obligations on the later of (i) the Effective Date or (ii)
immediately prior to the Reference Date;
(c) A reduction by the Company of your base salary as in effect on the
later of (i) the Effective Date or (ii) the Reference Date (other than pursuant
to a reduction by a uniform percentage of the salary of all full-time domestic
employees of the Company who are not subject to a collective bargaining
agreement); or a reduction in your short-term or
<PAGE>
long-term incentive compensation opportunities under the executive incentive
compensation plans of the Company for which you are eligible as in effect on the
later of (i) the Effective Date or (ii) the Reference Date;
(d) The failure by the Company to keep in effect compensation,
retirement, health and welfare benefits, or perquisite programs under which you
receive benefits substantially similar, in the aggregate, to the benefits under
such programs as exist on the later of (i) the Effective Date or (ii)
immediately prior to the Reference Date (other than pursuant to an equivalent
reduction in such benefits of all full-time domestic employees of the Company
who are not subject to a collective bargaining agreement); or the failure of the
Company to meet the funding requirements, if any, of any of such programs;
(e) Any material breach by the Company of its obligations under the
letter agreement to which this Exhibit C relates or any failure of a successor
of the Company to assume and agree to perform the Company's entire obligations
under that letter agreement, provided that such successor has received at least
ten days written notice from the Company or you of the requirement to assume
those obligations.
"Reference Date" means the date 90 days prior to the termination of your
employment.
2
<PAGE>
Exhibit D
---------
ADDITIONAL SEPARATION COMPENSATION
<TABLE>
<CAPTION>
Amount of
If termination occurs between: Separation Compensation:
- ------------------------------ ------------------------
<S> <C>
Starting Date and September 30, 1999 $185,000
October 1, 1999 and September 30, 2000 $179,000
October 1, 2000 and September 30, 2001 $172,000
October 1, 2001 and September 30, 2002 $168,000
October 1, 2002 and September 30, 2003 $162,000
October 1, 2003 and September 30, 2004 $155,000
October 1, 2004 and September 30, 2005 $146,000
October 1, 2005 and September 30, 2006 $136,000
October 1, 2006 and September 30, 2007 $124,000
October 1, 2007 and September 30, 2008 $110,000
October 1, 2008 and September 30, 2009 $ 93,000
October 1, 2009 and June 1, 2010 $ 81,000
</TABLE>
<PAGE>
Exhibit 12
DELTA AIR LINES, INC.
STATEMENT REGARDING COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(In millions, except ratios)
<TABLE>
<CAPTION>
Three Months Three Months
Ended Ended
September 30, September 30,
1998 1997
---------------- ----------------
<S> <C> <C>
Earnings (loss):
Earnings (loss) before income taxes $ 538 $ 418
Add (deduct):
Fixed charges from below
211 170
Interest capitalized
(10) (9)
----- -----
Earnings (loss) as adjusted $ 739 $ 579
Fixed charges:
Interest expense $ 49 $ 50
Portion of rental expense representative of the
interest factor
162 120
----- -----
Total fixed charges
$ 211 $ 170
Ratio of earnings to fixed charges 3.50 3.41
</TABLE>
<PAGE>
ARTHUR ANDERSEN LLP
EXHIBIT 15
To Delta Air Lines, Inc.:
We are aware that Delta Air Lines, Inc. has incorporated by reference in its
Registration Statement Nos. 2-94541, 33-30454, 33-65391, 333-16471, 333-49553,
and 333-58647 its Form 10-Q for the quarter ended September 30, 1998, which
includes our report dated November 3, 1998 covering the unaudited interim
financial information contained therein. Pursuant to Regulation C of the
Securities Act of 1933 (the "Act"), that report is not considered a part of the
Registration Statements prepared or certified by our firm or a report prepared
or certified by our firm within the meaning of Sections 7 and 11 of the Act.
Arthur Andersen LLP
- -------------------
Atlanta, Georgia
November 3, 1998
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM DELTA
AIR LINES, INC. FORM 10-Q FOR THE QUARTER ENDED SEPTEMBER 30, 1996 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> JUN-30-1999
<PERIOD-START> JUL-01-1998
<PERIOD-END> SEP-01-1998
<CASH> 534
<SECURITIES> 603
<RECEIVABLES> 1,007
<ALLOWANCES> (38)
<INVENTORY> 85
<CURRENT-ASSETS> 2,857
<PP&E> 15,871
<DEPRECIATION> 6,145
<TOTAL-ASSETS> 14,439
<CURRENT-LIABILITIES> 4,465
<BONDS> 1,880
0
0
<COMMON> 266
<OTHER-SE> 3,642
<TOTAL-LIABILITY-AND-EQUITY> 14,439
<SALES> 0
<TOTAL-REVENUES> 3,802
<CGS> 0
<TOTAL-COSTS> 3,249
<OTHER-EXPENSES> (35)
<LOSS-PROVISION> 5
<INTEREST-EXPENSE> 49
<INCOME-PRETAX> 538
<INCOME-TAX> 211
<INCOME-CONTINUING> 327
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 327
<EPS-PRIMARY> 2.19
<EPS-DILUTED> 2.08
</TABLE>
