SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
NORTHWEST AIRLINES CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 95-4205287
(State of incorporation (I.R.S. Employer
or organization) Identification No.)
2700 Lone Oak Parkway, Eagan, Minnesota 55121
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
None
Securities to be registered pursuant to Section 12(g) of the Act:
Title of each class Name of exchange on which
to be so registered each class is to be registered
- ------------------- ------------------------------
Common Stock, Nasdaq Stock Market
par value $0.01 per share
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INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be
Registered.
This Form 8-A/A is being filed to reflect the amendment of the Second
Amended and Restated Certificate of Incorporation of Northwest Airlines
Corporation (the "Northwest Charter"), adopted at the Annual Meeting of
Stockholders held on April 24, 1998, to combine and reclassify the existing
separate classes of voting and non-voting Class A Common Stock, par value $0.01
per share ("Class A Common Stock"), and Class B Common Stock, par value $0.01
per share ("Class B Common Stock"), into a single class of voting common stock.
Authorized Capital Stock
Under the Northwest Charter, Northwest Airlines Corporation's
("Northwest") authorized capital stock consists of 315,000,000 shares of Common
Stock, par value $0.01 per share (the "Common Stock"), and 45,020,000 shares of
preferred stock, par value $0.01 per share (the "Preferred Stock"). Of such
authorized shares of Preferred Stock, 25,000,000 shares have been designated
Series C Preferred Stock, par value $0.01 per share (the "Series C Preferred
Stock"), 3,000,000 shares have been designated Series D Junior Participating
Preferred Stock, par value $0.01 per share (The "Series D Junior Participating
Preferred Stock"), and 17,020,000 shares are undesignated.
There are currently no shares of Series D Junior Participating Preferred
Stock outstanding. The Series D Junior Participating Preferred Stock is issuable
upon exercise of Preferred Share Purchase Rights (the "Rights"), as described in
Northwest's Registration Statement on Form 8-A filed with the Securities and
Exchange Commission (the "Commission") on November 17, 1995. Each share of
Common Stock has one Right attached thereto.
The Preferred Stock has preference over the Common Stock with respect to
the payment of dividends and the distribution of assets in the event of a
liquidation or dissolution of Northwest. In addition, the Board of Directors of
Northwest has the authority to issue additional shares of Preferred Stock in one
or more series and to fix the voting and other powers, designations, dividends,
preferences and relative, participating, optional, conversion, exchange,
redemption and other special rights and qualifications, limitations or
restrictions thereon of any such series of Preferred Stock.
Northwest Common Stock
As of February 27, 1998, 98,146,317 shares of Class A Common Stock and
11,837 shares of Class B Common Stock were issued and outstanding.
Each share of Common Stock is entitled to one vote at all meetings of
stockholders of Northwest for the election of directors (other than directors
elected by holders of the Series C Preferred Stock) and all matters submitted to
stockholder vote.
Holders of the Common Stock participate equally as to any dividends or
other distributions, including dividends payable in shares of Common Stock (or
securities having rights to acquire Common Stock). Upon any liquidation,
dissolution or winding up of Northwest, holders of the Common Stock are entitled
to share equally and ratably in the assets of Northwest, if any, remaining after
the payment of all debts and liabilities of Northwest and the liquidation
preference of any outstanding Preferred Stock. Holders of Common Stock have no
preemptive, subscription or redemption rights and are not subject to further
calls or assessments. Holders of Common Stock have no right to cumulate their
votes in the election of directors. The outstanding shares of Common Stock are
duly authorized, validly issued, fully paid and nonassessable. The Common Stock
is quoted on the Nasdaq National Market.
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Northwest Preferred Stock
As of February 27, 1998, 6,100,049 shares of Series C Preferred Stock were
issued and outstanding.
Conversion Rights
Each share of Series C Voting Preferred Stock is convertible at any time
at the option of the holder thereof into 1.364 shares of Common Stock.
Each share of Series C Voting Preferred Stock will automatically convert
into 1.364 shares of the Common Stock upon the sale, transfer, exchange or other
disposition of record or beneficial ownership of such share to (or with) any
person who is not an employee trust or other "Qualified Holder" (a
"Non-Qualified Sale").
Put Right
During the 60-day period ending ten years after August 1, 1993 (the "Put
Date"), the employee trusts and other "Qualified Holders" of the Series C
Preferred Stock (generally consisting of current and former Northwest employees
and their spouses, children and heirs) will have the right to put such stock to
Northwest. Prior to the commencement of such 60-day period, Northwest will have
the right to elect either (i) to repurchase such Series C Preferred Stock with
cash equal to the Put Price (defined below) or with shares of Common Stock
having an aggregate trading value (based on the average closing prices for
Common Stock during the 30-day period ending on the Put Date) equal to the Put
Price, or (ii) to permit the relevant trust or Qualified Holder either (A) to
receive the number of shares of Common Stock into which such Series C Preferred
Stock would otherwise then be convertible plus the "Excess Amount" (as defined
below) in cash, or (B) to have such number of shares of Common Stock otherwise
issuable upon conversion sold by Northwest, whereupon the relevant trust or
Qualified Holder would receive in cash the proceeds realized upon such sale plus
the Excess Amount.
Notwithstanding the foregoing, any election by Northwest to provide those
exercising put rights with shares of Common Stock in lieu of cash (as described
in clause (i) of the preceding paragraph) would require the approval of a
majority of the Series C Directors (such directors being described under "Voting
Rights" below). Any decision by Northwest not to repurchase any shares of Series
C Preferred Stock as described above requires the consent of a majority of the
Series C Directors.
The "Put Price" in 2003 of the Series C Preferred Stock to be issued will
be equal to a pro rata portion of the actual savings resulting from labor cost
savings agreements entered into in 1993 ($311.3 million as of December 31,
1997). The actual labor cost savings is calculated as the excess of the amount
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Northwest would have paid its employees in basic hourly wages during the period
covered by the labor cost savings absent the labor cost savings over the amount
actually paid, together with certain savings in respect of reduced vacation
accruals and certain work rule changes.
The "Excess Amount" for each share of Series C Preferred Stock as to which
the put right is exercised (which Excess Amount may be payable when Northwest
has elected the mechanism described in clause (ii) of the third preceding
paragraph) is equal to the excess of (i) the Put Price over (ii) the specified
market price per share of the Common Stock received pursuant to such clause
(ii), multiplied by the number of shares of Common Stock into which one share of
Series C Preferred Stock may then be converted.
In the event Northwest fails to fulfill its mandatory redemption
obligations as described above, on a quarterly basis thereafter Northwest must
use all cash held by Northwest (or available under revolving credit agreements)
in excess of all the requirements within one year of such determination date
("Available Cash") to make partial pro rata redemptions, provided such
redemptions are not prohibited under applicable credit agreements. Cash held by
Northwest's subsidiaries will be included in the calculation of Available Cash
only to the extent such cash is made available to Northwest pursuant to
applicable law or any loan agreements or instruments to which Northwest or any
of its subsidiaries is a party or is subject.
Dividends
The "Dividend Date" for the Series C Preferred Stock is August 1 of each
year. If the Common Stock is listed on the New York or American Stock Exchange
or quoted on the Nasdaq National Market on the business day preceding a Dividend
Date, no dividend will accrue on the Series C Preferred Stock in respect of the
year then ended. If the Common Stock is not so listed or quoted on such business
day, on the following Dividend Date each share of Series C Preferred Stock will
accrue a cumulative dividend for the year then ended equal to 5% of (i) the
actual labor cost savings realized by Northwest from August 1, 1993 to such
Dividend Date plus the aggregate amount of previously accrued dividends on such
Series C Preferred Stock, divided by (ii) the total number of shares of Series C
Preferred Stock being issued by Northwest. Because the Common Stock is approved
for quotation on the Nasdaq National Market, no dividends have accrued on the
Series C Preferred Stock.
In the event Northwest fails to fulfill its mandatory redemption
obligations described above, as of the Put Date the Series C Preferred Stock
will begin to accrue a cumulative dividend payable quarterly at a rate equal to
the greater of 12% per annum or the highest default dividend rate then payable
on any series of Preferred Stock of Northwest.
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Voting Rights
The Series C Preferred Stock will vote in parity with the Common Stock on
all matters submitted to stockholders for a vote, except with respect to the
election of directors. When voting with the Common Stock, each share of Series C
Preferred Stock has a number of votes equal to 1.364.
With respect to the election of directors, the Series C Preferred Stock
voting as a separate class is entitled to elect a slate of three Series C
Directors, one of whom is to be nominated by the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America ("IBT"), one by the
International Association of Machinists and Aerospace Workers ("IAM") and one by
the Northwest Master Executive Council (the "Northwest MEC") of the Air Line
Pilots Association International ("ALPA"). During the period August 1, 1996
until July 31, 2003, the number of Series C Directors will be the greater of
three or the number that represents at least 15% of Northwest's directors.
In the event Northwest fails to fulfill its mandatory redemption
obligation described above, the number of Series C Directors will be increased
to the greater of (i) three more than the number of Series C Directors then
serving on Northwest's Board, and (ii) the number of directors that would cause
the proportion of Series C Directors to the total number of directors to be
equal to the proportion of the total voting power of all shares of Series C
Preferred Stock then outstanding to the total voting power of all shares of all
voting capital stock of Northwest then outstanding.
If the holders of Series C Preferred Stock are entitled to elect more than
three directors, the Northwest MEC, the IBT and the IAM will each be entitled to
nominate one-third of the Series C Directors, and if the total number of Series
C Directors is not a multiple of three, any remaining Series C Directors will be
nominated by a unanimous vote of the existing Series C Directors designated by
these three unions.
Holders of Series C Preferred Stock will not be entitled to vote such
stock for the election of any directors other than the Series C Directors. The
entitlement of the holders of Series C Preferred Stock to elect the Series C
Directors will expire on the first date on which no shares of Series C Preferred
Stock are outstanding, whether as a result of conversions, exchanges,
repurchases or redemptions.
Optional Redemption
Northwest may redeem the Series C Preferred Stock in whole or in part at
the Put Price at any time on 60 days' prior notice. Notwithstanding Northwest's
right to redeem the Series C Preferred Stock in whole, until August 1, 2003,
each trust may retain one share of Series C Preferred Stock for purposes of
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exercising the right to elect Series C Directors, as described above.
Liquidation Preference
The Series C Preferred Stock has a liquidation preference per share equal
to the Put Price. The issuance by Northwest of a new series of Preferred Stock
that ranks, as to both preference in liquidation and bankruptcy and the receipt
of dividends and repayment, senior to or pari passu with the Series C Preferred
Stock, does not require the consent of the holders of the Series C Preferred
Stock.
Transfer Agent and Registrar
Norwest Bank Minnesota, National Association is the transfer agent and
registrar for the Common Stock.
Item 2. Exhibits.
Exhibit No. Description
----------- -----------
1.1 Specimen of Common Stock Certificate.
Incorporated by reference to Exhibit 4.1 of
Northwest's Registration Statement on Form
S-1 (Registration No. 33-74210) filed
January 18, 1994, as amended (the
"Registration Statement").
2.1 Second Amended and Restated Certificate of
Incorporation of Northwest Airlines
Corporation. Incorporated by reference to
Exhibit 3.1 of the Registration Statement.
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2.2 Certificate of Amendment to Second Amended and Restated
Certificates of Incorporation of Northwest Airlines
Corporation. Incorporated by reference to Exhibit 3.7
of the Registration Statement.
2.3 Certificate of Designations for the Series D
Junior Participating Preferred Stock.
Incorporated by reference to Northwest's
Registration Statement on Form 8-A filed
with the Commission on November 17, 1995.
2.4 Certificate of Elimination for the Series A Preferred
Stock. Incorporated by reference to Exhibit 4.5 of
Northwest's Annual Report on Form 10-K for the Fiscal
Year Ended December 31, 1997 ("Form 10-K").
2.5 Certificate of Elimination for the Series B Preferred
Stock. Incorporated by reference to Exhibit 4.6 of the
Form 10-K.
2.6 Certificate of Amendment of Second Amended
and Restated Certificate of Incorporation of
Northwest Airlines Corporation.
2.7 Amended and Restated Bylaws of Northwest
Airlines Corporation.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereto duly authorized.
NORTHWEST AIRLINES CORPORATION
("Registrant")
Dated: April 30, 1998 By: /s/ Douglas M. Steenland
Douglas M. Steenland
Senior Vice President,
Secretary and General
Counsel
<PAGE>
INDEX TO EXHIBITS
Page Number
Filed Herewith (----); in Sequential
Exhibit or Incorporated by Numbering
No. Description Reference to System
- ------- ----------- ---------------------- ------------
1.1 Specimen of Common Exhibit 4.1 of
Stock Certificate. Northwest's
Registration
Statement on Form S-1
(Registration No. 33-
74210) filed January
18, 1994, as amended
(the "Registration
Statement").
2.1 Second Amended and Exhibit 3.1 of the
Restated Certificate Registration
of Incorporation of Statement.
Northwest Airlines
Corporation.
2.2 Certificate of Amendment Incorporated by reference
to Second Amended and to Exhibit 3.7 of the
Restated Certificate of Registration Statement.
Incorporation of Northwest
Airlines Corporation.
2.3 Certificate of Incorporated by
Designations for the reference to
Series D Junior Northwest's
Participating Registration
Preferred Stock. Statement on Form 8-A
filed with the
Commission on
November 17, 1995.
2.4 Certificate of Incorporated by
Elimination for the reference to Exhibit
Series A Preferred 4.5 of Northwest's
Stock. Annual Report on Form
10-K for the Fiscal Year Ended
December 31, 1997 ("Form 10- K")
2.5 Certificate of Incorporated by
Elimination for the reference to Exhibit
Series B Preferred 4.6 of Northwest's
Stock. Form 10-K.
2.6 Certificate of ----
Amendment of Second
Amended and Restated
Certificate of
Incorporation of
Northwest Airlines
Corporation.
2.7 Amended and Restated ----
Bylaws of Northwest
Airlines Corporation.
Exhibit 2.6
CERTIFICATE OF AMENDMENT
OF
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NORTHWEST AIRLINES CORPORATION
I, Douglas M. Steenland, Senior Vice President, Secretary and
General Counsel of Northwest Airlines Corporation (the "Corporation"), a
corporation duly organized and existing under the laws of the State of Delaware,
hereby certify that:
1. Article FOURTH of the Second Amended and Restated Certificate of
Incorporation of the Corporation (the "Charter") is amended to read in its
entirety as follows:
FOURTH: The total number of shares of stock which the
Corporation has authority to issue is 360,020,000 shares, consisting
of: (i) 315,000,000 shares of Common Stock, par value $.01 per share
(the "Common Stock"); and (ii) 45,020,000 shares of preferred stock,
par value $.01 per share (the "Preferred Stock").
(a) Conversion. (i) All outstanding shares of Class A Common
Stock, par value $.01 per share, of the Corporation ("Class A Common
Stock") and Class B Common Stock, par value $.01 per share, of the
Corporation ("Class B Common Stock") previously authorized by the
Second Amended and Restated Certificate of Incorporation shall, as
of the date of effectiveness of this Certificate of Amendment, be
converted, without the action of any holder thereof, into an equal
number of shares of Common Stock. The Class A Common Stock and the
Class B Common Stock shall no longer be authorized by the
Corporation.
(ii) Following the effective date of this Certificate of
Amendment, each certificate representing shares of Class A Common
Stock and Class B Common Stock shall be deemed to be a certificate
representing an equal number of shares of Common Stock.
(b) Preferred Stock. Pursuant to Section 151 of the Delaware
General Corporation Law, the Board of Directors of the Corporation
is authorized to fix by resolution or resolutions the designation of
each series of Preferred Stock and the powers, preferences and
relative participating, optional or other special rights and
qualifications, limitations or restrictions
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thereof, including, without limiting the generality of the
foregoing, such provisions as may be desired concerning voting,
redemption, dividends, dissolution or the distribution of assets,
conversion or exchange, and such other subjects or matters as may be
fixed by resolution or resolutions of the Board of Directors under
the Delaware General Corporation Law.
2. Paragraph (b)(ii) of Article FIFTH of the Charter is amended to
read as follows:
(ii) All certificates representing Common Stock or any other
voting stock of the Corporation are subject to the restrictions set
forth in this Article FIFTH.
3. The definition of the term "Qualified Holder" of Article TWELFTH
of the Charter is amended by replacing the reference to "Class A Common" therein
with "Common Stock".
4. At each other place in the Charter the terms "Class A Voting
Common Stock" and "Class A Common Stock" are amended to instead read, in each
case, "Common Stock".
5. Paragraphs 8(i)-(v) of the Certificate of Designation of the
Series C Voting Preferred Stock are amended to read in their entireties as
follows:
(8) Conversion Rights. (i) The Series C Voting Preferred Stock
shall be convertible at any time into common stock of the
Corporation on the basis set forth below. Except to the extent
otherwise provided in this paragraph 8, each share of Series C
Voting Preferred Stock shall be convertible into 1.364 shares of
common stock of the Corporation (the "Common Stock").
(ii) On or before the earlier of (a) April 30, 1994 (or, if
later, 30 days after the audited consolidated financial statements
of the Corporation for the fiscal year ended December 31, 1993 have
been made available to the Unions) or (b) 10 days after the filing
with the Securities and Exchange Commission of a registration
statement relating to an underwritten initial public offering of the
Common Stock representing not less than 10% of the Common Stock
outstanding on a fully diluted basis after giving effect to such
offering, each of (x) the Trustees of the Trusts and Separate
Arrangements, (except for those Trusts and Separate Arrangements for
the benefit of ALPA employees who are members of the Air Line Pilots
Association International ("ALPA"), or the trust beneficiaries to
the extent specified below); and (y) ALPA with respect to the Trusts
and Separate Arrangements for the benefit of ALPA employees, shall
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have the right (A) to convert each share of Series C Voting
Preferred Stock held by such Trust or Separate Arrangement into
1.909 shares of Common Stock and (B) to receive, in respect of all
future contributions to such Trust or Separate Arrangement, Common
Stock in lieu of Series C Voting Preferred Stock, at the same
conversion rate specified in clause (A) above; provided, however,
that such right may be exercised with respect to some or all of the
shares of Series C Voting Preferred Stock held or to be received by
such Trust or Separate Arrangement but may be exercised not more
than once. The right set forth in this paragraph 8(ii) is referred
to herein as the "Special Conversion Option." The Special Conversion
Option may be exercised by the trust beneficiaries with respect to
stock allocated to their accounts only if the Corporation has
previously filed a registration statement with the Securities and
Exchange Commission with respect to the Common Stock to be received
upon exercise of such option.
(iii) [DELETED]
(iv) [DELETED]
(v) Each share of Series C Voting Preferred Stock shall
automatically convert into 1.364 shares of the Common Stock upon the
sale, transfer, exchange or other disposition of record or
beneficial ownership of such share to (or with) any person who is
not a Qualified Holder (a "Non-Qualified Sale").
I further certify that the foregoing amendments of the Second
Amended and Restated Certificate of Incorporation of the Corporation have been
duly adopted in accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware.
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IN WITNESS WHEREOF, NORTHWEST AIRLINES CORPORATION has caused this
Certificate of Amendment to be signed by Douglas M. Steenland, Senior Vice
President, Secretary and General Counsel, and attested by Michael L. Miller,
Assistant Secretary, this ____ day of April, 1998.
NORTHWEST AIRLINES CORPORATION
By
----------------------------
Senior Vice President,
Secretary and General Counsel
ATTEST:
----------------------------
Assistant Secretary
Exhibit 2.7
AMENDED AND RESTATED BYLAWS
OF
NORTHWEST AIRLINES CORPORATION
(hereinafter called the "Corporation")
Adopted as of April __, 1998
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the office of
the Corporation shall be in Wilmington, New Castle County, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at
such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine.
ARTICLE II
MEETING OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at such time and
place, either within or without the State of Delaware, as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. The Annual Meeting of Stockholders shall
be held on such date and at such time as shall be designated from time to time
by the Board of Directors and stated in the notice of the meeting, at which
meeting the stockholders shall elect by a plurality vote a Board of Directors,
and transact such other business as may properly be brought before the meeting.
Section 3. Special Meetings. Special Meetings of Stockholders, for
any purpose or purposes, may be called only by the Chairman of the Board, and
shall be called by the Chairman of the Board at the request in writing of a
majority of the Board of Directors. Such request shall state the purpose or
purposes of the proposed meeting.
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Section 4. Notice of Meetings. Written notice of an Annual Meeting
or Special Meeting stating the place, date and hour of the meeting and in the
case of a Special Meeting, the purpose or purposes for which the meeting is
called, shall be given not less than ten nor more than sixty days before the
date of the meeting to each stockholder entitled to vote at such meeting.
Section 5. Quorum. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the capital stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such quorum shall not
be present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally noticed. If the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder entitled to vote at
the meeting.
Section 6. Voting. Except as otherwise provided by the Certificate
of Incorporation or these Bylaws, any questions brought before any meeting of
stockholders shall be decided by a majority vote of the number of shares present
in person or represented by proxy and entitled to vote on the subject matter.
Such votes may be cast in person or by proxy but no proxy shall be voted on
after three years from its date, unless such proxy provides for a longer period.
The Board of Directors, in its discretion, or the officer of the Corporation
presiding at a meeting of stockholders, in his discretion, may require that any
votes cast at such meeting shall be cast by written ballot.
Section 7. Special Voting Requirements. Notwithstanding anything in
Section 6 above, any plan of merger or consolidation with or into another person
or entity in one or a series of related transactions that is not approved by the
Board of Directors in accordance with the provisions of these Bylaws and which
is brought before any meeting of stockholders shall require the vote of not less
than two-thirds of the shares of stock entitled to vote thereon. Any amendment
to this Section 7 of Article II of these Bylaws shall require the approval of
not less than two-thirds of the shares of stock entitled to vote thereon or a
two-thirds vote of the Board of Directors.
Section 8. List of Stockholders Entitled to Vote. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare
and make, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be
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specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is present.
Section 9. Stockholder Ledger. Except as otherwise provided in the
Certificate of Incorporation or in Article IX of these Bylaws, the stock ledger
of the Corporation shall be the only evidence as to who are the stockholders
entitled to examine the stock ledger, the list required by Section 8 of this
Article II or the books of the Corporation, or to vote in person or by proxy at
any meeting of stockholders.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. (a) The Board of
Directors shall consist of 15 members. Except as provided in Sections 1 and 2 of
this Article, directors shall be elected by a plurality of the votes cast at
Annual Meetings of Stockholders, and each director so elected shall hold office
until the next Annual Meeting and until his successor is duly elected and
qualified, or until his earlier resignation or removal.
(b) Notwithstanding anything in this Section 1 or in Section 2 of
this Article III to the contrary, each of the holders of the series C preferred
stock, par value $0.01 per share (the "Series C Preferred Stock"), of the
Corporation may vote to elect directors to the Board of Directors, and to fill
vacancies on the Board of Directors, in accordance with the terms of the
certificate of designation for such stock; provided, however, that each director
elected by holders of the Series C Preferred Stock (a "Series C Director") must
be a citizen of the United States.
(c) Subject to the exclusive rights of holders of any class or
series of stock having a preference over the Common Stock as to dividends or
upon liquidation to elect Series C Directors or directors of the Corporation
upon the happening of certain events (including as referred to in Section 1(b)),
nominations of candidates for election as directors of the Corporation at any
meeting of stockholders of the Corporation may be made by the Chairman of the
Board of Directors or by any stockholder entitled to vote at such meeting who
complies with the provisions of this Section 1(c). Not less than 60 days prior
to the date of the anniversary of the annual meeting held in the prior year, in
the case of an annual meeting, or, in the case of a special meeting called by
the Chairman of the Board for the purpose of electing directors, not more than
10 days following the earlier of the date of notice of such special meeting or
the date on which a public announcement of such meeting is made, any stockholder
who intends to make a nomination at the meeting shall deliver written notice to
the Secretary of the Corporation setting forth (i) the name and address of the
stockholder who intends to make the nomination and of the person or persons to
be nominated; (ii) a representation that the stockholder (A) is a United States
Citizen (as such term is defined in the Certificate of Incorporation), (B) is a
holder of record of stock of the Corporation
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specified in such notice, (C) is or will be entitled to vote at such meeting,
and (D) intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice; (iii) a statement that the nominee
(or nominees) is a United States Citizen (as defined above) and is willing to be
nominated; and (iv) such other information concerning each such nominee as would
be required under the rules of the Securities and Exchange Commission in a proxy
statement soliciting proxies for the election of such nominee and in a Schedule
14B (or other comparable required filing then in effect) under the Securities
Exchange Act of 1934. In the event that a person is validly designated as a
proposed nominee in accordance with this Section l(c) (including a bona fide
statement that the nominee is willing to be nominated) and shall thereafter
become unable or unwilling to stand for election to the Board of Directors, the
stockholder who made such designation may designate promptly in the manner set
forth above a substitute proposed nominee, notwithstanding the minimum time
period set forth in this Section 1(c). No person may be elected as a director at
a meeting of stockholders unless nominated in accordance with this Section l(c),
and any purported nomination or purported election not made in accordance with
the procedures as set forth in this Section 1(c) shall be void. In addition to
any other requirements relating to amendments to these Bylaws, no proposal by
any stockholder to repeal or amend this Section l(c) shall be brought before any
meeting of the stockholders of the Corporation unless written notice is given of
(i) such proposed repeal or the substance of such proposed amendment; (ii) the
name and address of the stockholder who intends to propose such repeal or
amendment; and (iii) a representation that the stockholder is a holder of record
of stock of the Corporation specified in such notice, is or will be entitled to
vote at such meeting and intends to appear in person or by proxy at the meeting
to make the proposal. Such notice shall be given in the manner and at the time
specified above in this Section 1(c). Any proposal to repeal or amend or any
such purported repeal or purported amendment of this Section 1(c) not made or
adopted in accordance with the procedures set forth in this Section 1(c) shall
be void. Any amendment to this Section l(c) shall require the vote of holders of
not less than two-thirds of the shares of stock entitled to vote thereon.
Section 2. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors shall be
filled by a majority vote of all directors, including the Series C Directors, as
defined in Section 1 of this Article III, or by a sole remaining director, and
the directors so chosen shall hold office until the next annual election and
until their successors are duly elected and qualified, or until their earlier
resignation or removal; provided, however, that:
(a) Any interim vacancy among the Series C Directors, whether such
vacancy occurs as a result of death, removal or otherwise, shall be
filled, effective at the beginning of the next meeting of the Board of
Directors, by a designee nominated by the Union, as defined in the
Certificate of Designation for the Series C Preferred Stock (the "Series C
Certificate of Designation"), that nominated the previous holder of the
vacant position pursuant to the terms of the Letter Agreements (as defined
below); provided, however, that for any vacancy among the Series C
Directors created by an increase in the size of the Board of Directors
pursuant to the provisions of paragraph 7(ii)(a) or 7(ii)(b) of the Series
C Certificate of Designation, the Air Line Pilots Association, the
International Brotherhood of Teamsters and the International
<PAGE>
5
Association of Machinists and Aerospace Workers, each acting through its
President or, in the case of Airline Pilots Association, the Northwest
Airlines, Inc. Master Executive Council, shall each be entitled to
nominate one-third of the Series C Directors and if the total number of
Series C Directors is not a multiple of three, any remaining Series C
Directors shall be nominated by a unanimous vote of the existing Series C
Directors designated by such three Unions.
(b) In the event that, in connection with the redemption of Series C
Preferred Stock pursuant to paragraph 9(i)(a) of the Series C Certificate
of Designation, the Corporation issues additional shares of Common Stock
to the exchanging holders of Series C Preferred Stock and, following such
issuance, the number of shares of Common Stock held by Qualified Holders
of Employee Stock, as such terms are defined in the Series C Certificate
of Designation, after such redemption is greater than 50% of the number of
shares of voting capital stock of the Corporation then outstanding, the
terms of all sitting members of the Board of Directors of the Corporation,
other than the Series C Directors, shall thereupon terminate and the
Series C Directors shall appoint the successors of such directors. Any
director may resign at any time upon notice to the Corporation. Directors
need not be stockholders.
Section 3. Committees. The Board of Directors may designate one or
more committees, which committees shall, to the extent provided in the
resolution of the Board of Directors establishing such a committee, have all
authority and may exercise all the powers of the Board of Directors in the
management of the business and affairs of the Corporation to the extent lawful
under the General Corporation Law of the State of Delaware, provided, however,
to the extent that directors serve as members of a committee designated by the
Board of Directors, at least one of such directors shall be a Series C Director
as long as any Series C Directors sit on the Board of Directors.
Section 4. Duties and Powers. The business of the Corporation shall
be managed by or under the direction of the Board of Directors which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
Bylaws directed or required to be exercised or done by the stockholders.
Section 5. Meetings. The Board of Directors of the Corporation may
hold meetings, both regular and special, either within or without the State of
Delaware. Regular meetings of the Board of Directors may be held without notice
at such time and at such place as may from time to time be determined by the
Board of Directors. Special meetings of the Board of Directors may be called by
the Chairman, if there be one, the President, or any two directors. Notice
thereof stating the place, date and hour of the meeting shall be given to each
director either by mail not less than forty-eight (48) hours before the date of
the meeting, by telephone or telegram on twenty-four (24) hours' notice, or on
such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
<PAGE>
6
Section 6. Quorum; Board Action. (a) Except as may be otherwise
specifically provided by law, the Certificate of Incorporation or these Bylaws,
at all meetings of the Board of Directors, a majority of the entire Board of
Directors shall constitute a quorum for the transaction of business and the act
of a majority of the entire Board of Directors shall be the act of the Board of
Directors. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
(b) [Deleted]
(c) Notwithstanding anything in Section 6(a) to the contrary, the
Corporation's Certificate of Incorporation or these Bylaws may not be amended to
abrogate any of the terms or rights or powers of the Series C Preferred Stock in
a manner inconsistent with the terms of the Letter Agreements, or the Common
Stock into which such Series C Preferred Stock may be converted, without the
affirmative vote of a majority of the Series C Directors.
(d) The following term shall have the following meaning for the
purpose of this Article III:
"Letter Agreements" shall mean the equity letter agreements entered into
in 1993 between the Corporation and Northwest on the one hand and the Air
Line Pilots Association, the International Brotherhood of Teamsters, the
International Association of Machinists and Aerospace Workers, the
Transport Workers Union of America, the Airline Technical Support
Association and the Northwest Airlines Meteorologists Association on the
other hand.
Section 7. Actions of Board. Unless otherwise provided by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all the members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
Section 8. Meetings by Means of Conference Telephone. Members of the
Board of Directors of the Corporation, or any committee designated by the Board
of Directors, may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this Section 8 shall constitute
presence in person at such meeting.
Section 9. Compensation. The directors may be paid their expenses,
if any, of attendance at each meeting of the Board of Directors and may be paid
a fixed sum for attendance at each meeting of the Board of Directors or a stated
salary as director or both. No such payment shall preclude any director from
serving the Corporation in any other capacity
<PAGE>
7
and receiving compensation therefor. Members of special or standing committees
may be allowed like compensation for attending committee meetings.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be chosen
by the Board of Directors and shall be a President, a Secretary and a Treasurer.
The Board of Directors, in its discretion, may also choose a Chairman of the
Board of Directors (who must be a director) and one or more Vice Presidents,
Assistant Secretaries, Assistant Treasurers and other officers. Any number of
offices may be held by the same person. The officers of Corporation need not be
stockholders of the Corporation nor, except in the case of the Chairman of the
Board of Directors, need such officers be directors of the Corporation.
Section 2. Election. The Board of Directors at its first meeting
held after each Annual Meeting of Stockholders shall elect the officers of the
Corporation who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the
Board of Directors; and all officers of the Corporation shall hold office until
their successors are chosen and qualified, or until their earlier resignation or
removal. Any officer may be removed at any time by the Board of Directors. Any
vacancy occurring in any office of the Corporation shall be filled by the Board
of Directors. The salaries of all officers of the Corporation shall be fixed by
the Board of Directors.
Section 3. Voting Securities Owned by the Corporation.
Notwithstanding anything to the contrary contained herein, powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating
to securities owned by the Corporation may be executed in the name of and on
behalf of and such securities, if voting securities, may be voted on behalf of,
the Corporation (i) by such officer or officers as are specifically delegated to
do so in any particular instance by the Board of Directors of the Corporation
and (ii) the President or any Vice President, in any other case, and any such
officer may, in the name of and on behalf of the Corporation, take all such
action as such officer may deem advisable to vote such securities in person or
by proxy at any meeting of security holders of any corporation in which the
Corporation may own securities and at any such meeting shall possess and may
exercise any and all rights and power incident to the ownership of such
securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time
to time confer like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors. The Chairman of the
Board of Directors, if there be one, shall preside at all meetings of the
stockholders and of the Board of Directors. He or she shall be the Chief
Executive Officer of the Corporation, and except where by law the signature of
the President is required, the Chairman of the Board of Directors shall possess
the same power as the President to sign all contracts, certificates and
<PAGE>
8
other instruments of the Corporation which may be authorized by the Board of
Directors. During the absence or disability of the President, the Chairman of
the Board of Directors shall exercise all the powers and discharge all the
duties of the President. The Chairman of the Board of Directors shall also
perform such other duties and may exercise such other powers as from time to
time may be assigned to him or her by these Bylaws or by the Board of Directors.
Section 5. President. The President shall be subject to the control
of the Board of Directors and, if there be one, the Chairman of the Board of
Directors. He or she shall execute all bonds, mortgages, contracts and other
instruments of the Corporation requiring a seal, under the seal of the
Corporation, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Corporation may sign and
execute documents when so authorized by these Bylaws, the Board of Directors,
the President or, if there be one, the Chairman of the Board of Directors. In
the absence of disability of the Chairman of the Board of Directors, or if there
be none, the President shall preside at all meetings of the stockholders and the
Board of Directors. If there be no Chairman of the Board of Directors, the
President shall be the Chief Executive Officer of the Corporation. The President
shall also perform such other duties and may exercise such other powers as from
time to time may be assigned to him or her by these Bylaws or by the Board of
Directors.
Section 6. Vice Presidents. At the request of the President or in
his or her absence or in the event of his or her inability or refusal to act
(and if there be no Chairman of the Board of Directors), the Vice President or
the Vice Presidents if there is more than one (in the order designated by the
Board of Directors) shall perform the duties of the Chief Executive Officer of
the Corporation, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the President. Each Vice President shall perform
such other duties and have such other powers as the Board of Directors from time
to time may prescribe. If there be no Chairman of the Board of Directors and no
Vice President, the Board of Directors shall designate the officer of the
Corporation who, in the absence of the President or in the event of the
inability or refusal of the President to act, shall perform the duties of the
Chief Executive Officer of the Corporation, and when so acting, shall have all
the powers of and be subject to all the restrictions upon such Chief Executive
Officer.
Section 7. Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors or the
Chief Executive Officer of the Corporation, under whose supervision he or she
shall be. If the Secretary shall be unable or shall refuse to cause to be given
notice of all meetings of the stockholders and special meetings of the Board of
Directors, and if there be no Assistant Secretary, then either the Board of
Directors or the Chief Executive Officer of the Corporation may choose another
officer to cause such notice to be given. The Secretary shall have custody of
the seal of the Corporation and the Secretary or any Assistant Secretary, if
<PAGE>
9
there be one, shall have authority to affix the same to any instrument requiring
it and when so affixed, it may be attested by the signature of the Secretary or
by the signature of any such Assistant Secretary. The Board of Directors may
give general authority to any other officer to affix the seal of the Corporation
and to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records
required by law to be kept or filed are properly kept or filed, as the case may
be.
Section 8. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Chief Executive Officer of the
Corporation and the Board of Directors, at its regular meetings, or when the
Board of Directors so requires, an account of all his or her transactions as
Treasurer and of the financial condition of the Corporation. If required by the
Board of Directors, the Treasurer shall give the Corporation a bond in such sum
and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his or her office and
for the restoration to the Corporation, in case of his or her death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his or her
control belonging to the Corporation.
Section 9. Assistant Secretaries. Except as may be otherwise
provided in these Bylaws, Assistant Secretaries, if there be any, shall perform
such duties and have such powers as from time to time may be assigned to them by
the Board of . Directors, the Chairman of the Board of Directors, the President,
any Vice President, if there be one, or the Secretary, and in the absence of the
Secretary or in the event of his disability or refusal to act, shall perform the
duties of the Secretary, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Secretary.
Section 10. Assistant Treasurers. Assistant Treasurers, if there be
any, shall perform such duties and have such powers as from time to time may be
assigned to them by the Board of Directors, the Chairman of the Board of
Directors, the President, any Vice President, if there be one, or the Treasurer,
and in the absence of the Treasurer or in the event of his or her disability or
refusal to act, shall perform the duties of the Treasurer, and when so acting,
shall have all the powers of and be subject to all the restrictions upon the
Treasurer. If required by the Board of Directors, an Assistant Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for the faithful performance of
the duties of his or her office and for the restoration to the Corporation, in
case of his or her death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in his
possession or under his or her control belonging to the Corporation.
Section 11. Other Officers. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from time
to time may be assigned
<PAGE>
10
to them by the Board of Directors. The Board of Directors may delegate to any
other officer of the Corporation the power to choose such other officers and to
prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder of stock in the
Corporation shall be entitled to have a certificate signed, in the name of the
Corporation (i) by the Chairman of the Board of Directors, the President or a
Vice President and (ii) by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary of the Corporation, certifying the number of
shares owned by him or her in the Corporation.
Section 2. Signatures. Where a certificate is countersigned by (i) a
transfer agent other than the Corporation or its employee, or (ii) a register
other than the Corporation or its employee, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he or she were such officer, transfer agent or registrar at the date of
issue.
Section 3. Lost Certificates. The Board of Directors may direct a
new certificate to be issued in place of any certificate theretofore issued by
the Corporation alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate of stock to
be lost, stolen or destroyed. When authorizing such issue of a new certificate,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his or her legal representative, to advertise the same in such
manner as the Board of Directors shall require and/or to give the Corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the Corporation with respect to the certificate alleged to have
been lost, stolen and destroyed.
Section 4. Transfers. Stock of the Corporation shall be transferable
in the manner prescribed by law and in these Bylaws. Transfers to stock shall be
made on the books of the Corporation only by the person named in the certificate
or by his or her attorney lawfully constituted in writing and upon the surrender
of the certificate therefor, which shall be canceled before a new certificate
shall be issued.
Section 5. Record Date. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty days nor less than ten
<PAGE>
11
days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 6. Beneficial owners. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends and to vote as such owner, and to hold liable for
calls and assessments a person registered on its books as the owner of shares,
and shall not be bound to recognize any equitable or other claim to or interest
in such share or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice is required by law, the
Certificate of Incorporation or these Bylaws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address
as it appears on the records of the Corporation, with postage thereon prepaid,
and such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Written notice may also be given personally
or by telegram, telex, cable or telecopy (facsimile).
Section 2. Waivers of Notice. Whenever any notice is required by
law, the Certificate of Incorporation or these Bylaws, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing,
signed by the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting or the stockholders, directors, or
members of a committee of directors need be specified in any written notice
unless so required by the Certificate of Incorporation or these Bylaws.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, may
be declared by the Board of Directors at any regular or special meeting, and may
be paid in cash, in property or in shares
<PAGE>
12
of the capital stock. Before payment of any dividend, there may be set aside out
of any funds of the Corporation available for dividends such sum or sums as the
Board of Directors from time to time, in its absolute discretion, deems proper
as a reserve or reserves to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the Corporation, or for any proper
purpose, and the Board of Directors may modify or abolish any such reserve.
Section 2. Disbursements. All checks or demands for money and notes
of the Corporation shall be signed by the Treasurer or such officer or officers
or such other person or persons as the Board of Directors may from time to time
designate.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
Section 5. [Deleted]
Section 6. Certain Repurchases of Series C Preferred Stock. (a) Any
decision by the Board of Directors either (i) not to repurchase all of the
Series C Preferred Stock with respect to which holders have exercised the Put
Right, as defined in the Series C Certificate of Designation, either (x) with
cash pursuant to paragraph 9(i)(a) of the Series C Certificate of Designation or
(y) pursuant to the procedures set forth in paragraph 9(i)(b) of the Series C
Certificate of Designation, but instead to redeem such Series C Preferred Stock
with shares of Common Stock pursuant to paragraph 9(i)(a) of the Series C
Certificate of Designation, or (ii) not to redeem any of the Series C Preferred
Stock in accordance with the requirements of paragraph 9(i) of the Series C
Certificate of Designation, may only be made if a majority of the Series C
Directors consent to such decision.
(b) Any decision by the Board of Directors of the Corporation on any
Partial Repurchase Date, as defined in the Series C Certificate of Designation,
not to use all Available Cash as defined in the Series C Certificate of
Designation, to effect a Partial Repurchase, as defined in the Series C
Certificate of Designation, may only be made if a majority of the Series C
Directors consent to such decision.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings Other
than Those by or in the Right of the Corporation. Subject to Section 4 of this
Article VIII, the Corporation shall indemnify any person who was or is a party
or is threatened to be made a
<PAGE>
13
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Corporation) by reason of the fact that he or she is
or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
Section 2. Power to Indemnify in Actions, Suits or Proceedings by or
in the Right of the Corporation. Subject to Section 4 of this Article VIII, the
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he or she is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation; except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable for gross negligence or willful misconduct to the
Corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 3. Notwithstanding the other provisions of this Article
VIII, to the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise, including without
limitation the dismissal of an action without prejudice, in the defense of any
action, suit or proceeding referred to in Sections 2 and 3 above, or in the
defense of any claim, issue or matter therein, that person shall be indemnified
against all costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by that person or on that person's behalf in connection
therewith.
Section 4. Authorization of Indemnification. Any indemnification
under this Article VIII (unless ordered by a court) shall be made by the
Corporation unless a determination is made (i) by the Board of Directors by a
majority vote of a quorum consisting
<PAGE>
14
of directors who were not parties to such action, suit or proceeding, or (ii) if
such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders, that indemnification of the director,
officer, employee or agent is not proper because that person has not met the
applicable standards of conduct set forth in Sections 1 and 2 above.
Section 5. Good Faith Defined. For purposes of any determination
under this Article VIII, a person shall be deemed to have acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his or her conduct was
unlawful, if his or her action is based on the records or books of account of
this Corporation or another enterprise, or on information supplied to him or her
by the officers of the Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the Corporation or another
enterprise or on information or record given or reports made to the Corporation
or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or
another enterprise. The term "another enterprise" as used in this Section 5
shall mean any other corporation or any partnership, joint venture, trust or
other enterprise of which such person is or was serving at the request of the
Corporation as a director, officer, employee or agent. The provisions of this
Section 5 shall not be deemed to be exclusive or to limit in any way the
circumstances in which a person may be deemed to have met the applicable
standard of conduct set forth in Sections 1 and 2 of this Article VIII, as the
case may be.
Section 6. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 4 of this Article VIII, and
notwithstanding the absence of any determination thereunder, any director,
officer, employee or agent may apply to any court of competent jurisdiction in
the State of Delaware for indemnification to the extent otherwise permissible
under Sections 1 and 2 of this Article VIII. The basis of such indemnification
by a court shall be a determination by such court that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
or she has met the applicable standards of conduct set forth in Sections 1 and 2
of this Article VIII, as the case may be. Notice of any application for
indemnification pursuant to this Section 6 shall be given to the Corporation
promptly upon the filing of such application.
Section 7. Advance of Costs, Charges and Expenses. Costs, charges
and expenses (including attorneys' fees) incurred by a person referred to in
Sections 1 and 2 above in defending a civil or criminal action, suit or
proceeding (including investigations by any government agency and all costs,
charges and expenses incurred in preparing for any threatened action, suit or
proceeding) shall be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding; provided however, that the payment of such
costs, charges and expenses incurred by a director or officer in that person's
capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer) in
advance of the final disposition of such action, suit or proceeding shall be
made only upon receipt of an undertaking by or on behalf of the director or
officer to repay all amounts so advanced in the event that it shall ultimately
be determined that such director or officer is not entitled to be indemnified by
the Corporation as authorized
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in this Article VIII. No security be required for such undertaking and such
undertaking shall be accepted without reference to the recipient's financial
ability to make repayment. The repayment of such charges and expenses incurred
by other employees and agents of the Corporation which are paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding as permitted by this Section 7 may be required upon such terms and
conditions, if any, as the Board of Directors deems appropriate. The Board of
Directors may, in the manner set forth above, and subject to the approval of
such director, officer, employee or agent of the Corporation, authorize the
Corporation's counsel to represent such person, in any action, suit or
proceeding, whether or not the Corporation is party to such action, suit or
proceeding.
Section 8. Procedure for Indemnification. Any indemnification under
Sections 1, 2 or 3 or advance of costs, charges and expenses under Section 7 of
this Article VIII shall be made promptly, and in any event, within sixty (60)
days, upon the written request of the director, officer, employer or agent
directed to the Secretary of the Corporation. The right to indemnification or
advances granted in this Article VIII shall be enforceable by the director,
officer, employer or agent in any court of competent jurisdiction if the
Corporation denies such request, in whole or part, or if no disposition thereof
is made within sixty (60) days. Such person's costs and expenses incurred in
connection with successfully establishing that person's right to indemnification
or advances, in whole or in part, in any such action shall also be indemnified
by the Corporation. It shall be a defense to any such action (other than an
action brought to enforce a claim for advance costs, charges and expenses under
Section 7 of this Article VIII where the required undertaking, if any, has been
received by the Corporation) that the claimant has not met the standard of
conduct set forth in Sections 1 or 2 of this Article VIII, but the burden of
proving such standard of conduct has not been met shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors, its
independent legal counsel and its stockholders) to have made such a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in Sections 1 and 2 of this Article
VIII, nor the fact that there has been an actual determination by the
Corporation (including its Board of Directors, its independent legal counsel and
its stockholders) that the claimant has not met such applicable standard, shall
be a defense to the action or create a presumption that the claimant has not met
the applicable standard of conduct.
Section 9. Non-Exclusivity of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by or granted
pursuant to this Article VIII shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under any Bylaw, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever embodied) of any
court of competent jurisdiction or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding such
office, it being the policy of the Corporation that indemnification of the
persons specified in Sections 1 and 2 of this Article VIII shall be made to the
fullest extent permitted by law. The provisions of this Article VIII shall not
be deemed to preclude the indemnification of any person who is not specified in
Sections 1 or 2 of this Article VIII but whom the Corporation has the power
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or obligation to indemnify under the provisions of the General Corporation Law
of the State of Delaware, or otherwise.
Section 10. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him or her and incurred by him or her in any such capacity, or arising out of
his or her status as such, whether or not the Corporation would have the power
or the obligation to indemnify him or her against such liability under the
provisions of this Article VIII.
Section 11. Meaning of "Corporation" for Purposes of Article VIII.
For purposes of this Article VIII, references to "the Corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request for such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article VIII with respect to
the resulting or surviving corporation as he or she would have with respect to
such constituent corporation if its separate existence had continued.
Section 12. Survival of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by, or granted pursuant
to, this section shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
ARTICLE IX
OWNERSHIP BY FOREIGN PERSONS
Section 1. Foreign Stock Record. There shall be maintained a
separate stock record, designated the "Foreign Stock Record", for the
registration of Alien Owned Shares. The Beneficial Ownership by Persons of Alien
Owned Shares shall be determined in conformity with regulations prescribed by
the Board of Directors.
Section 2. Permitted Percentage. At no time shall ownership of
shares representing more than the Permitted Percentage be registered on the
Foreign Stock Record.
Section 3. Registration of Shares. If at any time there exist Alien
Owned Shares that are not registered on the Foreign Stock Record, the Beneficial
Owner thereof may request, in writing, that the Corporation register ownership
of such shares on the Foreign
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Stock Record and the Corporation shall comply with such request, subject to the
limitation set forth in Section 2. The order in which Alien Owned Shares shall
be registered on the Foreign Stock Record shall be chronological, based on the
date the Corporation received a written request to so register such shares of
Alien Owned Shares; provided, that any Person who is not a U.S. Citizen who
purchases or otherwise acquires Alien Owned Shares that are registered on the
Foreign Stock Record, may register such shares in its own name within thirty
days of such acquisition, in which event such Person will assume the position of
the seller of such shares in the chronological order of shares registered on the
Foreign Stock Record. If at any time the Corporation shall find that the
combined voting power of Alien Owned Shares then registered on the Foreign Stock
Record exceeds the Permitted Percentage, there shall be removed from the Foreign
Stock Record the registration of such number of shares so registered as is
sufficient to reduce the combined voting power of the shares so registered to an
amount not in excess of the Permitted Percentage. The order in which such shares
shall be removed shall be reverse chronological order based upon the date the
Corporation received a written request to so register such shares of Alien Owned
Shares.
Section 4. Definitions. Capitalized terms used in this Article IX
and not defined herein shall have the meaning ascribed to them in the
Certificate of Incorporation.
ARTICLE X
AMENDMENTS
Section 1. Subject to the voting requirements of Section 7 of
Article II and Sections 1(c) and 6 of Article III hereof, these Bylaws may be
altered, amended or repealed, in whole or in part, or new Bylaws may be adopted,
by the vote of the stockholders or the Board of Directors.
