<PAGE> 1
As filed with the Securities and Exchange Commission on August 20, 1996
REGISTRATION NO. 333-4292
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________________
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
__________________________________
IN-FLIGHT PHONE CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 4825 36-3733319
(State of (Primary Standard Industrial (IRS Employer
Incorporation) Classification Code Number) Identification Number)
ONE TOWER LANE
OAKBROOK TERRACE, ILLINOIS
(630) 573-2660
(Address and Telephone Number of Registrant's Principal Executive Office)
__________________________________
Copies to:
MICHAEL K. NISSENBAUM PAUL C. MEYER, ESQ.
In-Flight Phone Corporation Rogers & Wells
One Tower Lane 200 Park Avenue
Oakbrook Terrace, Illinois New York, New York 10166
(630) 573-2660 (212) 878-8000
(Name, Address and Telephone Number of Agent for Service)
__________________________________
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE> 2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Amendment to this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in
the City of Oakbrook Terrace, State of Illinois on the 12th day of
August, 1996.
IN-FLIGHT PHONE CORPORATION
By: Philip J. Bakes
--------------------------------
Philip J. Bakes
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment to this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Phillip J. Bakes Chairman, President, Chief August 12, 1996
---------------------------------
Philip J. Bakes Executive Officer and Director
(Principal Executive Officer and
Director)
Michael K. Nissenbaum Chief Financial Officer, Secretary and August 12, 1996
---------------------------------
Michael K. Nissenbaum Treasurer (Principal Financial
Officer, Principal Accounting Officer)
Michael J. Rowny Chairman of the Executive August 12, 1996
---------------------------------
Michael J. Rowny Committee and Director
Director August ___ , 1996
---------------------------------
Fred M. Briggs
Talat M. Othman Director August 12, 1996
---------------------------------
Talat M. Othman
Director August ___, 1996
---------------------------------
Michael B. Rohlfs
</TABLE>
15
<PAGE> 3
IN-FLIGHT PHONE CORPORATION
_________________________________________
REGISTRATION STATEMENT
ON FORM S-1
UNDER
THE SECURITIES ACT OF 1933
________________________________________
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description of Exhibit Page Number
-------- ---------------------- -------------
<S> <C> <C>
3.1 Amended and Restated Certificate of Incorporation of the Registrant.*
3.2 By-Laws of the Registrant.*
4.1 Warrant Agreement, dated as of May 9, 1995, between the Registrant and
Marine Midland Bank, as Warrant Agent.(1)
4.2 Warrant Agreement, dated as of April 4, 1995 between the Registrant
and MCI Telecommunications Corporation.(2)
4.3 Warrant Agreement, dated as of April 4, 1995 between the Registrant
and IFPC Funding, Inc.
5.1 Opinion of Rogers & Wells regarding legality of the Warrants and
Warrant Shares.
10.1 Telephone and Interactive Data Services System Agreement, dated March
6, 1993, between the Registrant and USAir, Inc.(3)
10.2 Telephone System Agreement, dated June 7, 1994, between the Registrant
and Continental Airlines, Inc. ("Continental").(4)
10.21 Letter Agreement, dated March 29, 1995 between the Registrant and
Continental amending the terms of the Telephone System Agreement,
dated June 7, 1994, between the Registrant and Continental.++
10.22 Letter Agreement, dated April 5, 1996 between the Registrant and
Continental amending the terms of the Telephone System Agreement,
dated June 7, 1994, between the Registrant and Continental.++
10.3 Standby Operating Agreement, dated June 7, 1994, among Continental,
MCI Telecommunications Corporation ("MCI") and the Registrant (the
"Standby Operating Agreement").(5)
10.31 Amended and Restated Standby Operating Agreement, dated as of April 5,
1996, among Continental, MCI and the Registrant.++*
10.4 Financial Guaranty, dated June 7, 1994, between MCI and Continental
(the "Financial Guarantee").(6)
10.5 Agreement as to compensation under the Standby Operating Agreement
dated June 7, 1994 between the Registrant and MCI.(7)
10.6 Agreement concerning payments under the MCI Financial Guaranty, dated
June 7, 1994 among the Registrant, Holdings and MCI.(8)
10.7 Air-to-Ground Telecommunications Agreement, dated November 24, 1993,
between the Registrant and America West Airlines, Inc.(9)
</TABLE>
1
<PAGE> 4
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description of Exhibit Page Number
-------- ---------------------- -------------
<S> <C> <C>
10.71 Agreement dated November 2, 1995 among the Registrant, America West
Airlines, Inc. and MCI Telecommunications Corporation.(10)
10.8 Indenture, dated as of May 9, 1995, between the Registrant and Marine
Midland Bank, as Trustee (the "Indenture").(11)
10.9 Subordinated Notes Due July 1, 2003 issued by the Registrant to John
Hancock Mutual Life Insurance Company ("Hancock") in the aggregate
principal amount of $18,780,753.39.(12)
10.10 Subordinated Note Due July 1, 2003 issued by the Registrant to the
State Treasure of the State of Michigan, Custodian of the Michigan
Public School Employees' Retirement System, State Employees'
Retirement System and Michigan Judges Retirement System in the
principal amount of $6,182,684.57.(13)
10.11 Shareholders Agreement, dated April 4, 1995, among MCI, Hancock, and
Dearborn Financial Inc., and certain of its affiliates.(14)
10.12 Tax Sharing Agreement, dated April 4, 1995, between the Registrant and
Holdings.(15)
10.13 Employment Agreement among the Registrant, Holdings and Phil
Bakes.(16)
10.14 Employment Agreement between the Registrant and Neal F. Meehan.(17)
10.15 Consulting Agreement among the Registrant, Holdings and Sojourn
Enterprises, Inc.(18)
10.16 Registrant's 1995 Bonus Plan.(19)
10.17 Holdings' 1995 Stock Option Plan.(20)
21.1 Subsidiaries of the Registrant.(21)
23.1 Consent of Rogers & Wells (contained in opinion filed as Exhibit 5.1)
23.2 Consent of Price Waterhouse LLP.
25.1 Statement on Forms T-1 of the Eligibility of Marine Midland Bank as
Trustee under the Indenture (bound separately).(22)
</TABLE>
-----------------------
* Filed with this amendment.
++ The Registrant has filed an Amended Application for Confidential
Treatment pursuant to Rule 406 under the Securities Act of 1933 with
regard to portions of this document.
(1) Incorporated by reference to Exhibit 4.2 of Form S-4 dated November
13, 1995, file number 33-92752.
(2) Incorporated by reference to Exhibit 10.8 of Form S-4 dated November
13, 1995, file number 33-92752.
(3) Incorporated by reference to Exhibit 10.1 of Form S-4 dated November
13, 1995, file number 33-92752.
(4) Incorporated by reference to Exhibit 10.2 of Form S-4 dated November
13, 1995, file number 33-92752.
(5) Incorporated by reference to Exhibit 10.3 of Form S-4 dated November
13, 1995, file number 33-92752.
(6) Incorporated by reference to Exhibit 10.4 of Form S-4 dated November
13, 1995, file number 33-92752.
(7) Incorporated by reference to Exhibit 10.5 of Form S-4 dated November
13, 1995, file number 33-92752.
(8) Incorporated by reference to Exhibit 10.6 of Form S-4 dated November
13, 1995, file number 33-92752.
(9) Incorporated by reference to Exhibit 10.7 of Form S-4 dated November
13, 1995, file number 33-92752.
(10) Incorporated by reference to Exhibit 10.71 of Form S-4 dated
November 13, 1995, file number 33-92752.
(11) Incorporated by reference to Exhibit 4.1 of Form S-4 dated
November 13, 1995, file number 33-92752.
(12) Incorporated by reference to Exhibit 10.9 of Form S-4 dated
November 13, 1995, file number 33-92752.
(13) Incorporated by reference to Exhibit 10.10 of Form S-4 dated
November 13, 1995, file number 33-92752.
(14) Incorporated by reference to Exhibit 10.11 of Form S-4 dated
November 13, 1995, file number 33-92752.
2
<PAGE> 5
(15) Incorporated by reference to Exhibit 10.12 of Form S-4 dated
November 13, 1995, file number 33-92752.
(16) Incorporated by reference to Exhibit 10.13 of Form S-4 dated
November 13, 1995, file number 33-92752.
(17) Incorporated by reference to Exhibit 10.14 of Form S-4 dated
November 13, 1995, file number 33-92752.
(18) Incorporated by reference to Exhibit 10.15 of Form S-4 dated
November 13, 1995, file number 33-92752.
(19) Incorporated by reference to Exhibit 10.16 of Form S-4 dated
November 13, 1995, file number 33-92752.
(20) Incorporated by reference to Exhibit 10.17 of Form S-4 dated
November 13, 1995, file number 33-92752.
(21) Incorporated by reference to Exhibit 21.1 of Form S-4 dated
November 13, 1995, file number 33-92752.
(22) Incorporated by reference to Exhibit 25.1 of Form S-4 dated
November 13, 1995, file number 33-92752.
3
<PAGE> 1
EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
IN-FLIGHT PHONE CORPORATION
It is hereby certified that:
1. The name of the corporation (hereinafter called the
"Corporation") is In-Flight Phone Corporation.
2. The original Certificate of Incorporation for the
Corporation was January 9, 1990. This Amended and Restated Certificate of
Incorporation has been duly adopted in accordance with Sections 242 and 245
of the Delaware General Corporation Law.
3. The Certificate of Incorporation of the Corporation is
hereby amended and restated in its entirety as follows:
"AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
IN-FLIGHT PHONE CORPORATION
I. The name of the corporation is:
IN-FLIGHT PHONE CORPORATION
II. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of its registered agent at such
address is The Corporation Trust Company.
III. The nature of the business or purposes to be conducted
or promoted is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of
Delaware.
IV. The authorized shares shall be:
CLASS PAR VALUE PER SHARE NUMBER OF SHARES
AUTHORIZED
---------------------------------------------------------------------------
1
<PAGE> 2
Common $.01 10,000,000
-------------------------------------------------------------------------
Exchangeable $.01 145,000
Preferred
-------------------------------------------------------------------------
A. The total number of shares of common stock (the "Common Stock")
which the Corporation shall have authority to issue is 10,000,000 and the par
value of each of such shares is $0.01, amounting in the aggregate to $100,000.
Each share of Common Stock of the Corporation issued and outstanding or held in
the treasury of the Corporation ("Outstanding Stock") immediately prior to May
5, 1995, when a Certificate of Amendment of Certificate of Incorporation became
effective upon filing (the "Effective Date"), was thereby changed into and
reclassified as 62.9 fully paid and nonassessable shares of common stock, par
value $0.01 per share ("Reclassified Stock"), and on the Effective Date, each
holder of record of Outstanding Stock, without further action, became the holder
of 62.9 shares of Reclassified Stock for each share of Outstanding Stock held of
record immediately prior to the Effective Date. The Corporation transferred
from the Corporation's capital surplus account to the Corporation's stated
capital account, such amount as was necessary so that the Corporation's stated
capital was an amount equal to the aggregate par value of shares of Reclassified
Stock. Each certificate that, immediately prior to the Effective Date,
represented shares of Outstanding Stock, on and after the Effective Date,
represents the number of shares of Reclassified Stock that such shares of
Outstanding Stock were changed into and reclassified as pursuant to such filing.
Upon presentation to the Corporation (by a holder of record of shares of
Reclassified Stock on the Effective Date) of a certificate that, immediately
prior to the Effective Date, represented such holder's shares of Outstanding
Stock, the Corporation shall issue and cause to be delivered to such holder a
certificate or certificates representing the number of shares of Reclassified
Stock to which such holder is entitled pursuant hereto.
B. The preferences, qualifications, limitations, restrictions and the
special or relative rights in respect of the shares of Exchangeable Preferred
Stock are as follows:
1. Designation. The shares shall be designated "Exchangeable
Preferred Stock". The par value per share of Exchangeable Preferred Stock shall
be $.01. The number of authorized shares constituting Exchangeable Preferred
Stock shall be 145,000.
2
<PAGE> 3
2. Dividends. Each holder of shares of Exchangeable
Preferred Stock shall be entitled to receive, when, as and if declared by
the Board of Directors, out of funds legally available for such purpose,
dividends on November 15 and May 15 of each year, payable in arrears,
commencing November 15, 1995 and accruing from May 9, 1995, at the annual
rate of $147.50 per share; provided, however, that on or before May 15,
1998 no payment of cash dividends on the Exchangeable Preferred Stock may
be made and thereafter cash dividends may be made only so long as the
Corporation's Fixed Charge Coverage Ratio, as defined in the Indenture (as
defined below), is greater than 2.5 to 1.0. For each dividend period prior
to May 15, 1998, and any dividend period thereafter in which the dividend
on the Exchangeable Preferred Stock may not, or (pursuant to a
determination the Corporation's board of directors) will not, be paid in
cash, payment of dividends shall be made in the form of additional shares
of Exchangeable Preferred Stock at the annual rate of .1475 shares per
share of Exchangeable Preferred Stock outstanding on the applicable
dividend payment date. In the event that any shares of Exchangeable
Preferred Stock are issued, converted or redeemed on any date other than
November 15 or May 15, the dividend payable with respect to the period from
the last dividend payment date will be prorated and will accrue and be
payable only with respect to the portion of such period that such
Exchangeable Preferred Stock is outstanding. Fractional shares of
Exchangeable Preferred Stock shall entitle the holder to receive fractional
dividends (equal to the result of the per share dividend amount multiplied
by such fraction) thereon. For the purposes of this Certificate of
Incorporation, "Indenture" shall mean the Indenture, dated as of May 9,
1995 between the Corporation and Marine Midland Bank.
3. Liquidation. Upon any liquidation, dissolution or winding up
of the Corporation, each holder of Exchangeable Preferred Stock shall be
entitled to be distributed or paid, before distribution or payment is made
on any Common Stock or any preferred stock junior in preference of payment
to the Exchangeable Preferred Stock, an amount in cash or property equal to
the aggregate Exchangeable Preferred Stock Liquidation Value (as defined
below) of all shares of Exchangeable Preferred Stock held by such holder,
and each holder of Exchangeable Preferred Stock shall not be entitled to
any further payment. If upon any such liquidation, dissolution or winding
up of the Corporation, the fair market value, as determined by the
Corporation's board of directors, of the Corporation's assets to be
distributed among the holders of Exchangeable Preferred Stock is
insufficient to permit payment of the aggregate amount which they are
entitled to be paid, then the entire assets to be distributed to the
holders of Exchangeable Preferred Stock shall be distributed ratably among
3
<PAGE> 4
such holders of Exchangeable Preferred Stock based upon the aggregate
Exchangeable Preferred Stock Liquidation Value of the Exchangeable
Preferred Stock held by each such holder. The Corporation shall mail
written notice of such liquidation, dissolution or winding up, not less
than five (5) days prior to the payment date stated therein, to each record
holder of Exchangeable Preferred Stock. Neither the consolidation or
merger of the Corporation into or with any other entity or entities, nor
the sale or transfer by the Corporation of all or any part of its assets,
nor the reduction of the capital stock of the Corporation, shall be deemed
to be a liquidation, dissolution or winding up of the Corporation within
the meaning of this subparagraph 3. Fractional shares of Exchangeable
Preferred Stock shall entitle the holder to fractional participation in the
assets of the Corporation distributed upon a liquidation, dissolution or
winding up of the Corporation. For the purposes of this Certificate of
Incorporation, "Exchangeable Preferred Stock Liquidation Value" shall be
equal to $1,000 per share of Exchangeable Preferred Stock plus all accrued
and unpaid dividends thereon.
4. Voting Rights. Except as otherwise required by law, the
holders of Exchangeable Preferred Stock shall not be entitled to vote on
any matter submitted to the stockholders for a vote.
5. Preemptive Right. No holder of outstanding shares of
Exchangeable Preferred Stock shall have preemptive rights.
6. Redemption.
a. Right to Redeem. Subject to (for so long as
effective) the restrictions contained within Article IV of the
Indenture (as defined in Section B.2. hereof), the Corporation shall
have the right at any time and from time to time to redeem all or any
portion of the Exchangeable Preferred Stock at a price per share equal
to the Exchangeable Preferred Stock Liquidation Value on the date of
redemption; provided, however, that no such redemption shall be
permitted to the extent that such redemption would cause a violation
of the Delaware General Corporation Law, Section 310 of the
Communications Act of 1934, as amended, or any other law or
regulation. Any such redemption shall be made pro rata among the
holders of shares of Exchangeable Preferred Stock based upon the
number of shares of Exchangeable Preferred Stock held.
b. Mandatory Redemption. Subject to (for so long as
effective) the restrictions contained within Article IV of the
Indenture, the Exchangeable Preferred Stock is mandatorily redeemable
on May 15, 2004 and the Corporation shall redeem, on that date, any
and all shares of Exchangeable Preferred Stock
4
<PAGE> 5
outstanding as of that date at a price per share equal to the
Exchangeable Preferred Stock Liquidation Value on the date of
redemption; provided, however, that no such redemption shall be
required to the extent that such redemption would cause a violation of
the Delaware General Corporation Law, Section 310 of the
Communications Act of 1934, as amended, or any other law or
regulation.
c. Notice of Redemption. Unless waived in writing by a
holder of Exchangeable Preferred Stock, no less than five (5) nor more
than sixty (60) days prior to date of redemption, a notice specifying
the date, time and place for redemption, shall be given by mail by the
Corporation to each holder of shares of Exchangeable Preferred Stock
at his, her or its respective address as the same shall appear in the
register for Exchangeable Preferred Stock, but no failure of any such
holder to receive such notice or any defect therein or in the mailing
thereof shall affect the validity of the proceedings for redemption.
Any notice which was mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the
holder receives such notice.
(1) Payment of Redemption Price. Upon surrender of the
certificates representing the appropriate number of shares of
Exchangeable Preferred Stock, the holders of such shares shall be paid
by the Corporation the redemption price for all such shares
surrendered.
d. Deposit of Funds for Redemption in Bank. If on or
before the date of redemption specified in the notice of redemption,
all funds necessary for such redemption shall have been deposited by
the Corporation for the account of the holders of shares of
Exchangeable Preferred Stock to be redeemed with a bank located in New
York, New York having capital and surplus of at least one hundred
million dollars ($100,000,000), then notwithstanding that the
applicable certificates representing shares of Exchangeable Preferred
Stock called for redemption have not been surrendered for
cancellation, on the date of redemption the (i) shares represented
thereby shall no longer be deemed outstanding, (ii) the right to
receive dividends thereon shall cease and (iii) all rights with
respect to such shares called for redemption shall forthwith cease and
terminate on such date of redemption (excepting only the right of the
holders thereof to receive the redemption price relating to such
shares to be redeemed).
7. Exchange for Senior Subordinated Notes. Subject to (for
so long as effective) the restrictions contained within Article IV of the
Indenture (as defined in Section B.2. hereof),
5
<PAGE> 6
at any time and from time to time, to the extent permitted by law, any
holder of Exchangeable Preferred Stock may exchange all or any portion of
the Exchangeable Preferred Stock (including a fraction of a share of
Exchangeable Preferred Stock) held by such holder for Senior Subordinated
Notes (as defined below) in a principal amount equal to the aggregate
Exchangeable Preferred Stock Liquidation Value of the shares of
Exchangeable Preferred Stock exchanged for Senior Subordinated Notes on the
date of such exchange; provided, however, that no such exchange shall be
permitted to the extent that such exchange would cause a violation of the
Delaware General Corporation Law, Section 310 of the Communications Act of
1934, as amended, or any other law or regulation. Any indebtedness of the
Corporation, including, without limitation, the Senior Subordinated Notes,
issued in exchange for the Exchangeable Preferred Stock ("Exchange
Indebtedness") shall be subordinated and junior in right of payment to the
prior payment in full in cash of all obligations on the Corporation's 14%
Senior Discount Notes due May 15, 2002 (the "Senior Notes") (or to such
payment being duly provided for to the satisfaction of the holders of at
least a majority of the aggregate outstanding amount of the Senior Notes to
be issued under the Indenture (as defined in Section B.2. hereof));
provided, however, that such subordination shall not be deemed to prevent
the payment of interest on the Exchange Indebtedness to the extent
permitted by the Indenture. Such subordination is for the benefit of, and
shall be enforceable directly by (to the fullest extent permitted by
applicable law), the holders of Senior Notes, and each such holder shall be
deemed to have acquired the Senior Notes in reliance upon such
subordination provisions contained herein. No right of any present or
future holders of any Senior Notes to enforce such subordination as
provided herein shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Corporation or by any act or
failure to act, in good faith, by any such holder, or by any noncompliance
by the Corporation with the terms of this Certificate of Incorporation,
regardless of any knowledge thereof which any such holder may have or
otherwise be charged with. For the purposes of this Certificate of
Incorporation, "Senior Subordinated Notes" shall mean 14.75% senior
subordinated notes of the Corporation due May 15, 2004 in the form provided
in the letter agreement, dated May 9, 1995, between the Corporation and MCI
Telecommunications Corporation in connection therewith.
8. Registration of Transfer. The Corporation shall keep at
its principal office a register for the registration of Exchangeable
Preferred Stock. Upon the surrender of any certificate representing the
Exchangeable Preferred Stock at such place, the Corporation shall, at the
request of the record holder of such certificate, execute and deliver (at
the Corporation's
6
<PAGE> 7
expense) a new certificate or certificates in exchange therefor
representing in the aggregate the number of shares of Exchangeable
Preferred Stock represented by the surrendered certificate. Each such new
certificate shall be registered in such name and shall represent such
number of shares of Exchangeable Preferred Stock as is requested by the
holder of the surrendered certificate and shall be substantially identical
in form to the surrendered certificate.
9. Amendment and Waiver. No amendment, modification or
waiver shall be binding or effective with respect to any provision of
subparagraphs 1 through this subparagraph 9 of this Section B, except the
subordination provisions of subparagraph 7 of this Section B, without the
prior written consent or vote of the holders of at least a majority of the
Exchangeable Preferred Stock outstanding at the time such action is taken.
No amendment, modification or waiver shall be binding or effective with
respect to the subordination provisions of subparagraph 7 of this Section
B, without the prior written consent or vote of the holders of at least a
majority of the Exchangeable Preferred Stock outstanding at the time such
action is taken and the prior written consent or vote of the holders of at
least a majority of the aggregate outstanding amount of the Senior Notes
(as defined in subparagraph 7 of this Section B). No change in the terms
of this Section B may be accomplished by merger or consolidation of the
Corporation with another corporation or entity unless the Corporation has
obtained the prior written consent or vote of the holders of the majority
of the Exchangeable Preferred Stock then outstanding and, to the extent
that the terms of the subordination provisions of subparagraph 7 of this
Section B would be amended by such merger or consolidation, the prior
written consent or vote of the holders of at least a majority of the
aggregate outstanding amount of the Senior Notes. This subparagraph 9
shall not, however, be deemed to prohibit a waiver by one or more holders
of Exchangeable Preferred Stock or the Senior Notes on an individual basis.
V. The board of directors is authorized to make, alter or
repeal the by-laws of the corporation. Election of directors need not be
by written ballot.
VI. A director of the corporation shall not be personally
liable to the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director except for liability (i) for any
breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section
174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived any improper personal benefit."
7
<PAGE> 8
3. The Amended and Restated Certificate of Incorporation
herein certified has been duly adopted in accordance with the provisions of
Sections 228, 242 and 245 of the General Corporation Law of the State of
Delaware. Prompt written notice of the adoption of the Amended and
Restated Certificate of Incorporation herein certified has been given to
those stockholders who have not consented in writing thereto, as provided
in Section 228 of the General Corporation Law of the State of Delaware.
Signed on May 12, 1995.
Randall E. Fischer
-------------------------------
Name: Randall E. Fischer
Title: Secretary and Chief
Financial Officer
8
<PAGE> 1
EXHIBIT 3.2
BYLAWS
OF
IN-FLIGHT PHONE CORPORATION
<PAGE> 2
BY-LAWS
II.
OFFICES
II.A. . Registered Office. The registered office shall be in the
City of Wilmington, County of New Castle, State of Delaware.
II.B. . 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 or the business of the
corporation may require.
III.
MEETINGS OF STOCKHOLDERS
III. A. . Place of Meeting. All meetings of the stockholders for
the election of directors shall be held at such place either within or
without the State of Delaware as shall be designated from time to time by
the board of directors and stated in the notice of the meeting. Meetings
of stockholders for any other purpose may be held at such time and place,
within or without the State of Delaware, as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
III. B. . Time of Annual Meeting and Vote Required to Elect
Directors. Annual meetings of stockholders shall be held on the first
Tuesday of December of each year, if not a legal holiday, and if a legal
holiday, then on the next secular day following, at 10:00 A.M., or at such
other date and time as shall be designated from time to time by the board
of directors and stated in the notice of the meeting, at which they shall
elect by a plurality vote directors to succeed those whose terms then
expire and transact such other business as may properly be brought before
the meeting.
III. C. . Notice of Annual Meetings. Written or printed notice of
the annual meeting stating the place, date and hour of the meeting shall be
given to each stockholder entitled to vote at such meeting not less than
ten (10) nor more than sixty (60) days before the date of the meeting.
III. D. . Voting Lists. The officer who has charge of the stock
ledger of the corporation shall prepare and make, at least ten (10) days
before every meeting of stockholders, a 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
<PAGE> 3
stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or if not so
specified at the place where the meeting is to be held. The list shall
also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
III. E. . Special Meetings. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the certificate of incorporation, may be called by the
chairman of the board or the president and shall be called by the president
or secretary at the request in writing of a majority of the board of
directors, or at the request in writing of stockholders owning a majority
in amount of the entire capital stock of the corporation issued and
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting.
III. F. . Notice of Special Meetings. Written or printed
notice of a special meeting stating the place, date and hour of the meeting
and the purpose or purposes for which the meeting is called, shall be given
not less than ten (10) nor more than sixty (60) days before the date of the
meeting, to each stockholder entitled to vote at such meeting.
III. G. . Business to be Transacted at Special Meetings.
Business transacted at any special meeting of stockholders shall be limited
to the purposes stated in the notice.
III. H. . Quorum and Adjournments. The holders of a majority
of the stock issued and outstanding and entitled to vote thereat, present
in person or represented by proxy, shall constitute a quorum at all
meetings of the stockholders for the transaction of business except as
otherwise provided by statute or by the certificate of incorporation. If,
however, such quorum shall not be present or represented at any meeting of
the stockholders, the stockholders entitled to vote thereat, present in
person or represented by proxy, shall have power to adjourn the meeting
from time to time, without notice 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
notified. If the adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the adjourned meeting,
a notice of the adjourned meeting shall
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<PAGE> 4
be given to each stockholder of record entitled to vote at the meeting.
III. I. . Vote Required. When a quorum is present at any
meeting, the vote of the holders of a majority of the stock having voting
power present in person or represented by proxy shall decide any question
brought before such meeting, unless the question is one upon which by
express provision of the statutes or of the certificate of incorporation, a
different vote is required in which case such express provision shall
govern and control the decision of such question.
III. J. . Voting Rights. Each stockholder shall at every
meeting of the stockholders be entitled to one vote in person or by proxy
for each share of the capital stock having voting power held by such
stockholder, but no proxy shall be voted on after three (3) years from its
date, unless the proxy provides for a longer period.
III. K. . Informal Action. Any action required to be taken at
any annual or special meeting of stockholders of the corporation, or any
action which may be taken at any annual or special meeting of such
stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall be given to
those stockholders who have not consented in writing.
IV.
DIRECTORS
IV. A. . Number, Classification, and Term of Office. The number
of directors which shall constitute the whole board shall not be less than
one (1) nor more than fifteen (15). The first board shall consist of three
(3) directors. Thereafter, within the limits above specified, the number
of directors shall be determined by resolution of the board of directors or
by the stockholders at the annual meeting. The director shall be elected
for a term expiring at the next annual meeting or thereafter when his
successor is elected and qualified.
IV. B. . Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be
filled by a majority of the directors then in office,
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<PAGE> 5
though less than a quorum, or by a sole remaining director, and the
directors so chosen shall hold office until the next election of directors,
and until their successors shall be elected and qualified. If there are no
directors in office, then an election of directors may be held in the
manner provided by statute. If, at the time of filling any vacancy or any
newly created directorship, the directors then in office shall constitute
less than a majority of the whole board (as constituted immediately prior
to any such increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten percent (10%) of the total
number of the shares at the time outstanding having the right to vote for
such directors, summarily order an election to be held to fill any such
vacancies or newly created directorships, or to replace the directors
chosen by the directors then in office.
IV. C. . General Powers. The business of the corporation shall be
managed by or under the direction of its board of directors which may
exercise all such powers of the corporation and do all such lawful acts and
things as are not by statute or by the certificate of incorporation or by
these by-laws directed or required to be exercised or done by the
stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
IV. D. . Place of Meetings. The board of directors of the
corporation may hold meetings, both regular and special, either within or
without the State of Delaware.
IV. E. . Regular Meetings. A regular meeting of the board of
directors shall be held without other notice than this by-law, immediately
after, and at the same place as, the annual meeting of stockholders. The
board of directors may provide, by resolution, the time and place, either
within or without the State of Delaware, for the holding of additional
regular meetings without other notice than such resolution.
IV. F. . Special Meetings. Special meetings of the board may be
called by the chairman of the board or by the president on two (2) days'
notice to each director, either personally or by mail or by telegram,
mailgram, telex, or telecopier; special meetings shall be called by the
president or secretary in like manner and on like notice on the written
request of any one of the directors.
IV. G. . Quorum. At all meetings of the board, a majority of
directors shall constitute a quorum for the transaction of business and the
act of a majority of the directors present at any meeting at which there is
a quorum shall be the act of the board of directors, except as may be
otherwise specifically provided by
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statute or by the certificate of incorporation. If a quorum shall not be
present at any meeting of the board of directors the directors present
thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum shall be present.
IV. H. . Resignations. Any director of the corporation may resign
at any time by giving written notice to the board of directors, the
chairman of the board, the president, or the secretary of the corporation.
Such resignation shall take effect at the time specified therein and,
unless tendered to take effect upon acceptance thereof, the acceptance of
such resignation shall not be necessary to make it effective.
IV. I. . Informal Action. Unless otherwise restricted by the
certificate of incorporation or these by-laws, any action required or
permitted to be taken at any meeting of the board of directors or of any
committee thereof may be taken without a meeting, if all members of the
board or committee, as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the board
or committee.
IV. J. . Participation by Conference Telephone. Unless otherwise
restricted by the Certificate of Incorporation or these by-laws, members
of the board of directors, or any committee designated by such board, may
participate in a meeting of such board, or committee, by means of
conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this subsection shall constitute
presence in person at such meeting.
IV. K. . Presumption of Assent. A director of the corporation who
is present at a meeting of the board of directors at which action on any
corporate matter is taken shall be conclusively presumed to have assented
to the action taken unless his dissent shall be entered in the minutes of
the meeting or unless he shall file his written dissent to such action with
the person acting as the secretary of the meeting before the adjournment
thereof or shall forward such dissent by registered mail to the secretary
of the corporation immediately after the adjournment of the meeting. Such
right to dissent shall not apply to a director who voted in favor of such
action.
COMMITTEES OF DIRECTORS
IV. L. . Appointment and Powers. The board of directors may, by
resolution passed by a majority of the whole board, designate one or more
committees, each committee to consist of one or more of
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the directors of the corporation. The board may designate one or more
directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he
or they constitute a quorum, may unanimously appoint another member of the
board of directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the board of directors shall have and may exercise all the
powers and authority of the board of directors in the management of the
business and affairs of the corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
certificate of incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease, or
exchange of all or substantially all of the corporation's property and
assets, recommending to the stockholders a dissolution of the corporation
or a revocation of a dissolution, or amending the by-laws of the
corporation; and, unless the resolution so provides, no such committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock. Such committee or committees shall have such name or
names as may be determined from time to time by resolution adopted by the
board of directors.
IV. M. . Committee Minutes. Each committee shall keep regular
minutes of its meetings and report the same to the board of directors when
required.
COMPENSATION OF DIRECTORS
IV. N. . Compensation. The board of directors shall have the
authority to fix the compensation of directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the board of
directors and may be paid a fixed sum for attendance at each meeting of the
board of directors or a stated salary as director. No such payment shall
preclude any director from serving the corporation in any other capacity
and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee
meetings.
V.
NOTICES
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V. A. . Manner of Notice. Whenever, under the provisions of the
statutes or of the Certificate of Incorporation or of these by-laws, notice
is required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in writing,
by mail, addressed to such director or stockholder, at his address as it
appears on the records of the corporation, with postage thereon prepaid,
and such notice shall be deemed to be given at the time when the same shall
be deposited in the United States mail. Notice to directors may also be
given by telegram, mailgram, telex or telecopier.
V. B. . Waiver. Whenever any notice is required to be given under
the provisions of the statutes or of the certificate of incorporation or of
these by-laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
VI.
OFFICERS
VI. A. . Number and Qualifications. The officers of the
corporation shall be chosen by the board of directors and shall be a
president, a vice-president, a secretary and a treasurer. The board of
directors may also choose a chairman of the board, additional
vice-presidents, and one or more assistant secretaries and assistant
treasurers. The chairman of the board, if one is chosen, shall be chosen
from among the members of the board, but membership on the board shall not
be a prerequisite to the holding of any other office. Any number of
offices may be held by the same person, unless the Certificate of
Incorporation or these bylaws otherwise provide.
VI. B. . Election. The board of directors at its first meeting
after each annual meeting of stockholders shall elect a president, one or
more vice-presidents (one of whom may be chosen vice-president), a
secretary and a treasurer, and may choose a chairman of the board and one
or more assistant secretaries and assistant treasurers.
VI. C. . Other Officers and Agents. The board of directors may
choose such other officers and agents as it shall deem necessary who shall
hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the board.
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VI. D. Salaries. The salaries of all officers and agents of the
corporation shall be fixed by the board of directors.
VI. E. Term of Office. The officers of the corporation shall hold
office until their successors are chosen and qualify. Any officer elected or
appointed by the board of directors may be removed at any time by the
affirmative vote of a majority of the board of directors. Any vacancy
occurring in any office of the corporation shall be filled by the board of
directors.
VI. F. The Chief Executive Officer. The board of directors may
designate whether the chairman of the board, if one shall have been chosen, or
the president shall be the chief executive officer of the corporation. If a
chairman of the board has not been chosen, or if one has been chosen but not
designated chief executive officer, then the president shall be the chief
executive officer of the corporation. The chief executive officer shall be the
principal executive officer of the corporation and shall in general supervise
and control all of the business and affairs of the corporation, unless
otherwise provided by the board of directors. He shall preside at all meetings
of the stockholders and of the board of directors and shall see that orders and
resolutions of the board of directors are carried into effect. He may sign
bonds, mortgages, certificates for shares and all other contracts and documents
whether or not under the seal of the corporation except in cases where the
signing and execution thereof shall be expressly delegated by law, by the board
of directors or by these by-laws to some other officer or agent of the
corporation. He shall have general powers of supervision and shall be the
final arbiter of all differences between officers of the corporation and his
decision as to any matter affecting the corporation shall be final and binding
as between the officers of the corporation subject only to its board of
directors.
VI. G. The President. In the absence of the chief executive officer
or in the event of his inability or refusal to act, if the chairman of the
board has been designated chief executive officer, the president shall perform
the duties of the chief executive officer, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the chief executive
officer. At all other times the president shall have the active management of
the business of the corporation under the general supervision of the chief
executive officer. He shall have concurrent power with the chief executive
officer to sign bonds, mortgages, certificates for shares and other contracts
and documents, whether or not under the seal of the corporation except in cases
where the signing and execution thereof shall be expressly delegated by law, by
the board of directors, or by these by-laws to some other officer or agent of
the corporation. In general, he shall perform
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all duties incident to the office of president and such other duties as the
chief executive officer or the board of directors may from time to time
prescribe.
VI. H. The Chairman of the Board. If the chairman of the board has
not been designated chief executive officer, he shall perform such duties as
may be assigned to him by the chief executive officer or by the board of
directors.
VI. I. The Vice-Presidents. In the absence of the president or in
the event of his inability or refusal to act, the vice-president (or in the
event there be more than one vicepresident, the executive vice-president and
then the other vicepresident or vice-presidents in the order designated, or in
the absence of any designation, then in the order of their election) shall
perform the duties of the president, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the president. The
vice-presidents shall perform such other duties and have such other powers as
the chief executive officer or the board of directors may from time to time
prescribe.
VI. J. The Secretary. The secretary shall attend all meetings of the
board of directors and all meetings of the stockholders and record all the
proceedings of the meetings of the corporation and of the board of directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the board of
directors, and shall perform such other duties as may be prescribed by the
board of directors or the chief executive officer, under whose supervision he
shall be. He shall have custody of the corporate seal of the corporation and
he, or an assistant secretary, shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by his
signature or by the signature of such assistant secretary. The board of
directors may give general authority to any other officer to affix the seal of
the corporation and to attest the affixing by his signature.
VI. K. The Assistant Secretary. The assistant secretary, or if there
be more than one, the assistant secretaries in the order determined by the
board of directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
secretary and shall perform such other duties and have such other powers as the
chief executive officer or the board of directors may from time to time
prescribe.
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VI. L. The 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. He shall disburse the funds of the corporation as may be ordered by
the board of directors, taking proper vouchers for such disbursements, and
shall render to the president and the board of directors, at its regular
meetings, or when the board of directors so requires, an account of all his
transactions as treasurer and of the financial condition of the corporation.
If required by the board of directors, he shall give the corporation a bond
(which shall be renewed every six [6] years) in such sum and with such surety
or sureties as shall be satisfactory to the board of directors for the faithful
performance of the duties of his office and for the restoration to the
corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
VI. M. The Assistant Treasurer. The assistant treasurer, or if there
shall be more than one, the assistant treasurers in the order determined by the
board of directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
treasurer and shall perform such other duties and have such other powers as the
chief executive officer or the board of directors may from time to time
prescribe.
VII.
CERTIFICATES OF STOCK, TRANSFERS, AND RECORD DATES
VII. A. Form of Certificates. Every holder of stock in the
corporation shall be entitled to have a certificate, signed by, or in the name
of the corporation by, the chairman of the board of directors, or the president
or a vice-president and the treasurer or an assistant treasurer, or the
secretary or an assistant secretary of the corporation, certifying the number
of shares owned by him in the corporation. If the corporation shall be
authorized to issue more than one class of stock or more than one series of any
class, the powers, designation, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights shall be set forth in full or summarized on the face or back of the
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certificate which the corporation shall issue to represent such class or series
of stock, provided that, except as otherwise provided in Section 202 of the
General Corporation Law of Delaware, in lieu of the foregoing requirements,
there may be set forth in full or summarized on the face or back of the
certificate which the corporation shall issue to represent such class or series
of stock, a statement that the corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
VII. B. Facsimile Signatures. Where a certificate is countersigned
(1) by a transfer agent other than the corporation or its employee, or, (2) by
a registrar other than the corporation or its employee, any other signature on
the certificate may be facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
VII. C. Lost Certificates. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, 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
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the corporation a bond in such sum as it may
direct as indemnifying against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost, stolen
or destroyed.
VII. D. Transfers of Stock. Upon surrender to the corporation or the
transfer agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
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VII. E Fixing 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 to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, the board of directors may fix,
in advance, a record date, which shall not be more than sixty (60) nor less
than ten (10) days before the date of such meeting, nor more than sixty (60)
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.
VII. F Registered Stockholders. The corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
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VIII
GENERAL PROVISIONS
VIII. A. . Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation, if
any, may be declared by the board of directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation. Before payment of any dividend, there may be set aside out of
any funds of the corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
VIII. B. . Checks. All checks or demands for money and notes of
the corp ration shall be signed by such officer or officers or such other
person or persons as the board of directors may from time to time designate.
VIII. C. . Fiscal Year. The fiscal year of the corporation
shall be fixed by resolution of the board of directors.
VIII. D. . Seal. The corporate seal shall have inscribed
thereon the name of the corporation and the words "Corporate Seal, Delaware".
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
VIII. E. . Stock in Other Corporations. Shares of any other
corporation which may from time to time be held by this corporation may be
represented and voted at any meeting of shareholders of such corporation by the
chairman of the board, the president or a vice- president, or by any proxy
appointed in writing by the chairman of the board, the president or a
vice-president of a corporation, or by any other person or persons thereunto
authorized by the board of directors. Shares represented by certificates
standing in the name of the corporation may be endorsed for sale or transfer in
the name of the corporation by the chairman of the board, the president or any
vice- president or by any other officer or officers thereunto authorized by the
board of directors. Shares belonging to the corporation need not stand in the
name
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of the corporation, but may be held for the benefit of the corporation in the
individual name of the treasurer or of any other nominee designated for the
purpose of the board of directors.
VIII. F. . Indemnification of Directors, Officers, Etc. The
corporation shall indemnify every person who was or is a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, investigative or an action by or in the right of the
corporation, by reason of having been a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding, if, in each and every case, the board of directors
shall have determined that such person has met the applicable standard of
conduct set forth in the Delaware Corporation Law.
IX.
AMENDMENTS
These Bylaws may be altered, amended or repealed or new Bylaws may be
adopted by the stockholders or by the board of directors at any regular meeting
of the board of directors or of the stockholders or at any special meeting of
the board of directors or of the stockholders, if notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of such
special meeting of the stockholders or the board of directors.
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EXHIBIT 10.31
The Registrant has filed an Amended Application for Confidential
Treatment pursuant to Rule 406 under the Securities Act of 1933 with
regard to portions of this document. Passages marked with the symbol
"++" have been redacted from this exhibit and have been separately
filed with the Commission.
AMENDED AND RESTATED STANDBY OPERATING AGREEMENT
THIS AMENDED AND RESTATED STANDBY OPERATING AGREEMENT (this
"Agreement") is dated as of April 5, 1996 by and among MCI Telecommunications
Corporation, a Delaware corporation ("MCI"), In-Flight Phone Corporation, a
Delaware corporation ("IFPC") and Continental Airlines, Inc., a Delaware
corporation ("CAL").
W I T N E S S E T H:
WHEREAS, IFPC and CAL have entered into a Telecommunications
System Agreement dated as of June 7, 1994, as amended by letter agreements
dated May 29, 1995 and as of the date hereof(as so amended, the "CAL
Agreement"); and
WHEREAS, the parties hereto are parties to that certain
Standby Operating Agreement dated as of June 7, 1994 (the "Standby Operating
Agreement"); and
WHEREAS, in connection with the letter agreement of even date
herewith amending the CAL Agreement, the parties hereto desire to amend and
restate the Standby Operating Agreement in its entirety;
NOW, THEREFORE, in consideration of the premises and
agreements herein contained and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
A. Provision of Services. (a) Upon the occurrence of a
Mandatory Triggering Event (as defined in Section 2 below) or, at MCI's
election as provided herein, upon the occurrence of an Optional Triggering
Event (as defined in Section 2 below), MCI will provide to CAL, on behalf of
IFPC, either through IFPC or using existing IFPC personnel, subcontractors and
facilities and/or its own personnel, subcontractors and facilities, as MCI may
determine in its reasonable discretion (subject to the provisions of Section
1(e) below), the following services within the United States (collectively, the
"Services") with respect to the IFPC System and the IFPC Services (as such
terms are defined in the CAL Agreement):
(1) + of the +
which comprises a part of the IFPC System;
(2) + of the
<PAGE> 2
which comprises a part of the IFPC System (provided that (i)
under no circumstances shall + be
deemed to obligate MCI to + and (ii) unless
otherwise specified herein, MCI shall only be obligated to +
;
(3) + relating to the use of
the IFPC System and IFPC Services, including the + ;
(4) + relating to the use of
the IFPC System and IFPC Services, including the +
;
(5) + relating to the use of
the IFPC System and IFPC Services; and
(6) To the extent it has the ability to do so and
acting in a commercially reasonable manner, cause IFPC to +
b. MCI shall be obligated, and shall have the right, to
perform + upon the failure of IFPC to perform such
+ on the following terms and conditions:
(1) If MCI does not +
MCI shall not be obligated to perform +
except that MCI shall be obligated to +
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<PAGE> 3
(2) As a condition of MCI's obligation to perform
+ either +
(3) MCI shall have +
from the termination date for the applicable cure period to
which IFPC is entitled to under the terms of the CAL Agreement
to cure any failure by IFPC to comply with
++
(c) MCI shall provide the Services and perform the State
of the Art Guarantee in (i) a professional and competent manner consistent with
generally accepted industry standards applicable to services of this nature,
(ii) compliance with all applicable laws, rules and regulations, and (iii)
compliance with the standards, guidelines and procedures contained in the CAL
Agreement and such other reasonable standards, guidelines and procedures as
IFPC shall provide to MCI and to which CAL reasonably agrees; provided,
however, if MCI is required to cure an event of default under the CAL
Agreement, MCI shall have an additional thirty day (or, in the case of Section
1(b)(iii) above, six month) period from the date on which such cure is to be
effected under the CAL Agreement in which to effect such cure. MCI shall not
be obligated to provide any other services to CAL, on behalf of IFPC, unless
MCI shall agree thereto in writing.
(d) Nothing contained in this Agreement shall in any way
restrict CAL's rights to (i) insist on IFPC performing its obligations under
the CAL Agreement in accordance with the terms and conditions thereof, or (ii)
terminate the CAL Agreement in accordance with the terms and conditions thereof
after providing MCI the opportunity to cure any defaults by IFPC thereunder in
accordance with the terms and conditions of this Agreement.
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(e) During the term of the CAL Agreement, MCI agrees with
CAL that +
B. Triggering Events.
a. MCI shall be obligated, and shall have the right, to
provide the Services to CAL, on behalf of IFPC, upon the occurrence of any of
the following events (collectively, the "Mandatory Triggering Events"):
(1) The failure of IFPC to +
b. MCI may, and shall have the right to, provide the
Services to CAL, on behalf of IFPC, upon the occurrence of any of the following
events (the "Optional Triggering Events" and, collectively with the Mandatory
Triggering Events, the "Triggering Events"):
(1) The +
(2) The +
Such election shall be exercised by MCI sending written notice
thereof to IFPC and CAL within fifteen (15) days of the occurrence of such
Optional Triggering Event.
C. Compensation. During such time as MCI is providing
the Services, MCI shall be compensated as set forth in a separate letter
agreement between IFPC and MCI dated June 7, 1994. The
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<PAGE> 5
failure of IFPC to render such compensation shall have no effect on MCI's
obligations to CAL hereunder.
D. CAL Agreement. The obligation of MCI to provide the
Services are contingent upon (i) IFPC and CAL entering into the CAL Agreement
and (ii) CAL granting MCI such access, assistance, information and cooperation
as is reasonably necessary for MCI to perform its obligations hereunder. MCI's
obligation to provide the Services shall terminate upon a termination, and
shall not extend to any renewal term, of the CAL Agreement, except to the
extent that performance is required to satisfy post-termination obligations of
IFPC (such as the removal of the airborne equipment).
E. Third Party Agreements.
a. If IFPC receives notice of default or termination
from a third party under any of IFPC's agreements relating to the Services
which MCI is providing or may provide in the future, which may include, without
limitation, notices of default or termination relating to the CAL Agreement,
IFPC equipment leases, IFPC ground station leases or IFPC agreements with
suppliers or subcontractors (the "Third Party Agreements"), then IFPC shall
promptly provide copies of such notices to MCI and CAL in accordance with
Section 10.1 below.
b. Upon the commencement of MCI's providing some or all
of the Services, MCI shall have the right, but not the obligation, to (i)
enforce the Third Party Agreements against the other party thereto, but only
with respect to such other party's obligations which are reasonably necessary
for MCI to provide the Services or (ii) perform IFPC's obligations under the
Third Party Agreements, but only with respect to such IFPC obligations which
are reasonably necessary for MCI to provide the Services.
F. Software Escrow Agreement. In connection with this
Agreement, IFPC and MCI have entered into a software escrow agreement dated
June 7, 1994.
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G. Confidential Information.
(a) The parties acknowledge that, except to the extent
expressly specified in this Agreement, the information each party has provided
or will provide in connection with the negotiation of and during the term of
this Agreement, including, without limitation, this Agreement, are and shall be
confidential and proprietary to the parties supplying such information (the
"Confidential Information"). Each of the parties agrees not to use or disclose
to any third party the Confidential Information of the other parties except as
contemplated under this Agreement. Moreover, each party hereto agrees to
restrict dissemination of particular Confidential Information to only those
persons in its respective organization who must have access to such
Confidential Information in order to assist such party in performing its
obligations under this Agreement and will use its commercially reasonable
efforts to cause such persons to comply with this Section 7.
(b) The parties' obligations with regard to any
Confidential Information shall not apply in respect of such Confidential
Information that:
(i) was in the public domain at the time it was
disclosed;
(ii) was disclosed with the written consent of the other
party;
(iii) had been acquired by the disclosing party prior to the
time of disclosure by means that were not in violation of any
agreement or law which was known to the disclosing party or which the
disclosing party with reasonable care should have known;
(iv) becomes known to the disclosing party from a third
party without breach of this Agreement or any other applicable
agreement; or
(v) is required to be disclosed by any state or federal
court or agency, provided that, if permitted by law, the disclosing
party shall promptly inform the non-disclosing party of the request to
disclose, and as the non-disclosing party may reasonably request, the
disclosing party shall assist the non-disclosing party, at the expense
of the non-disclosing party, in any effort by such party to obtain a
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<PAGE> 7
protective order with respect to such Confidential Information.
(c) Upon a termination of this Agreement, each party in
possession of Confidential Information of the other party shall promptly return
such Confidential Information (and any copies, extracts and summaries thereof)
to the other party, or, with the other party's written consent, shall promptly
destroy such Confidential Information (and any copies, extracts and summaries
thereof and, with respect to electronically stored copies, delete such records
from any storage unit).
(d) The provisions of this Section 7 shall survive after
termination of this Agreement.
H. Indemnification.
a. Subject to clause (d) below, IFPC hereby agrees to
indemnify, hold harmless and defend MCI and CAL and their respective employees,
agents, subcontractors and affiliates against and in respect of any and all
claims, demands, liabilities, losses, costs and expenses (including reasonable
attorneys' fees and litigation expenses) arising out of or based upon the
provision of the Services by MCI, except to the extent caused by the negligence
or willful misconduct of MCI or CAL or their respective employees, agents,
subcontractors or affiliates.
b. Subject to clause (d) below, MCI hereby agrees to
indemnify, hold harmless and defend IFPC and CAL and their respective
employees, agents, subcontractors and affiliates against and in respect of any
and all claims, demands, liabilities, losses, costs and expenses (including
reasonable attorneys' fees and litigation expenses) arising out of or based
upon the negligence or willful misconduct of MCI, its employees, agents,
subcontractors or affiliates (which, for these purposes, does not include IFPC)
in providing the Services.
c. Subject to clause (d) below, CAL hereby agrees to
indemnify, hold harmless and defend IFPC and MCI and their respective
employees, agents, subcontractors and affiliates against and in respect of any
and all claims, demands, liabilities, losses, costs and expenses (including
reasonable attorneys' fees and litigation expenses) arising out of or based
upon the negligence or willful misconduct of CAL, its employees, agents,
subcontractors or affiliates relating to the provision of the Services.
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<PAGE> 8
d. A party seeking indemnification pursuant to this
Section 8 (the "Indemnified Party") shall give prompt notice to the party from
whom such indemnification is sought (the "Indemnifying Party") of the assertion
of any claim, or the commencement of any action, suit or proceeding, in respect
of which indemnity may be sought hereunder, and will give the Indemnifying
Party such information with respect thereto as the Indemnifying Party may
reasonably request, but no failure to give such notice shall relieve the
Indemnifying Party of any liability hereunder, except to the extent that the
Indemnifying Party has suffered actual prejudice thereby. The Indemnifying
Party shall have the right to undertake the defense of any such claim asserted
by a third person and the Indemnified Party shall cooperate in such defense and
make available all records and materials requested by the Indemnifying Party in
connection therewith at the Indemnifying Party's expense. The Indemnified
Party shall be entitled to participate in such defense, but shall not be
entitled to indemnification with respect to the costs and expenses of such
participation in such defense if the Indemnifying Party shall have assumed the
defense of the claim with counsel reasonably satisfactory to the Indemnified
Party. The Indemnifying Party shall not be liable for any claim settled
without its consent, which consent may not be unreasonably withheld. The
Indemnifying Party may settle any claim without the consent of any Indemnified
Party, but only if the sole relief awarded is monetary damages and the
Indemnifying Party pays in full all such damages and obtains a complete and
total release from all claimants of liability with respect to the Indemnified
Party.
I. Limitations of Liability.
a. IN NO EVENT WILL ANY PARTY OR ITS AFFILIATES BE
LIABLE TO ANOTHER PARTY HEREUNDER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL,
EXEMPLARY OR INCIDENTAL DAMAGES. THE FOREGOING DOES NOT LIMIT CLAIMS FOR
DAMAGES TO THE EXTENT THAT SUCH DAMAGES (i) (x) ARISE FROM CLAIMS WHICH ARE
SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 8 ABOVE AND (y) ARE SUFFERED BY
A PERSON OR ENTITY OTHER THAN THE PARTY SEEKING INDEMNIFICATION OR (ii) ARISE
FROM A BREACH BY A PARTY OF ITS CONFIDENTIALITY OBLIGATIONS.
b. THESE LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS
OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, OR TORT
(INCLUDING, WITHOUT LIMITATION, ACTIVE OR PASSIVE NEGLIGENCE).
c. SUBJECT TO CLAUSES (d) AND (e) BELOW, A PARTY MAY
BRING A CLAIM FOR DAMAGES +
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(1) SUCH DAMAGES DIRECTLY RESULT FROM A BREACH BY THE OTHER PARTY OF ITS
OBLIGATIONS HEREUNDER AND (ii) FOR EACH CONTRACT YEAR (AS DEFINED IN THE CAL
AGREEMENT), THE DAMAGES SUFFERED DURING SUCH CONTRACT YEAR ARE IN EXCESS OF THE
LESSER OF + OF THE PREVIOUS CONTRACT YEAR'S GUARANTEED ANNUAL
COMMISSION (AS DEFINED IN THE CAL AGREEMENT) OR +
PROVIDED THAT FOR THE INITIAL CONTRACT YEAR, SUCH DAMAGES ARE IN EXCESS OF
+ AS AN EXAMPLE, CAL'S DIRECT
DAMAGES WOULD INCLUDE
d. SUBJECT TO CLAUSE (e) BELOW, MCI'S LIABILITY TO CAL
UNDER THIS AGREEMENT +
AND THE LETTER OF GUARANTEE DATED AS OF JUNE 7, 1994 (THE "GUARANTEE") FROM MCI
TO CAL SHALL NOT EXCEED + TO THE EXTENT CAL RECEIVES ACTUAL
ANNUAL COMMISSIONS OR IFPC PAYMENTS UNDER THE GUARANTEE (AS DEFINED IN THE
GUARANTEE) (REGARDLESS OF WHETHER SUCH COMMISSIONS OR PAYMENTS ARE MADE BY IFPC
OR A THIRD PARTY SUCH AS MCI), MCI'S AGGREGATE LIABILITY UNDER THIS AGREEMENT
AND THE GUARANTEE SHALL BE DECREASED BY THE AMOUNT OF SUCH COMMISSIONS OR
PAYMENTS. MCI'S AGGREGATE LIABILITY SHALL NOT BE DECREASED FOR PAYMENTS MADE
BY MCI TO THIRD PARTIES OR COSTS INCURRED BY MCI PURSUANT TO ITS OBLIGATIONS
UNDER SECTION 1.
e. WITHIN THIRTY DAYS OF MCI'S LIABILITY TO CAL
HEREUNDER BEING REDUCED TO + BEING HEREIN
SOMETIMES REFERRED TO AS THE "CONTINGENCY FUND"), MCI AND IFPC SHALL SEND
NOTICE TO CAL THEREOF, AND CAL SHALL HAVE THE RIGHT TO TERMINATE THE CAL
AGREEMENT AS PROVIDED IN SECTION 14.7(v) THEREOF, PROVIDED THAT CAL SHALL NOT
HAVE THE RIGHT TO TERMINATE IF, PRIOR TO CAL'S SENDING SUCH A NOTICE OF
TERMINATION, MCI AGREES, SUBJECT TO CLAUSES (a) THROUGH (c) ABOVE, TO REMAIN
LIABLE TO CAL HEREUNDER FOR +
WITHOUT REDUCTION FOR CAL'S RECEIPT OF ACTUAL ANNUAL
COMMISSIONS OR IFPC PAYMENTS UNDER THE GUARANTEE. THIS PROCESS SHALL BE
REPEATED ANY TIME THAT ANY PAYMENT OF DAMAGES BY MCI TO CAL CAUSES A REDUCTION
IN THE AMOUNT OF THE CONTINGENCY FUND.
f. OTHER THAN THE PERFORMANCE OF ITS INDEMNIFICATION
OBLIGATIONS HEREUNDER, MCI SHALL HAVE NO LIABILITY TO IFPC, ITS
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EMPLOYEES, AGENTS, SUBCONTRACTORS OR AFFILIATES RESULTING FROM A FAILURE OF MCI
TO PERFORM ITS OTHER OBLIGATIONS HEREUNDER.
J. Miscellaneous.
IX. J. 1. Notices.
a. Each of CAL and IFPC agrees to provide MCI with any
notices sent by such party to the other pursuant to the CAL Agreement which
relate to matters affecting MCI's obligations under this Agreement.
b. All notices, requests and other communications to any
party hereunder shall be in writing (including telex, telecopy or similar
writing) and shall be given to such party at its address or telex or telecopy
number set forth below or such other address or telex or telecopy number as
such party may hereafter specify for the purpose by notice to the other
parties. Each such notice, request or other communication shall be effective
(i) when delivered in person, (ii) if given by telex or telecopy, when
transmitted to the telex or telecopy number specified below and confirmation of
transmission is received, or (iii) if given by mail or if given by any other
means, when delivered at the address specified below.
MCI:
MCI Telecommunications Corporation
1801 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Attention: General Counsel
202-872-1600 (Phone)
202-887-2195 (Fax)
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IFPC:
In-Flight Phone Corporation
One Tower Lane
Oakbrook Terrace, Illinois 60181
Attention: President
(708) 573-2660 (Phone)
(708) 573-2770 (Fax)
CAL:
Continental Airlines, Inc.
2929 Allen Parkway, Suite 2010
Houston, Texas 77019
Attention: Chief Financial Officer
General Counsel
(713) 834-2950 (Phone)
(713) 520-6329 (Fax)
IX. J. 2. Amendments; No Waivers.
a. Any provision of this Agreement may be amended or
waived if, and only if, such amendment or waiver is in writing and signed, in
the case of an amendment, by all of the parties hereto, or in the case of a
waiver, by the party against whom the waiver is to be effective.
b. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law or in equity.
IX. J. 3. Assignment; Benefit of Agreement. No party
may assign, delegate or otherwise transfer any of its rights or obligations
under this Agreement without the consent of the other parties hereto, and any
such attempted assignment shall be of no force and effect; provided, however,
that (i) MCI shall be permitted to subcontract with one or more third parties
to provide the Services to CAL, (ii) consent is hereby given to any such
assignment, delegation or transfer to any
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corporation with which any party hereto may merge or consolidate, or which may
succeed to its assets or business or a substantial portion thereof, or to any
corporation which is a parent, subsidiary or affiliated company of such party
and (iii) the subcontracting, assigning, delegating or transferring party shall
remain liable for ensuring that its obligations are fulfilled in accordance
with the terms of this Agreement. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
IX. J. 4. No Third Party Beneficiaries. No person
which is not a signatory hereto is or shall be deemed to be a third party
beneficiary of this Agreement.
IX. J. 5. Independent Contractors. No agency,
partnership or joint venture is established by this Agreement. No party shall
enter into any contractual obligations, incur expenses or liabilities, or hold
itself out to third parties as having the authority to enter into and incur any
contractual obligations, expenses or liabilities, on behalf of any other party
hereto.
IX. J. 6. Access and Cooperation.
a. IFPC shall provide MCI, its employees, agents,
subcontractors and affiliates with such access, assistance, information,
training and cooperation as MCI may reasonably request for it to be prepared to
perform and/or to perform its obligations hereunder, which may include, without
limitation, permitting MCI to secund personnel to IFPC and/or to have MCI
personnel accompany IFPC personnel in performing their responsibilities,
providing MCI with reports regarding the performance and/or maintenance of the
IFPC System, granting to MCI sublicenses to software which comprise a part of
the IFPC System, permitting MCI to enter IFPC's premises, assigning contract
rights to MCI necessary for MCI to perform its obligations hereunder and
obtaining necessary third party consents. The failure of IFPC to perform such
obligations shall not excuse any failure by MCI to perform its obligations to
CAL hereunder.
b. CAL shall provide MCI, its employees, agents,
subcontractors and affiliates with such access, assistance, information,
training and cooperation as MCI may reasonably request for it to be prepared to
perform and/or to perform its obligations hereunder, which may include, without
limitation, obtaining necessary third party consents and permitting MCI to
enter CAL's aircraft.
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c. In the event MCI provides CAL with some or all of the
Services, MCI shall, and shall cause its employees, agents, subcontractors and
affiliates to, provide IFPC and CAL with such access, assistance, information
and cooperation as is reasonably necessary for IFPC and CAL to meet their
respective contractual and legal obligations.
IX. J. 7. Governing Law. This Agreement shall be
exclusively construed in accordance with and governed by the laws of New York,
without reference to the conflict or choice of laws principles thereof.
IX. J. 8. Counterparts; Effectiveness. This Agreement
may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement shall become effective when each party
hereto shall have received a counterpart hereof signed by the other parties
hereto.
IX. J. 9 Entire Agreement. This Agreement, together
with the agreements referred to in Sections 3 and 6 hereof, constitute the
entire agreement between the parties with respect to the subject matter hereof
and supersede all prior agreements, understandings and negotiations, both
written and oral, between the parties with respect to the subject matter of
this Agreement.
IX. J. 10. Captions. The captions herein are included
for convenience of reference only and shall be ignored in the construction or
interpretation hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
MCI TELECOMMUNICATIONS CORPORATION
By Michael J. Rowny
--------------------------------
Name: Michael J. Rowny
Title: Executive Vice President
IN-FLIGHT PHONE CORPORATION
By Neal F. Meehan
--------------------------------
Name: Neal F. Meehan
Title: Executive Vice President
CONTINENTAL AIRLINES, INC.
By Jeffery A. Smisek
--------------------------------
Name: Jeffery A. Smisek
Title: Senior Vice President
