BYLAWS
As
Adopted to be Effective on
April
30, 2007
Incorporated
Under
the Laws of
Delaware
TABLE
OF CONTENTS
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Article
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Section
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Subject
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Page
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I
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Offices
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1
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1
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Registered
Office
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1
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2
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Other
Offices
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1
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II
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Stockholders’
Meetings
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1
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1
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Place
of Meetings
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1
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2
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Annual
Meetings
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1
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3
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Special
Meetings
|
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1
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4
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Notice
of Meetings
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2
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|
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5
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Quorum,
Adjournment and Voting
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2
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6
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Voting
Rights and Proxies
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3
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7
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List
of Stockholders
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3
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8
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Nominations;
Stockholder Meetings
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4
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III
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Directors
|
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7
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|
1
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Number
and Term of Office
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7
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2
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Powers
|
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7
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3
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Vacancies
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8
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4
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Resignations
and Removals
|
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8
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5
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Meetings
|
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8
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|
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6
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Quorum
and Voting
|
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8
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7
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Action
Without Meeting
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9
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8
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Fees
and Compensation
|
|
9
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9
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Chairman
of the Board
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9
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10
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Committees
|
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9
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11
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Emergency
Bylaws
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10
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IV
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|
Officers
|
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10
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1
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Officers
Designated
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10
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2
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Tenure,
Succession and Duties of Officers
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11
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V
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|
Execution
of Corporate Instruments, and Voting Securities Owned by the
Corporation
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11
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|
1
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Execution
of Corporate Instruments
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11
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2
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Execution
of Voting of Securities Owned by Corporation
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12
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VI
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Shares
of Stock
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12
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1
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Form
and Execution of Certificates
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12
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2
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Lost
Certificates
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13
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3
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Transfers
|
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13
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4
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Fixing
Record Dates
|
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13
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5
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Registered
Stockholders
|
|
14
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|
VII
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|
Other
Securities of the Corporation
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|
14
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VIII
|
|
Corporate
Seal
|
|
14
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|
Article
|
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Section
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|
Subject
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Page
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IX
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Indemnification
of Directors, Officers, Employees and Agents
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|
15
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1
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|
Right
to Indemnification
|
|
15
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2
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Authority
to Advance Expenses
|
|
15
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3
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Procedure
for Operating Indemnification and Advancement
|
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16
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|
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4
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Right
of Indemnitees to Bring Suit
|
|
16
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|
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5
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Provisions
Nonexclusive
|
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17
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6
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Authority
to Insure
|
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17
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7
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Survival
of Rights
|
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17
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8
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Settlement
of Claims
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17
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9
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Effect
of Amendment
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17
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|
10
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Subrogation
|
|
17
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11
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No
Duplication of Payments
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|
17
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12
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Merger
or Consolidation
|
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18
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13
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Severability
|
|
18
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X
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Notices
|
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18
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XI
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Amendments
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20
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XII
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|
Electronic
Transmission
|
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20
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XIII
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|
Adoption
or Extension of Shareholder Rights Plan
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|
20
|
DELTA
AIR LINES, INC.
BYLAWS
(Adopted
to be effective as of April 30, 2007)
ARTICLE
I
Offices
Section
1. Registered Office.
The
corporation shall maintain a registered office in the State of
Delaware.
Section
2. Other Offices.
The
corporation shall also have and maintain an office or principal place of
business at Hartsfield-Jackson Atlanta International Airport, 1030 Delta
Boulevard, City of Atlanta, County of Fulton, State of Georgia, and may
also
have offices at such other places, both inside and outside 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
Stockholders'
Meetings
Section
1. Place of Meetings.
Meetings
of the stockholders of the corporation shall be held at such place, either
inside or outside the State of Delaware, as may be designated from time
to time
by the Board of Directors, or, if not so designated, then at the office
of the
corporation required to be maintained pursuant to Section 2 of Article
I hereof.
Section
2. Annual Meetings.
The
annual meetings of the stockholders of the corporation for the purpose
of
election of directors, and for such other business as may properly and
lawfully
come before them, shall be held on such date and at such time as may be
designated from time to time by the Board of Directors.
Section
3. Special Meetings.
Except
as
otherwise required by applicable law or as provided in the corporation’s Amended
and Restated Certificate of Incorporation, as the same may be amended or
restated from time to time (the “
Certificate
of Incorporation
”),
special meetings of the stockholders of the corporation may be called,
for any
purpose or purposes, at any time only by (i) the Chairman of the Board,
(ii) the
Chief Executive Officer, (iii) the Board of Directors, or (iv) stockholders
constituting more than 40% of the voting power of the outstanding shares
of
stock entitled to vote generally for the election of directors.
Section
4. Notice of Meetings.
(a)
Except
as
otherwise provided by law or the Certificate of Incorporation, written
notice
(as the term “written” is defined in Article XII hereof) of each meeting of
stockholders, specifying the place, date and hour of the meeting and the
purpose
or purposes of the meeting, shall be given not less than ten (10) nor more
than
sixty (60) days before the date of the meeting to each stockholder entitled
to
vote thereat, directed to the stockholders in accordance with the procedures
set
forth in Article X hereof.
(b)
If
at any
meeting action is proposed to be taken which, if taken, would entitle
stockholders fulfilling the requirements of Section 262(d) of the General
Corporation Law of the State of Delaware (the “Delaware General Corporation
Law”) to an appraisal of the fair value of their shares, the notice of such
meeting shall contain a statement of that purpose and to that effect and
shall
be accompanied by a copy of that statutory section.
(c)
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 unless the adjournment is for more than
thirty
(30) days, or unless after the adjournment a new record date is fixed for
the
adjourned meeting, in which event a notice of the adjourned meeting shall
be
given to each stockholder of record entitled to vote at the
meeting.
(d)
Notice
of
the time, place and purpose of any meeting of stockholders may be waived
in
writing, either before or after such meeting, and to the extent permitted
by
law, will be waived by any stockholder by his or her attendance thereat,
in
person or by proxy. Any stockholder so waiving notice of such meeting shall
be
bound by the proceedings of any such meeting in all respects as if due
notice
thereof had been given.
(e)
Unless
and until voted, every proxy shall be revocable at the pleasure of the
person
who executed it or of his or her legal representatives or assigns, except
in
those cases where an irrevocable proxy permitted by statute has been
given.
Section
5. Quorum, Adjournment and Voting.
(a)
At
all
meetings of stockholders, except where otherwise provided by law, the
Certificate of Incorporation or these Bylaws, the presence, in person or
by
proxy duly authorized, of the holders of a majority of the voting power
of the
shares entitled to vote thereat shall constitute a quorum for the transaction
of
business. Shares, the voting of which at said meeting have been enjoined,
or
which for any reason cannot be lawfully voted at such meeting, shall not
be
counted to determine a quorum at said meeting. In the absence of a quorum,
any
meeting of stockholders may be adjourned, from time to time, by vote of
the
holders of a majority of the voting power of the shares represented thereat,
but
no other business shall be transacted at such meeting. At such adjourned
meeting
at which a quorum is present or represented, any business may be transacted
which might have been transacted at the original meeting. The stockholders
present at a duly called or convened meeting, at which a quorum is present,
may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum.
(b)
Except
as
otherwise provided by law, the Certificate of Incorporation or these Bylaws,
all
action taken by the affirmative vote of the holders of a majority of the
voting
power of the stock entitled to vote at any meeting at which a quorum is
present
shall be the act of the stockholders.
Section
6. Voting Rights and Proxies.
(a)
Except
as
otherwise provided by law, only persons in whose names shares entitled
to vote
stand on the stock records of the corporation on the record date for determining
the stockholders entitled to vote at a meeting shall be entitled to vote
at such
meeting. Shares standing in the names of two (2) or more persons shall
be voted
or represented in accordance with the determination of the majority of
such
persons, or, if only one (1) of such persons is present in person or represented
by proxy, such person shall have the right to vote such shares and such
shares
shall be deemed to be represented for the purpose of determining a
quorum.
(b)
Every
person entitled to vote or execute consents shall have the right to do
so either
in person or by an agent or agents authorized by a written proxy executed
by
such person or such person's duly authorized agent, which proxy shall be
filed
with the Secretary of the corporation at or before the meeting at which
it is to
be used. The proxy so appointed need not be a stockholder. No proxy shall
be
voted on after three (3) years from its date unless the proxy provides
for a
longer period.
(c)
Any
copy,
facsimile telecommunication or other written communication may be substituted
or
used in lieu of the original written proxy, provided such copy shall be
a
complete reproduction of the entire original writing or transmission. In
case of
any challenge of the right of a given stockholder to vote in person or
by proxy,
the chairman of the meeting shall be authorized to make the appropriate
determination, which decision will be final.
Section
7. List of Stockholders.
The
officer who has charge of the stock ledger of the corporation shall prepare
and
make, at least ten (10) days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at said meeting, arranged in
alphabetical order, showing the address of and the number of shares registered
in the name of each stockholder. Electronic mail addresses or other electronic
contact information shall not be required to be included on such list.
Such list
shall be open to the examination of any stockholder, for any purpose germane
to
the meeting, for a period of at least ten (10) days prior to the meeting,
either
(a) on a reasonably accessible electronic network, provided that the information
required to gain access to such list is provided with the notice of the
meeting,
or (b) during ordinary business hours, at the principal place of business
of the
corporation. In the event that the corporation determines to make the list
available on an electronic network, the corporation may take reasonable
steps to
ensure that such information is available only to stockholders of the
corporation. The list shall 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.
Section
8. Nominations; Stockholder Meetings.
(a)
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, (b) by or at the direction of the Board of Directors, or (c) by
any
stockholder of the corporation who is a stockholder of record at the time
of
giving of the notice provided for in this section, who is entitled to vote
at
the meeting and who has complied with the notice procedures set forth in
this
section.
(b)
For
nominations or other business to be properly brought before an annual meeting
by
a stockholder pursuant to this section, the stockholder must have given
timely
notice thereof in writing to the Secretary of the corporation, and such
business
must be a proper subject for stockholder action under the Delaware General
Corporation Law. To be timely, a stockholder's notice shall be delivered
to the
Secretary at the principal executive offices of the corporation (if delivered
by
electronic mail or facsimile, the stockholder's notice shall be directed
to the
Secretary at the electronic mail address or facsimile number, as the case
may
be, specified in the company's most recent proxy statement) by the close
of
business on the date that is not less than ninety (90) days nor more than
one
hundred twenty (120) days prior to the anniversary date of the immediately
preceding annual meeting of stockholders; provided, however, that in the
event
that the date of the annual meeting is advanced by more than thirty (30)
days or
delayed (other than as a result of adjournment) by more than thirty (30)
days
from the anniversary of the previous year's annual meeting, notice by the
stockholder to be timely must be delivered not later than the close of
business
on the later of the ninetieth (90
th
)
day
prior to such annual meeting or the tenth (10
th
)
day
following the day on which public announcement of the date of such meeting
is
first made by the corporation. 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 of the
corporation 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 owners 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, (ii) the class and number
of
shares of the corporation which are owned beneficially and of record by
such
stockholder and such beneficial owner, (iii) a representation that the
stockholder is a holder of record of stock of the corporation entitled
to vote
at such meeting and intends to appear in person or by proxy at the meeting
to
propose such business or nomination and (iv) a representation whether the
stockholder or the beneficial owner, if any, intends or is part of a group
which
intends (a) to deliver a proxy statement and/or form of proxy to holders
of at
least the percentage of the corporation’s outstanding capital stock required to
approve or adopt the proposal or elect the nominee and/or (b) otherwise
to
solicit proxies from stockholders in support of such proposal or nomination.
The
foregoing notice requirements of this section shall be deemed satisfied
by a
stockholder
if the stockholder has notified the corporation of his or her intention
to
present a proposal or nomination at an annual meeting in compliance with
applicable rules and regulations promulgated under the Exchange Act and
such
stockholder’s proposal or nomination has been included in a proxy statement that
has been prepared by the corporation to solicit proxies for such annual
meeting.
The corporation may also require any proposed nominee for election or
re-election as a director to furnish such other information as may reasonably
be
required by the corporation to determine the eligibility of such proposed
nominee to serve as a director of the corporation.
(c)
Notwithstanding
anything in this section 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 specifying the size of the increased Board of Directors
made
by the corporation at least seventy (70) days prior to the first anniversary
of
the preceding year's annual meeting, a stockholder's notice required by
this
section 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 (10
th
)
day
following the day on which such public announcement is first made by the
corporation.
(d)
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.
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 (a) by or at the direction of the Board
of
Directors or (b) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
corporation who is a stockholder of record at the time of giving of notice
provided for in this section, who is entitled to vote at the meeting and
who
complies with the notice procedures set forth in this section. In the event
a
special meeting of stockholders is called for the purpose of electing directors
to the Board of Directors, any stockholder entitled to vote at such election
may
nominate a person or persons (as the case may be) for election to such
position(s) as specified in the corporation’s notice of meeting if the
stockholder's notice required by this section shall be delivered to the
Secretary at the principal executive offices of the corporation (if delivered
by
electronic mail or facsimile, the stockholder’s notice shall be directed to the
Secretary at the electronic mail address or facsimile number, as the case
may
be, specified in the company's most recent proxy statement) not earlier
than the
close of business on the one hundred twentieth (120
th
)
day
prior to such special meeting and not later than the close of business
on the
ninetieth (90
th
)
day
prior to such special meeting or the tenth (10
th
)
day
following the day on which public announcement of the date of the special
meeting and of the nominees proposed by the Board of Directors to be elected
at
such meeting is first made by the corporation.
(e)
Only
those persons who are nominated in accordance with the procedures set forth
in
this section shall be eligible for election as directors at any meeting
of
stockholders. 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. Except as otherwise provided by law, 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 and, if any proposed nomination
or
business is not in compliance with this section, to declare that such defective
proposal shall be disregarded. Notwithstanding the foregoing provisions
of this
section, unless otherwise required by law, if the stockholder (or a qualified
representative of the stockholder) does not appear at the annual or special
meeting of stockholders of the corporation to present a nomination or proposed
business, such nomination shall be disregarded and/or such proposed business
shall not be transacted, notwithstanding that proxies in respect of such
vote
may have been received by the corporation. For purposes of this section,
to be
considered a qualified representative of the stockholder, a person must
be
authorized by a writing executed by such stockholder to act for such stockholder
as proxy at the meeting of stockholders and such person must produce such
writing, or a reliable reproduction of the writing, at the meeting of
stockholders.
(f)
For
purposes of this section, “public announcement” shall mean disclosure 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.
(g)
Notwithstanding
the foregoing provisions of this section, 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. Nothing
in
this section 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.
(h)
All
meetings of the stockholders shall be presided over by the Chairman of
the
board, or in the absence or disability of the chairman, by a director selected
by resolution of the members of the Board of Directors.
(i)
The
Board
of Directors or the chairman of the meeting may adopt such rules and regulations
for the conduct of any meeting of stockholders as deemed appropriate. Except
to
the extent inconsistent with such rules and regulations, the chairman of
the
meeting of stockholders shall have the right and authority to convene and
adjourn the meeting, prescribe such rules, regulations and procedures and
to do
all acts, as in the judgment of such person, are appropriate for the proper
conduct of the meeting, including establishing the order of business. Such
rules, regulations or procedures, whether adopted by the Board of Directors
or
the chairman of the meeting, may include, without limitation, the following:
(i)
the establishment of an agenda or order of business for the meeting; (ii)
rules
and procedures for maintaining order at the meeting and the safety of persons
at
the meeting; (iii) limitations on attendance at or participation at the
meeting
to stockholders of record of the corporation, their duly authorized proxies
or
such other person as the chairman of the meeting shall determine; (iv)
restrictions on entry to the meeting after the time fixed for the commencement
thereof; (v) limitations on the time allotted to questions or comments
by
participants; and (vi) rulings on other matters of propriety of conduct
or
business at the meeting, including determining that any matter is not properly
brought before the meeting and shall not be considered for approval by
stockholders. Unless determined by the chairman of the meeting or the Board
of
Directors or Secretary, the rules of parliamentary procedure shall not
govern
meetings of stockholders. The Secretary or an Assistant Secretary of the
corporation should act as Secretary of a meeting of
stockholders.
ARTICLE
III
Directors
Section
1. Number and Term of Office.
The
number of directors which shall constitute the whole Board of Directors
shall be
not less than five (5) nor more than fifteen (15), the exact number of
directors
to be determined from time to time solely by resolution adopted by the
affirmative vote of a majority of the Whole Board (as defined below). Except
as
provided in Section 3 of this Article, each director shall be elected by
the
vote of a majority of the votes cast with respect to the director at any
meeting
for the election of directors at which a quorum is present; provided, however,
that if the number of nominees exceeds the number of directors to be elected,
the directors shall be elected by the vote of a plurality of the shares
represented in person or by proxy at any such meeting and entitled to vote
on
the election of directors. For purposes of this section, a majority of
the votes
cast means that the number of shares voted “for” a director must exceed fifty
(50) percent of the votes cast with respect to that director. In an election
in
which the number of nominees does not exceed the number of directors to
be
elected, if a nominee who is a standing director is not elected, such director
shall offer to tender his or her resignation to the Board of Directors.
The
Corporate Governance Committee of the Board of Directors shall make a
recommendation to the Board of Directors on whether to accept or reject
the
resignation, or whether other action should be taken. The Board of Directors
shall act on the Committee's recommendation and publicly disclose its decision
and the rationale behind it within ninety (90) days from the date of the
certification of the election results. The director who tenders his or
her
resignation shall not participate in the decision of the Board of Directors.
(b)
Directors
shall hold office until the next annual meeting and until their successors
shall
be duly elected and qualified, or until their earlier death, disqualification,
resignation or removal.
Section
2. Powers.
The
powers of the corporation shall be exercised, its business conducted and
its
property controlled by or under the direction of the Board of
Directors.
Section
3. Vacancies.
Vacancies
and newly created directorships resulting from any increase in the authorized
number of directors may be filled by a majority of the directors then in
office,
although less than a quorum, or by a sole remaining director, and each
director
so elected shall hold office for the unexpired portion of the term of the
director whose place shall be vacant, and until his or her successor shall
have
been duly elected and qualified. A vacancy in the Board of Directors shall
be
deemed to exist under this section in the case of the death, disqualification,
resignation or removal of any director, or if the stockholders fail at
any
meeting of stockholders at which directors are to be elected (including
any
meeting referred to in Section 4 below) to elect the number of directors
then
constituting the Whole Board.
Section
4. Resignations and Removals.
(a)
Any
director may resign at any time by delivering his or her written resignation
to
the Secretary, such resignation to specify whether it will be effective
at a
particular time or upon the happening of a specific event or events, upon
receipt by the Secretary, or at the pleasure of the Board of Directors.
If no
specification is made, the resignation shall be deemed effective upon delivery
to the Secretary. A resignation conditioned upon a director failing to
receive a
specified vote for reelection as a director may provide that it is irrevocable.
When one (1) or more directors shall resign from the Board, effective at
a
future date, a majority of the directors remaining in office shall have
power to
fill such vacancy or vacancies, the vote thereon to take effect when such
resignation or resignations shall become effective, and each director so
chosen
shall hold office for the unexpired portion of the term of the director
whose
place shall be vacated and until his or her successor shall have been duly
elected and qualified.
(b)
Except
as
provided in Section 141 of the Delaware General Corporation Law, at any
annual
meeting or any special meeting of stockholders called for the purpose in
the
manner hereinabove provided, the Board of Directors, or any individual
director,
may be removed from office, with or without cause, and a new director or
directors elected by a vote of the holders of a majority of the voting
power of
the shares entitled to vote at an election of directors.
Section
5. Meetings.
(a)
Except
as
hereinafter otherwise provided, regular meetings of the Board of Directors
shall
be held in the office of the corporation required to be maintained pursuant
to
Section 2 of Article I hereof. Regular meetings of the Board of Directors
may
also be held at any place within or without the State of Delaware which
has been
designated by resolutions of the Board of Directors or the written consent
of
all directors. Notice of regular meetings of the directors is hereby dispensed
with and no notice whatever of any such meetings need be given.
(b)
Special
meetings of the Board of Directors may be held at any time and place inside
or
outside the State of Delaware whenever called by the Chairman of the Board,
or
by the Chief Executive Officer (if a director) or by any three (3)
directors.
(c)
Notice
of
the time and place of all special meetings of the Board of Directors shall
be
delivered to each director at least twenty-four (24) hours before the start
of
the meeting, either personally, by mail, by telecopy or by other means
of
electronic transmission. If notice is sent by first class mail, it will
be
deemed delivered three days after deposit in the U.S. mail. Notice of any
meeting may be waived in writing at any time before or after the meeting
and
will be waived by any director by attendance thereat.
Section
6. Quorum and Voting.
(a)
A
majority of the Whole Board shall constitute a quorum of the Board of Directors
for the transaction of business. For purposes of these Bylaws, “
Whole
Board
”
shall
mean the total number of directors of the corporation, as set by the Board
of
Directors pursuant to Section 1(a) of this Article III, which the corporation
would have if there were no vacancies.
(b)
At
each
meeting of the Board at which a quorum is present, all questions and business
shall be determined by a vote of a majority of the directors present, unless
a
different vote be required by law, the Certificate of Incorporation or
these
Bylaws.
(c)
Any
member of the Board of Directors, or of any committee thereof, may participate
in a meeting by means of conference telephone or other communication 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.
(d)
The
transactions of any meeting of the Board of Directors, or any committee
thereof,
however called or noticed, or wherever held, shall be as valid as though
made at
a meeting duly held after regular call and notice, if a quorum be present
and
if, either before or after the meeting, each of the directors not present
shall
deliver to the corporation a written waiver of notice, or a consent to
holding
such meeting, or an approval of the minutes thereof. All such waivers,
consents
or approvals shall be filed with the corporate records or made a part of
the
minutes of the meeting.
Section
7. Action Without Meeting.
Unless
otherwise restricted by the Certificate of Incorporation or these Bylaws,
any
action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting, if
all
members of the Board or of such committee, as the case may be, consent
thereto
in writing or by electronic transmission, and such writing or writings
or
electronic transmission or transmissions, as the case may be, are filed
with the
minutes of proceedings of the Board or of such committee.
Section
8. Fees and Compensation.
Directors
may receive compensation for their services as directors as determined
from time
to time by the Board of Directors. Nothing herein contained shall be construed
to preclude any director from serving the corporation in any other capacity
as
an officer, agent, employee or otherwise, and receiving compensation
therefor.
Section
9. Chairman of the Board.
The
Board
of Directors shall elect a chairman to preside at meetings of the Board
of
Directors from among its members. The Chairman of the Board shall have
such
powers and perform such duties as may be prescribed to him or her by the
Board
of Directors or provided in these Bylaws. If the Chairman of the Board
is not
present at a meeting of the Board of Directors, or if there is a vacancy
in the
position of Chairman of the Board, a majority of the directors present
at such
meeting shall elect one of their members to so preside.
Section
10. Committees.
(a)
The
Board
of Directors may appoint such committees as may be permitted by law. Such
committees appointed by the Board of Directors shall have such powers and
perform such duties as may be prescribed by the resolution or resolutions
creating such committees. The Board may at any time increase or decrease
the
number of members of a committee or terminate
the
existence of a committee; provided, however, that no committee shall consist
of
less than one (1) member. The membership of a committee member shall terminate
on the date of his or her death or resignation, but the Board may at any
time
for any reason remove any individual committee member and the Board may
fill any
committee vacancy created by death, resignation, removal or increase in
the
number of members of the committee. The Board of Directors may designate
one (1)
or more directors as alternate members of any committee, who may replace
any
absent or disqualified member at any meeting of the committee, and, in
addition,
in the absence or disqualification of any member of a committee, the member
or
members thereof present at any meeting and not disqualified from voting,
whether
or not the member or members constitutes 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.
(b)
Unless
the Board of Directors shall otherwise provide, regular meetings of any
committee appointed pursuant to this section shall be held at such times
and
places as are determined by the Board of Directors, or by any such committee,
and when notice thereof has been given to each member of such committee,
no
further notice of such regular meetings need be given thereafter. Special
meetings of any such committee may be called by the chairman of the committee
or
any two members of the committee upon written notice to the members of
such
committee of the time and place of such special meeting given in the manner
provided for the giving of written notice to members of the Board of Directors
of the time and place of special meetings of the Board of Directors. Notice
of
any special meeting of any committee may be waived in writing at any time
before
or after the meeting and will be waived by any director in attendance at
a
meeting. One-half of the number of members of any such committee shall
constitute a quorum for the transaction of business, and the act of a majority
of those present at any meeting at which a quorum is present shall be the
act of
such committee.
Section
11. Emergency Bylaws.
In
the
event of any emergency, disaster or catastrophe, as referred to in Section
110
of the Delaware General Corporation Law, or other similar emergency condition,
as a result of which a quorum of the Board of Directors or a standing committee
of the Board cannot readily be convened for action, then the director or
directors in attendance at a meeting shall constitute a quorum. Such director
or
directors in attendance may further take action to appoint one (1) or more
of
themselves or other directors to membership on any standing or temporary
committees of the Board as they shall deem necessary and
appropriate.
ARTICLE
IV
Officers
Section
1. Officers Designated.
(a)
The
officers of the corporation shall include a Chief Executive Officer and
a
Secretary, each of whom shall be elected or appointed by the Board of Directors.
The Board of Directors may from time to time create other offices and establish
the duties of such other officers and may elect or appoint the person who
shall
hold other offices, including a President, a Chief Operating Officer, a
Chief
Financial Officer, one or more Vice Presidents (including Executive Vice
Presidents, Senior Vice Presidents and the like), one or more Assistant
Secretaries,
a Treasurer and one or more Assistant Treasurers. Any one (1) person may
hold
any number of offices of the corporation at any one time unless specifically
prohibited therefrom by law. Any office of the corporation may be left
vacant
from time to time at the discretion of the Board of Directors. The salaries
and
other compensation of the officers of the corporation shall be fixed by
or in
the manner designated by the Board of Directors or by a committee of the
Board
of Directors.
(b)
In
addition to the authority of the Board of Directors as set forth in Section
1(a), the Chief Executive Officer shall have the authority to appoint one
or
more Vice Presidents (none of whom may be designated as an Executive Vice
President), any Assistant Secretaries, the Treasurer and any Assistant
Treasurers and such other officers as the Board of Directors may from time
to
time authorize the Chief Executive to appoint. The Chief Executive Officer
may
from time to time, in his or her discretion, assign powers, duties, scope
of job
responsibilities and reporting arrangements for any such officer.
Section
2. Tenure, Succession and Duties of Officers.
(a)
All
officers shall hold office at the discretion of the Board of Directors
and until
their successors shall have been duly elected and qualified, or until their
earlier death, disqualification, resignation or removal. Any officer may
be
removed with or without cause at any time by the Board of Directors or,
except
in the case of an officer elected by the Board, by the Chief Executive
Officer
pursuant to authority delegated to him or her from time to time by the
Board of
Directors. If any vacancy occurs in any office, the Board of Directors
may elect
a successor to fill such vacancy for the remainder of the term. Nothing
in these
Bylaws shall be construed as creating any kind of contractual right to
employment with the corporation.
(b)
The
officers of the corporation shall have such powers, authority and duties
in the
management of the corporation as shall be stated in these Bylaws or in
a
resolution of the Board of Directors which is not inconsistent with these
Bylaws
and, to the extent not so stated, as generally pertain to their respective
offices, subject to the oversight of the Board. In the case of the absence
or
disability of any officer of the corporation and of any person hereby authorized
to act in such officer’s place during such officer’s absence or disability, the
Board of Directors may by resolution delegate the powers and duties of
such
officer to any other officer or to any Director, or to any other person
selected
by it.
ARTICLE
V
Execution
of Corporate Instruments, and
Voting
of Securities Owned by the Corporation
Section
1. Execution of Corporate Instruments.
(a)
From
time
to time, the Board of Directors shall determine by resolution which person
or
persons may sign or endorse all checks, drafts, other orders for payment
of
money, notes, bonds, debentures or other evidences of indebtedness that
are
issued in the name of or payable by the corporation, and only the persons
so
authorized shall sign or endorse such instruments.
(b)
Except
as
otherwise provided in these Bylaws, the Board of Directors may authorize
any
officer or officers, or agent or agents, to enter into any contract or
execute
any instrument in the name of and on behalf of the corporation. Such authority
may be general or confined to specific instances. Unless so authorized
or
ratified by the Board of Directors or within the agency power of an officer,
no
officer, agent or employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its credit or to
render
it liable for any purpose or for any amount.
Section
2. Execution and Voting of Securities Owned by Corporation.
All
stock
and other securities of other corporations owned or held by the corporation
for
itself, or for other parties in any capacity, shall be voted, and all proxies
with respect thereto shall be executed, by the person authorized so to
do by
resolution of the Board of Directors or, in the absence of such authorization,
by the Chief Executive Officer, the President, the Chief Financial Officer,
the
Treasurer or the Secretary. Certificates for shares of stock or other securities
owned by the corporation shall be executed, signed or endorsed by the person
authorized so to do by resolution of the Board of Directors or, in the
absence
of such authorization, by, the Chief Executive Officer, the President,
the Chief
Financial Officer, the Treasurer, or the Secretary.
ARTICLE
VI
Shares
of Stock
Section
1. Form and Execution of Certificates.
Shares
of
stock of the corporation shall be uncertificated and shall not be represented
by
certificates except to the extent as may be required by applicable law
or as
otherwise authorized by the Board of Directors, and if so issued shall
be in
such form as is consistent with the Certificate of Incorporation and applicable
law. If shares of stock of the corporation shall be certificated, every
holder
of shares represented by certificates shall be entitled to have a certificate
signed by, or in the name of the corporation by, the Chairman of the Board,
or
by the Chief Executive Officer, or by the President or any Vice President
and by
the Treasurer or Assistant Treasurer or the Secretary or an Assistant Secretary,
certifying the number of shares owned by a stockholder in the corporation.
Any
or all of the signatures on the certificate may be a facsimile. In case
any
officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent, or registrar before such certificate is issued,
it may
be issued with the same effect as if he or she were such officer, transfer
agent, or registrar at the date of issue. If the corporation shall be authorized
to issue more than one class of stock or more than one series of any class,
and
if and to the extent that the corporation shall be required or authorized
as
provided above to issue certificates representing all or a portion of such
class
or series of stock, then the powers, designations, preferences and relative,
participating, optional or other special rights of each such class of stock
or
series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the
face
or back of the certificate which the corporation shall issue to represent
such
class or series of stock, provided that, except as otherwise provided in
Section
202 of the Delaware General Corporation Law, in lieu of the foregoing
requirements for such certificated shares, there may be set forth on the
face or
back of the certificate which the corporation shall issue to represent
such
class or series of stock, a statement that the corporation will furnish
without
charge to each stockholder who so requests the powers, designations, preferences
and relative, participating, optional or other special rights of each class
of
stock or series thereof and the qualifications, limitations or restrictions
of
such preferences and/or rights.
Section
2. Lost, Stolen or Destroyed Certificates.
The
Board
of Directors or the Secretary or an Assistant Secretary 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,
the
Board of Directors or the Secretary or an Assistant Secretary may, in its
or
their discretion and as a condition precedent to the issuance thereof,
require
the owner of such lost, stolen or destroyed certificate or certificates,
or such
owner's legal representative, to indemnify the corporation in such manner
as it
shall require and/or to give the corporation a surety bond in such form
and
amount 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.
Section
3. Transfers.
Transfers
of shares of stock of the corporation shall be made on the books of the
corporation kept by the corporation or by a transfer agent designated to
transfer the shares of stock of the corporation only upon direction of
the
holders thereof, in person or by attorney duly authorized, and with regard
to
certificated shares, upon the surrender of a certificate or certificates
for a
like number of shares, properly endorsed.
Section
4. Fixing Record Dates.
(a)
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, the Board
of
Directors may fix a record date, which record date shall not precede the
date
upon which the resolution fixing the record date is adopted by the Board
of
Directors, and which record date shall not be more than sixty (60) nor
less than
ten (10) days before the date of such meeting. If no record date is fixed
by the
Board of Directors, the record date for determining stockholders entitled
to
notice of or to vote at a meeting of stockholders shall be at the close
of
business on the day next preceding the day on which notice is given, or,
if
notice is waived, at the close of business on the day next preceding the
date on
which the meeting is held. 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.
(b)
In
order
that the corporation may determine the stockholders entitled to receive
payment
of any dividend or other distribution or allotment of any rights or the
stockholders 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 a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than sixty (60) days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which
the
Board of Directors adopts the resolution relating thereto.
Section
5. Registered Stockholders.
The
corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends, and
to vote
as such owner, and 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
Other
Securities of the Corporation
All
bonds, debentures and other corporate securities of the corporation, other
than
stock certificates, may be signed by the Chairman of the Board or the Chief
Executive Officer or the President or any Vice President or such other
person as
may be authorized by the Board of Directors and the corporate seal impressed
thereon or a facsimile of such seal imprinted thereon and attested by the
signature of the Secretary or an Assistant Secretary, or the Treasurer
or an
Assistant Treasurer; provided, however, that where any such bond, debenture
or
other corporate security shall be authenticated by the manual signature
of a
trustee under an indenture pursuant to which such bond, debenture or other
corporate security shall be issued, the signature of the persons signing
and
attesting the corporate seal on such bond, debenture or other corporate
security
may be the imprinted facsimile of the signatures of such persons. Interest
coupons appertaining to any such bond, debenture or other corporate security,
authenticated by a trustee as aforesaid, shall be signed by the Treasurer
or
Assistant Treasurer of the corporation, or such other person as may be
authorized by the Board of Directors, or bear imprinted thereon the facsimile
signature of such person. In case any officer who shall have signed or
attested
any bond, debenture or other corporate security, or whose facsimile signature
shall appear thereon, shall have ceased to be such officer of the corporation
before the bond, debenture or other corporate security so signed or attested
shall have been delivered, such bond, debenture or other corporate security
nevertheless may be adopted by the corporation and issued and delivered
as
though the person who signed the same or whose facsimile signature shall
have
been used thereon had not ceased to be such officer of the
corporation.
ARTICLE
VIII
Corporate
Seal
The
corporation shall have a common seal, upon which shall be inscribed:
“DELTA
AIR LINES, INC.
Incorporated
1967 --
Deaware”
In
the
event the corporation changes its name, the corporate seal shall be changed
to
reflect such new name. Any corporate instrument or document requiring the
corporate seal may be executed as provided in Article V of these Bylaws,
and the
corporate seal shall be applied by the Secretary or any Assistant Secretary.
ARTICLE
IX
Indemnification
of Directors, Officers, Employees and Agents
Section
1. Right to Indemnification.
Each
person who was or is a party or is threatened to be made a party to or
is
involved (as a party, witness, or otherwise), in any threatened, pending,
or
completed action, suit, arbitration, alternative dispute mechanism, inquiry,
administrative or legislative hearing, investigation or any other threatened,
pending or completed proceeding, including any and all appeals, whether
civil,
criminal, administrative, or investigative (hereinafter a “Proceeding”), by
reason of the fact that he or she, or a person of whom he or she is the
legal
representative, is or was a director, officer, or employee of the corporation
(including service with respect to employee benefit plans) or is or was
serving
at the request of the corporation as a director, officer, employee or agent
of
another corporation or of a partnership, joint venture, trust, or other
enterprise, whether the basis of the Proceeding is alleged action in an
official
capacity as a director, officer, employee or agent or in any other capacity
while serving as a director, officer, employee, or agent (hereafter an
“Indemnitee”), shall be indemnified and held harmless by the corporation to the
fullest extent authorized by the Delaware General Corporation Law, as the
same
exists or may hereafter be amended or interpreted, against all expenses,
liability, and loss (including attorneys' fees, judgments, fines, ERISA
excise
taxes or penalties, and amounts paid or to be paid in settlement, and any
interest, assessments, or other charges imposed thereon, and any federal,
state,
local, or foreign taxes imposed on any Indemnitee as a result of the actual
or
deemed receipt of any payments under this Article) actually or reasonably
incurred by such person in connection with investigating, defending, being
a
witness in, or participating in (including on appeal), or preparing for
any of
the foregoing in, any Proceeding (hereinafter “Expenses”); provided, however,
that except as to Proceedings to enforce rights to indemnification, the
corporation shall indemnify any Indemnitee seeking indemnification in connection
with a Proceeding (or part thereof) initiated by such Indemnitee only if
the
Proceeding (or part thereof) was authorized by the Board of Directors of
the
corporation.
Section
2. Authority to Advance Expenses.
Expenses
incurred by an Indemnitee in defending a Proceeding shall be paid to the
fullest
extent not prohibited by law by the corporation in advance of the final
disposition of such Proceeding. Expenses shall be advanced only upon delivery
to
the corporation of an undertaking, by or on behalf of an Indemnitee, to
repay
such Expenses if it shall ultimately be determined that he or she is not
entitled to be indemnified by the corporation as authorized in this Article
or
otherwise. Any obligation to reimburse the corporation for Expenses advanced
shall be unsecured and no interest shall be charged thereon.
Notwithstanding
anything to the contrary herein,
except
as
to Proceedings to enforce rights to advancement,
the
corporation shall not be obligated to pay to an Indemnitee in advance of
the
final disposition of a Proceeding, except as to proceedings to enforce
rights to
advancement, Expenses relating to a Proceeding (or part thereof) instituted
against the corporation by such Indemnitee.
Section
3. Procedure for Obtaining Indemnification and Advancement.
To
receive indemnification under this Article, an Indemnitee shall submit
to the
corporation a written request, including therewith such documentation and
information as is reasonably available to the Indemnitee and reasonably
necessary to determine his or her entitlement to indemnification. To receive
an
advancement of Expenses under this Article, an Indemnitee shall submit
to the
corporation a written request
that
shall reasonably evidence the Expenses incurred by the Indemnitee in connection
with a Proceeding and that shall include an undertaking to repay such Expenses
if it shall ultimately be determined that the Indemnitee is not entitled
to be
indemnified by the corporation as provided by this Article or otherwise.
Upon
receipt by the corporation of a written request for indemnification, a
determination, if required by the Delaware General Corporation Law, with
respect
to an Indemnitee's request shall be made: (a) by the Board of Directors
by a
majority vote of a quorum consisting of directors who were not parties
to such
Proceeding, even though less than a quorum; or (b) by a committee of such
directors designated by majority vote of such directors, even though less
than a
quorum; or (c) if there are no such directors, or if such directors so
direct,
by independent legal counsel in a written opinion; or (d) by the stockholders.
In any Proceeding brought by the Indemnitee to enforce a right of
indemnification or to an advancement of Expenses hereunder, or brought
by the
corporation to recover an advancement of Expenses pursuant to the terms
of an
undertaking, the burden of proving that the Indemnitee is not entitled
to be
indemnified, or to such advancement of Expenses, under this Article or
otherwise
shall be on the corporation.
Section
4. Right of Indemnitees to Bring Suit.
If
a
claim under Section 3 of this Article is not paid in full by the corporation
within thirty (30) days after a written request has been received by the
corporation, the Indemnitee may at any time thereafter bring suit, in a
court of
competent jurisdiction in the state of Delaware, against the corporation
to
recover the unpaid amount of the claim and, if successful in whole or in
part,
the Indemnitee shall be entitled to be paid also the Expenses (including
attorneys' fees) of prosecuting such claim. It shall be a defense to any
such
action (other than an action brought to enforce a claim for Expenses incurred
in
defending a Proceeding in advance of its final disposition where the required
undertaking has been tendered to the corporation) that the Indemnitee has
not
met the standards of conduct that make it permissible under the Delaware
General
Corporation Law for the corporation to indemnify the Indemnitee for the
amount
claimed. The burden of proving such a defense shall be on the corporation.
Neither the failure of the corporation (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the Indemnitee
is proper under the circumstances because he or she has met the applicable
standard of conduct set forth in the Delaware General Corporation Law,
nor an
actual determination by the corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the Indemnitee had
not met
such applicable standard of conduct, shall be a defense to the action or
create
a presumption that the Indemnitee has not met the applicable standard of
conduct.
Section
5. Provisions Nonexclusive.
The
rights to
indemnification
and to the advancement of Expenses
conferred
on any Indemnitee by this Article shall not be exclusive of any other rights
that such Indemnitee may have or hereafter acquire
under
any
statute, provision of the Certificate of Incorporation, agreement, vote
of
stockholders or disinterested directors, or otherwise.
Section
6. Authority to Insure.
The
corporation may purchase and maintain insurance to protect itself and any
Indemnitee against any Expense, whether or not the corporation would have
the
power to indemnify the Indemnitee against such Expense under applicable
law or
the provisions of this Article.
Section
7. Survival of Rights.
The
rights conferred upon Indemnitees in this Article shall be contract rights
and
such rights shall continue as to an Indemnitee who has ceased to be a director,
officer, or employee of the corporation and shall inure to the benefit
of the
Indemnitee's heirs, executors and administrators.
Section
8. Settlement of Claims.
The
corporation shall not be liable to indemnify any Indemnitee under this
Article
(a) for any amounts paid in settlement of any action or claim effected
without
the corporation's written consent, which consent shall not be unreasonably
withheld; or (b) for any judicial award if the corporation was not given
a
reasonable and timely opportunity, at its expense, to participate in the
defense
of such action.
Section
9. Effect of Amendment.
Any
amendment, repeal, or modification of this Article shall not adversely
affect
any right or protection of any Indemnitee existing at the time of such
amendment, repeal, or modification.
Section
10. Subrogation.
In
the
event of payment under this Article, the corporation shall be subrogated
to the
extent of such payment to all of the rights of recovery of the Indemnitee,
who
shall execute all papers required and shall do everything that may be necessary
to secure such rights, including the execution of such documents necessary
to
enable the corporation effectively to bring suit to enforce such rights.
Section
11. No Duplication of Payments.
The
corporation shall not be liable under this Article to make any payment
in
connection with any claim made against the Indemnitee to the extent the
Indemnitee has otherwise actually received payment (under any insurance
policy,
agreement, vote, or otherwise) of the amounts otherwise indemnifiable hereunder.
Section
12. Merger or Consolidation.
For
purposes of this Article IX, references to the “corporation” shall include, in
addition to the corporation resulting from or surviving a consolidation
or
merger with the corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger with
the
corporation which, if its separate existence had continued, would have
had power
and authority to indemnify its directors, officers or employees, so that
any
person who is or was a director, officer or employee of such constituent
corporation, while a director, officer or employee of such constituent
corporation, is or was serving at the request of such constituent corporation
as
a director, officer, employee, partner, member, manager, trustee, fiduciary
or
agent of another corporation or of a partnership, joint venture, limited
liability company, trust or other entity or enterprise, including service
with
respect to an employee benefit plan, shall stand in the same position under
this
Article IX with respect to the resulting or surviving corporation as he
or she
would have with respect to such constituent corporation if its separate
existence had continued.
Section
13. Severability.
If
any
provision of this Article IX shall be found to be invalid or limited in
application by reason of any law or regulation, it shall not affect the
validity
of the remaining provisions hereof.
ARTICLE
X
Notices
(a)
Whenever,
under any provisions of these Bylaws, notice is required to be given to
any
stockholder, the same shall be given in writing, either (a) timely and
duly
deposited in the United States Mail, postage prepaid, and addressed to
the
stockholder's last known post office address as shown by the stock record
of the
corporation or its transfer agent or (b) by a form of electronic transmission
consented to by the stockholder to whom the notice is given, except to
the
extent prohibited by Section 232(e) of the Delaware General Corporation
Law. Any
consent to receive notice by electronic transmission shall be revocable
by the
stockholder by written notice to the corporation.
(b)
Any
notice required to be given to any director may be given by the method
hereinabove stated. Any such notice, other than one which is delivered
personally, shall be sent to such post office address, facsimile number
or
electronic mail address as such director shall have filed in writing with
the
Secretary of the corporation, or, in the absence of such filing, to the
last
known post office address of such director. It shall not be necessary that
the
same method of giving notice be employed in respect of all directors, but
one
(1) permissible method may be employed in respect of any one or more, and
any
other permissible method or methods may be employed in respect of any other
or
others.
(c)
If
no
post office address of a stockholder or director be known, such notice
may be
sent to the office of the corporation required to be maintained pursuant
to
Section 2 of Article I hereof. An affidavit executed by a duly authorized
and
competent employee of the corporation
or
the
transfer agent or other agent of the corporation appointed with respect
to the
class of stock affected, specifying the name and post office address or
the
names and post office addresses of the stockholder or stockholders, director
or
directors, to whom any such notice or notices was or were given, and the
time
and method of giving the same (or, for any stockholder or director to whom
notice has been directed by electronic transmission, the form of electronic
transmission and the facsimile number, electronic mail address or other
location
to which such notice was directed and the time at which such notice was
directed
to each such director or stockholder), shall be prima facie evidence of
the
statements therein contained.
(d)
All
notices given by mail, as above provided, shall be deemed to have been
given as
at the time of mailing. All notices given to stockholders by a form of
electronic transmission, as above provided, shall be deemed to have been
given:
(i) if by facsimile, when directed to a number at which the stockholder
has
consented to receive notice; (ii) if by electronic mail, when directed
to an
electronic mail address at which the stockholder has consented to receive
notice; (iii) if by a posting on an electronic network together with separate
notice to the stockholder of such specific posting, upon the later of (i)
such
posting and (ii) the giving of such separate notice; and (d) if by any
other
form of electronic transmission, when directed to the stockholder. All
notices
given to directors by a form of electronic transmission, as above provided,
shall be deemed to have been given when directed to the electronic mail
address,
facsimile number, or posted on an electronic network together with separate
notice to the director’s email address.
(e)
The
period or limitation of time within which any stockholder may exercise
any
option or right, or enjoy any privilege or benefit, or be required to act,
or
within which any director may exercise any power or right, or enjoy any
privilege, pursuant to any notice sent him in the manner above provided,
shall
not be affected or extended in any manner by the failure of such a stockholder
or such director to receive such notice.
(f)
Whenever
any notice is required to be given under the provisions of the statutes
or of
the Certificate of Incorporation, or of these Bylaws, a waiver thereof
in
writing given by the person or persons entitled to said notice, whether
before
or after the time stated therein, shall be deemed equivalent thereto.
(g)
Whenever
notice is required to be given, under any provision of law or of the Certificate
of Incorporation or Bylaws of the corporation, to any person with whom
communication is unlawful, the giving of such notice to such person shall
not be
required and there shall be no duty to apply to any governmental authority
or
agency for a license or permit to give such notice to such person. Any
action or
meeting which shall be taken or held without notice to any such person
with whom
communication is unlawful shall have the same force and effect as if such
notice
had been duly given. In the event that the action taken by the corporation
is
such as to require the filing of a certificate under any provision of the
Delaware General Corporation Law, the certificate shall state, if such
is the
fact and if notice is required, that notice was given to all persons entitled
to
receive notice except such persons with whom communication is unlawful.
(h)
Whenever
notice is to be given to the corporation by a stockholder under any provision
of
law or of the Certificate of Incorporation or Bylaws of the corporation,
such
notice shall be delivered to the Secretary at the principal executive offices
of
the corporation. If delivered by electronic mail or facsimile, the stockholder's
notice shall be directed to the Secretary at the electronic mail address
or
facsimile number, as the case may be, specified in the company's most recent
proxy statement.
ARTICLE
XI
Amendments
Unless
otherwise provided in the Certificate of Incorporation, these Bylaws may
be
repealed, altered or amended or new Bylaws adopted at any meeting of the
stockholders, either annual or special, by the affirmative vote of the
holders
of stock entitled to cast a majority of the voting power on such matter
at any
meeting at which a quorum is present. The Board of Directors shall also
have the
authority to repeal, alter or amend these Bylaws or adopt new Bylaws (including,
without limitation, the amendment of any Bylaws setting forth the number
of
directors who shall constitute the Whole Board), subject to the power of
the
stockholders to change or repeal such Bylaws.
ARTICLE
XII
Electronic
Transmission
When
used
in these Bylaws, the terms “written” and “in writing” shall include any
“electronic transmission,” as defined in Section 232(c) of the Delaware General
Corporation Law, including without limitation any telegram, cablegram,
facsimile
transmission, communication by electronic mail and posting to an electronic
network together with separate notice by electronic mail.
ARTICLE
XIII
Adoption
or Extension of Shareholder Rights Plan
The
Board
of Directors shall not adopt or extend any current or future shareholder
rights
plan, or “poison pill,” without prior stockholder approval unless, due to timing
constraints or otherwise, the Board of Directors, in discharging its fiduciary
duties, and acting upon the recommendation of the independent directors
on the
Board of Directors, determines that it would be in the best interests of
the
corporation to adopt or extend such shareholder rights plan without the
delay
that would result from seeking advance stockholder approval; provided that,
if
such a shareholder rights plan has a stated term longer than twelve (12)
months,
the Board of Directors will put the shareholder rights plan to a stockholder
ratification vote within twelve (12) months after it is adopted or the
shareholder rights plan will expire automatically one year after it is
first
adopted. If the shareholder rights plan is put to a stockholder vote by
the
Board of Directors and is not approved by a majority of the votes cast
on the
matter, the shareholder rights plan will terminate immediately after the
vote
has been certified by the inspector of elections.
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