UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K 12g3
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) February 16, 2001
Delaware * 13-4146982
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
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Item 5. Other Events.
(A) On February 16, 2001, Atlas Air, Inc. (NYSE: CGO) completed a corporate restructuring to create a holding company structure. The holding company restructuring was accomplished through a merger under Section 251(g) of the Delaware General Corporation Law so that all stockholders of Atlas Air at the effective time of the merger became stockholders of the new holding company, Atlas Air Worldwide Holdings, Inc., and Atlas Air became a direct wholly-owned subsidiary of the new holding company. The shares of the new holding company will trade under the same (NYSE) symbol, CGO, with the same CUSIP numbers used by Atlas Air prior to the merger.
Stockholders are not required to take any action in connection with this corporate restructuring. All outstanding shares will be converted into shares of the holding company, in a non-taxable transaction, with the same voting powers, designations, preferences and rights, and the same qualifications, restrictions, and limitations, as the shares of Atlas Air previously held by stockholders prior to the merger.
Certificates formerly representing shares of Common Stock of Atlas Air are deemed to represent shares of Common Stock of the holding company. Atlas Air's transfer agent will deliver to each former stockholder of Atlas Air a transmittal letter that must be returned to the transfer agent, along with the original stock certificate of Atlas Air, in order to receive a new certificate for Common Stock of the holding company representing the identical number of shares of Common Stock of Atlas Air previously owned by the stockholder.
The Registrant hereby incorporates by reference the Agreement and Plan of Merger attached hereto as Exhibit 2.1, Certificate of Incorporation of Atlas Air Worldwide Holdings, Inc. attached hereto as Exhibit 3.1, By-laws of Atlas Air Worldwide Holdings, Inc. attached hereto as Exhibit 3.2, and the press release attached hereto as Exhibit 99.1, each made a part hereof, into this Item 5.
(B) This report is being filed with the Commission by the Registrant as a Successor Issuer to Atlas Air, Inc. by virtue of paragraph (a) of Rule 12g-3 under the Securities Exchange Act of 1934, as amended. Pursuant to said rule, the Atlas Air Worldwide Holdings, Inc. common stock is deemed to be registered pursuant to Section 12(b) of the Act. The Commission File Number of Atlas Air, Inc. is 0-25732. This Form 8-K is being filed by Atlas Air Worldwide Holdings, Inc. as a Successor Issuer as required by Paragraph (f) of Rule 12g-3 under the Securities Exchange Act of 1934.
Item 7. Financial Statements and Exhibits.
(c) The following Exhibits are filed as part of this report:
EXHIBIT NO. DESCRIPTION
2.1 Agreement and Plan of Merger dated as of February 15, 2001 among Atlas Air, Inc., Atlas Air Worldwide Holdings, Inc. and Atlas Air Mergerco, Inc.
3.1 Certificate of Incorporation of Atlas Air Worldwide Holdings, Inc.
3.2 By-Laws of Atlas Air Worldwide Holdings, Inc.
99.1 Press release issued by the Registrant on February 16, 2001
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
ATLAS AIR WORLDWIDE HOLDINGS, INC.
(Registrant)
Dated: February 21, 2001 By: /s/ Richard H. Shuyler
-------------------------------------------
Name: Richard H. Shuyler
Title: Chief Executive Officer and
Treasurer
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
2.1 Agreement and Plan of Merger dated as of February 15, 2001 among Atlas Air, Inc., Atlas Air Worldwide Holdings, Inc. and Atlas Air Mergerco, Inc.
3.1 Certificate of Incorporation of Atlas Air Worldwide Holdings, Inc.
3.2 By-Laws of Atlas Air Worldwide Holdings, Inc.
99.1 Press release issued by the Registrant on February 16, 2001
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
by and among
ATLAS AIR, INC.
(a Delaware corporation)
and
ATLAS AIR WORLDWIDE HOLDINGS, INC.
(a Delaware corporation)
and
ATLAS AIR MERGERCO, INC.
(a Delaware corporation)
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of February 15, 2001 (the "Agreement"), by and among ATLAS AIR, INC., a Delaware corporation ("Atlas" or, with regard to the period upon and after the Effective Time (as hereinafter defined), the "Surviving Corporation"), ATLAS AIR WORLDWIDE HOLDINGS, INC., a Delaware corporation ("Holdco"), which is a direct wholly-owned subsidiary of Atlas, and ATLAS AIR MERGERCO, INC., a Delaware corporation ("MergerCo"), which is a direct wholly-owned subsidiary of Holdco and an indirect wholly-owned subsidiary of Atlas (Atlas and MergerCo, collectively, the "Constituent Corporations" and each, a "Constituent Corporation").
W I T N E S S E T H:
WHEREAS, Atlas is a corporation organized and existing under the General Corporation Law of the State of Delaware (the "DGCL") and is authorized to issue a total of 60,000,000 shares, consisting of: (i) 50,000,000 shares of common stock, par value $.01 per share ("Atlas Common Stock"); (ii) 10,000,000 shares of preferred stock, par value $1.00 per share ("Atlas Preferred Stock"). As of the close of business on January 31, 2001, there were (i) 38,166,933 shares of Atlas Common Stock issued and outstanding (ii) 2,014,438 shares of Atlas Common Stock reserved for issuance upon exercise of stock options of Atlas outstanding or which may be granted pursuant to Atlas's stock option, purchase and similar plans; and (iii) no shares of Atlas Preferred Stock issued and outstanding;
WHEREAS, MergerCo is a corporation organized and existing under the DGCL and is authorized to issue a total of 100 shares, in a single class of common stock, $.01 par value per share ("MergerCo Common Stock"), of which, as of the date hereof, 100 shares are issued and outstanding;
WHEREAS, as of the date hereof, Holdco holds of record all of the outstanding shares of MergerCo Common Stock and no shares of MergerCo Common Stock are issued but not outstanding;
WHEREAS, Holdco is a corporation organized and existing under the DGCL and is authorized to issue a total of 60,000,000 shares, consisting of: (i) 50,000,000 shares of common stock, par value $.01 per share ("Holdco Common Stock"), of which one share is issued and outstanding; (ii) 10,000,000 shares of preferred stock, par value $1.00 per share ("Holdco Preferred Stock"), none of which is issued and outstanding;
WHEREAS, as of the date hereof, Atlas holds of record all of the outstanding shares of Holdco Common Stock and no shares of Holdco Common Stock or Holdco Preferred Stock are issued but not outstanding;
WHEREAS, the designations, rights, powers and preferences, and the qualifications, limitations and restrictions thereof, of the Holdco Common Stock are the same as those of the Atlas Common Stock;
WHEREAS, the Certificate of Incorporation and Bylaws of Holdco immediately after the Effective Time will contain provisions identical to the Restated Certificate of Incorporation and Bylaws of Atlas immediately prior to the Effective Time (other than with respect to matters excepted by Section 251(g) of the DGCL);
WHEREAS, the directors of Atlas immediately prior to the Effective Time will be the directors of Holdco as of the Effective Time;
WHEREAS, Holdco and MergerCo are newly formed corporations organized for the purpose of participating in the transactions contemplated hereby;
WHEREAS, the respective Boards of Directors of Atlas , MergerCo and Holdco have determined that it is advisable and in their respective best interests and in the best interests of their respective stockholders that MergerCo be merged with and into Atlas, with Atlas continuing as the Surviving Corporation, in accordance with the terms and conditions of this Agreement (the "Merger"), and accordingly the Boards of Directors of each of Atlas, MergerCo and Holdco have approved and authorized this Agreement and the transactions contemplated hereby, including the Merger; and
WHEREAS, it is contemplated that the Merger will be effected in accordance with Section 251(g) of the DGCL, and that the Merger and the exchange of shares of capital stock of Atlas for shares of capital stock of Holdco shall be a transaction described in Section 351(a) or Section 368(a) of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the "Code"), and that, as the Board of Directors of Atlas has determined, no gain or loss will be recognized for United States federal income tax purposes by the stockholders of Atlas as a result of the Merger;
NOW, THEREFORE, in consideration of the premises, the mutual agreements, promises, covenants, representations, warranties, acknowledgments and other terms, conditions, and provisions set forth herein, and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger; Filing and Effective Time. Subject to and in accordance with the terms and conditions of this Agreement and the DGCL, this Agreement and the cer-
tificates of the secretaries of Atlas and MergerCo attached hereto as Exhibits A and B, duly executed, shall be filed with the Secretary of State of the State of Delaware (the "Delaware Secretary of State") by Atlas at or as soon as practicable after the Closing (as defined below). The Merger shall become effective at 4:01 p.m. eastern standard time on the date this Agreement is so filed with the Delaware Secretary of State (the "Effective Time").
1.2 Closing. Subject to and in accordance with the terms and conditions of this Agreement, the closing of the Merger (the "Closing") shall take place as soon as practicable after satisfaction of the latest to occur of the conditions set forth in Article IV hereof (the "Closing Date"), at the offices of Cahill Gordon & Reindel, 80 Pine Street, New York, New York 10005, unless another date or place is agreed to in writing by the parties hereto.
1.3 Effects of the Merger. The Merger shall have the effects set forth in
Section 259 of the DGCL.
1.4 Certificate of Incorporation of the Surviving Corporation. The Restated Certificate of Incorporation of Atlas, as in effect immediately prior to the Effective Time (the "Atlas Charter"), shall be the certificate of incorporation of the Surviving Corporation (the "Surviving Corporation Charter"), except that the following amendments thereto are to be effected by the Merger upon the Effective Time:
A. The Surviving Corporation Charter shall be amended by deleting Article 4 thereof in its entirety and inserting in lieu thereof the following: "4. The total number of shares of stock which the Corporation has authority to issue is 100 shares of Common Stock, par value $.01 per share (the "Common Stock")."; and
B. The Surviving Corporation Charter shall be amended by adding and inserting, immediately following Article 10 thereof, a new Article 11 thereof, to read in its entirety as follows:
11. Any act or transaction by or involving the Corporation that requires for its adoption under the General Corporation Law of the State of Delaware or this Restated Certificate of Incorporation the approval of stockholders of the Corporation shall, pursuant to subsection (g) of Section 251 of the General Corporation Law of the State of Delaware, require, in addition, the approval of the stockholders of Atlas Air Worldwide Holdings, Inc., a Delaware corporation, or any successor thereto by merger, by the same vote as if required by the General Corporation Law of the State of Delaware and/or this Restated Certificate of Incorporation.
1.5 Bylaws of the Surviving Corporation. The Bylaws of Atlas as in effect immediately prior to the Effective Time (the "Atlas Bylaws"), shall be and continue in full
force and effect as the bylaws of the Surviving Corporation upon and after the Effective Time, unless and until duly amended, altered, changed, repealed, and/or supplemented in accordance with the DGCL (which power and right to amend, alter, change, repeal, and/or supplement, at any time and from time to time after the Effective Time, are hereby expressly reserved).
1.6 Directors and Officers of the Surviving Corporation.
A. The respective members constituting the whole Board of Directors of Atlas (the "Atlas Board") immediately prior to the Effective Time shall be and continue as the respective members constituting the whole Board of Directors of the Surviving Corporation upon and after the Effective Time, until such members' respective successors are duly elected and qualified or until such members' earlier death, resignation, disqualification or removal and unless and until the number of members of such Board of Directors shall be duly increased or decreased in accordance with the DGCL (which power and right to increase and decrease, at any time and from time to time after the Effective Time, are hereby expressly reserved).
B. Each person serving as an officer of Atlas immediately prior to the Effective Time shall be and continue as an officer of the Surviving Corporation, holding the same office or offices, upon and after the Effective Time, until such person's successor is chosen and qualified or until such person's earlier death, resignation, disqualification, or removal (which power and right to remove are hereby expressly reserved).
1.7 Further Assurances. At any time and from time to time upon and after the Effective Time, as and when required or deemed desirable by the Surviving Corporation or its successors or assigns, there shall be executed, acknowledged, certified, sealed, delivered, filed, and/or recorded, in the name and on behalf of any and each Constituent Corporation, such deeds, contracts, consents, certificates, notices, and other documents and instruments, and there shall be done or taken or caused to be done or taken, in the name and on behalf of any and each Constituent Corporation, such further and other things and actions as shall be appropriate, necessary, or convenient to acknowledge, vest, effect, perfect, confirm of record, or otherwise confirm the Surviving Corporation's (or its successors' or assigns') right, title, and interest in and to, and possession of, all the property, interests, assets, rights, privileges, immunities, powers, franchises, and authority of each Constituent Corporation held immediately prior to the Effective Time, and otherwise to carry out and effect the intent and purposes of this Agreement and the Merger. The officers and directors of the Surviving Corporation (or its successors or assigns), and each of them, upon and after the Effective Time, are and shall be fully authorized, in the name and on behalf of each Constituent Corporation, to do and take and cause to be done and taken any and all such things and actions, and to execute, acknowledge, certify, seal, deliver, file, and/or record any and all such deeds, contracts, consents, certificates, notices, and other documents and instruments.
ARTICLE II
EFFECT OF THE MERGER ON THE
CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS
2.1 Effect on Capital Stock. Upon and as of the Effective Time, by virtue of the Merger and without any action on the part of the holders of the respective shares:
A. Conversion of MergerCo Stock. Each share of MergerCo Common Stock outstanding immediately prior to the Effective Time shall be converted into one validly issued, fully paid and nonassessable share of common stock, par value $0.01 per share (the "Surviving Corporation Common Stock"), of the Surviving Corporation, to be issued and deemed to have been issued by the Surviving Corporation automatically and immediately upon and as of the Effective Time; the capital of the Surviving Corporation in respect of each share of Surviving Corporation Common Stock to be an amount equal to the par value thereof as permitted under the DGCL and such outstanding shares of MergerCo Common Stock shall be canceled and cease to exist.
B. Conversion of Atlas Stock. Each share or fraction thereof of Atlas Common Stock outstanding immediately prior to the Effective Time shall be converted into the right to receive one, or an equal fraction of one, validly issued, fully paid and nonassessable share of Holdco Common Stock and shall cease to represent any rights in any shares of Atlas Common Stock; and such outstanding shares of Atlas Common Stock shall be canceled and cease to exist.
2.2 Notification of Transfer Agent. Prior to the Closing Date, Holdco, MergerCo and Atlas shall notify their respective transfer agents, if any, of the conversions of shares of Atlas stock and of shares of MergerCo stock and the cancellation of shares of Atlas and MergerCo stock pursuant to Section 2.1 hereof.
2.3 Stock Certificates. Upon and as of the Effective Time, by virtue of the Merger and without any action on the part of either of the Constituent Corporations or Holdco, the holders of the respective shares, or any other person:
A. Holdco. Each holder of a certificate formerly representing shares of Atlas Common Stock shall be required to surrender such certificate to Atlas' transfer agent ("Transfer Agent"), along with a properly completed transmittal letter in order to receive a certificate or certificates of Holdco representing the number of shares of Holdco common stock into which the shares of Atlas Common Stock previously represented by such Atlas certificate have been converted pursuant to this Agreement. A letter of transmittal will be mailed by the Transfer Agent to each former stockholder of Atlas as soon as reasonably practicable after the Effective Time. Until surrendered and exchanged in accordance with this Section 2.3 or in the ordinary course, each cer-
tificate representing Atlas Common Stock shall be deemed and treated for all corporate purposes at any time after the Effective Time to evidence the ownership of the number of shares of Holdco into which such shares of Atlas were converted pursuant to Section 2.1.B hereof.
B. MergerCo. Holdco, as the holder of the certificate (the "MergerCo Common Stock Certificate") that immediately prior to the Effective Time evidences the outstanding shares of MergerCo Common Stock may, at Holdco's option, surrender the same to the Surviving Corporation for cancellation, and Holdco shall be entitled to receive from the Surviving Corporation in exchange therefor a certificate representing and evidencing the shares of Surviving Corporation Common Stock into which Holdco's outstanding shares of MergerCo Common Stock shall have been converted; until surrendered, the MergerCo Common Stock Certificate shall represent and evidence the shares of Surviving Corporation Common Stock into which the outstanding shares of MergerCo Common Stock theretofore represented and evidenced thereby shall have been converted pursuant to Section 2.1A hereof.
ARTICLE III
ADDITIONAL AGREEMENTS
3.1 No Atlas Stockholder Meeting; MergerCo Stockholder Written Consent. The parties understand and acknowledge that it is contemplated that the Merger will be effected in accordance with Section 251(g) of the DGCL and that no vote of Atlas's stockholders adopting, approving or authorizing this Agreement and the transactions contemplated hereby, including the Merger, will be required under the DGCL. Holdco, in its capacity as the sole stockholder of MergerCo, as promptly as practicable on or after the date hereof, shall execute and deliver to MergerCo a written consent in lieu of a stockholder meeting adopting, approving and authorizing this Agreement and the transactions contemplated hereby, including the Merger, in accordance with Section 228 of the DGCL.
3.2 Compliance with Section 251(g) of the DGCL. Holdco shall take any and all actions required so that the requirements of Sections 251(g)(4) and 251(g)(6) of the DGCL are fully satisfied in connection with the Merger.
3.3 Employee and Director Atlas Stock Options. Upon and as of the Effective Time, to the fullest extent permitted by applicable law, Holdco shall assume all of Atlas's obligations, and Atlas shall have no further obligations, with respect to any then-outstanding right or option (each, an "Atlas Option") to acquire shares of Atlas Common Stock issued under any employee or non-employee director stock purchase or option plan, agreement or similar arrangement of Atlas and the due exercise of rights under any such Atlas Option shall entitle the holder thereof to acquire, upon the same terms and conditions that
were applicable under the corresponding Atlas Option, a number of shares of Holdco Common Stock identical to the class and number of shares of Atlas Common Stock that were subject to such corresponding Atlas option (a "Holdco Option"). Atlas and Holdco agree to take all corporate and other action as shall be necessary to effectuate the foregoing, and Atlas shall use its best efforts to obtain, if required, prior to the Closing Date, such consent of each holder of an Atlas Option as shall be necessary to effectuate the foregoing. Holdco shall take all corporate and other action necessary to reserve and make available for issuance upon the due exercise of rights under the Holdco Options a sufficient number of shares of Holdco Common Stock, and as soon as practicable following the Effective Time, shall provide to the record holders of the Holdco Options appropriate notice of such holder's rights thereunder. Immediately prior to the Effective Time, Holdco shall adopt and assume the Atlas Air, Inc. 1995 Long Term Incentive and Share Award Plan and the Atlas Air, Inc. Employee Stock Purchase Plan (collectively, the "Employee Share Plans"), and, following the Effective Time, Holdco may make awards under the Employee Share Plans as provided therein. Immediately prior to the Effective Time, Atlas, in its capacity as sole shareholder of Holdco, shall approve Holdco's adoption of the Employee Share Plans.
3.4 Outstanding Holdco Common Stock. Upon and as of the Effective Time, Atlas shall surrender to Holdco the certificate representing the outstanding shares of Holdco Common Stock, and such outstanding shares of Holdco Common Stock shall be retired as permitted under the DGCL and resume the status of authorized and unissued shares of Holdco Common Stock.
3.5 Other Agreements. At the Effective Time, Holdco shall assume any
obligation of Atlas to deliver or make available shares of Atlas Common Stock
under any instrument, agreement or employee benefit plan not referred to in this
Section 3 to which Atlas or any of its subsidiaries is a party. Any reference to
Atlas Common Stock under any such instrument, agreement or employee benefit plan
shall be deemed to be a reference to Holdco Common Stock and one share of Holdco
Common Stock shall be issuable in lieu of each share of Atlas Common Stock
required to be issued by any such instrument, agreement or employee benefit
plan, subject to subsequent adjustment as provided in any such instrument,
agreement or employee benefit plan.
3.6 Holdco as Successor Registrant to Atlas. It is the intent of the parties hereto that Holdco, as of the Effective Time, be deemed a "successor issuer" for purposes of rule 12g-3(a) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), so that Holdco Common Stock shall be deemed registered under Section 12 of the Exchange Act.
3.7 Listing of Holdco Common Stock. Holdco will use its best efforts to obtain, at or prior to the Effective Time, authorization to list, upon official notice of issuance, on the New York Stock Exchange the Holdco Common Stock to be issued and initially reserved for issuance pursuant to the transactions contemplated herein.
3.8 Filings. At the Effective Time, the Surviving Corporation shall cause a certified copy of this Agreement to be executed and filed with the Delaware Secretary of State. At the Effective Time, to the extent necessary to effectuate the amendments to the Surviving Corporation Charter contemplated by this Agreement, the Surviving Corporation shall cause to be filed with the Delaware Secretary of State such certificates and documents required to give effect thereto.
3.9 Voting and Disposition of Specified Atlas Common Stock.
(a) Voting. From and after the Effective Time, subject to the provisions of
Section 3.9(e) hereof, Holdco hereby irrevocably agrees, that with respect to
all matters involving the Surviving Corporation that require for their adoption
under the General Corporation Law of the State of Delaware or the Restated
Certificate of Incorporation of the Surviving Corporation the approval of
stockholders of the Surviving Corporation, including, without limitation, the
election or removal of directors of the Surviving Corporation, it will vote its
shares of Specified Atlas Common Stock (as defined below), if and as directed by
the vote of the same percentage of holders of its Common Stock that would be
required by the stockholders of the Surviving Corporation for such approval.
(b) Disposition. From and after the Effective Time, subject to the provisions of Section 3.9(e) hereof, Holdco shall not, unless directed to do so at a duly called stockholders' meeting by the affirmative vote of the holders of a majority of its outstanding Common Stock entitled to vote thereon, sell, assign, transfer, convey, pledge, hypothecate or otherwise dispose of, whether voluntarily or involuntarily (each a "Disposition") any shares of Specified Atlas Common Stock. Any Disposition or attempted Disposition thereof in violation of the provisions of this Section 3.9(b) shall be null and void and of no force or effect and the Surviving Corporation shall not register such Disposition on its stock transfer books. Each certificate representing shares of Specified Atlas Common Stock shall bear an appropriate legend referencing the provisions of this Section 3.9(a) and Section 3.9(b).
(c) Specified Atlas Common Stock. As used in this Section 3.9, "Specified Atlas Common Stock" means (i) all shares of Atlas Common Stock held by Holdco as of the Effective Time and (ii) if and to the extent determined by the Board of Directors of Holdco or of Atlas by resolution prior to such acquisition, shares of capital stock of Atlas acquired by Holdco after the Effective Time, in each case, then held by Holdco.
(d) Specific Performance. Holdco and Atlas each agree that a breach of
Section 3.9(a) or (b) would cause irreparable injury and that no adequate remedy
therefor exists at law. Therefore, and without limitation thereof, Holdco and
Atlas each agree that the rights given to holders of Holdco Common Stock
pursuant to Section 3.9(a) and (b), shall be specifically enforceable.
(e) Termination. The provisions of this Section 3.9 shall terminate and be of no further force or effect upon the first to occur of (i) the Disposition by Holdco of a majority of the shares of Specified Atlas Common Stock and (ii) the occurrence of a "Change in Control" of Atlas under and as such term is defined in any of (A) the Indenture, dated as of August 13, 1997, between Atlas and State Street Bank and Trust Company, as Trustee, relating to the 10 3/4% Senior Notes due 2005 of Atlas, (B) the Indenture, dated as of April 9, 1998, between Atlas and State Street Bank and Trust Company, as Trustee, relating to the 9 1/4% Senior Notes due 2008 of Atlas, or (C) the Indenture, dated as of November 18, 1998, between Atlas and State Street Bank and Trust Company, as Trustee, relating to the 9 3/8% Senior Notes due 2006 of Atlas.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Conditions to Each Party's Obligation to Effect the Merger. The respective obligations of each party under this Agreement shall be subject to the satisfaction at or prior to the Closing of the following conditions:
A. Stockholder Approval. This Agreement shall have been approved by the written consent of the holder of the outstanding MergerCo Shares.
B. Illegality. No judgment, order, decree, statute, law, ordinance, rule or regulation, entered, enacted, promulgated, enforced or issued by any foreign, United States, state or local governmental entity or municipality or subdivision thereof or court, tribunal, commission, board, bureau, agency or legislative, executive, governmental or regulatory or self-regulatory authority or agency (a "Governmental Entity") of competent jurisdiction or other legal restraint or prohibition shall be in effect which prohibits or makes illegal the consummation of the Merger or the other transactions contemplated hereby.
C. Statutes. No statute, rule or regulation shall have been enacted by any Governmental Entity that would make the consummation of the Merger illegal.
D. Listing of Holdco Common Stock. The Holdco Common Stock to be issued and initially reserved for issuance pursuant to the transactions contemplated herein shall have been approved for listing, upon official notice of issuance, by the New York Stock Exchange.
E. Atlas Board of Directors Determination. The Board of Directors of Atlas shall not have altered or rescinded its determination that the Atlas stockholders shall not recognize gain or loss for United States Federal income tax purposes as a re-
sult of the transactions contemplated hereby and that the Merger and the exchange of shares of capital stock of Atlas for shares of capital stock of Holdco shall be deemed a transaction described in Section 351(a) or 368(a) of the Code.
4.2 Conditions to the Obligations of Atlas and MergerCo to Effect the Merger. The obligations of Atlas and MergerCo to effect the Merger shall be subject to the satisfaction of the condition that immediately prior to the Effective Time, Holdco shall have fully performed its obligations under Article III hereof.
ARTICLE V
TERMINATION AND AMENDMENT
5.1 Amendment. At any time prior to the Effective Time, this Agreement may be supplemented, amended or modified by the mutual consent of the Boards of Directors of the parties hereto; provided, however, that any amendment effected subsequent to stockholder approval shall be subject to the restrictions contained in the DGCL. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by all of the parties hereto.
5.2 Termination. This Agreement may be terminated and the Merger contemplated hereby abandoned at any time prior to the Effective Time by action of either the Board of Directors of Atlas, the Board of Directors of Holdco or the Board of Directors of MergerCo, if such Board of Directors shall determine that for any reason the completion of the transactions provided for herein would be inadvisable or not in the best interest of such corporation or its stockholders. In the event of such termination and abandonment, this Agreement shall become void and none of Atlas, Holdco or MergerCo nor their respective stockholders, directors, officers or agents shall have any liability with respect to such termination and abandonment.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Entire Agreement. This Agreement, including the Exhibits attached hereto, constitutes the entire agreement among the parties regarding the subject matter hereof, and supersedes all prior agreements and undertakings, both written and oral, among the parties or of any of them regarding such subject matter.
6.2 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware.
6.3 Headings. The headings set forth herein are for convenience only and shall not be used in interpreting the text of the section in which they appear.
6.4 Counterparts. This Agreement may be executed in one or more counterparts which together shall constitute a single agreement.
6.5 Certificates of Secretaries. The certificates of the secretaries of Atlas and MergerCo to be attached hereto are hereby incorporated by reference and shall be deemed on and part of this Agreement.
IN WITNESS WHEREOF, Atlas, Holdco and MergerCo, pursuant to the approval and authority duly given by resolutions adopted by their respective Boards of Directors, have caused this Agreement to be executed as of the date first above written by their respective officers thereunto duly authorized.
ATLAS AIR, INC.
By: /s/ Fred L. deLeeuw
--------------------------------------------
Name: Fred L. deLeeuw
Title: Vice President
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ATLAS AIR WORLDWIDE HOLDINGS, INC.
By: /s/ Thomas G. Scott
--------------------------------------------
Name: Thomas G. Scott
Title: Senior Vice President,
General Counsel and
Assistant Secretary
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ATLAS AIR MERGERCO, INC.
By: /s/ Fred L. deLeeuw
--------------------------------------------
Name: Fred L. deLeeuw
Title: Vice President and
Assistant Secretary
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Exhibit A
CERTIFICATE OF THE SECRETARY OF ATLAS AIR, INC.
The undersigned, Secretary of Atlas Air, inc., a corporation organized and existing under the laws of the State of Delaware (the "Corporation"), hereby certifies that the Agreement and Plan of Merger (the "Agreement") to which this Certificate is attached has been executed on behalf of the Corporation by the Vice President of the Corporation. The Agreement has been adopted by the Board of Directors of the Corporation pursuant to Section 251(g) of the Delaware General Corporation Law and the conditions specified in the first sentence of such subsection have been satisfied.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of this 15th day of February, 2001.
/s/ David N. Brictson ------------------------------------------------- Name: David N. Brictson Title: Secretary |
Exhibit B
CERTIFICATE OF THE SECRETARY OF ATLAS AIR MERGERCO, INC.
The undersigned, Secretary of Atlas Air MergerCo, Inc., a Delaware Corporation (the "Corporation"), hereby certifies that the Agreement and Plan of Merger (the "Agreement") to which this Certificate is attached has been executed on behalf of the Corporation by the Vice President and Assistant Secretary of the Corporation. The Agreement was duly adopted by the Board of Directors of the Corporation in accordance with Section 251 of the Delaware Corporation Law and by the written consent of the sole stockholder of the Corporation in accordance with Section 228 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of this 15th day of February, 2001.
/s/ Richard H. Schuyler -------------------------------------------- Name: Richard H. Shuyler Title: Secretary |
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
ATLAS AIR WORLDWIDE HOLDINGS, INC.
* * * * *
1. The name of the corporation is Atlas Air Worldwide Holdings, Inc. (the "Corporation").
2. 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.
3. 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.
4. (a) The total number of shares of stock which the Corporation shall have authority to issue is 50,000,000 shares of Common Stock, par value $.01 per share (the "Common Stock") and 10,000,000 shares of Preferred Stock, par value $1.00 per share (the "Preferred Stock").
(b) Except as provided in Article 5, each holder of Common Stock shall be entitled to one vote for each share of Common Stock held of record by such holder and shall be entitled to one vote with respect to all matters as to which a stockholder of a Delaware corporation would be entitled to vote.
(c) The Preferred Stock may be issued at any time and from time to time in one or more series. The Board of Directors is hereby authorized to provide for the issuance of shares of Preferred Stock in series and, by filing a certificate of designation pursuant to the applicable provisions of the General Corporation Law of the State of Delaware (hereinafter referred to as a "Preferred Stock Certificate of Designation"), to establish from time to time the number of shares to be included in each such series, and to fix the designation, powers, preferences and rights of shares of each such series and the qualifications, limitations and restrictions thereof.
The authority of the Board of Directors with respect to each series of Preferred Stock shall include, but not be limited to, determination of the following:
(i) the designation of the series, which may be by distinguishing number, letter or title;
(ii) the number of shares of the series, which number the Board of Directors may thereafter (expect where otherwise provided in the applicable Preferred Stock Certificate of Designation) increase or decrease (but not below the number of shares thereof then outstanding);
(iii) whether dividends, if any, shall be cumulative or noncumulative and the dividend rate of the series;
(iv) the dates on which dividends, if any, shall be payable;
(v) the redemption rights and price or prices, if any, for shares of the series;
(vi) the terms and amount of any sinking fund provided for the purchase or redemption of shares of the series;
(vii) the amounts payable on shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation;
(viii) whether the shares of the series shall be convertible or exchangeable into shares of any other class or series, or any other security, of the Corporation or any other corporation, and, if so, the specification of such other class or series or such other security, the conversion or exchange price or prices or rate or rates, any adjustments thereof, the date or dates as of which such shares shall be convertible or exchangeable and all other terms and conditions upon which such conversion or exchange may be made;
(ix) restrictions on the issuance of shares of the same series or of any other class or series; and
(x) the voting rights, if any, of the holders of shares of the series.
(d) The Common Stock shall be subject to the express terms of the Preferred Stock and any series thereof.
(e) Except as may be provided in this Certificate of Incorporation or in a Preferred Stock Certificate of Designation, the Common Stock shall have the exclusive right to vote for the election of Directors and for all other purposes, and holders of Preferred Stock shall not be entitled to receive notice of any meeting of stockholders at which they are not entitled to vote.
(f) The Corporation shall be entitled to treat the person in whose name any share of its stock is registered as the owner thereof for all purposes and shall not be bound to recognize any equitable or other claim to, or interest in, such share on the part of any other person, whether or not the Corporation shall have notice thereof, except as expressly provided by applicable law.
5. (a) Limitation of Voting Rights. Notwithstanding anything to the contrary contained in this Certificate of Incorporation, at no time shall shares of stock of the Corporation be voted by, or at the direction of, Persons ("Aliens") who are not "Citizens of the United States" as defined in 49 U.S.C. ss. 40102(a)(15), as now in effect or as it may hereafter from time to time be amended ("U.S. Citizens"), unless such shares are registered on the separate stock record maintained by the Corporation for the registration of ownership of Voting Stock, as defined in the By-Laws, by Aliens. As used in this Certificate of Incorporation, the term "Person" means any person or entity of any nature whatsoever, specifically including an individual, a firm, a company, a corporation, a partnership, a trust or other entity. The By-Laws may contain provisions to implement this provision.
(b) By-Laws, Legends, Etc.
(i) The By-Laws of the Corporation may make appropriate provisions to effect the requirements of this Article 5.
(ii) All certificates representing Common Stock or any other Voting Stock of the Corporation are subject to the restrictions set forth in this Article 5.
(iii) A majority of the Directors of the Corporation shall have the exclusive power to determine all matters necessary to determine compliance with this Article 5; and the good faith determination of a majority of the Directors on such matters shall be conclusive and binding for all the purposes of this Article 5.
(c) Beneficial Ownership Inquiry
(i) The Corporation may by notice in writing (which may be included in the form of proxy or ballot distributed to stockholders of the Corporation in connection with the annual meeting (or any special meeting) of the stockholders of the Corporation, or otherwise) require a Person that is a holder of record of equity securities of the Corporation or that
the Corporation knows to have, or has reasonable cause to believe has, Beneficial Ownership of equity securities of the Corporation to certify in such manner as the Corporation shall deem appropriate (including by way of execution of any form of proxy or ballot by such Person) that, to the knowledge of such Person:
(A) all equity securities of the Corporation as to which such Person has record ownership or Beneficial Ownership are owned and controlled only by U.S. Citizens; or
(B) the number and class or series of equity securities of the Corporation owned of record or Beneficially Owned by such Person that are owned or controlled by Aliens are as set forth in such certificate.
As used herein, "Beneficial Ownership," Beneficially Owned," or "Owned Beneficially" refers to beneficial ownership as defined in Rule 13d-3 (without regard to the 60-day provision in paragraph (d)(1)(i) thereof) under the Exchange Act.
(ii) With respect to any equity securities identified by such Person in response to Section (c)(i)(A) of this Article 5, the Corporation may require such Person to provide such further information as the Corporation may reasonably require in order to implement the provisions of this Article 5.
(iii) For purposes of applying the provisions of this Article 5 with respect to any equity securities of the Corporation, in the event of the failure of any Person to provide the certificate or other information to which the Corporation is entitled pursuant to this Section (c), the Corporation shall presume that the equity securities in question are owned or controlled by Aliens.
(d) Non-Voting Equity Securities. Notwithstanding anything to the contrary in this Certificate of Incorporation, the Corporation shall not issue any non-voting equity securities within the meaning of 11 U.S.C. 1123(a)(6).
6. In furtherance and not in limitation of the powers conferred upon it by law, the Board of Directors is expressly authorized to adopt, repeal, alter or amend the By-Laws of the Corporation by the vote of a majority of the entire Board of Directors. The stockholders of the Corporation upon the affirmative vote of the holders of 66 2/3% of the combined voting power of the then outstanding stock of the Corporation entitled to vote generally in the election of Directors may adopt, repeal, alter or amend the By-Laws of the Corporation.
7. The business and affairs of the Corporation shall be managed by or under the direction of its Board of Directors. The number of Directors constituting the initial
Board of Directors shall be eight (8) and thereafter the number of Directors shall be as set forth in or pursuant to the By-Laws of the Corporation.
The names and addresses of the persons who are to serve as the Directors of the Corporation until the first annual meeting of the stockholders or until their respective successors are elected and qualified are:
Name: Address:
Berl Bernhard c/o Atlas Air Worldwide Holdings, Inc.
2000 Westchester Avenue
Purchase, New York 10577-2543
Michael A. Chowdry c/o Atlas Air Worldwide Holdings, Inc.
2000 Westchester Avenue
Purchase, New York 10577-2543
Lawrence Clarkson c/o Atlas Air Worldwide Holdings, Inc.
2000 Westchester Avenue
Purchase, New York 10577-2543
David P. Li c/o Atlas Air Worldwide Holdings, Inc.
2000 Westchester Avenue
Purchase, New York 10577-2543
James T. Matheny c/o Atlas Air Worldwide Holdings, Inc.
2000 Westchester Avenue
Purchase, New York 10577-2543
David T. McLaughlin c/o Atlas Air Worldwide Holdings, Inc.
2000 Westchester Avenue
Purchase, New York 10577-2543
Brian Rowe c/o Atlas Air Worldwide Holdings, Inc.
2000 Westchester Avenue
Purchase, New York 10577-2543
Richard H. Shuyler c/o Atlas Air Worldwide Holdings, Inc.
2000 Westchester Avenue
Purchase, New York 10577-2543
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8. (a) A Director shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director; provided that this provision shall not eliminate or limit the liability of a Director (i) for any breach of his 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 the law, (iii) under Section 174 of the General Corporation Law of the State of Delaware, or (iv) for any transaction from which the Director derives an improper personal benefit. If the General Corporation Law of the State of Delaware is amended after the filing of this Certificate of Incorporation to authorize corporate action further eliminating or limiting the personal liability of Directors, then the liability of a Director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of the State of Delaware, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders of the Corporation shall not adversely affect any right or protection of a Director of the Corporation existing at the time of such repeal or modification.
(b) The Corporation shall indemnify Directors and officers of the Corporation to the fullest extent now or hereafter permitted by the General Corporation Law of the State of Delaware. Such indemnification shall be in the manner and to the extent provided in the By-Laws of the Corporation.
9. Any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders of the Corporation, and may not be effected by any consent in writing by such stockholders.
10. The Corporation reserves the right at any time and from time to time to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and any other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed herein or by applicable law, and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, Directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the right reserved in this Article 10; provided, however, that any amendment or repeal of Article 8 of this Certificate of Incorporation shall not adversely affect any right or protection existing hereunder immediately prior to such amendment or repeal; and provided, further, that Articles 6, 7, 8, 9 and 10 of this Certificate of Incorporation shall not be amended, altered, changed or repealed without the affirmative vote of the holders of at least 66 2/3% of the then outstanding stock of the Corporation entitled to vote generally in the election of Directors.
11. The name and mailing address of the incorporator is as follows:
Name Address
Robert D. Shuman c/o Cahill Gordon & Reindel
80 Pine Street, 17th Floor
New York, NY 10005
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The power of incorporator as such shall terminate upon the filing of this Certificate of Incorporation.
I, the undersigned, being the incorporator herein before named, for the purpose of forming a corporation pursuant to the General Corporation Law of the State of Delaware, do make this Certificate of Incorporation, hereby declaring that this is my act and deed and that the facts herein stated are true and accordingly have hereunto set my hand this 28th day of November, 2000.
/s/ Robert D. Shuman ------------------------------ Robert D. Shuman |
EXHIBIT 3.2
Atlas Air Worldwide Holdings, Inc.
BY-LAWS
FEBRUARY 2001
* * * * * * * * * * * * * * * * * * * * * *
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of Directors shall be held in the City of Purchase, State of New York, at such place as may be fixed from time to time by the Board of Directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, commencing with the year 2001, shall be held on the last Thursday of May if not a legal holiday, and if a legal holiday, then on the next secular day following, at 11:00 A.M., or at such other date and time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a Board of Directors, and transact such other business as may properly be brought before the meeting.
Section 3. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the Certificate of Incorporation, may be called by (i) the Chief Executive Officer of the Corporation or (ii) the Board of Directors pursuant to a resolution adopted by a majority of the total number of authorized Directors.
Section 4. Whenever stockholders are required or permitted to take any action at a meeting, unless notice is waived in writing by all stockholders entitled to vote at the
meeting, a written notice of the meeting shall be given which shall state the place, date and hour of the meeting, and, in the case of a special meeting, the purpose for which the meeting is called.
Unless otherwise provided by law, and except as to any stockholder duly waiving notice, the written notice of any meeting shall be given personally or by mail, not less than ten nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, notice shall be deemed given when deposited in the mail, postage prepaid, directed to the stockholder at his or her address as it appears on the records of the Corporation.
When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the Corporation may transact any business which might have been transacted at the original meeting. If, however, the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
Section 5. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten 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 specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.
The stock ledger shall be the only evidence as to which stockholders are entitled to examine the stock ledger or the list required by this Section 5, or to vote in person or by proxy at any meeting of shareholders.
Section 6. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the Certificate of Incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice, except as provided in the last paragraph of Section 4 of this Article II,
until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified.
Section 7. Except as otherwise provided by the Certificate of Incorporation or these By-Laws, whenever Directors are to be elected at a meeting, they shall be elected by a plurality of the votes cast at the meeting by the holders of stock entitled to vote. Whenever any corporate action, other than the election of Directors, is to be taken by vote of stockholders at a meeting, it shall be authorized by a majority of the votes cast at the meeting by the holders of stock entitled to vote thereon, except as otherwise required by law, by the Certificate of Incorporation or by these By-Laws.
Except as otherwise provided by law, or by the Certificate of Incorporation or these By-Laws, each holder of record of stock of the Corporation entitled to vote on any matter at any meeting of stockholders shall be entitled to one vote for each share of such stock standing in the name of such holder on the stock ledger of the Corporation on the record date for the determination of the stockholders entitled to vote at the meeting.
Upon the demand of any stockholder entitled to vote, the vote for Directors or the vote on any other matter at a meeting shall be by written ballot, but otherwise the method of voting and the manner in which votes are counted shall be discretionary with the presiding officer at the meeting.
Section 8. At every meeting of stockholders the Chairman of the Board, or any Vice Chairman of the Board, or the Chief Executive Officer, as designated by the Board of Directors, or, if none be present, or in the absence of any such designation, the appointee of the meeting, shall preside. The Secretary, or in his or her absence an Assistant Secretary, or if none be present, the appointee of the presiding officer of the meeting, shall act as secretary of the meeting.
Section 9. Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for him or her by proxy executed in writing by the stockholder or as otherwise permitted by law, or by his or her duly authorized attorney-in-fact. Such proxy must be filed with the Secretary of the Corporation or his or her representative at or before the time of the meeting.
Section 10. (A) Annual Meetings of Stockholders. (1) Nominations of persons for election to the Board of Directors of the Corporation and the proposal of business to be considered by the stockholders may be made at an annual meeting of stockholders (a) pursuant to the Corporation's notice of meeting delivered pursuant to Section 4 of Article II of these By-Laws, (b) by or at the direction of the Board of Directors or (c) by any stockholder of the Corporation who is entitled to vote at the meeting, who complied with the notice proce-
dures set forth in clauses (2) and (3) of paragraph (A) of this Section 10 and who was a stockholder of record at the time such notice is delivered to the Secretary of the Corporation.
(2) For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of this Section 10, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation. To be timely, a stockholder's notice shall be delivered to the Secretary at the principal executive offices of the Corporation not less than seventy days nor more than ninety days prior to the first anniversary of the preceding year's annual meeting, or, in the case of the Corporation's first annual meeting to be held after the initial adoption of these By-Laws, the preceding year's annual meeting of Atlas Air, Inc., a Delaware corporation; provided, however, that in the event that the date of the annual meeting is advanced by more than twenty days, or delayed by more than seventy days, from such anniversary date, notice by the stockholder to be timely must be so delivered not earlier than the ninetieth day prior to such annual meeting and not later than the close of business on the later of the seventieth day prior to such annual meeting or the tenth day following the day on which public announcement of the date of such meeting is first made. Such stockholder's notice shall set forth (a) as to each person whom the stockholder proposes to nominate for election or reelection as a Director all information relating to such person that is required to be disclosed in solicitations of proxies for election of Directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), including such person's written consent to being named in the proxy statement as a nominee and to serving as a Director if elected; (b) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (c) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (i) the name and address of such stockholder, as they appear on the Corporation's books, and of such beneficial owner and (ii) the class and number of shares of the Corporation which are owned beneficially and of record by such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2) of this Section 10 to the contrary, in the event that the number of Directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for Director or specifying the size of the increased Board of Directors made by the Corporation at least eighty days prior to the first anniversary of the preceding year's annual meeting, a stockholder's notice required by this Section 10 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the
close of business on the tenth day following the day on which such public announcement is first made by the Corporation.
(B) Special Meeting of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation's notice of meeting pursuant to Section 4 of Article II of these By-Laws. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which Directors are to be elected pursuant to the Corporation's notice of meeting (i) by or at the direction of the Board of Directors or (ii) by any stockholder of the Corporation who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 10 and who is a stockholder of record at the time such notice is delivered to the Secretary of the Corporation. Nominations by stockholders of persons for election to the Board of Directors may be made at such a special meeting of stockholders if the stockholder's notice as required by paragraph (A)(2) of this Section 10 shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the ninetieth day prior to such special meeting and not later than the close of business on the later of the seventieth day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting.
(C) General. (1) Only persons who are nominated in accordance with the procedures set forth in this Section 10 shall be eligible to serve as Directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 10. Except as otherwise provided by law, the Certificate of Incorporation or these By-Laws, the Chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 10 and, if any proposed nomination or business is not in compliance with this Section 10, to declare that such defective proposal or nomination shall be disregarded.
(2) For purposes of this Section 10, "public announcement" shall mean
disclosures in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 10, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 10. Nothing in this Section 10 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Section 11. The Board of Directors by resolution shall appoint one or more inspectors, which inspector or inspectors may include individuals who serve the Corporation in other capacities, including, without limitation, as officers, employees, agents or representatives of the Corporation, to act at the meeting and make a written report thereof. One or more persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate has been appointed to act, or if all inspectors or alternates who have been appointed are unable to act, at the meeting of stockholders, the Chairman of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall have the duties prescribed by the General Corporation Law of the State of Delaware (the "GCL").
The Chairman of the meeting shall fix and announce at the meeting the time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting.
ARTICLE III
DIRECTORS
Section 1. The number of Directors which shall constitute the whole Board shall be not less than 1 nor more than 11. The first Board shall consist of one Director. Thereafter, within the limits above specified, the number of Directors shall be determined by resolution of the Board of Directors or by the stockholders at the annual meeting. The Directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2 of this Article, and each Director elected shall hold office until his successor is elected and qualified. Except as otherwise permitted by or consistent with applicable statutory, regulatory and interpretive restrictions regarding foreign ownership or control of U.S. air carriers, at no time shall more than one-third of the Directors in office be Aliens (as defined in the Certificate of Incorporation). Directors need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of Directors may be filled by a majority of the Directors then in office, though less than a quorum, or by a sole remaining Director, and the Directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no Directors in office, then an election of Directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the Directors then in office shall constitute less than a majority of the whole Board (as constituted immediately prior to any such increase), the
Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such Directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the Directors chosen by the Directors then in office.
Section 3. The business of the Corporation shall be managed by or under the direction of its Board of Directors which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By-Laws directed or required to be exercised or done by the stockholders.
CHAIRMAN OF THE BOARD OF DIRECTORS
Section 4. The Board of Directors in its discretion may elect a Chairman of the Board of Directors and may also choose one or more Vice-Chairman of the Board. The Chairman of the Board of Directors shall be a Director. He shall preside at all meetings of stockholders and of the Board of Directors at which he shall be present, and he shall perform such other duties and enjoy such other powers as shall be delegated to him by the Board of Directors or which are or may at any time be required by law.
Section 5. Each Vice Chairman of the Board, in the absence of the Chairman of the Board, shall have all powers herein conferred upon the Chairman of the Board. In addition, each Vice Chairman shall have such other powers and duties as may be delegated to him or her by the Board of Directors.
Section 6. The Chairman and any Vice-Chairman of the Corporation shall hold office until their successors are chosen and qualify. Any Chairman or Vice-Chairman elected or appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directos.
MEETINGS OF THE BOARD OF DIRECTORS
Section 7. The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware at such place as is indicated in the notice or waiver of notice thereof.
Section 8. The first meeting of each newly elected Board of Directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected Directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected
Board of Directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the Board of Directors, or as shall be specified in a written waiver signed by all of the Directors.
Section 9. Regular meetings of the Board of Directors shall be held on such date and at such times and places as shall be designated from time to time by the Board of Directors; provided, that the Board shall hold at least four (4) regular meetings in each year; provided, further, that the regular meetings of the Board of Directors can be waived at the request of the Chief Executive Officer if at least a majority of the Directors agree in writing to such waiver at least seven days before the date of the meeting to be so waived except that in any event the Board shall hold at least four (4) regular meetings in each year. The Secretary shall forward to each Director, at least five days before any such regular meeting, a notice of the time and place of the meeting, together with the reports and recommendations of any committee of the Board of Directors required to deliver periodic reports and the agenda for the meeting prepared by the Chief Executive Officer or in lieu thereof a notice of waiver if the regular meeting has been waived.
Section 10. Special meetings of the Directors may be called by the Chairman of the Board, any Vice Chairman, the Chief Executive Officer or a majority of the Directors, at such time and place as shall be specified in the notice or waiver thereof. Notice of each special meeting, including the time and place of the meeting and the agenda therefor, shall be given by the Secretary or by the person calling the meeting to each Director by causing the same to be delivered personally or by facsimile transmission not later than the close of business on the second day next preceding the day of the meeting.
Section 11. Members of the Board of Directors, or of any committee designated by the Board, may participate in a meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting.
Section 12. At all meetings of the Board a majority of the Directors shall constitute a quorum for the transaction of business and the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by statute or by the Certificate of Incorporation. If a quorum shall not be present at any meeting of the Board of Directors the Directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 13. Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee.
Section 14. Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment but by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
Section 15. The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the Directors of the Corporation. The Board may designate 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 (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the Board of Directors as provided in Section 151(a) of the GCL, fix any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the Corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the Corporation), adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending the By-Laws of the Corporation; and, unless the resolution or the Certificate of Incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger. Such
committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors.
Section 16. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.
COMPENSATION OF DIRECTORS
Section 17. Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, the Board of Directors shall have the authority to fix the compensation of Directors. The Directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as Director. No such payment shall preclude any Director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.
REMOVAL OF DIRECTORS
Section 18. Unless otherwise restricted by the Certificate of Incorporation or by law, any Director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of Directors.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the Certificate of Incorporation or of these By-Laws, notice is required to be given to any Director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such Director or stockholder, at his address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to Directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the Certificate of Incorporation or of these By-Laws, a waiver thereof in
writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the Corporation shall be chosen by the Board of Directors and shall be a Chief Executive Officer, a President, a Vice-President, a Secretary and a Treasurer. The Board of Directors may also choose additional Vice-Presidents, and one or more Assistant Secretaries and Assistant Treasurers. Any number of offices may be held by the same person, unless the Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. The Board of Directors at its first meeting after each annual meeting of stockholders shall choose a Chief Executive Officer, a President, one or more Vice-Presidents, a Secretary and a Treasurer.
Section 3. The Board of Directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors.
Section 4. The salaries of all officers and agents of the Corporation shall be fixed by the Board of Directors.
Section 5. The officers of the Corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors.
CHIEF EXECUTIVE OFFICER
Section 6. The Chief Executive Officer shall preside at all meetings of the stockholders and the Board of Directors, shall have general and active management of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the Corporation, except where required or permitted by law to be oth-
erwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board of Directors to some other officer or agent of the Corporation.
PRESIDENT
Section 8. The President shall perform all the duties and enjoy all the powers commonly incident to his office or delegated to him or which are, or may be, authorized or required by law. In the absence of the Chairman of the Board of Directors, he shall have and perform the duties of that office.
THE VICE-PRESIDENTS
Section 9. In the absence of the President or in the event of his inability or refusal to act, the Vice-President (or in the event there be more than one Vice-President, the Vice-Presidents in the order designated by the Directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. The Vice-Presidents shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARY
Section 10. The Secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings of the meetings of the Corporation and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or Chief Executive Officer, under whose supervision he shall be. He shall have custody of the corporate seal of the Corporation and he, or an Assistant Secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature.
Section 11. The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election) shall, in the absence of the Secretary or in the event of his inability or refusal to act, perform the duties and exercise the powers of the Secretary
and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 12. 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.
Section 13. He shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as treasurer and of the financial condition of the Corporation.
Section 14. If required by the Board of Directors, he shall give the Corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.
Section 15. The Assistant Treasurer, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election) shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.
ARTICLE VI
CERTIFICATES FOR SHARES
Section 1. The shares of the Corporation shall be represented by a certificate or shall be uncertificated. Certificates shall be signed by, or in the name of the Corporation by the Chairman or Vice-Chairman of the Board of Directors, the Chief Executive Officer, or the
President or a Vice-President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation.
Within a reasonable time after the issuance or transfer of uncertificated stock, the Corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) of the GCL or a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
Section 2. Any of or all the signatures on a certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue.
LOST CERTIFICATES
Section 3. The Board of Directors or any officer of the Corporation may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the Board of Directors or any officer may, in its/his/her discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it/he/she shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.
TRANSFER OF STOCK
Section 4. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares such uncertificated shares shall be canceled and issuance of new equiva-
lent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the Corporation.
FIXING RECORD DATE
Section 5. 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 nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
REGISTERED STOCKHOLDERS
Section 6. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VII
OWNERSHIP BY ALIENS
Section 1. Foreign Stock Record. There shall be maintained a separate stock record, designated the "Foreign Stock Record," for the registration of Voting Stock, as defined in Section 2, that is Beneficially Owned (as defined in the Certificate of Incorporation) by aliens, as defined in the Certificate of Incorporation ("Alien Stock"). The Beneficial Ownership by aliens of Voting Stock shall be determined in conformity with regulations prescribed by the Board of Directors.
Section 2. Maximum Percentages. At no time shall ownership of shares representing more than the Maximum Percentage, as defined below, be registered in the Foreign Stock Record. As used herein, (a) "Maximum Percentage" means the maximum percentage of voting power of Voting Stock, as defined below, which may be voted by, or at the direction of, Aliens without violating applicable statutory, regulatory and interpretive restrictions regarding foreign ownership or control of U.S. air carriers or adversely affecting the Corporation's operating certificates or authorities, and (b) "Voting Stock" means all outstanding shares of capital stock of the Corporation issued from time to time by the Corporation which, by their terms may vote (at the time such determination is made) for the election of Directors of the Corporation, except shares of Preferred Stock that are entitled to vote for the election of Directors solely as a result of the failure to pay dividends by the Corporation or other breach of the terms of such Preferred Stock.
Section 3. Recording of Shares. If at any time there exist shares of Voting Stock that are Alien Stock but that are not registered in the Foreign Stock Record, the Beneficial Owner thereof may request, in writing, the Corporation to register ownership of such shares on the Foreign Stock Record and the Corporation shall comply with such request, subject to the limitation set forth in Section 2. The order in which Alien Stock shall be registered on the Foreign Stock Record shall be chronological, based on the date the Corporation received a written request to so register such shares of Alien Stock. If at any time the Corporation shall find that the combined voting power of Voting Stock then registered in the Foreign Stock Record exceeds the Maximum Percentage, there shall be removed from the Foreign Stock Record the registration of such number of shares so registered as is sufficient to reduce the combined voting power of the shares so registered to an amount not in excess of the Maximum Percentage. The order in which such shares shall be removed shall be reverse chronological order based upon the date the Corporation received a written request to so register such shares of Alien Stock.
ARTICLE VIII
GENERAL PROVISIONS - DIVIDENDS
Section 1. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation.
Section 2. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the Directors shall think conducive to the interest of the Corporation, and the Directors may modify or abolish any such reserve in the manner in which it was created.
ANNUAL STATEMENT
Section 3. The Board of Directors shall present at each annual meeting a full and clear statement of the business and condition of the Corporation.
CHECKS
Section 4. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name of the Corporation and the words "Corporate Seal, Delaware." The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE IX
INDEMNIFICATION
Section 1. (a) Any person made a party or threatened to be made a party to a threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action or suit by or in the right of the Corporation to
procure a judgment in its favor) by reason of the fact that he is or was a Director or officer of the Corporation, or is or was serving at the request of the Corporation as a Director or officer of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, shall be indemnified by the Corporation against expenses (including attorneys' fees), judgment, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding to the fullest extent authorized by the GCL as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment). The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, that the person had reasonable cause to believe that his conduct was unlawful.
(b) Any person made a party or threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a Director or officer of the Corporation, or is or was serving at the request of the Corporation as a Director or officer of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, shall be indemnified by the Corporation against expenses (including attorneys' fees), judgment, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action or suit to the fullest extent authorized by the GCL as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment) except that no indemnification shall be made hereunder in respect of any claim, issue or matter as to which the person shall be adjudged liable to the Corporation unless and only to the extent that the court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability, but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which said Court of Chancery or such other court shall deem proper.
(c) The indemnification and advancement of expenses provided by, or granted pursuant to, this Section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a Director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person.
Section 2. Insurance. The Board of Directors of the Corporation may, in its discretion, authorize the Corporation to purchase and maintain insurance on behalf of any person who is or was a Director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a Director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise including service with respect to an employee benefit plan, against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of Section 3 of this Article IX.
ARTICLE X
AMENDMENTS
Section 1. The Board of Directors is expressly authorized to adopt, repeal, alter or amend these By-Laws by the vote of a majority of the entire Board of Directors. In addition, the stockholders of the Corporation may adopt, repeal, alter or amend provisions of these By-Laws upon the affirmative vote of the holders of 66 2/3% of the combined voting power of the then outstanding stock of the Corporation entitled to vote generally in the election of Directors.
EXHIBIT 99.1
News Release
Atlas Air
2000 Westchester Avenue
Purchase, NY 10577-2543
Contact: Vicki L. Foster
(914) 701-8400
ATLAS AIR ANNOUNCES FORMATION OF HOLDING COMPANY STRUCTURE
PURCHASE, N.Y.-- (BUSINESS WIRE)-- February 16, 2001 -- Atlas Air, Inc. (NYSE-CGO) today announced the implementation of a holding company structure. The name of the new holding company is Atlas Air Worldwide Holdings, Inc. Atlas Air, Inc., and its subsidiaries, are now subsidiaries of Atlas Air Worldwide Holdings, Inc. The holding company structure provides an appropriate legal and financial structure for the company's current and future strategies.
The outstanding shares of common stock of Atlas Air, Inc. have automatically converted on a share-for-share basis into the shares of Atlas Air Worldwide Holdings, Inc. The new shares have the same rights and terms as the old shares and will continue to be traded on the New York Stock Exchange under the symbol "CGO."
The holding company restructuring was accomplished through a merger under
Section 251(g) of the Delaware General Corporation Law pursuant to which all
stockholders of Atlas Air, Inc. became stockholders of Atlas Air Worldwide
Holdings, Inc. The charter and by-laws of the new holding company are
substantially the same as the charter and by-laws of Atlas Air and the directors
of the holding company are the same as the current directors of Atlas Air.
Stockholders are not required to take any action in connection with this corporate restructuring. All outstanding shares will be converted into shares of the holding company, in a non-taxable transaction, with the same voting powers, designations, preferences and rights, and the same qualifications, restrictions, and limitations, as the shares of Atlas Air previously held by the stockholders prior to the holding company merger.
Certificates formerly representing shares of common stock of Atlas Air will be deemed to represent shares of common stock of the holding company. Atlas Air's transfer agent will deliver to each former stockholder of Atlas Air a transmittal letter that must be re-
turned to the transfer agent, along with the original stock certificate of Atlas Air, in order to receive a new certificate for common stock of the holding company representing the identical number of shares of common stock of Atlas Air previously owned by the stockholder.
Atlas Air is a United States certificated air carrier that operates a fleet of 747 freighters under ACMI contracts. These contracts include the provision by Atlas of aircraft, crew, maintenance and insurance for some of the world's leading international carriers. Atlas operates flights on behalf of its customer airlines to 101 cities in 46 countries.